New Zealand Law Students Journal
Last Updated: 14 January 2013
THE TREATY AND THE SEATS ANTHONY WICKS∗ Introduction
As the 2008 general election approaches widely differing views on the
continuing desirability of the Māori seats in Parliament
expressed. On the one hand, Māori party candidate Rahui Reid Katane,
consistent with her party’s policies, has
claimed that the seats are
“our [Māori] Treaty right” and that on this basis the seats
should be entrenched.1 At the other end of the spectrum, in a recent
paper for the New Zealand Business Round Table, Professor Philip Joseph claims
the belief that the seats are mandated by the Treaty of Waitangi (the
Treaty) is “repugnant”.2 He goes on to argue that the
seats are an “insidious form of reverse discrimination” that should
be abolished.3 It is thus timely to consider the relationship of the
Treaty to the Māori seats.
The overall desirability of the seats is a complex debate involving the
question of the relationship of the Treaty to the seats and
the question whether
separate representation is consistent with the nature of the New Zealand
state.4 In this article I will examine the first of these two
questions. Specifically, I will consider whether the abolition of the seats
the face of substantial Māori opposition, by ordinary
∗ Studying towards LLB(Hons)/BA(Hons) (French), University of Otago. The author would like to thank Daniel Pannett, Jesse Wall, Poppy Haynes and the anonymous reviewers from the New Zealand Law Students' Journal for their valuable comments on previous drafts of this article.
1For an outline of the Maori Party’s Treaty of Waitangi Policy see ‘Te Tiriti o Waitangi’ http://www.maoriparty.com/index.php?option=com_content&task=view&id=61&Item id=44 accessed 30/7/08. The Maori Party is a New Zealand political party with its policies founded in tikanga (Maori customary law). Its policies reflect the needs and
desires of Māori both in terms of social policy and in terms of promoting greater self- determination and authority for Māori. See K. Smith ‘Māori Party’ in R. Miller (ed), New Zealand Government and Politics 4th ed (2006, Melbourne, Oxford University Press) at 405-
2 P. Joseph, The Maori Seats in Parliament, (2008, Wellington, The New Zealand Business
Round Table) at 5.
3 Ibid, at 17.
4 A. Geddis ‘A Dual Track Democracy? The Symbolic Role of the Maori Seats in New
Zealand’s electoral system’, (2006) 5(4) Election Law Journal
enacted by a simple majority, would be consistent with Treaty
principles. The first section of the article provides some
context by giving a
brief outline of the current legal position of the seats and some background to
the Treaty principles. The second
section examines the relationship of Article 3
of the Treaty to the seats. The third section then considers whether New
Mixed Member Proportional (MMP) electoral system fulfils the
obligations under Article 3.5 The final section considers the
relationship of Article 2 of the Treaty to the seats.
A. Background to the current legal position of the seats and the
The Māori seats are a form of “dedicated” or
“reserved” representation. They guarantee
that a certain number of
seats in Parliament will be filled by Māori directly elected by
Māori.6 The legal authority for the existence of the Māori
seats is contained in the Electoral Act 1993. Sections 76 to 79 of the Act
all Māori the option of enrolling either on the general electoral roll,
which is open to all voters, or the Māori
roll, which only Māori
voters can enrol on.
“Maori” are defined in section 3(1) of the Electoral Act as
“a person of the Maori race of New Zealand; and includes
any descendant of
5 Under the New Zealand MMP system voters get two votes: an “electorate vote” and a “party vote”. Electorate Members of Parliament (MPs) are elected to represent 69 “electoral districts”. Within each electoral district the constituency candidate who wins the most votes wins that electoral district’s seat in Parliament. Once the electorate seats have been filled an additional 51 MPs enter Parliament from party lists. List seats are distributed so that the overall share of seats in Parliament a party gains is close to the proportion of the party vote the party won at the election. A party becomes eligible to receive list seats if it gains over 5% of the party vote or wins a constituency seat. Thus, if a party gains 20% of the Party vote it will have at least 24 seats in Parliament. These will consist of however many electorate seats the party won plus the necessary amount of list seats to ensure proportionality. Usually, this results in a 120 member Parliament. However, if a party wins more constituency seats than its proportion of the party vote then extra list seats are distributed to the House of Representatives. This ensures all
parties still receive a share of representation proportionate to the party vote, resulting in a Parliamentary “overhang”: See A. Geddis, Electoral Law in New Zealand (2007, Wellington LexisNexis) at 31-32. For further explanation of MMP see the New Zealand’s Electoral Commission’s discussion in ‘MMP: How it Works, Quiz & Calculator’, (Wellington, New Zealand Electoral Commission) http://www.elections.org.nz/voting/mmp/ accessed
