[For the benefit of our international readership: Maori are the indigenous people of New Zealand; Pakeha is a term used to describe Caucasian New Zealanders; The Treaty of Waitangi is a significant founding document of our nation over which many historical and current differences have arisen around its role, interpretation and application.]

Recently I read a document that stated, “This institution seeks to honour the partnership between Pakeha and Maori that is laid down in The Treaty of Waitangi.” I have seen this type of statement numerous times before in the mission statements of many different kinds of New Zealand institutions. I think this claim is nonsense. Below I will argue why.

At the heart of this kind of statement is the notion that The Treaty of Waitangi (The Treaty) constitutes a partnership between Maori and Pakeha; Maori and Pakeha apparently entered into an agreement which contains mutual obligations.

The problem with this claim is that only persons can enter into contracts. Persons are either rational self-conscious agents, such as adult human beings or legal persons which are an organisation of rational agents into an institutional structure of some sort. One cannot enter into a contract with concrete objects that are not persons such as rocks or trees; nor can one enter into contracts with abstract objects such as the colour blue. One would have thought this was an obvious point which did not need pointing out.

‘Maori’ and ‘Pakeha,’ however, are not persons. Individual Maori people and individual Pakeha people are persons, and individuals of either race can organise themselves into an institution which will have a legal personhood separate from their own individual personhood, but the racial groups ‘Maori’ and ‘Pakeha are not persons.

The term Pakeha is an abstraction, it is simply a reference to an aggregate of individuals who share a particular genetic trait. It is false that everyone who has these genetic traits signed The Treaty. In fact, as The Treaty was signed in 1840, no individual alive today signed The Treaty. It is equally false that simply because someone with the same genetic traits as me at some point in history signed a treaty that it follows that all members of my race signed a treaty.

What is accurate is to say is that two institutions entered into an agreement, the Crown and various Maori tribes. No Pakeha individual can be identified as the crown and no Maori individual can be identified as a tribal group unless the individuals are acting in an official capacity as the agent of these institutions. Hence, no Maori or Pakeha individual is bound by The Treaty; no individual is responsible or culpable for breeches of The Treaty.

Someone might object that the Crown being the head of a representative government acts on behalf of all Pakeha and hence, Pakeha can be said to have entered into a partnership via The Treaty. I think this claim is mistaken. It assumes that whenever a government performs an action one can attribute the actions of the government to any and all private citizens of that government.

This error is precisely the error we condemn when terrorists target a civilian population. When terrorists target non-combatants they assume that because a government has unjustifiably committed aggression against them that it follows that the citizens of that government can be attacked. The principles of non-combatant immunity, however, deny this. If a state engages in aggression then the military personal who act as the state’s agents can be attacked but citizens who are not acting as agents for the state cannot be. They are innocent third parties.

Maori and Pakeha, therefore, did not enter into a partnership at the time of The Treaty was signed, and private individuals from either race have no obligations to each other under The Treaty. To suggest they do is to commit the error of attributing personhood to racial groups as opposed to individual members of that group. It suggests that the actions of one person who has a particular genetic trait can be attributed to everyone who has that trait. The implication of this is that whenever a Maori gang member commits a crime one could justly claim that ‘Maori’ committed the crime. This is of course racist and would justifiably be condemned in any other context. It should equally be condemned in the context of discussions over The Treaty of Waitangi.

Of course this is not to say that Pakeha and Maori individuals do not have duties to each other. The normal duties to not steal from each other or vandalise each others property, to refrain from rape and assault, etc still apply. These apply because these are general duties laid down by God. I am not bound to fulfil them because some other person signed a contract with a third party. Moreover these have nothing to do with race. I have a duty to not steal from a Maori individual because I have a duty to not steal from any human being. The duty would hold whether the person in question was Maori, Chinese, Persian or Tongan. The duty has nothing to do with a historical event in 1840.

Nor are my comments meant to deny that one party to The Treaty was treated unjustly and unfairly by the other. There is probably good historical evidence that they were. My comments simply point out who the parties in question are. They are not Maori and Pakeha. They were the Crown and certain Maori groups.

By all means let’s have a discussion about what the Crown should do to honour its obligations under The Treaty. I have no problem with the idea that a state should keep its obligations to other states and parties. I have no problem with the idea that government should both protect and respect the property rights of its citizens regardless of their race. I also have no problem with courts demanding the state compensate its victims if it can be proven in a court of law that the state has not done these things - one of the insidious features of the former government was its continual rejection of these principles. But stop suggesting that Maori and Pakeha are “partners” under The Treaty and that they and private individuals have obligations under it. They do not. As Dr Martin Luther King said, individuals should be judged by the content of their character not the colour of their skin.