Can Te Tiriti help solve our big problems?

Te Tiriti is always speaking, but are we listening? Victoria University of Wellington's Carwyn Jones says Te Tiriti can help us respond effectively to the urgent challenges of our time.

At the beginning of this new decade, we are confronted with a range of complex issues, not least the global challenge of responding to the climate crisis. Does Te Tiriti o Waitangi speak to these urgent issues we face today?

In 1840, our ancestors responded to some of the challenges of a rapidly-changing world by entering into a treaty relationship where public power in Aotearoa would be shared between Māori and the Crown. But does this relationship provide useful guidance for New Zealand society 180 years later?

The answer is simple: Yes.

As has been said before, Te Tiriti is always speaking.

We know breaches of the promises made in Te Tiriti has meant the vision of power-sharing has not yet been realised. But we should, nevertheless, think about how that vision could help us to respond effectively to the urgent challenges of our time.

We will not be able to make any real progress on the fundamental problems within the criminal justice system, or eliminate the inequity within our health system, or have any hope of responding to the global challenges of the climate crisis, without real change in our public institutions.

The criminal justice system is a good example of an area where we could see vastly improved outcomes by upholding Te Tiriti.

From July 2018–August 2019, I was a member of Te Uepū Hāpai i te Ora–the Safe and Effective Justice Advisory Group appointed by the Minister of Justice to lead public discussion to develop proposals that address the failures of our criminal justice system. Our first report, He Waka Roimata (June 2019), recorded the many problems with the system identified by people we spoke with around the country.

The overwhelming message we heard was the system is not working and often adds to harm suffered by individuals and communities. The evidence is clear that, among other failures, the system is failing Māori.

In our second report, Turuki! Turuki! (December 2019), we noted that, alongside institutional, structural and personal racism within the system, many people spoke of the fact “justice and child-welfare agencies exclude families and whānau from decision-making, denying them opportunities to address harm and ensure accountability within their communities”.

We determined that an approach based on Te Tiriti would help address these issues and many others raised with us by New Zealanders from all walks of life. To that end, we recommended the Government:

- Establish a governance model under which Māori and Crown agencies share in justice sector decision-making;

- Transfer power and resources to Māori communities so they can design and develop Māori-led responses to offending and to tamariki and whānau wellbeing;

- Make tikanga Māori and te ao Māori values central to operating the justice system.

These are not new ideas. It is the kind of approach to social issues recommended more than 30 years ago in the landmark Puao-Te-Ata-Tu report of the Ministerial Advisory Committee on a Māori Perspective for the Department of Social Welfare, and in Moana Jackson’s much-cited 1988 Department of Justice report on Māori and the criminal justice system, He Whaipaanga Hōu. Furthermore, this is an approach that will benefit all of us, driving more inclusive, holistic and restorative responses to harm and strengthening our communities.

A framework based on Te Tiriti would also help to address issues of health equity.

In 2019, the Waitangi Tribunal released its Report on Stage One of the Health Services and Outcomes Kaupapa Inquiry. Focused on the primary healthcare system, this report ought to be a significant contribution to developing health policy.

The objective of achieving equitable health outcomes is central to the Tribunal’s findings and recommendations.

All parties to this inquiry recognised health inequity is influenced by a wide range of factors, including income and poverty, employment, education, housing and the cumulative effects of colonisation. Nevertheless, the Tribunal found the Crown’s breaches of Te Tiriti principles in respect of the primary healthcare framework have had, and continue to have, a significant negative effect on Māori.

At the heart of the Tribunal’s recommendations is a different approach to decision-making, based on Te Tiriti. For example, the Tribunal recommended the Crown explore the possibility of establishing a stand-alone Māori primary health authority.

Te Tiriti also suggests ways of approaching policy to respond to global issues. And there is currently no bigger or more urgent global issue than climate change.

The research suggests that, for various reasons, indigenous peoples are likely to be disproportionately negatively affected by the impacts of climate change. Māori are no exception. And it is becoming increasingly clear the system that created this climate crisis will not provide the radical thinking or develop the processes and actions we need to respond to it.

Te Tiriti points to different models, different values on which to base decisions, and different ways of understanding the relationships between people, lands and waters. Fraught and flawed as it is, the process for settling historical claims based on Te Tiriti has shown us glimpses of the potential of reframing environmental relationships. The recognition of legal personality for Te Awa Tupa and Te Urewera (formerly the Whanganui River and Te Urewera National Park, respectively) are just the most widely publicised of a myriad co-governance arrangements across the country created through the settlement process.

Some of these mechanisms are no doubt working better than others, and they all have limitations. And, of course, these instruments could never be the complete solution to global climate change. But they are having a positive impact, even if in a very localised way.

More significant is the underlying approach. These co-governance arrangements are underpinned by an openness to the possibility of doing things differently. They encourage different communities to participate in decision-making. They require consideration of values and knowledge systems overlooked in the usual policy responses.

It is that kind of approach that will help us to address the challenges Aotearoa faces today. It is the kind of approach of which te Tiriti o Waitangi speaks.

Are we listening?

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