We feature each fortnight Nicholas Reid's reviews and comments on new and recent books.
TE TIRITI, EQUALITY AND THE FUTURE OF NEW
ZEALAND DEMOCRACY by Dominic O’Sullivan (Auckland University Press, NZ$39:99)
How can we really understand and interpret the Treaty of Waitangi? What influence
does it now have on us and is it still relevant? Does anybody still think that
once the treaty was signed it was adequate to say “we are now one people”
Maori and Pakeha? Surely not. And there is also now the fact that Maori rights
are being more fully understood and used than before. Many people have asked
these questions, but Dominic O’Sullivan takes a very different approach. He is
interested in how New Zealand / Aotearoa can and should become a commonwealth,
a democracy in which both Maori and Pakeha participate evenly. Dominic O’Sullivan often refers to CTA [Critical
Te Tiriti Analysis], looking closely at how the Treaty of Waitangi should now
be interpreted and how it can enlighten us. So far so clear. But there is a major
problem. Te Tiriti, Equality and the Future of New Zealand Democracy is
very much a work for academics. Back in 2023 I reviewed on this blog Bain
Attwood’s A Bloody Difficult Subject,
about the Treaty of Waitangi. In 2025 I reviewed on this blog Eric Olssen’s The
Origins of an Experimental Society. Both were scholarly and thoughtful, but
I made it clear that inevitably they would probably be read only by specialists
and students. I must say the same about Te Tiriti, Equality and the Future
of New Zealand Democracy, but in this case the language is even more specialist.
So, rather than giving my opinions, I will present O’Sullivan’s ideas by quoting
what I believe are his major ideas.
On
his opening page he reminds us that the idea of the Republic is that there is
no one person ruling. He says “the book’s ambition is to help shift the treaty
discourse toward the development of a republican commonwealth”. On page 7
he says “This book’s overarching question is… how might all and not just some people – Maori people as much as anybody else – reach a point where they
can say that New Zealand is recognisably ‘owned’ by everybody, and that their share
in an ownership is and meaningful and worthwhile…” And on the same page “Racism’s ultimate expression is a political
order where some people do not count. Some people not counting is not
compatible with democratic values. Those values are sometimes rashly and incoherently
co-opted into the argument that equality means sameness of a kind that supposes
cultural homogeneity: the presumption that equalily means ‘everyone should look
and think like me.’ ”
In Chapter
Two page 27 he discusses “Partnership and Sovereignty”. He opposes the idea
of the Treaty as partnership which diminishes opportunities for Maori
self-determination. The Treaty does not
mention partnership. “The Crown is
not, in fact, a routine protector of Maori interests. It repeatedly fails as a protector of
rangatiratanga or as a site for the meaningful expression of Maori citizenship. The Crown may, however, be more of a
political than constitutional impediment to an inclusive state with power and
responsibility distributed as Te Tiriti imagines. So, it may be, as Shore and Kawharu (2014)
suggested, that the ‘discourse of the Crown’ is ‘an impediment to
constitutional reform’ (p. 32). Furthermore,
they argue, the Crown itself is a ‘legal fiction’ and a ‘shape-shifting’ symbol
whose definition is obtuse and whose meanings vary according to context’
(p.17). Its value may be its location ‘above
the fray of every day political interests’ (Shore & Kawharu, 2014, p.27).”
Personally I agree entirely with what Dominic O’Sullivan is saying here. Further
he says [Pg 30] “The Crown is, in
effect, the government of the day. The
king enjoys no legal, political or even moral power to exercise the personal
responsibility that might be read into the original Te Tiriti text. No monarch, since 1840, has
intervened to protect Maori people from stage aggression or intrusion into
their lives. Te Tiriti’s influence is only ever the product of legislation,
judicial interpretation and moral persuasiveness. No monarch has or could have shown a personal
political interest.” I interpret this to mean that the idea of “The Crown”
is a fiction… and [unlike polite O’Sullivan] I would go further and suggest
that New Zealand / Aotearoa would be better if we became a republic. However… [Pg
64] “A republic that simply replaces the king with a citizen as head of
state would miss the opportunity to consider republicanism’s particular liberal
emphasis and how it might support a stronger democracy – one based on a
conception of Te Tiriti concerned with secure independence and meaningful
inclusion rather than binary conflict.
From this perspective, republican’s value is not so much its presumption
that a citizen, not a king, will be head of state, but its presumption that
non-domination is the organisational principle that should determine how public
institutions work and relate to citizens.
Changing the head of state may be minimally disruptive. However, self-determination requires profound
conceptual disruption.”. Further [Pg 69] “It does not matter whether it
is the king or a New Zealand citizen who is head of state. I
propose that interpreting Te Tiriti to imagine New Zealand as a commonwealth
means that it reflects neither a homogenous one people nor a state where people
are partners in a racially constructed binary order – an order where
rangatiratanga is for us and provides the only space where we may
exercise authority because kawanatanga is exclusively for them. Instead
the commonwealth could allow Te Tiriti to be more clearly expressed as an
instrument concerned with who makes decisions, how, why, where and for whom, so
that a genuine common good is upheld.
