Te Tiriti o Waitangi—neither “one people” nor partners: rangatiratanga and inclusive democratic kāwanatanga

Abstract

Te Pati Māori (The Māori Party) proposes removing the British monarch as head of state so that Te Tiriti o Waitangi’s (the Māori text of the Treaty of Waitangi) (Te Tiriti) promise of fulfilling partnership may be realized. The ACT (Association of Consumers and Taxpayers) Party’s alternative argument is that partnership is among a body of treaty principles that give Māori people (Indigenous peoples of New Zealand) political advantage over others. These alternative perspectives transcend time because neither partnership nor equality as the ACT party presents it meets the possibilities of liberal democratic citizenship that may be read into Te Tiriti. Instead, equality is enhanced by interpreting Te Tiriti as constituting a commonwealth with hapū (sub-tribes) as existing political communities, and kāwanatanga (government) as a new one, with powers and responsibilities grounded in equal tikanga (cultural practices and proper conduct). The powers of government may then be shared, through participatory parity.

Introduction

Te Pati Māori (The Māori Party), which holds six of the seven Māori (Indigenous peoples of New Zealand) seats in the New Zealand Parliament, proposes removing the British monarch as head of state. This, it says, is “an opportunity to reimagine a more meaningful and fulfilling partnership” founded on Te Tiriti o Waitangi (The Māori text of the Treaty of Waitangi) (Te Tiriti; Tiriti) (Waititi, 2022, para. 4). Te Tiriti o Waitangi was an agreement between rangatira Māori (Māori chiefs) and the British Crown, concluded in 1840, to set the scope and limits of British government. In short, the agreement allowed the British Crown to establish government over the settler population and protect independent Maori authority over their own people and environment. Maori people were also granted the rights and privileges of British subjects (Kawharu, 1989). In 2024, British subjecthood continues to evolve as New Zealand citizenship, and the reason for using the contrasting perspectives of Te Pati Māori and the ACT (Association of Consumers and Taxpayers) party to frame this article is the ongoing significance of the questions and solutions they raise. Neither partnership nor equality as the ACT party presents it meets the possibilities of liberal democratic citizenship that Te Tiriti may be interpreted to support. But they do create a framework for considering alternative possibilities.

The ACT party is one of the two smaller parties that formed a coalition government with the National Party after the 2023 general election. It argues that partnership is among a body of treaty principles that misinterpret the agreement’s original intent by giving Māori people “different [and greater] political rights based on birth” (McKee, 2022, para. 13). Its coalition agreement with the National party provides for a Treaty Principles Bill to be referred to a parliamentary select committee to consider new principles that set aside the substance of the original agreement (New Zealand National Party & ACT New Zealand, 2023). The National Party will not support the Bill into law so the ACT Party’s proposed referendum will not proceed (RNZ, 2024). Nevertheless, its ideas represent an important intervention into the contemporary debate about Te Tiriti, and an important counterpoint to Te Pati Māori’s arguments.

In response to both parties, this article’s explanation and analysis propose that Te Tiriti was not the partnership between races (New Zealand Court of Appeal, 1987) of popular discourse. Nor was it an agreement from rangatira to surrender political independence and cultural distinctiveness to a new state comprising the culturally homogeneous one people that underlies the third coalition partner, New Zealand First’s, policy thought. New Zealand First’s thinking develops from the Hobson’s Pledge (2023) lobby group which was, until her parliamentary candidacy, co-led by the party’s minister Casey Costello. One people is also the likely intention of the Treaty Principles Bill, whose political equality appears also to require Māori assimilation into a culturally homogeneous non-Māori whole.

Instead, Te Tiriti affirmed Māori hapū as distinctive political communities or “empowered spaces” (Davis, 2021, p. 379) of rangatiratanga (political authority and responsibility) and created a new space—kāwanatanga (government)—which Māori and non-Māori people share through the equal tikanga (cultural practices and proper conduct) that the agreement promised (Salmond, 2022). A political community has decision-making authority and responsibilities to the common good of its members which means that, in the style of hapū, it may be a cultural and familial community, but these are not exclusive or essential characteristics. In this way, the Crown is neither adversary nor partner because it is not the repository of Pākehā (non-Indigenous peoples of New Zealand having predominantly British or European ancestry) political authority alone, as the treaty partnership principle tends to style it (O’Sullivan, 2021). Instead, this article proposes a commonwealth, not the Crown, as the state.

