They’ve been hanging around for a while, those principles. A mention in an 1975 Act passed mostly unnoticed, but a low profile reference in a 1986 law on state-owned enterprises proved consequential. That mention paved the way for a landmark court decision in 1987. Since then the courts and the Waitangi Tribunal have been interpreting references to the ‘principles of the Treaty’ now scattered plentifully across legislation. In doing so, they have been changing New Zealand’s constitutional order.

Parliament has never defined these principles.  The principles are also not fixed. So somebody has to continually interpret them. That somebody turns out to be judges and appointed members of the Waitangi Tribunal. As noted in a government-issued guide that the Waitangi Tribunal references on its website:

 ‘The Courts and Tribunal have emphasized that the principles of the Treaty are not set in stone and that they may change as the Treaty partnership evolves. Accordingly, they have not developed an exhaustive list of principles and continue to refine their explanations in response to new circumstances.’

The principles now affect almost all areas of law and public policy. Few of us are untouched, with the principles regularly cited to justify public policy decisions on everything from health and education to conservation and urban planning. It is now common to hear legal professionals refer to the Treaty and its principles as forming part of New Zealand’s constitution. Indeed a group of King’s Counsel, in marking their objections to the Treaty principles bill, also appeared ‘to be questioning the constitutional right of Parliament to legislate in these circumstances.’ Judges and other public sector decisionmakers defer to these principles as if they do have constitutional status.

A constitutional revolution

This makes for a de facto constitutional revolution. One of the country’s foremost Treaty scholars, Claudia Orange, has referred to the change in the status of the Treaty as revolutionary.

Most attempted revolutions fail, so it is interesting to figure out why this one succeeded. The ‘principles Treaty’ bears little relationship to the actual historical Treaty. The courts have explicitly rejected the possibility of an ‘originalist’ interpretation of the Treaty.

So how did the constitutional hijack happen? After all, New Zealand is a democracy in which parliament has traditionally been regarded as sovereign. Did the legislature vote to curb its own powers? Sort of. The constitutional hijack required parliamentary complicity.

Palmer’s plan to clip parliament’s wings

The story starts with a politician-cum-legal scholar who, way back in 1979, decried the ‘unbridled power’ of the New Zealand parliament. That man, Geoffrey Palmer, got himself elected to parliament and attempted to legislate for constitutional change that would clip parliament’s wings and entrench the Treaty of Waitangi. It appeared initially that he failed: over two years, public submissions were largely opposed. The resulting Constitution Act of 1986 did not mention the Treaty of Waitangi (except in a parenthetical schedular amendment to the Treaty of Waitangi Act 1975), let alone elevate it to constitutional status. New Zealanders were very explicitly not prepared to go along with Palmer’s ambitions.

But Palmer was not deterred. What he could not achieve openly, he set about bringing about by stealth. His plan was to litter legislation with innocuous-sounding references to undefined ‘principles’ and ‘procedures’; things so devoid of substance that most parliamentarians would not bother to oppose them. He counted on the courts to then give teeth to the new order over time.

We know this was a deliberate plan because Palmer himself tells us about it. In 1992, soon after retiring from politics and returning to educating law students (and many of the current generation of judges), he published New Zealand’s Constitution in Crisis. There, on page 76, he writes:

‘The logic of the approach was as follows… Some parliamentary action by way of legislation was needed to make a base. But if that legislation itself redressed the grievances it would run into the problem that the majority of the community would oppose it. If, on the other hand, legislation was used to set up processes, and procedures and the principles on which decisions should be based were stated, it may be possible to get even a majoritarian legislature to act. The initial commitment required was to a process. No tangible outcome was provided by the legislation itself. What should be done was to be decided only after judicial or quasi-judicial processes had assessed individual cases. First it was necessary to give the courts something to interpret. Such was the nature of the approach I brought to both statutory incorporation of the Treaty in statutes, and extension of the Waitangi Tribunal to examine grievances back to 1840.’

The intent to sideline parliament is explicit:

The hijack appeared to work precisely as planned over the following decades. Whether it can continue to work is another matter.