6 Supra n4, at 357.
person”. Therefore, any person with any degree of Māori descent
may choose to enrol on the Māori roll. However, the
choice of which roll
to enrol on may only be made the first time a person enrols to vote or during
the Māori electoral option.7 Voters are prohibited from
changing rolls outside the Māori electoral option period.8 The
Māori electoral option is held for a four month period every five years in
conjunction with the New Zealand census (unless
Parliament is due to expire that
year in which case it must be held the following year).9
Section 45 of the Electoral Act then provides that the Representation
Commission must divide New Zealand geographically into Māori
districts. A formula for the creation of the districts is provided in subsection
3. It ties the number of districts to
the number of people on the Māori
electoral roll and ensures that the population of each Māori electoral
district is derived
using the same procedure as for the population of general
electoral districts. Each Māori electoral district then forms a
that corresponds to a seat in Parliament. Then on election day,
voters on the Māori roll vote for a candidate in their Māori
As enrolment on the Māori roll is voluntary, and the number of
Māori seats is directly tied to the number of electors on
roll, the Māori electoral option acts as a “de facto
referendum” of all Māori electors on
the question of whether
the Māori seats should be retained.10 If Māori no
longer wanted the seats they could simply choose to enrol on the general
Over the past decade the numbers of Māori enrolling on the Māori
roll has increased in both absolute and relative terms.11 In 2006,
nearly twice as many Māori transferred to, or enrolled on, the Māori
roll than on the general roll.12 In 2001 and 1997, nearly three
times as many Māori transferred to, or enrolled on, the Māori roll
than on the general
7 The Electoral Act 1993, s 76(2).
8 Ibid, s 79.
9 Ibid, s 77.
10 C. Geiringer ‘Reading English in context’ (2003) The New Zealand Law Journal 239, 241;
supra n4, at 355.
11 Supra n4, at 356.
12 Elections New Zealand, ‘2006 Māori Electoral Option:
Results’ (2006) http://www.elections.org.nz/enrolment/maori-option-now/maori-option-results.html
roll.13 These figures accord with the overwhelming opposition
Māori have shown to the abolition of the seats.14
Despite strong support from Māori, the Māori seats are still
vulnerable to repeal by a simple majority in Parliament. Unlike
of the Electoral Act that set out the formula for creating general electoral
districts, the Māori seats are not
entrenched. 15 Accordingly,
it would be entirely possible for the Māori seats to be repealed by a
simple Parliamentary majority in the face
of strong Māori
Before turning to whether such a move would be consistent with
Treaty principles it is convenient to give some background
to the principles.
Signed in 1840, the Treaty of Waitangi is the founding document of New
Zealand.16 However, its exact effect is a matter of significant
debate.17 The English and Māori versions of the Treaty are not
exact translations of each other and the passage of time since the signing
the Treaty compounds difficulties in its interpretation.18
In brief then, the English version of the first article of the Treaty cedes
sovereignty over New Zealand to the British Crown.19 However, the
Māori version of the first article cedes kawanatanga, which
14 Between 1992 and 1993 Parliament’s Electoral Law Reform Select Committee attended a series of hui to consult with Māori on whether the seats should be abolished. The hui revealed such deep opposition to the abolition of the seats that the select committee concluded that it would be illegitimate to abolish the seats. Electoral Law Reform Committee, Report on the Electoral Reform Bill 1993, I. 17C, (1993, Wellington, House of Representatives).
15 The general electorates are entrenched by s 268(1)(c) of the Electoral Act. Section
268(2) requires a 75% majority in the House of Representatives, or a simple majority in a referendum of all electors, to amend or repeal the seats.
16 Sir Robin Cooke described it as “simply the most important document in New Zealand’s history”. See R. Cooke, ‘Introduction’, (1990) New Zealand Universities Law Review, 1.
17 For perspectives on the debate see P. Joseph, Constitutional and Administrative Law in New Zealand (2007, Wellington, Brookers) at 45-60; M. Belgrave, M Kawharu and D Williams (eds), Waitangi: Revisited Perspectives on the Treaty of Waitangi (2005, Melbourne, Oxford University Press); P. McHugh, The Māori Magna Carta (1991, Auckland, Oxford University Press).
18 Ibid (McHugh), at 3-9.
19 Treaty of Waitangi/Te Tiriti o Waitangi, First Schedule to the Treaty of Waitangi Act
governance.20 The second article then guarantees to Māori in the English version “full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties”.21 However, the Māori version of Article 2 guarantees to Māori their rangatiratanga.22
Sir Hugh Kawharu has rendered rangatiratanga as “the unqualified
exercise of [Māori] chieftainship”.23 Finally, Article 3
of the Treaty guarantees to Māori “all the rights and privileges of
In following sections of this essay I will examine whether the guarantee of
equality in Article 3, and the guarantee of rangatiratanga in the
Māori version of Article 2 of the Treaty, support the provision of reserved
seats for Māori.
Due to the difficulty involved in interpreting the Treaty’s text, the
courts and the Waitangi Tribunal have developed a set
of Treaty principles to
determine the obligations of the Treaty partners.25 The Privy
Council has stated that the principles have become more important than
the precise terms of the Treaty.26 According to the Privy Council,
the Treaty principles are the “underlying mutual obligations and
responsibilities which the
Treaty places on the parties. They reflect the intent
of the Treaty as a whole.” 27 Importantly, the use
20 I. H. Kawharu, ‘Translation of Maori text by I.H Kawharu’ in Kawharu (ed), Waitangi: Maori and Pakeha Perspectives on the Treaty of Waitangi (1989, Auckland, Oxford University Press) at 319-321. Accordingly, there is much debate over whether the Treaty does in fact cede sovereignty to the Crown as the British version of the first article states. However, this debate over sovereignty is not immediately relevant to the provision of separate seats for Māori in the New Zealand legislature. For a collection of differing perspectives on the debate see supra n17 (Belgrave, Kawharu and Williams). As will be seen, arguments for a Treaty right of separate representation have been based on articles two and three of the Treaty.
21 Supra n19.
23 Supra n20.
24 Supra n 20. The Māori version of Article 3 is substantively similar to the English version. Kawharu translates it as a guarantee that the Crown will “give [Māori] the same rights and duties of citizenship as the people of England”. See supra n20.