Commonwealth is a political entity that belongs to everybody because it is everybody—hapū and other Māori entities exercising rangatiratanga and kāwanatanga exercising the powers and responsibilities of government, with and through, the authority of Māori and non-Māori citizens alike. As shareholders in kāwanatanga ’s authority, Māori citizens are entitled to expect that the institutions of government work for them as well as they work for anybody else. Such an ideal may be realized through participatory parity in public decision-making so that substantive and meaningful liberal equality prevails (Fraser, 2000). Participatory parity requires that material resources are distributed to ensure that each citizen may participate in public life with independence and voice. It also requires that institutionalized patterns of cultural value express equal respect for all participants and ensure equal opportunity for achieving social parity (Fraser & Honneth, 2003, p. 36). Culture and attention to colonial experiences may be essential constituents of equal opportunity (O’Sullivan, 2021).

The article concludes by presenting Critical Tiriti Analysis (CTA), which I developed with Came and McCreanor (Came et al., 2020) as a contribution to participatory parity’s practical application.

The treaty principles

The treaty principles have been developed by parliaments, courts, and the Waitangi Tribunal, over the last 50 years, as interpretive guides to policy implementation (Te Puni Kokiri, 2001). They are intended to mediate the tension between the English text of the treaty—The Treaty of Waitangi, where Māori people ceded sovereignty to the British Crown, and the Māori text, which conferred rights of kāwanatanga (government). Both texts constrained kāwanatanga by establishing that it was not an authority over and above tino rangatiratanga (substantive political authority and responsibility) which would remain a Māori right and responsibility in relation to their own people and natural environment. Tino rangatiratanga belongs inherently to hapū as distinctive political communities (Mutu, 2020). Tino rangatiratanga is not a gift from the government, for the government to reclaim, or constrain, as it wishes.

In both texts, Māori people share the authority of kāwanatanga through the rights and privileges of British subjects. They were promised these rights with equality of tikanga (Salmond, 2022). In 2024, subjecthood continues to evolve as New Zealand citizenship, and the written articles may be interpreted alongside the British commitment at Waitangi, one of the locations where Te Tiriti was signed, to uphold religious freedom, including Māori rites and customs (Orange, 1987).

The English text was explained later and elsewhere, and in the Māori language, to about 40 rangatira who are unlikely to have read it in the original (O’Malley et al., 2013). However, the fact that it was the Māori text alone that was presented, debated, and signed at Waitangi, led Chief Justice Elias to remark, extra-judicially in 2017, that “it can’t be disputed that the Treaty is actually the Māori text” (National Library of New Zealand, 2017, “If you look at He Whakaputanga” question, para. 2).

The treaty principles include partnership, reciprocity, mutual benefit, active protection, and redress (Te Puni Kokiri, 2001). They are sharply critiqued from the perspective that they overshadow the substance of Te Tiriti’s articles and the promises they contain (O’Sullivan et al., 2021). From other perspectives, conceptualizing Te Tiriti as a partnership between Māori and the British Crown, or between the Māori and Pākehā races is an indispensable path to justice (New Zealand Court of Appeal, 1987). From others still, partnership weakens Māori political authority by conflating the state with a Pākehā political community which, by its size and power, will inevitably dominate as the senior partner in a them and us binary relationship (O’Sullivan, 2021).

The ACT party’s argument is different again. It maintains that these treaty principles should be re-defined to privilege political equality in the ways it says Te Tiriti promised: “The Treaty promised every New Zealander has the same rights and duties. That is what we should be upholding” (Seymour, 2022b, “Shift in treaty principles” section, para. 2). Upholding apparently, to ensure that Māori people enjoy no political advantage over other citizens, through a referendum that would consider three alternative and binding treaty principles:

1. All citizens of New Zealand have the same political rights and duties.

2. All political authority comes from the people by democratic means including universal suffrage, regular and free elections with a secret ballot.