The architects of New Zealand’s Treaty principles bill, whether they are aware of it or not, are part of a broader pushback against perceived excesses of judicial power in many countries. The ‘judicialization of politics’ has been underway for more than thirty years, moving decision-making away from arenas subject to democratic control and accountability to tribunals, courts and quasi-judicial panels of experts. A backlash now looms in many places.

The Treaty principles bill will no doubt fail to clear its second and third readings. But the attempt at clawing back parliamentary control has already made a difference. No one can now say with any credibility that the Treaty principles are ‘not political.’

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The first question in politics is “who rules?” It’s at the forefront of the debate about David Seymour’s Treaty Principles bill, which holds that the Government has the ultimate right to govern and Parliament has the full power to make laws. Te Pati Māori argues that Māori never ceded sovereignty and should hold governing power over themselves. 

But there’s another power struggle taking place in the background of this debate: a quiet but profound contest between Parliament and the courts over the power to make laws. In the week that Seymour’s bill passed its first reading, an open letter from forty-two members of the King’s Council called on the Prime Minister and the Attorney General to abandon the legislation, and it contained the aside “even if Parliament can legislate in this way (which is uncertain)…”

Crown Law’s advice on the bill struck a similar note, advising that if Act’s proposed principles became law after a public referendum, the courts would likely ignore them.

The Rise of judicial activism

New Zealand’s political system is based on the Westminster model. Parliament is supreme, and its laws cannot be challenged by the judiciary, whose role is to interpret them. This is very different from the US model of government, in which the Supreme Court can invalidate laws and executive actions that it finds to be in breach of the constitution.

Former Prime Minister Sir Geoffrey Palmer has long argued that New Zealand should move closer to the US model. In this model, New Zealand adopts a written, codified constitution that defines fundamental rights and freedoms and empowers the judiciary to invalidate legislation in conflict with the constitutional framework.

There has never been much political appetite for Palmer’s reforms. Still, some legal commentators argue that the courts have quietly moved towards this model, adopting the principles of the Treaty – which are undefined in law – as a de facto constitution. 

Lawyer and political commentator Liam Hehir has written a background piece on this topic. He identifies the eminent judge and legal scholar Lord Cooke of Thorndon as the patron saint of New Zealand’s judicial activism, citing his judgement in a case known as Taylor v New Zealand Poultry Board in which Cooke decided that some common law rights are so fundamental Parliament cannot abridge them.

Hehir writes: “And so a case about illegal egg sales ended up as an important inflection point for future questions about who governs New Zealand… Over time, Cooke’s philosophy has gained traction within New Zealand’s legal community. His influential stance has fostered a subtle yet persistent view that the courts, not Parliament, should have the final say on fundamental rights and principles. This has led to a culture within the legal profession that, consciously or unconsciously, questions Parliament’s authority, promoting a quasi-constitutional role for the judiciary.”

Who makes the law? Reining in the Supreme Court

The issue has also been taken up by Roger Partridge, chair of the New Zealand Institute who recently published a report titled “Who makes the law? Reining in the Supreme Court.” In a recent Herald column Partridge notes recent comments by Chief Justice Dame Helen Winkelmann that the courts are “where the decisions in society that can’t be worked out in other ways are taken,” because judges “take the hard decisions in society.” 

He cites the 2022 Peter Ellis case, in which the court cited Tikanga Māori as being applicable in its decision as a form of common law, finding it to be “the first law of New Zealand and not secondary to the colonial common law”, despite it having no apparent relevance to Ellis or his case.

Partridge writes: “The Court bypassed ongoing work by the Law Commission on this very issue and overturned established rules for recognising tikanga as law. It did this without providing a clear new framework. The result is a quagmire. Neither judges nor lawyers now know when or how tikanga should be considered in future cases. The Ellis decision reveals a court more captivated by the allure of making grand symbolic gestures than concerned with the careful, methodical development of the law. Such judicial activism creates precisely the sort of uncertainty and confusion that proper legal development should avoid.” 

Geoffrey Palmer has persuasively argued that New Zealand’s Executive branch is too powerful, leading to poor-quality legislation and poor governance. Successful democracies have checks and balances that constrain the branches of government.