25 The Waitangi Tribunal is charged with hearing Māori claims for breaches of the Treaty. Its jurisdiction, which is set out in s 6 of the Treaty of Waitangi Act 1975, is to inquire into any official act “that was or is inconsistent with the principles of the Treaty of Waitangi”.
26 New Zealand Maori Council v Attorney-General  1 NZLR 513 (the Broadcasting Assets
case) at 517 per Lord Woolf.
27 Ibid at 516 per Lord Woolf.
of Treaty principles is not merely a judicial approach. The adoption of the
phrase “the principles of the Treaty” in
legislation creates a
parliamentary mandate for their application.
The most significant statement of the Treaty principles was in the landmark
case New Zealand Māori Council v Attorney-General (the Lands
case).28 Here, the Court of Appeal recognised that the Treaty
creates a relationship of partnership between Māori and the Crown.29
This requires the Treaty partners to act towards each other reasonably,
and with good faith.30 Justice Cooke, the then President of the
Court of Appeal, held that the Treaty “creates responsibilities analogous
In the years since the Court of Appeal’s decision a considerable body
of Treaty jurisprudence has been developed by the Waitangi
Tribunal and the
courts.32 The effect of these developments will be considered in
more detail in discussing the obligations under Articles Two and Three of the
Treaty. For the moment though it is enough to note that the Treaty continues to
be interpreted according to its principles and that
Lands case is
still recognised as the founding case on Treaty
Although the Treaty creates obligations “binding on the honour of the
Crown”, it is not automatically incorporated into New Zealand law. 34
The provisions of the Electoral Act that set up the Māori seats do not
make any reference to the Treaty. Therefore, regardless
of the relation of the
Treaty to the seats, the question of their overall desirability is dependent on
the wider debate over the
constitutional status of the Treaty and the status
of Māori as the indigenous people of New Zealand. However,
of the Treaty is, and will continue to be, fundamental to this
debate. As will be seen, those who seek the retention of the seats
justify their position by reference to
28 New Zealand Maori Council v Attorney-General (the Lands case)  1 NZLR 641.
29 Ibid, at 664 per Cooke P, at 693 per Somers J and at 702 per Casey J.
30 Ibid, at 664 per Cooke P and at 693 per Somers J.
31 Ibid, at 664 per Cooke P.
32 For a summary of the developments in the jurisprudence see the summary of Treaty principles provided by Heath J in Carter Holt Harvey Ltd v Te Runanga O Tuwharetoa Ki Kawerau  2 NZLR 349 at para 27.
33 New Zealand Maori Council v Attorney-General  NZCA 269;  1 NZLR 318 at paras 62, 71.
34 Hoani Te Heu Heu Tukino v Aotea District Māori Land
Board  AC 308.
the Treaty.35 The rest of this article aims to answer one part of
the puzzle over the desirability of the Māori seats by clarifying their
to the Treaty.
B. The guarantee of equality in Article 3 and the Māori seats
As has been seen, both the English and Māori versions of Article 3 of
the Treaty contemplate equality for Māori in terms
of legal rights,
privileges and duties. However, this raises the question of whether Article 3
is a guarantee of formal or
substantive equality. Formal equality refers
to treating people identically in order to treat them equally.36
Substantive equality refers to treating people differently in order to
treat them equally.37 The meaning of these definitions is best
explained by the example used by the New South Wales Law Reform Commission to
the two forms of equality: 38
[If] there are two people stuck down two different wells, one of them is
5m deep and the other is 10m deep, throwing them both 5m of rope
would only accord formal equality. Clearly, formal equality does not
achieve fairness. The concept of substantive equality
recognises that each
person requires a different amount of rope to put them on a level playing
In the context of an electoral system, according formal equality means
ensuring that all people have identical voting rights, that
is, the same chance
to participate in the electoral process. Accordingly, if Article 3 is a
guarantee of formal equality, then under
it Māori will be entitled only to
voting rights identical to the rest of the population. Therefore,
Article 3 will
be unable to justify reserved seats for Māori.
On the other hand, if Article 3 is a guarantee of substantive equality, then
something more than simply ensuring Māori have equal
voting rights will be
necessary. A guarantee of substantive equality must ensure that Māori
achieve equality in representation;
the outcome of the
35 Supra n4, at 365.
36 D. Rae ‘Two Contradictory Ideas of (Political) Equality’, (1981) 91(3) Ethics 451, 452.
38 Law Reform Commission of Western Australia, Aboriginal
Customary Laws: Final Report, The interaction of Western Australian law with
Aboriginal law and culture, Project 94, (2006, Perth, Law Reform Commission
of Western Australia) at 8-9.
In considering what substantive equality in the context of political representation of an indigenous minority meant, the Canadian Royal Commission on Electoral Reform and Party Financing turned to John Stuart Mill’s “Of True and False Democracy: Representation of All, and Representation of the Majority Only”.39 The Commission adopted Mill’s position that “in a really equal democracy every or any section would be represented, not disproportionately, but proportionately.”40
The Commission found that having numerical minorities represented in
national legislatures in proportion to their number was “one of the
fundamental tenets of liberal democracy.”41
Similarly, the 1986 New Zealand Royal Commission on the Electoral System
found that membership of the House should reflect significant
the electorate, such as ethnicity.42 The Commission stressed that in
view of Māori’s particular historical, Treaty and socio- economic
status, it was particularly
important that they be fairly and effectively
Accordingly, if Article 3 is a guarantee of substantive equality, then it
will be met if the proportion of Māori in Parliament
matches the proportion
of Māori in the general population of New Zealand. Thus, if structural
features of the electoral system
mean that Māori fail to achieve equality
in representation, then the provision of reserved seats may be justified as a
achieving the necessary level of representation.
