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Prior Knowledge

Sunday, September 25, 2005

Sticking to a deal

The election result has left New Zealand First holding the balance of power. One of its policies is to remove all mention of the Treaty of Waitangi from New Zealand law.

Such a policy is sometimes defended on the grounds that the treaty was made so long ago that it is no longer relevant. Since the circumstances of the mid-19th century are so different to those of today how can a document from then matter to us today?

This thought is sometimes reinforced by pointing out that people today are not obligated to make up for wrongs committed by their ancestors. If my great-grandfather insulted your great-grandfather, I do not owe you an apology. So how can it matter to New Zealanders today that the treaty was not adhered to after it was signed?

This line of argument is mistaken but the response often given to it by defenders of the treaty is equally mistaken. That response is to say that the treaty somehow embodies principles for biculturalism that are still relevant today for regulating interaction between Maori and Pakeha.

This is open to the criticisms that it is far from clear what the principles embodied in the treaty are, that figuring out what they are involves much creative interpretation, and that the result will be confusion and judges having too much power.

And these, of course, are precisely the problems that New Zealand First's policy is intended to address. Even if all these difficulties could be overcome, there is still a further problem with the response: if these are good principles for Maori-Pakeha relations then what does it matter whether they are embodied in a 165-year-old treaty or not? Good principles are good principles, so even if the treaty had never occurred the principles should be applied anyway. So what relevance is the treaty?

In contrast to this principle-based answer, a better response to criticisms of the treaty is to make a contract- based answer. Contracts are not merely legal arrangements, they are moral ones too. If I suddenly found myself on another planet with another being whom I did not share any legal system with, it would still possible for us to agree to help each other out and this agreement would create rights and obligations for both of us. Parties to a contract are morally bound to the terms of the contract.

Contracts also bind over time and as circumstances change. If two parties agree to exchange resources several years from now, it is no good if, when the time comes, one of the parties says "but that was several years ago – what does it matter today"?

Part of the point of agreements is that they enable people to make arrangements that persist over time.

Similarly for changed circumstances. If I agreed to give you a lift in my car I ought to do so even if something else I'd rather do instead has arisen in the meantime.

Associations can also be parties to contracts. A Doctor Who appreciation society might make an agreement with a Star Trek fan club to support each other so that a low-point of popularity for Star Trek during a Doctor Who revival, or vice versa, need not spell doom for either. This agreement remains binding even when one side perceives that it is shouldering a greater burden than the other.

The crucial point is that the agreement remains even though the individual members of the clubs change. This then is the relevance of the treaty today. It is an agreement between several associations to establish a common authority while at the same time limiting the power of that authority. Since these associations persist over time, members of those associations today should keep to the terms of the agreement.

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7 Comments:

  • At about this point in the debate, at least in my experience, an unfortunate objection will be raised, a variant on the I didn't do it objection. Many of the citizens of NZ are immigrants whose ancestors weren't involved either in past injustices nor treaty signing. Are these people obligated to honour the treaty?

    9/27/2005 10:14:00 PM  

  • I'm not sure the contract argument works. There are surely limits on what obligations a new generation can inherit from their ancestors, especially if they have no say in whether to belong to this "club" or not. For example, if the crown had originally agreed to settle in NZ only temporarily, returning full sovereignty and property rights to Iwi in the year 2006, would that mean that Maori could now justifiably kick the rest of us out of our homes and deport us? It seems fairly clear that we are not necessarily bound by our ancestors' promises. They might not have the authority to make claims on future generations' behalf.

    As a second point, there aren't two distinct and well-defined 'clubs' here in any case. There has been a great deal of exchange - genetic and cultural - over the generations. (Not to mention immigrants, etc., as David says). There's no longer any sharp divide between two (racial) classes of New Zealand citizens. To deny this, as the binary model does, seems to me both factually and morally mistaken. But I've written about this elsewhere, so I won't go on.

    9/27/2005 11:24:00 PM  

  • And indeed Even Winston is Chinese...
    Add to the complications that the "Maori" were in fact about 600 different tribes some at war with others, lacking a cohesive identity or nationhood. Further complicate it with the fact that many tribes didn't sign the treaty or failed to get the chance to (The South Island was taken on the pretext of the right of discovery, maybe a shock to those who lived there :)

    While I disagree with you Richard in terms of our being bound by our ancestors word (I'm vaguely Hobbesian about this so I tend to think 'honour thy covenant made') But the sheer mess in this case makes it very hard to apply.