It’s possible that Palmer’s proposals would be beneficial to New Zealand, although progressives looking at this form of government to advance their politics should consider the current state of the US Supreme Court. But, as Partridge points out, the current judiciary has no democratic mandate to take on a political role. Nobody voted for them. And the Treaty is not a constitution.

Hehir notes in this regard, “If the Treaty of Waitangi is law, it bears many of the hallmarks of the worst law making. It is sweeping, vague and open to extensive interpretation, which can lead to inconsistent application and unpredictable judicial outcomes.”

He warns, “Such a system would paralyze decision-making, forcing policy into a state of perpetual review, litigation and delay. We have had a foretaste of this following the election of the current government, where it feels like almost every initiative has been called a Treaty breach, regardless of campaign promises.” 

How a Constitutional crisis plays out

What would happen if a New Zealand court directly refused to implement a law passed by Parliament? This would undoubtedly provoke a constitutional crisis.

Parliament has the right to remove judges for misbehaviour or incapacity, but it is a lengthy process. Although judges in New Zealand have resigned, none have ever been removed.

We’re more likely to see the courts continue to offer expansive interpretations of laws that alter their effect rather than refuse them. The likely consequence of this will be the politicisation of the judiciary, which will also bring us closer to the US model.

In Westminster systems, the courts are supposed to act as apolitical arbiters of existing laws. However, if the courts themselves insist on functioning as political actors, politicians will respond by appointing judges who advance their policies and values. Even though it will not pass, David Seymour’s Treaty Principles Bill has highlighted a profound tension at the heart of our democracy. 

Dr Bryce Edwards

Political Analyst in Residence, Director of the Democracy Project, Victoria University of Wellington

Note to Media: This analysis can be published by any media outlets for free under a Creative Commons copyright-free license. Attributions should include a link to the Substack page.

Key Sources

David Harvey (Listener): Law & society: Should our Supreme Court address societal issues where Parliament has failed to do so? (paywalled)

Liam Hehir (Blue Review): KCs and the Courtroom Bands (paywalled)

Roger Partridge (Herald): Attorney-General and Chief Justice reveal contrasting visions of judicial power (paywalled)

Cover image from https://democracyproject.substack.com/p/democracy-briefing-foundations-of

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The bigger issue is a basic problem of information asymmetry between the universities that “sell” research and education services and the students and taxpayers (represented by public commissioning agencies) that “buy” their services. They are not selling shampoo or even silicon chips. The 18 year-olds signing up for 3 to 5 years of debt and foregone earnings don’t know if they are being sold a lemon. If they peruse the public resources that supposedly help them choose a university, they are advised to consider the “vibes” of the place, along with amenities and support services. The internet bears traces of an earlier initiative to make information on degree costs and career outcomes available to students, but the promised ‘key indicators’ are so well-hidden I suspect they do not exist. There are no accessible, independent measures of how well  universities have taught their students. It is inherently hard to assess the value of university research. If it could be assessed on the basis of commercial outcomes, it would not need to be publicly funded. The case for public funding of both research and teaching is a strong one: there are enormous potential positive externalities to both. But only if the research and teaching are well done.

If the research and education are not well done, simply freeing the universities to compete and innovate will waste public and private resources. For a vision of such a future, we can see what has happened in the United Kingdom. There, attention tends to go to the small number of elite universities that enjoy high prestige. But freeing the system as a whole to compete and innovate on the basis of taxpayer-subsidized public lending to students has led to high fees, grade inflation, and a proliferation of mediocre degree programmes.

New Zealand universities are facing more than a cashflow crisis. In the words of one senior academic, ‘we no longer deliver on the most important part of what we promised.’ Why not?

Managerialism

The sector excels at regulations, policies, metrics and documentation requirements. Centralized, intrusive directives have created a compliance culture heavy on paperwork, processes, and performative quality assurance systems. This is likely one reason for the bureaucratic bloat that universities carry: New Zealand universities appear to lead the world in the ratio of non-academic to academic staff. Managerialism also diverts academic time. In some faculties, the number of academics with some sort of “dean-ship” or equivalent in their job title has increased nearly threefold in a decade. The compliance work affects all academics, making the creeping growth of managerialism an enormous barrier to quality and innovation at the coal face.