The history of the Māori seats shows that the distinction between
substantive and formal equality does have very real
consequences for Māori
representation. Before 1867 the right to vote was determined by a freehold
property franchise set out
in the Constitution Act 1852.
39 Royal Commission on Electoral Reform and Party Financing, Reforming Electoral Democracy: Final Report, vol.4 (1991, Ottawa, Minister of Supply and Services) at 248-249, citing J. S. Mill,Considerations on Representative Government, (1958, Indianapolis, Bobbs- Merill).
40 Ibid, at 249.
41 Ibid, at 248.
42 Royal Commission on the Electoral System, Report of the Royal Commission of the Electoral: Towards a Better Democracy, (1986, Wellington, Government Printer) at 11.
Formally, this applied equally to Māori and the settlers. However, while
Pākehā were guaranteed representation by virtue
of their ownership of
property, Māori were effectively excluded from representation as
almost all Māori property
was communally owned.44
Similarly, the 1986 Royal Commission noted that, under New Zealand’s
former First Past the Post (FPP) electoral system, because
Māori were a
minority in all the general electorates, there was little chance of them gaining
representation in general electorates.45 There was also little
incentive for candidates or parties to promote Māori interests where these
clashed with Pakeha interests.46 Thus, in the past, the provision of
separate seats has allowed at least some level of political representation for
Māori to be
achieved despite the structural features of the electoral
system that worked against it.
The ambiguity over what Article 3 of the Treaty means by its guarantee of
equality has led to differing interpretations of the article
in the High Court
and Waitangi Tribunal. In Taiaroa v Minister of Justice,47
the High Court heard a judicial review application of the exercise of the
Māori Electoral Option. During the course of his judgment
considered the meaning of Article 3 of the Treaty.48 The Crown had
argued that Article 3 was a guarantee of formal equality only,
submitting that: “Article 3 conferred
the right of franchise upon
Māori but not the right to separate representation in
Parliament”.49 Justice McGechan did not accept this submission
in such bald terms but seems to have gone a long way towards doing so. His
accepted that: “Article 3 conferred on Māori equivalent rights
to vote for, and rights to stand for election to, any future
Parliament”.50 However, he went on to state: “I do not
accept that vision extended precisely at the time to a
44 Supra n4, at 352.
45 Under FFP, New Zealand was divided into a number of geographic constituencies, each of which corresponded to a seat in Parliament. At a general election individual candidates would run for election in each constituency. Voters in each constituency voted directly for their preferred candidate. The person who gained the most votes in each constituency would then represent that constituency in Parliament. See supra n6
(Geddis), at 26.
46 Supra n42, at 90-93.
47 (No 1) (High Court, Wellington CP 99/94, 4 October 1994, McGechan J).
48 Ibid, at 68-69.
49 Ibid, at 69.
right to separate Māori seats in such future
Just before the Taiaroa litigation, the Waitangi Tribunal too was
called upon to consider the relationship of Article 3 to the Māori seats in
determine whether the Māori Electoral option had been run in
accordance with Treaty Principles. The Waitangi Tribunal found
in the Maori
Electoral Option Report52 that Article 3 guaranteed more
than merely formal equality. The Tribunal stated: “The fact that [the form
political representation] is, and has been since 1867, different
from that of Pakeha representation does not mean that it is not
[A]rticle 3 of the Treaty”.53 The Tribunal found that the
right to representation is such an important and fundamental right that it was
in the protection extended by the Crown to Maori under
Neither the Waitangi Tribunal nor the High Court gives extensive discussion
of their reasons for preferring their particular interpretation
of Article 3.
Justice McGechan argues that as the Treaty partners were “not
clairvoyant” they would not have contemplated
separate representation for
Māori at the time of signing.55 He concludes that this means
Article 3 cannot guarantee separate representation.56 Similarly,
academics have argued that an historical analysis of the seats reveals that they
were created more as a political expedient
to foster co- operation with the
Government than to give expression to Article 3.57
However, with all due respect, a focus on the state of minds of the parties
at the time of signing the Treaty seems to be misplaced.
In his landmark
judgment in the Lands case, Justice Cooke rejected approaching the Treaty
with the “austerity of tabulated legalism”.58
52 Waitangi Tribunal, Maori Electoral Option Report (1994, Wellington, Brooker and Friend).
53 Ibid at 12.
55 Supra n47, at 69.
57 M P K Sorrensen, ‘A History of Maori Representation in Parliament’ in supra n42
Appendix B at B-18-21; supra n2 at 8-9. Whether the history in fact does show this is a matter of debate. See S A McClelland ‘Maori Electoral Representation: Challenge to Orthodoxy’ (1997) 17 New Zealand Universities Law Review 272.
58 Supra n28, at 665. Similarly, Bisson J rejected “a strict or literal interpretation of the
Treaty” at 714 and Richardson J held that the Treaty required “a
broad interpretation and
Rather, His Honour recognised that “The Treaty has to be seen as an
embryo rather than a fully developed and integrated set
Joseph provides an alternative approach to arguing that Article 3 is a
guarantee of formal equality.60 He argues that as liberal
democracies “rail against electoral privilege based on racial or ethnic
3 cannot be read to mandate separate
representation for Māori.61 He asserts that partnership is a
“substantively neutral concept” that cannot be used to justify
electoral privilege.62 Joseph’s concern, that the Treaty is
not used to create social division, echoes similar concerns held by Justice
in Ngati Maru Ki Hauraki Inc v Kruithof.63 Here,
Justice Baragwanath noted: 64
It is time to recognize that the Treaty did not contemplate a society divided
on race lines between two groups of ordinary citizens
– Maori and
non-Maori, set against each other in opposing camps.