3. New Zealand is a multi-ethnic liberal democracy where discrimination based on ethnicity is illegal (Seymour, 2022a, para. 11).

These principles should also be interpreted alongside the agreement between the National and New Zealand First parties to review all legislative references to the treaty principles and replace them with “specific words relating to the relevance and application of the Treaty, or repeal the references” (New Zealand National Party & New Zealand First, 2023, p. 10). The proposed principles should also be interpreted with reference to Hobson’s Pledge (2023) argument that the Treaty established New Zealand as “one people” with Māori sovereignty ceded to the British Crown and thus inconsistent with the “racial preference” in Māori people’s favor that it says influenced public policy under previous governments (“The background” section, paras. 1, 3).

The Act party’s coalition agreement with the National party, explicitly gave effect to the argument against distinctive Māori influence in policy-making, by proposing to repeal s. 7AA of the Oranga Tamariki Act 1989, the legislation concerned with the care and protection of children and young people at risk. This section says that Oranga Tamariki, the New Zealand state’s care and protection agency, must recognize the cultural backgrounds and whakapapa (genealogy) of Māori children and young people in its care. One may interpret this requirement as parliament saying that it expects Oranga Tamariki to work as well for these citizens as it does for any other. Second, and to give further effect to this expectation, Oranga Tamariki must at least to some extent recognize the rangatiratanga of iwi (tribes) and hapū in relation to their children by facilitating their wish to assume care and protection responsibilities in preference to the state. Although this is the only legislative reference to Te Tiriti that the coalition government agreements explicitly cite for repeal, it is unclear how it exemplifies what the ACT party says is the previous government’s treaty policies contributing to an:

unequal society [where] there are two types of New Zealanders. Tangata Whenua [People of the land; Māori people], who are here by right, and Tangata Tiriti [settlers and their descendants] who are lucky to be here. (McKee, 2022, para. 9)

Substantive equality might, instead, suggest amending all legislation to the effect that: “This Act will be applied to work equally well for Māori as for all other citizens” (O’Sullivan, 2023, “Policy that works equally well for Māori” section, para. 6).

In 2022, a Māori Health Authority was established after the Waitangi Tribunal (2019) recommended that equitable Māori health outcomes would be more likely under administrative arrangements supporting Māori self-responsibility. This self-responsibility would occur by providing for Māori health experts to lead decision-making about the allocation of public funds for Māori primary health services (New Zealand Legislation, 2023). The government has abolished the Authority (New Zealand Herald, 2024) which, like repealing s. 7AA of the Oranga Tamariki Act 1989, is likely and perhaps intended, to strengthen what Fraser (2000) calls “institutionalised patterns of cultural value” that diminish some people’s capacity to participate fairly in decisions that affect their lives (p. 24). In contrast with the ACT party’s foundational principle that:

it is inherent in the nature of human beings as individuals that they are the owners of their own lives and must be free to act according to their own judgements so long as they accept and respect the like freedom of others. (ACT New Zealand, 2023, “Principles” section, para. 3)

The effect is to diminish people’s capacity for self-determination. A further effect is to restate the colonial presumption that some people, based on their position in a racial hierarchy of human worth, ought to be constrained in their personal agency in ways that other people are not. It is to avoid this possibility that policy-makers might always and reasonably ask, will this policy or Act of Parliament disturb Māori freedom in ways that do not disturb the freedom of other citizens? Alternatively, this is a question that a truly deliberative and inclusive democracy, distinguished by Māori presence wherever decisions are made and implemented, would answer for itself.

Culture, freedom, and equality

This article develops Te Tiriti’s potential contributions to a non-colonial democracy from my interpretation of the agreement as an instrument concerned with how power, authority, and responsibility are distributed among empowered political communities—kāwanatanga, hapū and other Māori entities, which makes Te Tiriti the foundation of a political system of independent, interacting, and not subservient parts. Te Tiriti is, therefore, an agreement of greater nuance and significance, than either the partnership principle or the ACT party’s interpretation of liberal equality may admit. It should be acknowledged, too, that liberal democracy was developed precisely because people are different, and those differences are essential constituents of their freedom.

