Analysis: Te Pāti Māori is promising major constitutional reform that would legally bind the Crown to its obligations under Te Tiriti o Waitangi, and, if elected to government, would give an independent commission the power to stop serious Government breaches and make Waitangi Tribunal recommendations binding.
But perhaps the biggest question hanging over the party’s new Te Tiriti Entrenchment policy is not what it wants to do, but whether it could ever get enough political support to do it.
Te Pāti Māori has declared protecting Te Tiriti and creating a pathway towards constitutional transformation a “bottom line” for any post-election negotiations.
The policy would establish an independent Te Tiriti commission with powers to investigate ministers, government departments, and Crown agencies, and to assess whether executive decisions comply with statutory obligations arising from Te Tiriti.
Where the commission found a serious breach, it could issue a Te Tiriti compliance order to stop or suspend the decision.
A government wanting to proceed would then have to challenge that order in the High Court.
It is a deliberate reversal of the current dynamic, where Māori have had to turn to the Waitangi Tribunal or courts to challenge or interrogate Crown decisions.
“The burden will no longer sit with Māori to run off to court,” Te Pāti Māori co-leader Rawiri Waititi said.
“If the Crown disagrees [with] that order, the Crown will have to go to the High Court and explain why it should be allowed to proceed.”
The commission could not invalidate legislation passed by Parliament, but could scrutinise proposed laws and report inconsistencies with Te Tiriti directly to Parliament.
Alongside it, Te Pāti Māori wants to amend the Treaty of Waitangi Act 1975 and the Constitution Act to make Waitangi Tribunal recommendations binding on the Crown, with implementation timeframes and judicial enforcement where required.
For 50 years, Waititi said, Māori had taken evidence of Crown breaches before the Tribunal only for governments to remain legally able to reject most of its recommendations.
“That cannot be the architecture of accountability in a mature Te Tiriti nation.”
Entrenching the Crown, not Te Tiriti
Despite the policy’s name, the party is making a careful distinction about what would actually be entrenched.
It does not want Parliament to legislate its own definition of Te Tiriti or make Parliament the source of its authority.
Instead, it wants legislation to bind Crown conduct to obligations the party says already arise from Te Tiriti.
“Te Tiriti is the source of the obligation. Legislation is simply the tool we will use to bind the Crown to that obligation,” Waititi said.
The distinction reflects a much deeper constitutional argument underpinning the policy, that Te Tiriti preceded New Zealand’s Parliament, Māori did not cede sovereignty through it, and Parliament therefore cannot determine the extent of Te Tiriti’s authority.
Where Mātike Mai fits
Te Pāti Māori is also proposing a $220 million Mātike Mai Fund over four years and has set 2040, the bicentenary of the signing of Te Tiriti, as its target for constitutional transformation.
The Independent Working Group on Constitutional Transformation, convened by the late Moana Jackson and chaired by Professor Margaret Mutu, emerged from a resolution of the Iwi Chairs Forum in 2010.
It then undertook hundreds of hui and wānanga examining what constitutional arrangements grounded in tikanga, He Whakaputanga and Te Tiriti could look like.
Its 2016 Mātike Mai report did not prescribe one replacement constitution.
Instead, it developed six indicative models based around different configurations of three spheres of authority, a rangatiratanga sphere, a kāwanatanga sphere and a relational sphere where the two interact.
That is significantly more transformative than adding stronger Treaty protections to the existing parliamentary system.
At its heart is the proposition that rangatiratanga is itself a source of constitutional authority, rather than an interest Māori exercise within a system where Parliament ultimately holds all sovereign power.
Waititi described the difference as more than “rearranging the furniture inside the Crown’s house”.
“It is about recognising that our tīpuna never handed their house over in the first place.”
So then with a political party seeking to put Crown money behind the next phase of Mātike Mai, how does it advance an independent Māori-led constitutional kaupapa without a government or political party determining where it ultimately goes?