No doubt, Joseph is correct to point out that the Treaty principles do not
condone social division through granting Māori unfair
However, Joseph is incorrect to assert that the provision of separate seats
results in any such advantage
for Māori voters. The legislation
that provides for the seats is entirely consistent with the ideal of democratic
As Māori and general electorates have the same population and the votes
from them are counted in exactly the same way, votes
cast in the Māori
electorates are no more determinative of the election result than those cast in
general electorates.66 The MPs from both rolls then sit in one
legislature. Moreover, the party vote, which is the most important under MMP,
on a national basis.67 Accordingly, the
one which recognizes that the Treaty must be capable of adaptation to new and changing circumstances as they arise” at 673.
59 Supra n28, at 663 per Cooke P.
60 Supra n2, at 11.
61 Ibid, at 17.
62 Ibid, at 67, citing supra n26, at 517 per Lord Woolf.
63 Unreported, (Baragwanath J, High Court, Hamilton, CIV2004-485-330, 11/6/2004).
64 Ibid at para 48.
65 This is the foundational principle of the electoral system. It states that each person should have an equal say on matters affecting them. See supra n4, at 362-363.
provision of separate seats for Māori does not create social division by
giving Māori an unfair electoral advantage.
In fact, the overall nature of the Treaty relationship strongly supports
viewing Article 3 as a guarantee of substantive equality.
Although the Court of
Appeal has recently confirmed that the Treaty does not create directly
enforceable fiduciary duties, the Court
did accept that the relationship
envisaged under the Treaty is analogous to a fiduciary duty.68
The Court also accepted that the law of fiduciaries informs key
characteristics of the obligations under the Treaty.69 Specifically,
the Court noted that the relationship was one of “good faith,
reasonableness, trust, openness and consultation”.70 This
accords with the foundational statements in the Lands case that the
Treaty created an obligation of the “utmost good
Nowhere would the obligations outlined by the Court of Appeal seem to be more
important than within the national legislature. If the
Treaty is to truly
signify a “partnership between races” it must ensure that both
Treaty partners have a fair say in
the most powerful political and law-making
institution in the country.72 If Article 3 is a guarantee only of
formal equality, then it would be possible for the obligations under it to be
Māori had little or no representation in the national
legislature. This cannot be consistent with an obligation of partnership.
partnership cannot sensibly be said to occur within the New Zealand legislature
if one Treaty partner is not fairly represented.
Accordingly, Article 3 should be interpreted as a guarantee that Māori
will be represented in the legislature in proportion to
the national Māori
population. I will now turn to considering whether the advent of MMP means that
there is no longer any need
for the Māori seats in order for the Crown to
fulfill its obligations under Article 3.
68 Supra n42, at paras 71, 81.
69 Ibid, at para 81.
71 Supra n28, at 664 per Cooke P.
72 Ibid, at 664 per Cooke P.
C. MMP and substantive equality in representation
It is clear that within some electoral systems separate Māori representation would be essential to give effect to a substantive right of political representation. However, it can be argued that MMP is not one of these systems. Indeed, the 1986 Royal Commission on Electoral Reform recommended the abolition of the Māori seats on this basis.73