A supporting liberal argument, which the Oranga Tamariki example contravenes, is that political freedom cannot occur in isolation from the cultural lens through which people reason (O’Sullivan, 2021). It is, therefore, through this lens, that people frame the aspirations that they want their participation in public life to secure. Culture is a constituent of equality. Recognizing it is preliminary to freedom and it is inherently capable of liberal democratic expression.

Cultural equality means that people are allowed to be themselves when they participate in public life. One is not obliged to think, reason, and speak as somebody else because that is to obstruct equality. The ACT party’s treaty principles could be interpreted to support equality through culture. However, some additions would be required, such as to admit that equality demands that legislation not intrude on Māori political communities’ capacity to make decisions for themselves in matters that Te Tiriti reserved for them. For example, the care and protection of children and young people who are taonga (Waitangi Tribunal, 2021) whom it is rangatiratanga’s purpose to protect. Furthermore, it is surely beyond liberal contest, for new principles to state explicitly that all legislation is intended to work as effectively for Māori citizens as it works for others. If legislation is not so intended, as it appears in the Oranga Tamariki example, there may be no argument for equality.

Although liberal political theory primarily focuses on the rights of the individual, it fails to protect these rights if it is inattentive to the context of how, in specific circumstances, freedom is upheld and how it is curtailed. Furthermore, it fails to protect all people’s rights if it is inattentive to the argument that freedom is not found in the individual’s right to do whatever one likes. Instead, it is found in personhood, which is bound to one’s association with others. In other words, if freedom is associated with whakapapa, there is a cultural influence on how people decide what policy should be achieved and how it should be evaluated. Culture is, furthermore, one of the analytical frameworks that people use to make judgments about what kāwanatanga is for and what, therefore, are the just limits and constraints on its power.

Freedom also requires that people determine what is good and participate in public life in ways that make personal sense (O’Sullivan, 2021). Rangatiratanga, too, is essential to what it means to be a free and equal person. By way of contrast, the ACT party’s equality is one that presumes and depends on cultural sameness, where the “same political rights and duties” (Seymour, 2022a, para. 11) of citizenship are available only to people who participate in public life through culturally exclusive non-Māori institutions structured at the exclusion of Māori modes of deliberation. Everybody may participate, but only once they have set aside Māori ways of reasoning about what public policy should achieve, and only if they are willing to dismiss colonial experiences as a context for developing policy aspirations.

Equality is further interpreted as Māori people being prevented from exercising independent authority over their own affairs. Equality is defined and assured only by the government, with the government the only political space where Māori people may deliberate. The culturally homogeneous state becomes the sole arbiter of what constitutes fair public policy and decision-making processes for Māori citizens.

Liberalism, however, and indeed the Act party’s foundational philosophical presumptions, emphasizes restraining the power of the state (ACT New Zealand, 2023). One of the ways the state’s power over citizens is ordinarily constrained is through freedom of association. The freedom for Māori people to form associations, as an expression of rangatiratanga, for the provision of primary health services, for example. This means that it can only be in the name of inequality that people are required to choose between citizenship and whakapapa.

Citizenship is a political status that societies develop to decide who belongs and who does not. It is the citizens, the people who belong, who deliberate (Hindess, 2002), who decide how a political community works, what it should achieve, and what powers and responsibilities it should leave to others. Leave, for example, to the rangatiratanga of Māori political communities. The question of who makes decisions is important, but how and why, and the space that is admitted for Māori epistemologies is also important as a requirement of substantive equality. Just terms of association presuppose everybody’s belonging, but they also require agreement about how people belong.

