Contract, Covenant, Compact: the Social Foundations Of New Zealand Governance

WHAKAPAPA: This is an April 1994 revision of an address to the Spring Lecture Series on Political Integrity, for the St Andrew’s Trust for the Study of Religion and Society, Thursday 4th of October, 1990. It contains material from a presentation to Forum North, a celebration of the Treaty of Waitangi, held at Whangarei, 10 November, 1990. The original address is available on Replay Radio, following its broadcast on National Radio, October 23, 1990. The almost full text of the original address was published in Socialist Politics 90/3,4, and an extract was published in The Dominion, 15 October,1990.)

Keywords: Governance; History of Ideas, Methodology & Philosophy; Maori;

The moral authority of governance in New Zealand is based on a social contract, perhaps moreso than any other country. The “Social Contract” rests on the proposition that mankind is both an individual and a social animal. This creates a tension, for living in a society involves some alienation of one’s individuality. Yet to live outside society involves a loss of one’s full potential. There is no perfect solution to the tension, although many have been proffered.

The most obvious is the theocratic state, in which rule in the name of God is thought to provide the harmony. The enlightened dictator is another suggested solution. So is majoritarianism, the doctrine that the majority unlimited power to impose its will on the community, a doctrine which is frequently implicitly invoked in New Zealand. But each involves assumptions about perfection of mankind which have proved to be unrealistic.

The approach of the social contract is to recognise the tension, but to see an -albeit imperfect -solution in a contract between the individuals in a society and its governors. In the contract the individuals give up some rights and powers in order to make society governable. In return, the governors of the society agree to respect the rights which are retained and govern subject to them.

Many important political philosophers have contributed to the theorisation of the contract. John Locke’s writings in the seventeenth century are well known, arising out of the political turmoil of the ‘Glorious Revolution’ of 1688, when the old governors had been replaced. They had failed to keep their part of the social contract, and the community had the right to rebel against their rule, and replace the unjust government. However it was Jean Jacque Rousseau, writing in the middle of the eighteenth century , who popularised the “social contract” phrase. Rousseau described the “noble savage” , entering into a contract which established the governance of their society as a means of overcoming social turmoil.

The integrity of the theory of the social contract has been bedeviled by the question of its existence. Is it a philosophers’ fiction, to get a theory underway? Or was it an actual creation in the long forgotten past, when we became human? Or is it has an intangible presence, reaffirmed at regular intervals, perhaps when we vote?

The New Zealand answer is quite different. A hundred and fifty years ago at the Waitangi Marae the noble savages of New Zealand endorsed such a social contract. The broad historical details leading to the signing of the Treaty of Waitangi are well known, but rehearsing some of the salient ones is useful.

Before 1830 British legislation had specifically recorded on three occasions that New Zealand was outside the British domain. In 1835 Britain had recognised the Maori Declaration of Independence, which specifically reserved mana, or in this context sovereignty, to the Maori.

Nevertheless, the increasing settlement of the islands by British subjects, and concern for the welfare of the natives, forced the British government to send Hobson to treat with the Maori. The outcome was the Treaty of Waitangi

It was the Maori language version of the Treaty which was signed on the sixth of February 1840. But we have the original drafts in English which were discussed, modified, and then translated, undergoing a further modification. Had there not been that signing of that English version at the Waikato Heads, in March or April 1840, it would have no final standing, merely being a draft on the way to the Tiriti o Waitangi, written in Maori and signed throughout New Zealand. This is in addition to the principle in international law , that where two versions of a treaty were jointly signed, the native language version has the most standing.

In a sense there is no “Treaty of Waitangi”.There is a Treaty of Waikato Heads. There is a Tiriti of Waitangi, and there are translations of that Treaty. But no English document was agreed to at Waitangi, merely some of the early drafts in English.

At the time, none of those drafts in English had much standing. For instance, James Clendon, the United States Consul at the Bay of Islands wrote to Secretary of State on 20th February1840, “I have also forwarded a copy of the Treaty entered into with the Chiefs with a translation attached thereto. ” He did not send the English and Maori versions of the Treaty, but a Treaty and its translation, further described an” unofficial translation”.

Clendon was not alone in making this distinction. In the early 1840s there were a number of English translations of the Tiriti, some of which survive to this day. Apparently they were used for land dealings between the settlers and the Maori. Why were they necessary if there had been an English version of the Treaty with the same status as that which the Maori signed? The answer must be that the settlers did not-think there was an equal status English version, just like Clendon.

The drafts are important, because they give us the thinking behind the final version. The crossings out, the extensions, and the rewritings indicate the anxiety and care with which they were written, and the responsiveness to the native concerns.