The Commission reasoned that under a proportional system of
representation it is in the interests of each party to gain as many votes as
possible from all segments of society.74 Therefore, as a numerically
significant minority, Māori were very likely to be strongly represented in
Certainly, MMP has been successful in promoting Māori
representation. Since MMP was adopted the number of Māori in
more than doubled compared with the number under FPP.76 At the
last two elections the number of Māori MPs in Parliament has been
in rough proportion to the national Māori
population. After the 2002
election Māori MPs made up 15.8 per cent of Parliament’s seats. At
the time Māori made
up 14.0 per cent of the population.77 After
the 2005 election the national Māori population remained at 14.0 per cent
of the national population whilst Māori
MPs made up 19.0 per cent of the
seats in Parliament.78 Furthermore, the introduction of MMP has seen
more Māori Members of Parliament in positions of power in parties and
government, including more gaining ministerial portfolios.79
Thus the status quo of the MMP system combined with separate seats for
Māori ensures that Māori are represented roughly
Joseph has recently argued that the increased number of
73 Supra n42, at101-103, 106.
74 Ibid, at 101-103.
76 Elections New Zealand, ‘Māori, Pacific and Asian MPs 1990-2005’
<http://www.elections.org.nz/electorates/ethnicity-mps.html> accessed 4/5/07
78 Supra n2, at 11 and accompanying footnote.
79 C. I. Magallanes, ‘Dedicated Parliamentary Seats for Indigenous Peoples: Political Representation as an Element of Self-Determination’ (2003) Murdoch University Electronic Law Journal, <http://www.murdoch.edu.au/elaw/issues/v10n4/iorns104.html> accessed
represented in Parliament in list and general electorate seats in the last two elections means that there is no longer any need for the Māori seats.80 He points out that in 2002 Māori MPs in general electorate and list seats made up 10 per cent of Parliament’s membership.81 This was
4.0 per cent below the proportion of Māori in the general population.82
He then notes in the 2005 election that Māori MPs in general electorate
and list seats made up 12.4 per cent of Parliament. This was 1.6 per cent
below the proportion of Māori in the general population.83
Joseph then concludes:84
On those figures, the percentage of Maori members holding list or
constituency seats in the next Parliament will exceed that of the
He then argues that when this occurs Māori will have achieved equal
representation, meaning that Article 3 can no longer
provision of separate seats.85
However, it is extremely speculative to predict the outcome of this
year’s election based simply on the number of Māori
list and general electorate seats in the past two elections. Granted, Māori
members of Parliament have increased
their proportion of list and general
electorate seats in the last two years. However, Joseph provides absolutely no
suggest this trend will continue. Analysing all four of the MMP
elections rather than just the last two reveals little support for
After the 1996 election Māori held 9.5 per cent of the general
electorate and list seats in Parliament.86 At the time Māori
represented 15 per cent of the national population so the representational
deficit in the general electorate
and list seats was 5.8 per cent.87
However, after the 1999
80 Supra n2, at 11.
84 Ibid, at 12.
86 Supra n76; Elections New Zealand ‘General elections
1996-2005 – seats won by party’, http://www.elections.org.nz/record/resultsdata/general-elections-1996-2005-seats-won-
by-party.html accessed 1/8/08.
election Māori only held 8.3 per cent of the general electorate and list seats in Parliament.88 The national Māori population remained the same as in 1996 so the representational deficit increased to 6.67 per cent.89
Accordingly, although the representational deficit did decrease between
2002 and 2005, it increased between 1996 and 1999.
Therefore, the evidence that at the next election Māori will achieve
representation in the list and general electorate seats
proportional to their
numbers in the population is equivocal at best. What we do know is that
proportional representation of Māori
has not yet been achieved without the
use of reserved seats.90
Joseph also argues that abolishing the Māori seats is justified because
the nature of MMP means that it would have no adverse
effect on Māori
representation.91 He supports his claim by citing the finding of the
1986 Royal Commission. The Commission found that under an MMP system, with a
roll, parties would be encouraged to place Māori candidates high on
party lists or in constituency seats in order to gain votes
previously registered on the Māori roll.92
However, the Royal Commission made its recommendation for the abolition of
the seats alongside another recommendation. The Commission
that parties representing primarily Māori interests should be exempt
from the four per cent threshold
for entry to Parliament.93 The
Commission believed that if the threshold was waived for parties representing
predominantly Māori interests then such parties
would have a real chance of
competing for list seats. This prospect would then encourage the major parties
to compete for the Māori
vote.94 Thus, the Commission
argued that it was the combination of the waiver of the threshold, and
the MMP electoral system,
that would encourage parties to ensure fair
representation of Māori, not the MMP system alone.
90 D. O’Sullivan, Beyond Biculturalism: The Politics of an Indigenous Minority (2007, Wellington, Huia) at 159.
91 Supra n2, at 12.
92 Supra n2, at 12, citing supra n42, at 81.
93 Supra n42, at101.
Despite the recommendation of the Royal Commission, the Māori seats were not abolished when MMP was introduced and the threshold was not waived for parties primarily representing Māori interests.95
However, Claudia Geiringer has pointed out that the provision of the separate
seats in the current system may serve a similar function
to the waiver on the
threshold envisaged by the Royal Commission.96 As entry into
Parliament may be achieved by reaching the 5 per cent threshold, or winning a
constituency seat, the Māori seats
effectively provide a way for parties
representing Māori interests to circumvent the
Moreover, on the Commission’s reasoning, the mere prospect of
parties representing Māori interests circumventing
the threshold would
encourage major parties to compete more fiercely for votes from
Māori. Thus, under the current
electoral arrangement in New Zealand, it is
the combination of the MMP system, and the provision of separate seats, that has
Māori to become represented in Parliament in rough proportion to
their numbers in the general population.
Accordingly, abolishing the Māori seats would be to remove one of the
two major incentives for parties to ensure fair representation
which may well result in a decrease in Māori representation. In these
circumstances it is unlikely the abolition
of the seats would be
consistent with Treaty principles unless the seats were replaced with an
alternative system that ensured
proportional representation of Māori. One
option would be to implement the Royal Commission’s suggestion of
the Māori seats and instituting a waiver on the threshold for
parties predominantly representing Māori interests. However,
who should decide, and what standard should be applied to decide, whether a
party represents predominantly Māori
interests is an extremely difficult
question.98 Under the status quo the difficulties of this question
95 See supra n15 and accompanying text for the reasons for the decision not to follow the recommendation of the Royal Commission.
96 Supra n10, at 241.
Accordingly, despite the advent of MMP, there does remain a case for the
retention of the Māori seats based on Article 3 of the
Treaty. It remains
to be seen whether representation of Māori in general electorate
and list seats will increase to
a level that matches the proportion of
Māori in the national population. Moreover, roughly proportional
Māori has been produced by the incentives produced by a
combination of the MMP system and the separate seats, not by the MMP
alone. These two factors mean that it is premature to argue that the
seats no longer fulfil Treaty obligations. Accordingly,
the abolition of the
seats without providing another mechanism to ensure proportional
representation of Māori would be
inconsistent with Treaty
D. The relationship between Article 2 of the Treaty and the Māori seats
Like Article 3 of the Treaty, Article 2 presents an interpretative
problem in determining its relation to the Māori
seats. As has been seen,
the English version of the Treaty guarantees to Māori title over their
land and other customary
property such as forestry and
fisheries.100 However, the Māori version guarantees to
Māori rangatiratanga, which has a considerably wider meaning than
customary property.101 Although no exact definition of
rangatiratanga can be given, and much controversy exists over its
meaning, it is widely argued to encompass a right to self-determination.102
This is a right for Māori to participate in decision-making on the
basis of their position as the indigenous people of New Zealand,
being treated the same as other minorities.103
Joseph seizes on the English version of Article 2 to argue that it guarantees
“Māori customary property rights, not electoral
therefore cannot guarantee the Māori seats.104 However, this
focus on the English version of Article 2 is out of step with the approach of
the courts and the Waitangi Tribunal.