Importantly, from a liberal perspective, the state is not the source of its own power. The ACT party’s principles admit this argument but in a fashion that does not accept that kāwanatanga’s authority comes from all and not just some people participating in public life as (ACT New Zealand, 2023). When the state’s authority comes from all and not just some people, political equality cannot mean sameness. If, instead, Māori are among the people on whose consent state authority rests, the argument that their participation in public life depends on subsuming themselves into a culturally homogeneous non-Māori whole, may be contested in liberal democratic terms as well as with reference to Te Tiriti (O’Sullivan, 2022). For example, through Benhabib’s (1996) question about the relationship between equality and difference. What “institutional, cultural and representational channels are there for the expression of difference? How much difference is compatible with the ideal of the rule of law under fair and equal conditions” (p. 5)? Conversely, how much sameness is incompatible with fairness?

Culture is a lens through which one may establish how public policy works effectively for Māori people and why. It is therefore a constituent of democratic equality, which requires the political system to “distribute sufficient goods, services, and conditions to achieve human functioning, while respecting human dignity by giving individuals the freedom to choose the life they want to lead” (Ruger, 2010, p. 46). Therefore, people need to be able to define good functioning for themselves and establish their own ways of achieving it. In politics, good is not objectively definable across time and place. It is defined through culture and responsive to the immediate, though changing, circumstances of people’s lives. This means that fair and democratically equal public policy is not simply a matter of how public goods are distributed. It is first a matter of how power and responsibility are distributed. One may then turn to Te Tiriti as a conceptual foundation for fair government, which must always place the procedural question of how decisions are made, alongside the decision itself.

Self-determination logically follows to explain Kymlicka’s (1996) argument that it is all and not just some people who are entitled to “live and work in their own culture” (p. 109). Therefore, to support the argument that the Treaty Principles Bill co-opts the liberal language of equality to support the illiberal objective of Māori political inequality, one may consider Rawls’ (1985) proposed liberal framework for thinking about freedom and the limited circumstances where inequality may be justified:

• (a) Each person has an equal right to a fully adequate scheme of equal basic liberties which is compatible with a similar scheme of liberties for all.

• (b) Social inequalities are to satisfy two conditions. First, they must be attached to offices and positions open to all under conditions of fair equality of opportunity; and second, they must be to the greatest benefit of the least advantaged members of society (p. 223).

Diminishing culture’s place in public life means that there is not an adequate equal scheme of liberties. It also means that the liberties that most matter to people’s capacity to live lives that they have reason (Sen, 1998) to value are not equally available to everybody. Social inequalities are widened because public offices that are, at law, open to all are not practically open to everybody under the same conditions. Some people may seek and discharge such offices, only in and through a culture that is not their own.

The commonwealth

This article’s alternative and original contribution to contemporary debates is to propose that Te Tiriti may be interpreted to constitute New Zealand as a commonwealth. This argument develops from but is also substantively different from Te Pati Māori’s republican argument. Not mattering whether it is the King or a New Zealand citizen who is head of state, Te Tiriti imagines New Zealand as a commonwealth—as neither an homogeneous one people nor partners in a racially constructed binary order where rangatiratanga is for us and provides our only empowered space because kāwanatanga is exclusively for them. The commonwealth’s founding presumption is that there is a common good and that it is best upheld by sharing authority. Its power is significant, but always conditional on serving the ends for which its members have agreed to give up a portion of their individual authority because there are important constituents of liberty that are best guaranteed in common (Hobbes, 1996). Tertiary hospital care, roads, and national security, for instance. Unlike colonialism, the commonwealth has no ends of its own to serve and its continuation depends not on its power to subjugate but on its capacity to retain the people’s consent. Its service is to its shareholders—all and not just some people. As shareholders in its authority, Māori citizens are entitled to say that this school, hospital, or parliament cannot think, act, or be described as a Pākehā institution because neither Te Tiriti nor liberal democracy justifies public institutions that, in fact and practice, serve some people at the exclusion of others.

Māori political communities are neither kāwanatanga’s adversaries nor partners because their members are shareholders, with other citizens, in kāwanatanga and are as entitled as anybody to expect that it works in their favor. In a North American appeal to stronger environmental protection policies, Purdy’s (2019) This Land is Our Land: The Struggle for a New Commonwealth argues that the commonwealth supposes, “flourishing that is shared and open to all” (p. xii). The commonwealth is a political community because “no one gets their living by degrading someone else, nor by degrading the health of the land or the larger living world” (Purdy, 2019 p. xiii). In other words, “my flourishing” is “the condition of your flourishing, and yours reciprocally of mine” (Purdy, 2019, p. 146). It entails “deep reciprocity as well as deep equality” (Purdy, 2019, p. xiii).