Moralism

Universities have become very preachy places. Moralistic goals adopted by university leaders are distorting almost every aspect of what we do. This moralism is often justified under the general banners of “equity”, “fairness” and “inclusion” which have been adopted across the English-speaking world. Here in New Zealand, we have a specific version driven by deference to the Treaty of Waitangi, which has become a trojan horse for politicization – as it must, in a country where very obviously there is no broad social or political consensus about the role of the Treaty. An agenda of  “indigenising” the university radically overturns the traditional mission of the university.

The moralism makes institutional neutrality – the idea that a university in its corporate form should not take sides on issues of current social and political contestation – impossible. Evident institutional non-neutrality erodes the credibility of teaching and research.

Moralism of the protective sort, that seeks to prevent “harm” and protect “wellbeing”, to promote “diversity” and “honour Te Tiriti”, also curtails academic freedom and freedom of expression. Not only does such moralism create an overall chilling effect on freedom of expression, it is given bite in official speech codes, research ethics requirements, promotion criteria and curriculum requirements. The university policies that put the decolonization agenda into the myriad managerial policy frameworks of the organization ‘invoke a particular, static, idea of the Treaty as if debate about it has been resolved’; they also place the individual academic in the peculiar position of being an agent of the Crown, unable to contest supposedly foundational Treaty principles as asserted by university management.

Disciplinary degradation

Academic disciplines are the guardians of knowledge. They are responsible for the gatekeeping that maintains standards and rigour. For a whole variety of reasons, including managerialism and moralism, the disciplines have become degraded as institutions for responsible, scientific gatekeeping. Moral agendas, rather than scientific merit, now overtly influence editorial policy at many major science journals, to the detriment of disciplinary rigour.

Epistemic relativism – the idea that there is no objective knowledge (even as something to pursue or work towards) and that science as a method of knowledge discovery is just one of many ‘knowledge systems’ or ‘ways of knowing’ – has moved from the fringes of the humanities and social sciences to take hold in much of the institutional apparatus of the university. Not all academic research is infected; much of the academy retains rigorous peer review processes.  But the creeping relativism makes it harder for those who want to defend disciplinary standards.

Institutional incoherence

It is impossible to see any strategic direction for the tertiary sector. The government’s tertiary education funding agency and watchdog, the TEC, has a “tertiary education strategy that talks about wellbeing, achievement, identity and other platitudes. It could be talking about the kindergarten sector. The other so-called guardian of our education system, the NZQA, is so agnostic about actual educational quality it will accredit colleges of wellbeing and homeopathy. The last government’s review of public sector science and research funding looked more concerned with embedding the Treaty of Waitangi across the entire science system than actually producing a more effective one. No wonder New Zealand suffers from long-term and severe educational mismatches: the percentage of the school leaving cohort going on to university has expanded hugely since the 1990s, but large areas of society suffer from critical skill shortages.

I initially thought of these problems as the Four Horsemen of the Apocalypse, university-style. But on reflection, they haven’t come galloping up brandishing messages of doom. Instead, managerialism, moralism, disciplinary degradation and institutional incoherence are more like termites. They are largely invisible to outsiders and they silently eat away at the foundations of the university system.

There is still great value in our universities. I want to see the sector thrive and believe it has an essential role to play. But these termites function as de facto taxes on the research and education spend. And that’s the optimistic reading of the situation. The worst-case scenario is that they threaten to bring the whole house down.

This is an edited version of an address delivered by the author at a symposium on the Future of the Universities organized by the New Zealand Initiative, Wellington, 15 May 2024.

Photo by Roberto Carlos Román Don on Unsplash

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The result of parliament’s failure is two versions, one of Articles – the ‘Articles Treaty’, the other of Principles – the ‘Principles Treaty’ – and the consequences – a racially divided country and a group asserting co-governance rights.  How did it happen?

The 1840 Articles Treaty has a Preamble and 3 Articles that reflect the ideas, motives, and actions of the time. Similarly the Principles Treaty is of its time and place – the 1980s. The cause of enormous confusion and conflict is because the treaty today has the words of 1840 (whether in Māori or in English) but the meaning is late 20th century ideology.