Te Pāti Māori says that is the distinction it has attempted to build into the policy.
“We are a mahi function. We are not the mana function,” Ngarewa-Packer said.
“No political party should sit in Wellington and determine the constitutional future of tangata whenua of Aotearoa. That mana belongs to the people.”
The proposed fund would establish an independent Mātike Mai secretariat, fund constitutional kōrero among iwi, hapū and Māori across the country, resource another independent working group and convene a Māori Constitutional Convention.
It would then begin dialogue with tangata tiriti, local government and the Crown, with the eventual goal of a national Tiriti Convention.
Aperahama Edwards is both Te Pāti Māori’s candidate for Te Tai Tokerau and co-chair of Pou Tikanga for the National Iwi Chairs Forum, alongside Professor Margaret Mutu.
Edwards has been directly involved in work advancing constitutional transformation outside his candidacy for Te Pāti Māori.
The party also said it consulted Mutu and others involved in the kaupapa while developing the policy.
“We’ve been having awesome hui to make sure that we were announcing the right policy for those who have been working for many, many years on this project with Moana,” Waititi said.
“We’ve had constitutional lawyers look over it. We’ve had many of our Māori leaders, and we’ve also had people in the judiciary look over this to ensure that it was the right fit for where we’re heading to at this particular time.”
That crossover is significant because Mātike Mai was deliberately established as an independent Māori-led process rather than a programme belonging to a political party or government.
Te Pāti Māori is effectively proposing to use the resources of government to accelerate that process, while arguing the Government providing those resources should have no authority to prescribe its eventual destination.
Edwards himself acknowledged that constitutional transformation would ultimately require considerably more than getting legislation through Parliament.
“Constitutional transformation will require something greater than a parliamentary majority. It will require legitimacy, it will require understanding, and it will require relationships strong enough to carry the change.”
But could it actually happen?
That is where political aspiration, coalition bottom lines and what is likely to become yet another election debate over Te Tiriti meet parliamentary arithmetic and an MMP reality.
Te Pāti Māori has made the policy a bottom line for post-election negotiations.
But declaring that does not create the votes needed to pass it.
Labour leader Chris Hipkins poured cold water on significant parts of the policy, including the proposed Mātike Mai fund and the powers of the Te Tiriti Commission.
Asked whether there was any scenario in which he would allow a Te Tiriti Commission to overrule Cabinet decisions, Hipkins said: “No”.
“Ultimately, the Parliament has to be the final decision-making body, not a judicial body.”
Hipkins said constitutional reform should be an evolving process that is brought to the wider public.
“It’s not something that should be imposed by one government or one party.”
“There have been a lot of constitutional changes in New Zealand over the last 40 or 50 years, and generally there’s been a real effort to get bipartisan support for them, to get...good support from the public for them, and I think any constitutional change needs to continue to follow that process.”
He also rejected Te Pāti Māori’s proposed level of funding for Mātike Mai.
“Certainly not $220 million, not right now. It’s not the highest priority for us when that money could go into helping people pay their bills, helping people put food on the table.”
“And those are the issues that Māori families and other New Zealand families across the country are raising with us most at the moment.”
Labour MP Willie Jackson was similarly unequivocal when asked whether there was a place for a commission with the power to overrule decisions of Cabinet.
“No.
“We can’t have it. You know, we’ve got government... Government is sovereign, and you’ve got to be real careful with that type of thing.”
But Jackson, the nephew of Moana Jackson, pushed back on any suggestion Labour’s opposition to those mechanisms amounted to rejecting Mātike Mai or the wider kaupapa of constitutional transformation.
“It’s not about not supporting Mātike Mai. I was brought up on Mātike Mai ... it’s almost part of our DNA,” he said.
“But we have people starving on the streets. We’ve got homelessness that is high. Our priorities are our houses, our homes, our health, [and] jobs.”
Jackson said the discussion needed to continue on whether constitutional transformation was instead a longer-term goal.