The first draft in Hobson’s hand is merely the preamble.

It was followed by a second draft which contained a revised preamble and two articles. The third draft is almost exactly the English version at the Waikato Heads signing, except there is a long and rather obsequious section heading the part where the chiefs were meant to sign. After the submissive section is the shorter section, familiar in the English version of the Treaty, in which the chiefs merely state they understand what they are doing and append their signature.

The main changes in the English versions are between the second and third drafts. One major difference is that the second draft implies that there were only United Tribes in New Zealand, who had the authority to cede all the country.The third draft recognises the political heterogeneity, by including “the separate and independent chiefs”

Except for this the first article of the second draft is largely as we know it today, ceding to the British Crown “absolutely and without reservation the rights and powers of sovereignty”. In the signed Maori version of the Treaty, a translation and modification of the third draft, possibly after consultation with the Maori, the phrase was diluted to the transfer of “kawanatanga”, or “governance”. It is clearly not meant to be “sovereignty”, for then the word “mana” would have been used.

One translator was Henry Williams, who had earlier translated the 1835 Declaration of Independence which was in Maori. He must have known that mana (sovereignty) had been reserved to the Maori, and understood precisely that the different term in the Tiriti meant that it was not transferred to the Crown.

That the missionaries understood what was happening may be inferred from the Reverend Richard Davis, also on the Waitangi Marae, whose memoirs included a translation unlike that of the third English draft. His translation refers to “cede to the Queen of England for ever the government of their lands”.

There is no third article in the second draft. But in the preamble appear the words in the third article of the final English version, imparting to the Maori “the rights and privileges of the British subjects”.

It is the second article which is most different. In the second draft it merely says “The United Chiefs of New Zealand yield to Her Majesty the Queen of England the exclusive right of presumption over such waste lands as the tribes may feel disposed to alienate”. Not only do we have here the misunderstanding of Maori unity, but also that there were waste lands. For the Maori, uncultivated land was not waste, but had other -often very important -functions, including a spiritual significance.

This earlier form is also interesting in what it does not say. By implication all other land was the chiefs’ and was not to be alienated. Moreover it fair to assume that the rights in the preamble included property rights. No doubt that is why their mention preceded the two articles in that draft.

The third draft of the Treaty has a much more explicit second article, ensuring the Maori “their full, exclusive, and undisturbed possession of their lands and estates, forests and fisheries”, again with a provision to permit Crown alienation with consent. In the signed Maori version of the Treaty the expression appears as “tino rangatiratanga o o ratou whenua o ratou kainga me o ratou taonga katoa”. Davis’s translation says that “the Queen of England acknowledges and guarantees to the Chiefs of the Tribes, and all the people of New Zealand, the entire supremacy of their lands, their settlements, and of all their personal property”.

There may well have been a fourth draft in English, but no physical trace of it exists. Then the final English draft was translated by Henry Williams, and his son Edward, into Maori. Almost certainly, following discussions with the chiefs, this Maori version was redrafted, but we can only conjecture on what were the alterations.

I describe these changes for two reasons. First, it is well to remind ourselves that the Treaty of Waitangi was written and rewritten in response to perceived or articulated Maori requirements. That the preamble was hardly altered from Hobson’s original draft tells us that it is not as important as the articles. The changes tell us the importance the Maori placed on the transfer of kawanatanga rather than mana, and the emphasis placed on the recognition of their tino rangatiratanga. These are significant pointers to how we should adopt the moral obligations of the Treaty.

The second reason for this review of its origins is that we can see the drafters of the Treaty had some overarching concept -the concept of the social contract.

Structurally the Treaty is in two parts. The first identifies an agency who is empowered with the governance of the country.The second identifies the wide range of rights which the individuals retain. That is exactly what one would expect in the social contract of Rousseau’s noble savage.

The notion was probably in the back of the minds of the Europeans -Hobson, Busby, and Williams -who drafted the various versions. I am not saying that any had read Rousseau, I have no evidence that they had. But the ideas of a social contract were in the air at the time. For instance in 1821 Richard Whatley, who was to become Archbishop of Dublin, preached from a pulpit, a sermon centred on the social contract. We know about that because the sermon was published in 1823. What we do not know is how many other sermons and general discussions in the first part of the nineteenth century also mentioned the social contract.