The courts have certainly not
100 Supra n22 and accompanying text.
101 Supra n23-supra n24 and accompanying text.
102 See M. Durie, ‘Tino Rangatiratanga’ in supra n17 (Belgrave, Kawharu and Williams) at
3-19 for commentary on this debate.
103 Ibid, at 14-15.
104 Supra n2, at 11.
their interpretation of Article 2 to customary property rights. The
Māori version of the article protects taonga.105 This
term translates to “treasures”, and the courts have recognised that
it protects more than physical possessions.106 The Privy Council
recognised in New Zealand Maori Council v Attorney-General (the
Broadcasting Assets case) that the Māori language is protected
under Article 2.107 In Bleakley v Environmental Risk
Management Authority108 the High Court held that the article
extended to the protection of intangible spiritual beliefs.109 In
the Ngai Tahu Sea Fisheries Report110 the Waitangi Tribunal
found that retention of rangatiratanga qualifies the cession of
sovereignty under article one of the Treaty.111 Accordingly, in
determining the relationship of Article 2 of the Treaty to the Māori seats,
it is necessary to consider whether
the seats are encompassed by the guarantee
The Māori seats are frequently argued to encompass an aspect of
rangatiratanga through their ability to give direct representation to
Māori.112 Whereas under MMP Māori form one of many
interest groups that must be balanced against others in setting party lists and
policy, separate representation allows for representatives that are accountable
directly and solely to Māori.113 The importance of direct
accountability to rangatiratanga was made clear in the Te Whanau o
Waipereira Report,114 which described rangatiratanga
as “a leadership acting not out of self-interest but in a caring and
nurturing way with the people close at heart, fully accountable
to them and
enjoying their support.”115
This special form of representation provided by the Māori seats is then
consistent with the special position of Māori under
the Treaty as
105 Supra n19.
106 Supra n20.
107 Supra n26, at 513.
108  3 NZLR 213.
109 Ibid, at - per McGechan J.
110 Waitangi Tribunal, The Ngai Tahu Sea Fisheries Report 1992 (1992, Wellington, Brooker and Friend).
111 Ibid,at 269-271.
112 Supra n86; supra n4, at 365-366.
114 Waitangi Tribunal, Te Whanau o Waipereira Report (1992,Wellington, Brooker and
115 Ibid, at xxv.
partner of the Crown.116 In this way the seats have come to be
seen by many Māori as an important symbol of rangatiratanga. The
1986 Royal Commission pointed out that many Māori regarded the seats as
‘their last vestige of a lost autonomy”.117 Similarly,
Justice McGechan in the Taiaroa litigation stated that the ability of the
seats to give Māori a “voice in the running of the new nation”
to them becoming a “[T]reaty icon” for
Despite recognising the symbolic importance of the seats, the 1986
Royal Commission raised doubts over their efficacy, questioning
whether they really were an appropriate expression of rangatiratanga.119
The 1986 Royal Commission pointed out that separate representation
under the FPP electoral system meant that each group was only responsible to those that elected it rather than the nation as a whole.120
This meant that the views of Māori MPs in the House were easily ignored
and that there was little incentive for those
in general electorates to
seek the votes of Māori on the Māori roll.121 Rather than
leading to self-determination, this led to the marginalisation of the
Māori voice by the non-Māori majority.122
Moreover, Catherine Iorns Magallanes has argued that the seats may be
inappropriate as a form of rangatiratanga as they rely totally on the
structures of Parliament, a non-Māori institution.123 She goes
on to argue that it is difficult to justify the seats on the basis of
Treaty principles when the process of selecting
representatives does little to
take a Māori view of societal organisation into
Finally, it may be argued that rangatiratanga need not extend to the
provision of separate seats. The Crown in the Taiaroa litigation
submitted that Article 2 did not confer upon Māori any authority in
116 Supra n4, at 365-366.
117 Supra n42, at 93.
118 Supra n 47, at 69. When the Waitangi Tribunal held the hearing for the Electoral Option Report it heard only incomplete submissions on the relevance of rangatiratanga to the Māori seats so expressed no concluded view on the matter. Supra n52, at 14-15.
119 Supra n42, at 93.
120 Ibid, at 90-91.
123 Supra n79.
organs of central government. Such an argument may be supported by placing
emphasis on article one of the Treaty. This cedes to the
“kawanatanga” according to the Māori version
and sovereignty according to the English version.125 Both concepts
are tied to ideas of central government.
