What a NZ republic might look like

The Crown has played, and continues to play, a crucial role in the colonial encounter with the indigenous people of Aotearoa. Professor Janet McLean explores what the country could look like if we were to make it a republic.

In a recent interview with UK newspaper the Guardian, Prime Minister Jacinda Ardern asserted that New Zealand will, in all likelihood, become a republic within her lifetime. She mentioned there was no pressing urgency within the country to make this happen and that royal visitors were always greeted with great fondness by Kiwis. What she also said was the following:

“The most important thing for New Zealand is we have a very special arrangement and relationship via our treaty of Waitangi, and the relationship between Māori and the Crown, so before any conversation like that occurs, that is something that will need to be resolved within New Zealand.”

What does that “very special arrangement” involve?

The Crown has played, and continues to play, a crucial role in the colonial encounter with the indigenous people of Aotearoa. At the first point of contact with Māori, there was no clear distinction between the older, more absolutist ideas of King and Crown and the more modern ideas of a mixed constitution.

In the Declaration of Independence 1835, for example, William IV was described as father and protector and Māori as his children. This idea of a personal relationship forged between British monarchs and their descendants and Māori rangatira and their descendants had a special resonance with Māori given their own cultural understandings of, and respect for, whanaungatanga and whakapapa.

Such understandings have also been deliberately used by modern governments as part of modern settlement processes and processes of reconciliation, in gift practices, and in the language of Treaty settlements themselves.

In the English version of the Treaty of Waitangi, the Imperial Crown was portrayed as a unified source of authority not yet subdued by representative institutions such as Parliaments, or by the separation of powers. This is still how the Crown is portrayed in one particular contemporary context: the way in which the New Zealand Parliament legislates reparations settlements under the Treaty of Waitangi between Māori and the Crown. A convention has developed by which Parliament does not alter Treaty settlements negotiated between the Crown and Māori except to correct errors. To do otherwise would be considered to be inconsistent with the honour of the Crown. This process is a unique example of the Crown in Parliament.

Within settlement legislation itself, the Crown sometimes stands for the historical imperial Crown and sometimes for settler governments. It is the Crown who apologies and the Crown who is treated as culpable. This transmogrifying Crown, survives constitutional and electoral changes. It is Ministers who take action – but the government of the day tends to be distanced from historic wrong-doing.

At the same time there is another clear political conception at work, traceable to the earliest times, which understands the Crown to be an intermediary, and a repository of honour, who stands between settler governments and Māori and who moderates ordinary electoral politics. It is the Crown’s honour – the aspiration to do right, and the expectation that it will do right – which does the work here. Monarchs and governors have been the focus of petitions, and of expectations that it is they who would act to protect Māori from acts of settler governments. Many of these expectations have continued to the present day.

So how would this special Māori-Crown relationship look in the Republic of New Zealand?

Jacinda Ardern was right to single this out as one of “the most important things for New Zealand” when she spoke of republicanism in her interview. The changes required for this relationship would indeed be one of the biggest challenges that would arise if the country made such a move.

While some view the Waitangi Tribunal’s grievance hearing role as coming to an end once “full and final settlement” has been reached in the current historic land settlement processes, others consider that the Tribunal should have a central and perhaps elevated role under a new republican constitution (though of course its jurisdiction would have to be rethought and redrawn). Today, the Waitangi Tribunal has become an institution which stands between settler governments and Māori. Indeed it has been a much more effective institution in this respect than the monarch or Governor-General.

The fact remains, however, that the many different facets of the Crown currently at work in the Treaty reconciliation processes would be extremely difficult to replicate without a concept of the Crown.

New Zealand would need a new language of statehood to differentiate between different facets such as the state, nation, community, and the government of the day. We would need to adopt new terms to reflect a post-colonial constitutional settlement and relationships. The Crown-Māori relationship would cease to be at the centre of the constituent moment.

We would need to rethink the relationship between the Treaty peoples (Māori and Pākehā) in the absence of a Crown and try to design a constitution process that gives that relationship its appropriate central place. It would not be enough merely to hope that the present nuances which represent the Crown-Māori relationship would survive fundamental constitutional change. A determination to exercise constitutional imagination would be necessary. At stake are not only legal technical matters, but how we conceive of statehood and citizenship.

Janet McLean is a Professor of Law at the University of Auckland.

This article reflects the opinion of the author and not the views of the University of Auckland.

Used with permission from Newsroom, Janet McLean: What a New Zealand republic might look like published on 19 April 2018.