Whether monarchical or republican, the commonwealth may still support the republican ideal of non-domination as the foundational framework for thinking about the responsibilities of kāwanatanga and its role, with Māori political communities, as an enabler of the substantive political freedom of all and not just some people. Whoever is the head of state and, by whichever means, the republican ideal is that people neither fear nor “defer to a power of interference” (Pettit, 2012, p. 84). Another’s interference is just only when it occurs to protect a universal human right, not when it occurs to protect a policy priority of self-interest. Perhaps, too, freedom is not simply the absence of something, but the presence of something. In other words, not simply the absence of domination but the presence of political authority so that: “free persons are free in virtue of being secured in the exercise of a specific class of choices, not in making just any old choices” (Pettit, 2012, p. 83). The specific class of choices, required for liberal equality, might simply be Māori people’s choices as Māori people choose to define them, and realized through participatory parity.

Participatory parity

Non-domination, whether in the republican or monarchical commonwealth, requires participatory parity in public life. Participatory parity occurs within Māori political communities as Stephens (2022) describes below, and within kāwanatanga and between its institutions and Māori political communities, when citizens accept an obligation to a shared common good. From this obligation, they arrange their decision-making procedures so that people may deliberate with parity of esteem, which is demonstrated when citizens assume:

the willingness to listen seriously to a range of views which, given the diversity of liberal societies, will include ideas the listener is bound to find strange and even obnoxious. The virtue of political discourse also includes the willingness to set forth one’s own views intelligibly and candidly as the basis for a politics of persuasion rather than manipulation or coercion. (Galston, 1988, p. 1285)

Participatory parity’s test is that when they do not succeed in a democratic contest, Māori people are willing to say that it was not because the decision-making process counted against them simply because of their indigeneity. Instead, they would approach the next contest with other members of the commonwealth, with the confidence that their contributions would stand the same chance of influence as anybody else’s (O’Sullivan, 2022).

Presence in a commonwealth presumes political equality that is not available to people who are beyond the state either as its junior partner or as people whose presence requires them to assimilate into somebody else’s mode of decision-making. Instead, a political system that places everybody among the people from whom “all political authority comes” (Seymour, 2022a, para. 10) as the ACT party leader put it, would replace Crown with commonwealth to give greater transformative effect to Justice Williams’ (2010) essential democratic observation that:

Fundamentally, there is a need for a mindset shift away from the pervasive assumption that the Crown is Pākehā, English-speaking and distinct from Māori rather than representative of them. Increasingly, in the 21st century, the Crown is also Māori. (p. 51)

Removing the word and concept of Crown and replacing it with commonwealth could allow Te Tiriti to be more clearly established as an instrument concerned with who makes decisions, how, why, where, and for whom so that a genuine common good is upheld and so that political possibilities are no longer framed through the always shifting and obscure lens of the Crown as sometimes partner and sometimes adversary. Whether commonwealth or Crown, the state is a “shape-shifting entity” (Shore & Kawharu, 2014, p. 17). If it is always positioned in a binary relationship with Māori people as its other, the state is an always moving target, whereas self-determination may be better served by a stable entity whose shape and character one helps to form. An objective that is made possible because the commonwealth’s moral standing is secured simply because it is the people, not a distant source of colonial aggression.

Participation means that decisions about how public institutions operate and the policy aspirations they pursue are not left to other people. Participatory parity does not imagine peripheral adaptations to a foreign system that really belongs to other people. It supposes that political systems develop and evolve through participation. They are not static. Nor are they beyond critique. Justice is not, then, defined by what they do to us but by what we do to ourselves through our presence wherever decisions of interest and importance are made (O’Sullivan, 2022). People cannot, however, expect fair opportunities for influence unless their preferred modes of participation may be used. This does not mean that other citizens are compelled always to use Māori deliberative means, but they are compelled to admit to them enjoying some space, and like Māori citizens, they are obliged to apply the universal deliberative characteristics of listening, respect, and well-informed reasoning to public discussions (Cohen, 2018).