This would mean political possibilities are not framed through the
always shifting and obscure lens of the Crown as sometimes friend and usually
foe. The commonwealth also means that as
participants people may expect fair influence over setting the policy agenda –
in other words, deciding what governments do, what is set aside and what is
done by others.”
The
main point in these quotations is…[Pg 79] “A commonwealth, in its truest
sense, means that the colonial
construct of race should not be used to rank people on a continuum of human
worth, whereas colonialism either divides people in that
was or assimilates them through the systematic undermining of culture and
independent identity. Undermining may
occur by setting illiberal boundaries on what is acceptable in public life –
for example, by proposing that it is unreasonable for people to own land
collectively or to privilege its environmental or spiritual value over
corporate profit. Instead, the
relational justice that the commonwealth might support means that Indigenous
claims on the state ‘are not only about compensation or reparations, but also
about the terms of association between them and the colonial state. The injustice of expropriation of Aboriginal
lands, for example, is not only about the dispossession of property, or the
violation of negative rights of non-interference, but a violation or denial of
just terms of association.’ (Ivison, 2002, p.100)”
[Pg 99] “Participatory parity may give effect to
differentiated citizenship by protecting independence and ‘voice’ (Fraser &
Honneth, 2003). It means that people
contribute to public life with parity of esteem. As a starting point, participatory parity
rationalises a Maori entitlement to contribute to public decision-making
according to their own values and aspirations. It presumes non-domination and a
meaningful share in government. It
presumes that participation from one’s own cultural perspective is a
determinant of liberal equality. People cannot be required to express
themselves in languages and according to value systems that are not their own.”
[Pg 113] “Tikanga matters as a lens through which
people think and reason about what policy is for and what it should
achieve. New Zealand’s stable and
ordered political environment makes it conducive to thinking about what tikanga
means in practice, even with prejudice as a strong counter-influence. The political environment also supports
examining what it means to say that liberal democracy should, according to its
own tradition, protect people from perpetual exclusion. Excluding tikanga means excluding
people. With reference to selected cases
heard by the Waitangi Tribunal, this chapter shows how and why tikanga is
necessarily a constituent of political equality and guards against
exclusion. Tikanga is, then, a precursor
to democratic legitimacy, and to what makes the commonwealth capable of
non-domination. The commonwealth is an entity that works for everyone, because
it is everyone.”
[Pg 132] “Colonialism does not expect public
policy to work in favour of Indigenous people and tends, in fact, to explain
policy failure as a product of human deficiencies. It may do so because public policy is neither
neutral nor objective. It is not
necessarily made to serve an agreed public good and may be set to respond to
the essential colonial assumption that some people’s self-interest may override
what might be objectively defined as fundamental human rights, such as the
rights to property, culture and self-determination. It manufactures crises to assert colonial
authority as political ‘actors use framing strategies to (re) allocate blame
for politicised incidents’ (Brandstrom & Kuipers, 2003 p. 282).
Furthermore, ‘the reality of the crisis can only become (partially) accessible
through some kind of mediation, through its performative construction by
populist discourse’ (Stavrakakis et al., 2018, p.9).”
[Pg 166] “The
amended Local Government Act 2002 should, therefore, begin with the assumption
that Maori people are citizens and thus shareholders in the powers and
responsibilities of local government. They are consequently entitled to see their
values and aspirations reflected in how government works and sets and
implements policy priorities. Their
ultimate expectation is for the system to work in their favour as much as it
does for anyone else. There is a presumption of equal political standing that
contrasts with junior partnership as a lesser standing, requiring some people
to be located on the margins of decision-making, akin to the role of a
stakeholder in someone else’s project.”
[Pg 190] “Democracy means that people may hold
whichever opinions they like. Nobody is compelled to offer reasons chosen only
because others find them acceptable.
Just as democracy cannot tell people what to think, it cannot prescribe
the intellectual process one would follow to reach a position. Indeed, people may choose no intellectual
process whatsoever and simply make rash decisions based on emotion over reason. Policy proposals concerned with protecting
Maori rights are routinely opposed from this perspective, but the deliberative
democratic presumption is that a policy proposal is likely to be objectively better
if the political system encourages reasoned objection, reasoned
support or reasoned refinement.”
[Pg 191] “Public participation and consultation
are established features of New Zealand’s liberal democracy. The citizens’ assembly shows explicitly that
democracy does not belong only to ‘them’ in a ‘them’ and ‘us’ binary and
provides an instructive foundation for thinking about what it means to practise
equal tikanga in public decision-making.
More important are the principles and processes of deliberative
reasoning that it raises, which could also be applied to other institutions of
the republican commonwealth.”
Now
while I have been cherry-picking quotations from Dominic O’Sullivan’s book, I might
have missed some of his most important ideas; and certainly his concerns about
Maori inclusion is important.
Having said all this, in its style it really is a hard book to read.