Moreover, it could be argued that forms of separate Māori representation
outside of Parliament make parliamentary representation
unnecessary. In recent
years there has been an effort by the government to tailor government
services to Māori needs
and increase iwi authority through social policies
such as ‘Tu Tangata’ and ‘Closing the
However, the criticisms of rangatiratanga outlined above are
overstated. Firstly, the criticism that separate representation may be harmful
has much less force in an MMP environment.127 Because Parliament is
much more fractured under MMP, and the party vote is the most important, parties
can no longer afford to ignore
the wishes both of Māori MPs and
voters.128 The current MMP system gives Māori the best of both
worlds. MMP provides Māori with much more effective representation in
general electorates and in Parliament as a whole while separate representation
provides directly accountable Māori representatives.
Furthermore, given their reliance on Parliament and the electoral
system, the Māori seats are open to criticism as a
full realisation of
rangatiratanga. However, they still form a very important part of self-
determination for Māori. A key Treaty principle is the notion of a
partnership between Māori and the Crown. This concept is very compatible
with the idea that Māori should have dedicated
seats in the most powerful
political and lawmaking body in the nation. Although this does require reliance
on some non-Māori
governance concepts, it is
125 See supra n19 and accompanying text.
126 The ‘Tu Tangata’ policy aimed to redefine the delivery of government services to Māori by transferring government service and programmes to local Māori authorities. The
‘Closing the Gaps’ policy aimed to improve Māori social and economic opportunities by improving Māori health, education, employment and housing. See Maaka and Fleras, The Politics of Indigeneity, (2005, Dunedin, University of Otago Press) at 125-128, 135-138.
127 Supra n4, at 360-361.
simply unavoidable. Moreover, the overwhelming support for the retention of
the seats amongst Māori suggests that despite their
non-Māori concepts they are still viewed by Māori as an effective form
of societal organisation for the purposes
of achieving self-
Indeed reliance on the structures of Parliament in some ways
strengthens the current system of separate seats as a form of
determination. As has been discussed earlier, the Electoral Act provides for the
seats in such a way that they are entirely
consistent with the principle of
democratic equality, provided one takes a substantive view of equality.130
This means that the seats can be seen as equally legitimate to
the other seats in Parliament. This makes them equally worthy
allowed full participation in the legislature.131 Of course,
the corollary of the point is that it would be much harder to justify separate
seats in the national legislative body if
they had a different structure to
those in the general electorates.
It follows that developments at the local level, while important, should not
be over-emphasised either. ‘Tu Tangata’ and
Gaps’ were designed with the goal of improving social disparity
between Māori and Pākehā
by removing discrimination, rather than
focussing on redefining the constitutional relationship between Māori and
and securing rangatiratanga.132 Moreover,
rangatiratanga is a right to both local and national authority.133
Therefore, even to the debatable extent that the programmes were
successful in promoting local autonomy, they cannot compensate for
the loss of
separate representation at the national level.
The Māori seats provide Māori with an important symbolic
and practical aspect of rangatiratanga. Their abolition would be clear
breach of Article 2 of the Treaty. With this in mind the entrenchment of
129 Supra n4, at 361.
130 See supra n65-supra n67 and accompanying text.
131 Ibid, at 361-365. As Geddis shows, any equality concerns about the seats are based not on a violation of the principle of democratic equality but on a concern that giving an ethnic group special status through Parliament is inconsistent with the concept of the neutral state.
132 Supra n122, at 137-140.
133 Supra n111. at 4-6.
current provisions of the Electoral Act relating to the Māori roll is desirable. The provisions are particularly important to a minority and vulnerable to repeal by a majority. In the Broadcasting Assets case the Privy Council held that if a taonga is in a vulnerable state the Crown is required to take “especially vigorous action for its protection.”134
Entrenching the Māori seats would be consistent with this
Moreover, entrenchment of the current provisions would be consistent with the
principle of options. This principle was explained in
the Ngai Tahu Sea
Fisheries Report.135 The Tribunal stated that the Treaty
envisaged Māori having the option of retaining iwi authority and
self- management of resources under Article 2 or taking up the privileges of
British subjects as contemplated in Article
3. The Tribunal added that
Māori should also be free to pursue a combination of these options in
As discussed earlier, because subscription to the Māori roll is
voluntary its exercise each year represents a referendum of Māori
whether the Māori seats are still desirable.137 In this way
Māori have a choice over whether they retain the seats. If Māori
became dissatisfied with the seats they could
effectively repeal them by
switching to the general roll. However, entrenchment would stop repeal by a
majority that opposed the
interests of the Māori minority.
The abolition of the Māori seats would be inconsistent with the
obligations of the Crown under the Treaty of Waitangi. Article
3 is a guarantee
of substantive equality. It places an obligation on the Crown to ensure that
Māori are represented in Parliament
in proportion to their numbers in the
national population. Despite the greatly improved representation of Māori
under MMP it
is still too early to conclude that the advent of MMP means that
the Māori seats should be abolished. Māori have not yet
proportional representation in the list and general electorate seats. Moreover,
as the provision of the Māori seats
alongside the MMP system enhances the
incentives provided by MMP
134 Supra n28, at 517 per Lord Woolf.
135 Supra n118, at 274.
137 See supra n10 and accompanying text.
for parties to ensure adequate representation of Māori, the abolition of
the seats is likely to reduce Māori representation
Accordingly, the status quo, which ensures roughly proportional representation
of Māori, ought to be retained.
The seats are also guaranteed by Article 2 of the Treaty through its
protection of rangatiratanga. The Māori seats provide
representatives that are solely and directly accountable to Māori in the
most powerful political
and lawmaking institution in the country. They are
therefore an important symbolic and practical aspect of rangatiratanga
that should be entrenched in order to give effect to the Treaty.