Democracy is not a Pākehā political system. Its interpretation by some to justify exclusion relies on narrow and highly contested arguments that may sometimes be supported by, but are not inherent to a concept of international cross-cultural evolution and development from its Greek origins. As shareholders in the authority of the Commonwealth, it is proper that Māori citizens contribute to this evolution and development. If, instead, democracy has become a Pākehā practice, it has relied on contradictions and inconsistencies that are contestable in democracy’s own terms as well as with reference to Te Tiriti and established Māori decision-making processes. For example, the hui (formal meeting), which Stephens (2022) argues, “demonstrate the practical exercise of tikanga Māori [Māori cultural practices and proper conduct]” (p. 463) as Māori constitutionalism, also demonstrate the hapū’s character as political community through its deliberative norms of mana (standing), tapu (sacred, set apart), whakapapa, whanaungatanga (relationships) and rangatiratanga (Stephens, 2022, p. 463). These bring order and certainty to decision-making and are entirely compatible with the liberal democratic processes of state decision-making. Participatory parity does not, then, require reconciling opposing and incompatible forms of decision-making as an alternative to one suppressing the other. Indeed, it is possible to think about the hui as a decision-making forum whose deliberative characteristics pre-date liberal democracy’s modern theoretical expression, but whose principles may contribute to better public decision-making in kāwanatanga’s contemporary deliberative forums.

The hui is a “generator of Māori jurisprudence” and the “most vital social and political control mechanism of Māori groups” (Stephens, 2022, p. 482) which contributes to the hapū’s character as a political community, and is democratically important, because the liberal ideal for citizenship to provide solidarity and belonging is beyond kāwanatanga’s capacity to realize on its own because solidarity is found, first, in and through whakapapa. However, there is necessarily a broader solidarity with people with whom one has no familial association, but whose freedom but not self-interest, must be admitted and with whom there are unavoidable associations, that are best directed to the common good that a commonwealth is intended to support.

Critical Tiriti analysis as participatory parity

It is democratically reasonable for Māori citizens to expect the state to transform itself from colonial adversary to the repository of all not just some people’s power; to function as a commonwealth that sees rangatiratanga, not as a threat to kāwanatanga’s authorit but simply as a complimentary authority that belongs to hapū and other Māori entities as empowered spaces in a deliberative network. This deliberative network contributes to equality because it allows decisions to be made at the point that most likely upholds the self-determination of Māori people as much as it upholds the self-determination of anybody else. To this end, CTA structures the presumptions of equally and culturally informed participation in public policy-making. It does so by rationalizing a series of tests that policy-makers, evaluators, and critics may apply to examine how effectively a policy measure upholds rangatiratanga, provides for the expression of equal tikanga in public policy, and ensures Māori leadership in determining if, how, by whom and where, within the domains of rangatiratanga, kāwanatanga or both, a policy idea will be pursued.

CTA is a practical expression of commonwealth because its purpose is to draw out the effectiveness of power’s distribution in serving the interests of Māori citizens as both shareholders in kāwanatanga and inherent possessors of rangatiratanga. In this way, it is a guard against the possibility that the terms of democratic inclusion hold an assimilationist character to become, in effect, terms of exclusion. My analysis, with Came, McCreanor and Kidd (O’Sullivan et al., 2021), of a 2019 Cabinet Office Circular, issued as an instruction to public servants on the questions they should consider in their Treaty/Tiriti policy advice to ministers, suggested that making both kāwanatanga and the Māori political community, the hapū, iwi or other entity, function as empowered spaces for Māori citizens, would be supported by policy actors asking:

• How have Māori contributed to this advice and the priorities it presumes?

• What evidence is there that this policy preserves Māori authority and contributes to peace and good order?

• How have Māori contributed to the preparation of this advice?

• What do Māori say are the issues to consider?

