New Zealand celebrated its national day this week. Unlike Canada Day which marks the anniversary of the Canadian federation, or Australia Day which marks the anniversary of the establishment of a British penal colony, Waitangi Day (6 February) is the anniversary of an enduring political accommodation between the British Crown and the Maori people.
National days celebrate collective understandings of nationhood. They especially reflect the values underpinning indigenous peoples’ place in a post-settler society. Australia Day, for example, is an exclusive celebration. For many indigenous Australians it cannot be otherwise; for them Australia Day is Invasion Day.
2018 is the 178th anniversary of the Treaty of Waitangi. The agreement between the British Crown and the Chiefs of the United Tribes of New Zealand was that Britain could establish government over its settlers while the Chiefs would retain authority over their own affairs and ownership of their lands and resources. Maori would also enjoy ‘the rights and privileges of British subjects’.
The agreement has not always been honoured. The colonial administration and subsequent New Zealand governments interpreted it as a cession of sovereignty; a surrendering of political authority. Maori use Waitangi Day to reinforce an alternative interpretation. Yet, it remains the national day to show that inclusion, through the Treaty, at least enjoys some aspirational value. It symbolises a potential that Australia cannot imagine as Australia Day represents a very different kind of nationhood.
However, the celebratory tone in New Zealand on 6 February this year; the careful work of a highly personable new Prime Minister who well understands the importance of Maori electoral support to her government’s future, does not set aside deep tensions over what the Treaty might say about the distribution of political authority. The United Nations’ Declaration on the Rights of Indigenous Peoples has much to say about how those tensions might be addressed.
New Zealand, like Australia, Canada and the United States voted against the Declaration when it was adopted in 2007. In 2009, New Zealand reversed its opposition to accept that the Declaration as ‘an expression of aspiration’. The Declaration summarises that aspiration in an Article most instructive to a post-settler society interested in inclusivity, but unsure about what that might mean.
Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State (Article 5).
The presumption that political authority is shared and widely distributed is important. In 2015, the Tribunal established to hear Maori grievances against the Crown for breaches of the Treaty accepted a long-standing Maori position that the Treaty was not a cession of sovereignty, but an affirmation of traditional authority. Alternatively, the Minister for Treaty of Waitangi Negotiations argued that: ‘There is no question that the Crown has sovereignty in New Zealand. This report doesn’t change that fact…’
The underlying tension is one of interpretation. The presumption is that sovereignty was once held exclusively by Maori, was either usurped or ceded to the Crown as an absolute authority and is now being reclaimed. If sovereignty is indivisible, an all-powerful Leviathan, the political tension is immense. However, the Declaration’s liberal human rights philosophy provides a more expensive framework for thinking about sovereignty – to whom it belongs, where it belongs and on what authority it is exercised.
The Declaration shows that political authority may reasonably be multifaceted and multilayered. Sovereignty, like human rights, is not distributed from the state’s benevolence. In recognising that indigenous peoples’ political authority lies in both their own institutions to provide self-determination over their own affairs and in the national political community as citizens, the Declaration provides a path beyond a ‘them’ and ‘us’ binary.
The Declaration shows the ways in which indigenous political authority may be retained. As one example, the human right to education includes ‘the right to establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning’ (Article 14(1). At the same time, ‘Indigenous individuals, particularly children, have the right to all levels and forms of education of the State without discrimination’ (Article 14(2)).
Political rights and capacities are found in different places. For indigenous peoples, they are simultaneously inside and outside the state. The implication is that self-determination, a right that the Declaration also affirms, is only exercisable inside and outside the state.
If sovereignty was not ceded, one must set out the political capacities that are justifiably retained. One must be able to say what sovereignty is and where it is exercised. It is vastly more complex than an absolute authority that the Crown has taken, and that Maori wish to reclaim.
The Declaration helps to answer these questions and provides ways of thinking about the just distribution of public authority for indigenous peoples. It adds to the intellectual and political resources at New Zealand’s disposal as it seeks the inclusivity implicit in Waitangi Day as the country’s national day, but whose substance and form remains under development.