Malcolm Mulholland - Weeping Waters

It seems to me that there is nothing particularly broken about the way our arrangements work at present, but they are quaint.

Prime Minister Helen Clark,

Building the Constitution Conference, 2000

If there is one theme to clearly emerge from this collection of chapters, it is that all arrangements that form any sense of a constitution for Aotearoa New Zealand do not meet Mori expectations that stem from the Treaty of Waitangi. Former Prime Minister Helen Clark is wrong in her assumption that the foundation of Aotearoa New Zealand is solid; in fact for Mori, the Treaty of Waitangi has been severely neglected as the cornerstone of a constitution for this country.

The title of this book is one translation of Waitangi: tangi being to weep, wai being water. It seems somewhat prophetic that the founding document of this country should have been first signed at a place that means weeping waters. The 6th of February 1840 was to mark a downward spiral for Mori, a loss of political autonomy that would result in the tangata whenua being culturally, socially and economically bereft in their own lands.

Yet all is not lost. The Treaty of Waitangi provides a basis for moving forward as a nation; it is as relevant today as it was 170 years ago. For many contributors to this book, the Treaty is about the distribution of power between the two signatories. Despite the erosion of Mori authority over their own affairs and a changing political landscape that may lead some towards the proposition that things have never been better for Mori, a revolution constitutionally is always possible. A revolution is required, to give justice to our founding fathers who put their name in ink on the founding document of this country.

The motivation for publishing this book comes from two sources: firstly, the need for a Mori opinion to be articulated and distributed among those who are interested. In recent years, there have been several books on the subject penned by Pkeh authors. While Pkeh opinion is important in terms of the Treaty, equally as important is what the tangata whenua think about the Treaty. Secondly, this year, 2010, marks 170 years since the signing of the Treaty, and is a watershed moment in time to revisit constitutional issues and the place of the Treaty.

On reflection, small gains have been made over the past forty years regarding Mori development. Yet there is still a long path to travel should we as a country want to fully realise the potential of the Treaty.

The starting point in a discussion about what a new constitution for Aotearoa New Zealand might look like is to define what a constitution is. As Moana Jackson argues, as soon as the word constitution is used, Mori instantly speak within the confines of a foreign concept. Jackson encourages Mori to think in terms of what they know. Thus, perhaps the closest concept Mori have regarding a constitution might be kawa, or Mori law. This is a useful starting point, as Mori are aware of kawa for the marae that dot the landscape. How might those rules and values be extended within and applied to our society? This is where the discussion should begin for Mori.

There is no one written constitution for Aotearoa New Zealand. It is accepted that there is a collection of documents and conventions that form the constitution that governs the nation. Documents include the Treaty of Waitangi, various statutes with constitutional significance, such the Constitution Act 1986 and the Electoral Act 1993, and the decisions of the courts. Conventions include the prerogative powers of the Queen and rules that dictate how institutions of government work. The constitution that Aotearoa New Zealand has inherited originates from Mother Britain, supposedly from Mori agreeing to allow non-Mori onto their lands under the Treaty of Waitangi. The Queen or King of England reigns supreme as the Aotearoa New Zealand head of state. The Monarchy is represented within Aotearoa New Zealand by the Governor General.

At present, the focus of constitutional change appears to be for Aotearoa New Zealand to become a republic. Should this occur, the Queen would be abandoned as the head of state, thus making the position of Governor General redundant. The wider debate surrounding the place of the Treaty of Waitangi, should this country no longer be a member of the Commonwealth, would then focus on what that would mean in terms of the relationship between the Crown and Mori. The Monarchy has had very little to do with governance in Aotearoa New Zealand. If anything, their most lasting legacy was to delegate authority to the British Parliament, who, in turn, delegated their authority to the current New Zealand Government.

If we accept this as being the case, and one would assume that we do, given the role that successive governments have played in apologising to Mori regarding Treaty claims, then it can be argued that the Treaty partners are Mori and the New Zealand Government. This concept forms a starting point for the discussions contained within the individual chapters of this book.

Each chapter within this book is placed under one of three themes, as follows.

Part One: Evolution begins with a fresh look at the Treaty of Waitangi text. It then looks at government institutions, our Pacific neighbours and historical Mori responses to the evolution of a constitutional framework for Aotearoa New Zealand.