• What do Māori say are their interests in this issue?

• What contributions have Māori people and ideas made to the drafting of this advice?

• Could this policy disadvantage Māori in ways that it does not disadvantage others?

• Why is the government presuming to make this decision?

• Why does the decision not, in part or whole, belong to the sphere? of tino rangatiratanga (O’Sullivan et al., 2021, pp. 1101–1102, 1106–1107)?

By focusing on relationships, and presuming Māori leadership in decisions about how, where and by whom policy is made, CTA privileges whakapapa over race as the concept that brings Māori epistemologies into public life and secures their place in Māori political communities.

CTAs policy evaluations and principles for policy development provide frameworks for thinking about the practical differences between Te Tiriti as a partnership between races (New Zealand Court of Appeal, 1987) and Salmond’s (2022) interpretation of it “in the image” of a marae “a meeting place where kin groups come together to negotiate and renew the tapu and mana of their relationships” (p. 18). In this image, there is scope for a commonwealth to develop as an institution where rangatiratanga, with citizenship, “weaves” people together as the rangatira’s ultimate task (Smith et al., 2021, p. 7).

From this perspective, there are no political claims to be made by virtue of race, as the government alleges (New Zealand National Party & ACT New Zealand, 2023), only rights that belong to political communities formed by whakapapa. These are familial rights and responsibilities to the common good of the political community and its physical environment. They exist only in definable geo-political context and are not powers and responsibilities that exist over and above others. They are not powers of domination in an unsophisticated them and us binary. Instead, Salmond (2022) uses the Māori deliberative forum, the hui, as a metaphor to interpret Te Tiriti as a relational rather than conflictual instrument:

In the rhythms of the hui, ancestors and descendants, hosts and visitors, men and women, orators and singers join in ceremonial exchanges. The kawa alternately sets them apart and brings them together, forging new relationships and renewing old ones in reciprocal exchanges. (p. 4)

Salmond’s (2022) interpretation shows the significance and scope of Te Tiriti’s third article and why understating it is to forgo the full possibilities of self-determination and the full possibilities of a commonwealth that belongs equally to everybody.

The alternative ideal that liberal democratic citizenship should evolve to presume a cultural barrier to Māori participation in the public life of the state is to presume that Te Tiriti was not a genuine and honest agreement. It is also to presume that the form of government that has emerged is legitimate only by its coercive force.

Conclusion

The depth of polarization over the meaning of Te Tiriti o Waitangi and its ongoing place in public life may be summarized by comparing Te Pati Māori’s view, on one hand, that severing New Zealand’s constitutional relationship with the British monarch would allow the agreement’s vision of partnership to develop while, on the other hand, the ACT party views partnership as one of many treaty principles that grant Māori people a privileged political voice that should be diminished. The party argues that new principles should, instead, uphold liberal political equality. However, from this article’s perspective, neither partnership which is commonly expressed as a them and us binary relationship between Māori people and a non-Māori Crown, that is inevitably the senior partner, nor equality that does not admit culture as a determinant of freedom, addresses the full possibilities of liberal democratic equality which this article interprets Te Tiriti to presume is available to all and not just some people.

Although Te Tiriti predates liberal democracy it provides a foundation for democratic expression in ways that are at least intended to work equally well for everybody. It does so because its distribution of political authority and responsibility to hapū, as pre-existing political communities, and to kāwanatanga as a new one, whose ownership is shared by Māori and non-Māori people alike, supports participatory parity in public decision-making. Participatory parity is an essential precursor to equality because it requires that all people have the same opportunities for personally meaningful influence, which precludes culture, language, or colonial experience being used as grounds for exclusion or diminished political voice.

To give participatory parity its fullest expression, this article also argues for commonwealth as the state’s ideal political form because it removes uncertainty about who and what is the Crown, and uncertainty about the space that Māori citizens ought to enjoy in developing and expressing public authority, while the rangatiratanga of hapū and other Māori political communities is upheld.

Ultimately, true liberal equality must be substantively experienced by Māori citizens as much as by all others, and, in different ways, the partnership and one-people discourses do not support this objective.