The meaning of the 1840 Treaty exists in the Articles. Article I recognised British sovereignty. Article II recognised the rights of Māori to hold or dispose of property. Article III recognised Māori as British subjects. In start contrast, the inventors of the Principles Treaty have, after decades of uncertainty, finally settled on the so-called core principles of partnership, active protection, and redress, despite these words not appearing in the Articles.

The word ‘principles’ first appeared in the 1975 Treaty of Waitangi Act. In that legislation, ‘principles’ referred directly to the meaning, value, and purpose of the Articles. The word ‘principles’ was tied to the Articles. It had no referent outside those Articles. It did not state the word ‘partnership’, nor was active protection and redress mentioned or implied.

Three events detached the word ‘principles’ from the Treaty Articles, leading to decades of meaning creation. They are the 1985 Treaty of Amendment Act, the 1987 Court of Appeal’s ‘akin to partnership’ statement, and the insertion of undefined ‘principles’ into legislation from 1986.

The Articles-Principles detachment occurring in these three events was crucial to today’s invented treaty. It enabled the principles to acquire a different meaning, value and purpose – a new referent. To reflect the word’s new power, it was given a capital ‘P’. From that time treaty revisionists of all ethnicities talked excitedly about the ‘Principles’ as though they had always existed. Like sacred text, the meaning was lying in wait in the Treaty runes. It would be revealed by those who now interpret the Word to the World – the lawyers who are the modern secular priesthood.

As the practice of legislative insertion and legal interpretation gained momentum so too did an acceptance of the erroneous belief that the Principles had authority. An authority conundrum was created. It is reasonable to believe that insertion into legislation is the act of authorisation.

After all, members of parliament authorised the insertion. However they failed to define the Principles despite numerous and ongoing insertion. It was left to activist judges, officials and retribalists to take on the monumental task of deciding what the Principles were to mean.

In a democracy, parliamentarians represent us, the people. Yet does this authority have legitimacy when our representatives did not know what the Principles meant when they were inserted into law?

A vacancy of meaning, especially when concealed by righteous language, opens up opportunities for those with vested interests to insert their own meaning.  In inventing and consolidating the Principles, advocates for a kinship-based political structure have used traditional ideology to provide a timeless, spiritually authorised quality to their very time-bound interests. The erroneous partnership Principle is given the greatest weight, opening up a wide backdoor to power. Tribal corporations can now move beyond their economic interests to demand political power – to be entrenched first as co-governance, then as tribal sovereignty.

How do you get people to believe in an invention and then to agree to its consolidation in legislation? Retribalists simply used age-old strategies.

The first strategy laid the groundwork by creating alliances with those in government and the professions, particularly in the judiciary. It didn’t matter if the alignment proved to be incompatible – such as that between a racialised retribalising movement and emancipatory feminism. As a temporary alliance it served its purpose with many feminists proving to be ardent retribalists. Some later retreating in silence, unable to resolve a dilemma created by mistakenly defining equal rights and justice in identity terms. In this way, feminism was ousted by gender identity politics and women’s rights were side-lined.

The second strategy is to ride on the back of current intellectual movements. Using postmodernism’ mystifying and irrational idea that reality only exists in language means that if one say something is the case then it is – especially if it is said in the loud and certain tone of the righteous with prayers adding the gravitas of sacred authority. If it is stated that the Treaty has Principles, then it is for the secular priests to reveal that truth.

This emperor’s new clothes strategy was supported by the righteousness of Cultural Marxism, a thriving ideology in university social science and education faculties and in government departments staffed by those with postmodern degrees. Although the nonsensical conflation of culture and materialism would have Marx turning in his grave, it gives social justice intellectuals a site on the moral highground from where they can do well by doing good.

The third strategy, the language game, rests on this irrational intellectual bedrock.  Controlling the language that can be used when talking about the Treaty ensures that thought itself is restricted in both its expression and, more seriously its very development.  How can alternative ideas be developed if they cannot be spoken?  Even more seriously, once language is couched in moral terms then criticism is excluded.

The rapid inclusion of the word indigenous into New Zealanders’ everyday language from the 1980s shows how effective this method is.  Belief in a treaty partnership requires partners who are to live in a permanent relationship.  Differences are emphasised, sometimes even created, and commonality rejected.