“I think that the conversation in terms of constitutional change must continue. It’s a really important thing. It’s not something that we would dismiss.”
Asked about Labour’s opposition, Te Pāti Māori argued the current system left the Crown effectively “marking its own exam papers”.
“Look, in regards to Willie’s comments, those are for him to justify,” Waititi said.
“But for us here, it is a sad state where Māori have had to continuously justify why there have been breaches of the Treaty of Waitangi. And the government gets a free run in terms of marking its own exam papers.”
The Greens, however, were far more receptive.
Green Party co-leader Marama Davidson said the proposal appeared to align with her party’s existing Te Tiriti policy.
“Upholding Te Tiriti has been a proud, consistent position of ours for over decades, actually. So we’d support making sure that all Crowns uphold their duty in affirming Te Tiriti.”
Asked specifically about the proposed funding for Mātike Mai, Davidson said: “It sounds like it aligns with where we want to get to.”
“For example, the Greens have always said that we should always bind the Crown to the Treaty Tribunal recommendations, that we should return the Te Tiriti to the legislative clauses that are being trampled on by this Government, but actually make them the strongest possible status that they can be.”
When asked whether the Greens would support a body capable of overruling a Cabinet decision where it seriously breached Te Tiriti, Davidson did not directly answer the question.
“The Crown needs to stop breaching the Treaty.”
The starkly different responses from Labour and the Greens demonstrate the challenge Te Pāti Māori would face even within a potential centre-left governing arrangement.
The party was also pressed on whether genuine entrenchment would require support well beyond its likely coalition partners.
Te Pāti Māori acknowledged the details would have to be negotiated after the election.
“There will be processes you’d have to go into discussions within a coalition agreement,” Waititi said.
“We will not be answering those in this particular segment, but we will have to go into negotiations to see what that might look like.”
When pressed on how it could obtain the parliamentary support necessary for entrenchment, the party pointed to ACT’s success in securing National’s agreement to introduce the Treaty Principles Bill despite National itself not supporting the legislation becoming law.
“We have seen this very term where a minor party has been able to negotiate quite a substantive amount of changes, even though at the time the National Party didn’t support it,” Waititi said.
“So we’re going to go into these coalition agreements very clear on what is bottom line for us.”
But the comparison also demonstrates the difficulty Te Pāti Māori could face.
ACT secured a coalition commitment allowing the Treaty Principles Bill to be introduced and supported through its first reading. It did not secure enough votes for the Bill to ultimately become law.
For Te Pāti Māori, negotiating the introduction of Te Tiriti legislation would therefore be a very different achievement from securing enough parliamentary support to entrench it.
There is also an unresolved technical question about what the party means by “entrenchment”.
Te Pāti Māori was asked whether entrenching the Crown’s obligations would require the support of 75 percent of Parliament, and therefore votes beyond any likely centre-left governing bloc.
The party did not spell out the legislative mechanism it would use, saying further detail would come later and pointing again to the importance of post-election negotiations.
If the purpose of the policy is to stop Crown obligations under Te Tiriti changing with the political preferences of successive governments, the durability of the legislation is fundamental to whether it achieves what Te Pāti Māori says it will.
Te Pāti Māori’s proposed commission could issue an order stopping or suspending an executive decision made by an elected Government, despite the commissioners themselves not being elected.
That was put directly to the party.
“The Commission represents something that goes over and above Parliament,” Waititi stated.
“The Tiriti o Waitangi was signed in 1840. Parliament was established in 1853.”
The party argues the democratic safeguard is the Crown’s ability to challenge a compliance order in the High Court.
“If they feel strongly about it, and they have the ground to say that it’s justified, then they can go through a process that says, no, in actual fact, this doesn’t breach Te Tiriti o Waitangi.”
It is likely to be one of the most contentious aspects of the policy for parties which take a fundamentally different view of parliamentary sovereignty.