Whatley’s sermon introduces another dimension to the origin of the social contract. In political theory it is usually taught around such people as Hobbes, Pufendorf, Locke and Rousseau, but there was an intertwining development, based on the Old Testament covenants, from theologians. While those Europeans on the Waitangi Marae may not have had much knowledge of the great political thinkers, they would have been bathed in theology, as would by that time many Maori. Those key words in the Treaty, “kawanatanga” and “rangatiratanga”, are not part of the traditional Maori lexicon, but were first introduced in the Maori bible. (“Rangatiratanga” appears in the Lord’s Prayer as the word for “kingdom”.) The chief translator from the English to the Maori version was Henry Williams, a missionary. It is no accident that even to this day the Maori describes the Treaty as a “solemn covenant” harking to its biblical ancestry.

Do these intellectual origins matter? The answer depends on whether the Treaty itself still matters. And the answer to that depends on the attitudes of the people of the day. Surely the celebrations of 1990 are evidence that the Treaty matters to a wide majority of New Zealanders, although they may be well pushed as to explain why it matters to them. It is a part of our hearts, not our intellect

It matters in other ways. The Crown itself traces its powers back to the Treaty quoting in its Principles for Crown Action on the Treaty of Waitangi. The first principle states The First Article of the Treaty gives expression to the right of the Crown to make laws and its obligations to govern with accordance with constitutional process.

So the moral authority of the Crown, from which its claim to govern, arises from the Treaty of Waitangi. There is a comforting point here. The authority is not based on conquest or gun boat diplomacy, nor on the pretence that there was no-one before the European settlers. The authority comes from a mutual consent -the consent of a social contract.

In New Zealand we do not need to worry about any intangible existence of our social contract. We have it physically -water marked and rat chewed though it is -in the Treaty of Waitangi. Not only is the New Zealand constitution based on a social contract, but the contract appears in other aspects of our social life.

In late 1990 an ” Agreement for Growth” was announced. Such agreements have been an integral part of our political and economic life in the post war era, except in the latter half of the 1980s. What they involve is the various actors in the economy -in this case the unions, the Reserve Bank, and the Government -agreeing to forgo some of the selfish use of their economic powers in pursuit of their own goals, and instead to co-operate to attain a better economic outcome.

The limiting of the pursuit of individual ends to achieve a better social end is of course an integral notion of a social contract. Such economic strategies are not peculiar to New Zealand, and are often pursued in successful small open economies. They are sometimes called “compacts”, echoing Locke’s term for the social contract. Rousseau, Whatley and other earlier contractarians did not conceive their social contract in such economic terms, because they lived in a very different economy. The philosophy of the social contract has been an evolving one too, responding to changing social and economic circumstances.

A recent exciting development has been that of John Rawles who published his Theory of Justice in 1972. Rawles recognises that a social contract does not in itself set down all the principles for governance. He derives one for social justice by suggesting that we should organise a society on the basis of the choice we would make if we did not know what would be our station in the ensuing society.

For instance I am a reasonably intelligent, reasonably lucky , reasonably healthy, Pakeha, male – touch wood – well rewarded for such attributes. But I might have turned out to be a less well endowed Maori woman. From behind the Rawlesian veil of ignorance I would support a society which is based on her needs, and not those of the more fortunate. Rawles goes on to argue that we should organise society round the principle which gave the most marginal the best deal possible. This defines social justice in the social contract.

In the same year, 1972, the Royal Commission on Social Security reported on the principles which underpinned the New Zealand welfare state. The objectives were
(i) First, to enable everyone to sustain life and health;
(ii) Second, to ensure, within limitations which may be imposed by physical or other disability, that everyone is able to enjoy a standard of living much like the rest of the community, and is thus able to feel a sense of participation in and belonging to the community;
(iii) Third, where income maintenance alone is not sufficient, … to improve by other means the quality of life available.

It is unlikely that the Royal Commission knew of Rawles’ work, but their account of our social objectives is an elaboration of his concept of social justice. Thus the welfare state is another example of the social contract. The universalism we expect in our social security, health, and education arises because the contract involves a tradeoff between everyone contributing to the support of the welfare state, and thereby receiving reciprocal benefits when they are in need.

So, in its political foundations, in its economic foundations, and its welfare foundations New Zealand has been based on a social contract, placing limits on what we may pursue as individuals, but not on our individual rights, in exchange for a government who respects those rights and attempts to govern in the best interests of society.

I will not labour the point, but recent years have seen a major breach in national policy with many aspects of contractarian thinking. For instance the Treasury 1987 post election briefing, Government Management, one of the most ambitious attempts to write an alternative approach to the governance of New Zealand, rejects a social contract as the underpinning principle. It is a shallow rejection, without any real attempt to grasp the issues. Admittedly the Treasury is attempting to reject populist majoritarianism. But it does so, by striking out in a direction alien to our history and culture, and explicitly repudiating the social contract.

More recently the government of New Zealand, unilaterally without mandate, revoked the central provisions of our social security system, while its economic policies depend upon a less social management of the economy that New Zealanders have grown use to, or apparently want.