Embedding one of those partners in the status of indigeneity with the other partner an intruder into Arcadia expands the moral distinction into a timeless mythical realm.  Romantic evocations of the evil coloniser and the indigenous colonised provide a more seductive narrative for the nation’s collective memory than the more prosaic fact that, from the thirteen century to the present, all New Zealanders are settlers.

Our history is one of waves of settlers. It is a shared experience that trumps an arbitrary division into the indigenous on the one hand and all other settlers on the other. But language control is most successful when it evokes the sacred. The word indigenous does this with its suggestion of a mythological connection to the land and its creators. Those who resist the language game are accused of refusing not only the word, but the Word as revealed truth. Those who insist that truth lies in reality – that the 1840 Treaty didn’t have Principles and that we are all settlers, no matter the time of arrival, are silenced by accusations of racism. Far better to be silent than to bear the racist taint suggestive of a profoundly immoral character.

It is in the revelation of sacred meaning that the fourth strategy has proved to be most effective. Today’s secular priests – the activist judges, tribalist law professors, and lawyer-politicians – have claimed the authority to interpret the truth from the Treaty runes. They have won the age-old battle between the World and the Word in securing doctrinal supermacy. Made vulnerable by their commitment to the Word and their role as its interpretors to the World, lawyers tend to believe that if it is said, and especially if it is said in legislation, then it must be true. That revealed Word is now the authority.

But tribalist intellectuals, activists and lawyers aside, the group most to blame for the invention of the Principles Treaty are our Members of Parliament. The inclusion into legislation of a statute without legislators knowing what it meant is an unprecedented failure of political representation. Compounding the failure by continuing to insert the Principles does not make up for that failure. Repeating an error does not diminish or remove it, rather the error is consolidated.

The initial authority for inclusion was not given by the people. Until this occurs, or if the people refuse to authorise the inclusion, the Principles do not have the authority claimed for them. They should be removed. In the end, legitimacy is decided by the people if democracy is to work.

Those who have done well out of the invention of Treaty Principles will object to their removal. They will use the loud voices and threatening tactics that have proved so effective and led to widespread entitlement. They will be shameless in calling on the democratic ideals of universal human rights to justify a racialised future.

But an unsettled and messy time is democracy in action. Indeed a degree of conflict is to be expected given the current mess.  But the message for legislators is clear. They act on behalf of the people. They must know what their legislation means before laws are passed. Officials and lawyers then interpret the law. They do not create its meaning in undertaking that interpretation.

It is in discussion with the people that our parliamentary representatives assure themselves and us that they know what they are talking about. The discussion about whether we want Treaty Principles may be four decades late, but it must happen for the sake of New Zealand democracy.

I identify three possible choices. The first is continue with the 1980s’ invented Principles Treaty knowing it justifies co-governance and will lead to the irresolvable conflict between a kinship-based polity and a universal democratic one, one justified in a racial division of people into indigenous and non-indigenous.

The second choice is to value the 1840 Treaty of Waitangi as one of the country’s most significant historical documents, but one with no practical relevance to a modern democracy.

The third choice is similar to the second but treasures the symbolic value of the historical document within the nation’s collective memory. It is to regard the principles (lower case ‘p’) mentioned in the 1975 Treaty of Waitangi Act as referring directly to the Articles but with no meaning or application beyond those Articles.

Democracy is not just arriving at a decision. It is the act of rational communication that enables the decision to be made. For this to happen, language must be pulled apart so that meaning is exposed, and with it, the intentions of the user. There can be no language priesthood, no sacred words, no moral highground.  Those who have controlled treaty language have controlled meaning for too long. It is now time to talk critically about the Treaty.

When Alice told the Mad Hatter that she didn’t think, his reply was – then you shouldn’t talk. But we must talk, the alternative is silence – and anger. So let us follow the March Hare’s advice – say what we mean. Language has three components – words, meaning, and the explicit connection of the word to its meaning.  Ideology intrudes in the vacant space when words are detached from their meaning. That has been the case with Treaty talk since the 1980s.

Let us insist on democracy’s rational communication in all its complexity and disturbing power so that we know what we mean when we speak and we can justify the meaning in explicit argumentative logic. Let us insist that our parliamentary representatives do the same.