It also lands just a few weeks after ACT unveiled its own constitutional reform policy, predictably putting competing visions for the place of Te Tiriti, rangatiratanga and Crown authority at opposite ends of the political spectrum.
ACT leader David Seymour described Te Pāti Māori’s proposal as “fundamentally undemocratic”.
“Now, they want to entrench it, but, of course, it’s their meaning. I mean, you can’t take these guys seriously.”
“But when it comes to actually doing things that will make life better for Māori, I don’t see it. And the problem with their proposal is that it’s fundamentally undemocratic.”
“And it doesn’t matter if you’re black, white, Cuban or Asian, democracy is the best system ever invented.”
“And that has to be at the cornerstone of any constitutional argument.”
However, when asked specifically for his view of Mātike Mai, Seymour initially confused it with a Waitangi Tribunal report before acknowledging he had not read the report.
“Okay, sorry, I’ve mixed up the reports, so I’m not going to comment on one I haven’t seen.”
New Zealand First MP Shane Jones was also opposed, describing the policy as “an unnecessary burden on the economy”, fearing “that it will further politicise the Treaty.”
Asked about the proposed $220 million fund, Jones described it as a waste of money and argued the money would be better directed towards economic investment and businesses.
Why should voters care about constitutional transformation?
Constitutional transformation can feel far removed from the lives of voters facing the pressures of cost-of-living, struggling with rent, mortgages, kai, petrol and access to health services.
Asked why they should care about Mātike Mai, Te Pāti Māori argued the two issues could not be separated.
“We want to focus on the equality of outcomes. And we want to make sure that we are a nation that is addressing why we have the inequities that we have,” Ngarewa-Packer said.
“The fact that Māori are dying seven years earlier than non-Māori didn’t just happen overnight. They are happening because of failures in a system that this government’s refusing to acknowledge.”
The party’s proposition is that constitutional reform isn’t separate from health, housing, education or economic inequality, but is about changing the structures through which decisions about those things are made.
“The significance of this announcement is also to match the severity of how our people are living out there in health and housing and education.”
“So you can’t economically grow yourself through these issues that we have as a nation. We have to deal with the absolute systems that they’ve been built on.”
Whether that argument resonates with voters facing more immediate pressures will be another test altogether.
What would Aotearoa actually look like
Te Pāti Māori has previously floated ideas including a separate Māori Parliament, but when asked whether that remained its preferred constitutional destination, the party stopped short of endorsing it.
“We have used those words in the past, absolutely. But those are conversations for rangatiratanga,” Waititi said.
“And in terms of a Māori Parliament, those are conversations we need to have in a rangatiratanga space.”
Asked what Aotearoa could look like in another 10 or 20 years if the process succeeded, Ngarewa-Packer pointed to a country more comfortable with its history and a new generation growing up with a different understanding of Te Tiriti.
“I think a more educated Aotearoa, an Aotearoa that is comfortable with its own truth, a generation of rangatahi that understand, and I’m talking about rangatahi Māori and non-Māori, who understand the promise of Te Tiriti o Waitangi, and they want to work towards creating a system that doesn’t assimilate or subjugate,
“but a system that works together for the greater good of Aotearoa, where tikanga Māori and New Zealand law are able to find ground that ensures that both of those sovereigns are able to work together.”
Te Pāti Māori is proposing to fund a pathway towards constitutional transformation without prescribing what constitutional arrangements sit at the end of it.
The party says that is intentional; prescribing the answer from Parliament would contradict the very principle it says it is trying to uphold.
By 2040, it wants Māori to have led the next phase of constitutional transformation, a national framework implementing the United Nations Declaration on the Rights of Indigenous Peoples, binding Tribunal recommendations and enforceable mechanisms preventing serious Crown breaches of Te Tiriti.
Edwards himself acknowledged the destination could not simply be imposed by whichever grouping had the numbers in Parliament.
“It will require legitimacy, it will require understanding, and it will require relationships strong enough to carry the change.”
