It granted self government to the colony of New Zealand.
Māori could be forgiven for wondering why the United Kingdom thought it was theirs to grant.
However, this Act led to the introduction of what is now the Treaty of Waitangi.
Our Treaty is described by the Ministry for Culture and Heritage as "a broad statement of principles on which the British and Māori made a political compact to found a nation state and build a government in New Zealand".
The ministry goes on to say that "different understandings of the Treaty have long been the subject of debate", and that "the exclusive right to determine the meaning of the Treaty rests with the Waitangi Tribunal".
The Waitangi Tribunal was set up to make recommendations on claims brought by Māori relating to Crown actions which breach the promises of the Treaty.
Over the years, the Tribunal has made many recommendations on what the Crown should do to put right the wrongs done by the Crown to various iwi, a focus being improper confiscations of land.
(There is nothing in the law setting up the Waitangi Tribunal which supports the idea that it has the exclusive rights claimed by the ministry.)
Over the years, more and more issues are being considered as having been caused by Treaty promise failures.
We are now attempting to use the Treaty in ways which cannot possibly have been intended.
When judges are deciding how to interpret a contract, they look at the clear meaning of the words.
They assume that people intended to agree on something, and they then try to establish what was intended.
They are not persuaded by getting to the bottom of only what one side of the agreement meant.
If they can’t find something that amounts to a " meeting of minds" then they determine there was no agreement, or it is void for uncertainty.
A major issue with our Treaty stems from the "long-standing debate" about what it means, and whether it means something different in the Māori version to what it means in English.
To get around these problems, some have suggested that we cede the right to decide what it means to Māori.
The ministry says we have given up this right to the Waitangi Tribunal. Some say it is a fluid thing, that can be redefined from time to time as new situations arise, such as the right to radio frequencies or to control ratepayer assets.
In the United States, the problem of what to do about rules or principles in their founding document when circumstances change is dealt with by amendments.
These are taken to the people to decide.
Without a constitution in New Zealand, we have tried to use the Treaty, but without the constitutional protection of having to take "amendments" to the people.
We not only have a potential non-agreement from the start, but we have redefined the Treaty as a "partnership", have allowed it to apply in new circumstances without reference to the people of New Zealand and are heading down a path where only one of the partners has a say in what it means.
We are attempting to use it as a basis for claims for compensation for unequal outcomes, rather than the founding idea of equal opportunity.
The Treaty cannot be held to blame for colonisation.
It is, in essence, a document accepting and cementing the idea that the British had arrived in New Zealand and the terms in which they were here.
Current Treaty expectations are likely to lead to more and more disappointment from those looking for the Treaty to be their salvation, and more and more resentment from those who feel locked out of discussions around our constitutional rights and obligations.
There are now also expectations that those who are not of Māori descent in New Zealand introduce themselves as having a right to be in New Zealand only as a result of being a Treaty partner.
If we want to continue to use the Treaty as the basis of future constitutional-type arrangements, we could perhaps move forward by having a Treaty referendum.
We could ask all New Zealanders questions of clarification and commitment to what we are all prepared to have as our now living constitutional arrangements.
As a starter, my first questions might be:
- What belongs to Māori under the Treaty?;
- Does the Treaty create one people or is it a partnership between two peoples?;
- Should Māori representation on government and local government bodies be through democratic voting systems or by way of appointment by local iwi?;
And if we were having the cost of a referendum, perhaps:
- Is the official name of New Zealand in English New Zealand or Aotearoa?
Others will have different ideas of what is needed to establish the meaning of the Treaty.
Whatever we come up with, all New Zealanders need to have the debate before we go further down the path of various civil servants and politicians just quietly and determinedly rewriting our founding document to their own ends.
- Hilary Calvert is a former Otago regional councillor, Act New Zealand MP and DCC councillor.