(Note: The ideas in this commentary are based on my article: Rata, E. (2004) ‘Marching through the Institutions’: The Neotribal Elite and the Treaty of Waitangi. Published in Sites, New Series, Winter, Volume 1, No. 2 https://sites.otago.ac.nz/Sites)

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What is being proposed?

The Green Paper makes some observations about high-performing science-funding systems and flaws in New Zealand’s current system. There is inefficient competition and fragmentation; Crown Research Institutes operate under a perverse legal framework; project-based funding leaves organizations unable to retain key talent when the project comes to an end. There are hints that the system is over-heavy on ‘governance’ requirements and red-tape.

This all rings true. Unfortunately, the Green Paper does not provide much detail and does not systematically assess the current system in comparison with the ones it considers high-performing. Instead, the main concern seems to be to ‘give effect to Te Tiriti’ across the whole funding system.

What does giving effect to the Treaty of Waitangi in this area involve? What benefits will it bring? How will it enable us to make best use of scarce public resources? What trade-offs might be involved? The Green Paper gives us an answer to the first question, but does not touch the others.

The chapter on Te Tiriti, Mātauranga Māori and Māori aspirations interweaves two fundamentally different concerns. The first is uncontroversial: if our research and science funding fails to engage with Māori researchers, fails to develop diverse talents, or fails to direct its resources in a way that proportionately benefits Māori, then obviously we have a system that is both inefficient (we should not squander the talents of our population) and unjust (if some segments of the population are systematically missing out from the benefits of publicly-funded research).

The Green Paper does not give us much relevant information here. How much publicly-funded research is directed to projects from whichMāori might be expected to benefit? We don’t know. What are effective ways of increasing Māori educational achievement and the number of Māori researchers? It is not enough to note that Māori, like some other demographic groups, are under-represented in some areas. We need to know how and where these differences arise.

The Green Paper is more focused on a different issue. It takes aim at our understanding of what science is and how knowledge advances. Injecting a ‘Te Tiriti-led’ approach across the whole system appears to mean embedding specifically Māori ways of knowing, Māori knowledge (mātauranga Māori), and partnerships with Māori as core pillars of the public research system.

Irreconcilable differences

Perhaps this sounds fair and inclusive. But if we as a country wish to reorient our entire research system in this way, we need to have more than a conversation among insiders. This is not about adding an extra strand to our research ecosystem, but changing its foundations.

Consider the claim that ‘Enabling mātauranga Māori in our research system gives effect to the obligations and opportunities embodied in Article 3 of Te Tiriti.’ Leaving aside the contentious nature of this interpretation of Article 3 (and whether it does or should create obligations in the present day), this would mean that the protection and advancement of mātauranga Māori is integral to a Te Tiriti-led research system.

There is more to this than directing resources to mātauranga Māori as a research area. Rather, the Green Paper seeks to embed mātauranga Māori and the Treaty of Waitangi at the system level, in the design and operation of the entire research, science and innovation system.

This is radical change. Mātauranga Māori differs in important ways from science. As a system of cultural knowledge that encompasses cultural, spiritual and ethical realms, in addition to practical and scientific knowledge, mātauranga Māori is ‘more than’ science. This point is made by proponents of enabling and protecting mātauranga Māori cited in the Green Paper and elsewhere: they make it clear that its processes and standards for generating and evaluating knowledge differ from those of science and the broader, universalist knowledge that underpins our current system.

Secular, universalist knowledge has as its foundational norm the principle that all knowledge is contestable on the basis of reason and evidence. Secular knowledge cannot have sacred status. Systems for advancing such knowledge cannot seek to protect particular knowledge or truth-claims from critical scrutiny.

Secular, scientific knowledge is universalist in the sense that it is open to all – regardless of ethnic or cultural background – to acquire the expertise necessary for engagement. Questions of moral value or the researcher’s personal characteristics are separate from questions about the truth or probability. This kind of scientific knowledge is advanced by what Jonathan Rauch has described as a ‘constitution of knowledge’: institutions, principles and commitments that allow for the pursuit of secular knowledge.