    9/28/2005 09:17:00 PM  

  • Simon says:

    If I agreed to give you a lift in my car I ought to do so even if something else I'd rather do instead has arisen in the meantime.

    What if the thing you'd rather do is save a drowing child?

    I'd say that you should stick to your contract just when doing so will have the best consequences. Due to the nature of contracts and the role they play in society, that may be the case quite often. But beyond that, I say, contracts have no binding moral force.

    9/29/2005 07:48:00 AM  

  • Here's my replies to comments:
    1. Many of the citizens of NZ are immigrants whose ancestors weren't involved either in past injustices nor treaty signing. Are these people obligated to honour the treaty?
    Most definitely. Immigrants become part of association of New Zealand citizens thereby tacitly taking on a share of that association's obligations.

    2. There are surely limits on what obligations a new generation can inherit from their ancestors.
    this is true and much works needs to be done to determine where these limits lie. But I'm confident that the Treaty does not go beyond these limits. Richard Goodin has argued that it does because social contracts to hand over authority amount to slavery contracts. (see 'Waitanig Tales' in Australasian Journal of Philosophy, 2000) But transferring authority is not agreegin to slavery and anyway slavery contracts are ok so long as voluntarily entered into.

    While we're not bound by individual contracts made by our ancestors we are bound by associational contracts. My granfather can't agree with your grandfather to make me work for you, but that's because i'm not in an association with my grandfather. And surely we do want associations to be able to make contracts that persist through time. See Janna Thomson's article in same issue of AJP refered to above - she argues that we want treaties entered into by NZ today to be honoured tomorrow and even centuries from now, and if so we have to accept that past treaties bind us today.


    3. if the crown had originally agreed to settle in NZ only temporarily, returning full sovereignty and property rights to Iwi in the year 2006, would that mean that Maori could now justifiably kick the rest of us out of our homes and deport us?
    Yes. Similar to UK handing Hong Kong back to China in 1997. Actually I think that case is different because China is governed by an illegitimate regime. if Maori tribal rule would be blatantly unjust then maybe not, but so long as not, the 'yes'.

    4. there aren't two distinct and well-defined 'clubs' here in any case
    True but there doesn't have to be. the Star Trek and Doctor Who fan clubs may share many members.
    And the argument doesn't rest on a 'binary model'. Its a contract between the Crown and many tribes not Maori as a whole.

    5. many tribes didn't sign the treaty or failed to get the chance to
    Then they are exempt from the contract. What follows for them is tricky - they must be in a state of nature with regard to the rest of NZ - but doesn't affect the argument for the obligations of those who are part of the contract.

    6. "If I agreed to give you a lift in my car I ought to do so even if something else I'd rather do instead has arisen in the meantime."
    What if the thing you'd rather do is save a drowing child?
    Yes this is a case where the contract is overridden. and if analogous circs arise in the Treaty then it too is overridden. but i do't see that any have.

    10/13/2005 01:00:00 PM  

  • > we want treaties entered into by NZ today to be honoured tomorrow and even centuries from now.

    I dont think "we" do actually. I mean that I might want everyone in the future to act according to my will but I think it ridiculous for two leaders to sit down now and say what their countries should be doing in 200 years. Situations will certainly change beyond recognition. For example a mutal protection pact with australia now might be a good idea currently - but in 200 years you might be chaining yourself to a sinking boat.

    10/14/2005 09:39:00 PM  

  • There are further complications: Firstly, its very difficult to establish what the treaty actually says, because there are two versions, saying two very different things. If the English version is taken seriously, Maori are entitled to a lot less than if the Maori version is taken as the actual contract.

    Secondly, at best, this argument can only apply on a moral level - the simple fact is that international treaties are not binding within a country that signs it. In order for it to be binding, the legislature has to ratify it; incorporate it into its existing statutes. This is for a good reason: treaties aren't signed by the house of representatives. New Zealand has not ratified the treaty. On the other hand, if this argument was merely showing that New Zealand (morally speaking) should honour their treaty obligations, then there might not be a problem here.

    10/16/2005 09:26:00 AM  

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