It is this repudiation which has led to the alienation of the ordinary New Zealander from with the political process, which was the background unrest to the adoption of MMP by referendum. This potentially represents a major change to our constitutional arrangements. But while reform of our electoral procedures is vital, it is not enough. We need to renew the covenant, the compact, and the contract.

Fortunately we have the Treaty of Waitangi as a base for that renewal. We need to build it into our governing institutions, making it more explicit in our thinking, thereby reaffirming the social contract.

In recent years lawyers have taught us much about the Treaty, and the legal system has made some marvellous decisions respecting it. The Court of Appeal decision on the State Owned Enterprise Act is well known, where they elaborated the significance of the Treaty in governance. More recently, Justice Heron has sagaciously ruled that the principles of the Treaty must inform government actions in the administration of statute law. This is another significant extension of the role of the Treaty in law.

And yet lawyers are fundamentally mislead. For they ask how is the Treaty to fit into law? The issue is how is the law to fit in with the Treaty?

The answer is that our statute law derives from the first article, and British common law was imported by the third article. This means that any statute which fundamentally betrays the principles of the Treaty of Waitangi is invalid, because it contradicts the basis on which the law is founded. Without the Treaty, the law is a simple nullity. Chief Justice Prendegast, who declared the Treaty a simple nullity in law, got it exactly the wrong way round.

In extreme instances a statute in conflict with the Treaty should be struck down by the courts. Doing so would be totally in keeping with the principles of the social contract. Recall Locke’s concern to justify the rebellion against the king in the seventeenth century because the government failed to keep its part of the bargain. Similarly the Maori in the nineteenth century was not rebelling against the Treaty. Their direct action was against the majoritarian abuse of the terms of governance set down in the Treaty. Resisting abrogation of the principles of the social contract is a sacred duty on every citizen, and no less an obligation exists for the courts. For them to connive in the breaching of the Treaty of Waitangi, even by an act of neglect, is to undermine the courts’ own integrity.

The attempts to attach the Treaty of Waitangi to a Bill of Rights were also the wrong way around. The Treaty is the Bill of Rights. It says so twice. Article two affirms the Maori rights, and article three adds the British rights. All a statutory Bill of Rights can do is elaborate those rights in law. It does not establish them, and it certainly cannot supersede or incorporate the Treaty. The Waitangi Tribunal could actually carry out the functions of the Human Rights Commission, enforcing the rights through the maintaining of the integrity of the second and third articles.

There is a consequence here which may at first distress some Maori. Rights in a social contract cannot be allocated to a subset of the population. That would amount to apartheid.

Thus the existing rangatiratanga rights affirmed in the second article of the Treaty must also apply to non-Maori. How?

For the initial property rights this interpretation has little effect. The Maori had a range of property rights on the fifth of February 1840. Those property rights were there two days later. Any non-Maori who had property rights in New Zealand then should have had them carried forward by the Treaty too.

However Rangatiratanga is much wider than property rights. It encompasses cultural concerns, such as the language. It encompasses social responsibilities, such as for the environment, and future and past generations. And it encompasses the mana of the individual; what in English we call personal integrity and dignity.

The Treaty of Waitangi is a minimalist social contract. That is it transfers the minimum of powers to the government, as is evident by the use of “kawanatanga” rather than “mana” in the first article, and the preservation of tino rangatiratanga in the second. The consequence is that only the minimum of necessary powers should be retained by the government, and the rest should be devolved. I say to the Maori who seeks rangatiratanga in the devolution of existing powers to Maori groups, ‘go to it, and blaze the path for Pakeha and other cultural groups to have a more devolved governance too’.

Such devolution is one of the bulwarks against majoritarianism, which accumulates unnecessary power to the state. The Maori seeking of devolution is partly a response to the overwhelming majoritarianism, which threatens their existence as a tangata. Equally it threatens each of us, for every one of us is a minority.

Suppose that there were no descendants of the 1840 Maori left in New Zealand. We would be a poorer nation for it, with less vitality and less sense of identity as a Pacific community. But even so, the Treaty of Waitangi would not be historic relic. It would continue to play an active part in our nationhood, still being the founding document from which the moral authority of our governance derives. By cherishing the principles of the Treaty, the integrity of the political system would be maintained and strengthened.

Fortunately we have both the Treaty and the Maori. We prosper from both. One provides the social foundation for the nation: the other our most prominent minority and, by their example guardians, for all our minorities. When the Maori makes a claim under the Treaty to right some past injustice, or to preserve their rangatiratanga, do not ask for whom the bell tolls. It tolls for thee.