Te Pūtahitanga: A Tiriti–led Science-Policy Approach for Aotearoa New Zealand, which informs the Green Paper, notes that universalist claims of scientific knowledge contain cultural and normative content. This is true. The constitution of knowledge can be thought of as a culture of science. To regard secular or scientific knowledge as valuable does indeed reflect the belief that this knowledge is useful. Like any tool, it may also serve malign purposes, but the value judgement is that knowledge about the material world is preferable to ignorance. It is useful to have aircraft that don’t crash, medicines that work, and public policies that actually serve their declared goals.

And how do we distinguish knowledge from falsehood about such issues? (Strictly speaking, ‘more likely to be true’ from ‘less likely to be true’?) Again, the standards of universalist knowledge reflect a value judgment. In this case, it is the judgment that evidential tests and open debate are preferable to alternative methods of settling disputes about what is more likely to be true.

And let’s be clear about what the alternatives are: deference to a person’s social status or credentials, emotional manipulation, deduction from religious texts, intimidation and coercion. These alternatives gave us the Inquisition, theological rule and ‘Xi Jinping thought’ elevated to constitutional status. Of course, religious knowledge and faith can take much more benign forms. But to elevate them to positions of institutional authority is to create a system that puts faith and personal status above reason and evidence. Is this what New Zealanders want?

Some proponents say we can have both. I disagree. Certainly, different systems of knowledge may come to the same conclusions on some questions. But conflicts are obvious, especially when it comes to the underlying explanation as to why we should believe (or not) something to be true. On the one hand, we have the principle that all knowledge is contestable, a commitment to evidential tests, and universalist standards of knowledge. On the other side, there is  commitment to honouring knowledge on the basis of ethnicity, faith or cultural tradition. Either a claim is contestable, or it is not. An individual scientist can choose to hold both God and science in high regard; a system for advancing science cannot.

What are the trade-offs?

The practical implications of putting God – in the form of mātauranga Māori and Te Tiriti – into our science funding system are unexplored in the Green Paper. But we can anticipate some. If all research is to pass a Te Tiriti-consistency test, some subjects and some research findings will be off limits.

How could a researcher hope to gain funding to investigate the potential downsides of honouring obligations arising from the Treaty,

Could international research on carbon deposits in Antarctic ice, indicative of large-scale burning of vegetation by Māori in pre-colonial times, have been conducted by researchers operating under a Te Tiriti framework? Criticism of the research by some New Zealanders is telling. Local critics took aim at the ethnic makeup of the research team, alleged failures of cultural understanding, and the failure to cultivate relationships with Māori. Could any scientist hoping for funding and a career in New Zealand have led this research project to the same findings?

Good research often will upset stakeholders and may well be offensive. The history of philosophical and scientific discovery is full of heretics pushing against the cultural or religious orthodoxy of their times. Copernicus, Spinoza and Darwin all challenged sacred knowledge and those guarding it.

More prosaically, elements in our fishing industry would no doubt have preferred research not to have uncovered systematic labour exploitation on vessels fishing in New Zealand waters. I don’t suppose the tobacco industry was ever that keen on rigorous research on the health effects of smoking. We know a lot about the efforts of oil and gas to suppress climate change research.

The need for public research funding, academic freedom and research independence arises precisely because the narrow interests of stakeholders do not always coincide with public interests. Sometimes they do, but we cannot make it a bedrock assumption of our research system. Yet this is what embedding the Treaty does, by making all research subject to a partnership veto.

One of the authors of Te Pūtahitanga: A Tiriti–led Science-Policy Approach for Aotearoa New Zealand recognizes the extent of change involved, writing that a Te Tiriti-led public sector implies fundamental change to our system of law and governance. For example, the claim that, ‘The Waitangi Tribunal has described much of New Zealand’s law as still in breach of te Tiriti principles’ implies a need to rewrite much of our current law. According to the same source, honouring the Treaty also means we need to limit our central constitutional principle: that parliament is sovereign.

Whether or not the Treaty (or its principles) should be given constitutional status is obviously a critical question. The current MBIE ‘conversation’ appears to assume only one answer. Yet for the time being, parliament is still sovereign. In a parliamentary democracy, a resilient research funding system must have broad-based societal legitimacy if it is to pursue objectives that outlive the election cycle. Foundational change requires democratic scrutiny and consent.

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