The Treaty of Waitangi Act 1975 gave legal status to the Treaty, a mere 135 years after it was signed. Since then, it has often been referred to as our country’s founding document. In the absence of a written constitution, the Treaty is New Zealand’s equivalent to Britain’s Magna Carta or the United States’ Declaration of Independence, influential documents on the course of a nation’s history, but without formal constitutional status.

As such, it guides, but not dictates, so many of our national actions. In that sense, it is very much a living document, subject to constant discussion and debate, which is healthy in a modern, pluralistic society like ours. The oft-quoted ruling of Chief Justice Sir James Prendergast in 1877 that the Treaty was a “simple nullity” because it had not been incorporated into New Zealand’s law was itself nullified by the 1975 legislation giving legal standing to the Treaty.

The starting point for any discussion about the role and purpose of the Treaty today needs to be what was the intent of those who developed it back in 1840, not what various interests today think should have been their intent. Dame Claudia Orange’s authoritative book, The Treaty of Waitangi, has described events at Waitangi in the days immediately before the Treaty was signed, and the debate amongst the Māori chiefs present. Their focus was on both ensuring that their authority would not be eroded by sharing power with the British, and that their lands would be protected.

Article Two of the Treaty “confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession” and was the basis on which the chiefs agreed to sign the document on 6 February 1840.

Although it was to be more than a century before the Treaty was enshrined in law, there were references to its provisions in some early laws, most notably the Native Rights Act 1865 which established the Māori Land Court. But following Prendergast’s 1877 ruling on a land dispute between a Māori landowner and the Church of England, the strength of Article Two protection gradually weakened, even though Māori continued to challenge what was happening. Prendergast’s ruling created a bind – because the Treaty was not part of New Zealand law, little could be done to uphold the rights and protections it provided. The dilemma was highlighted in the 1938 case of Te Heuheu Tūkino v Aotea District Māori Land Board, where the judge ruled that while there was validity in Te Heuheu Tūkino’s case, according to the Treaty, it was not binding on the Crown because the Treaty was not considered to be part of New Zealand law.

Following the 1975 legislation which rectified this inconsistency, the Court of Appeal determined in 1987 that there were principles to be followed when it came to interpreting the Treaty and any claims for redress that may be made under it. These were that the Crown (the government) had a duty to act reasonably and in good faith; that it had the right to govern and should make informed decisions; and that it should remedy past grievances. The Court ruled that the Crown had an obligation to ensure active protection of Māori interests, and that Tino rangatiratanga, the right of Māori to continue to exercise self-determination, should be recognised. These principles have been summarised as the “three Ps” – partnership, participation and protection. – generally consistent with what the original signatories thought they were agreeing to in 1840.

The history of the Treaty since 1840 has been chequered. There have been occasional lurches to the extremes – Prendergast in 1877, for example, or perhaps even the pace of change under the Ardern government. The current debate about the Treaty Principles Bill is another such move.

At first glance, the Bill’s main provisions (that the Government has the obligation to govern for all New Zealanders; that it will protect all New Zealanders property rights; and treat everyone as equal under the law with the same rights and duties) may seem innocuous. But under the Bill of Rights Act and the existing common law, those basic rights are already established and upheld, making the Treaty Principles Bill unnecessary.

The Bill’s provocation is far less its content than its perceived intent. It is not about providing a reasonable framework within which the original intent of the Treaty and the legal principles accompanying it can be applied to the betterment of all New Zealanders, as that already exists. Rather, it effectively renders the Treaty itself redundant by transferring its content to a separate form altogether. In that sense, it is a modern version of Prendergast’s 1877 ruling.

In another context, it would be unthinkable if a contemporary British government decided to rewrite Magna Carta, or a United States administration decided the Declaration of Independence needed to be re-interpreted (although under the incoming Trump administration who knows what might happen). The same applies with the Treaty of Waitangi. It may be imperfect, incomplete in some respects, or not always upheld as intended. But for all that, it remains the document on which our nation was founded.

The Treaty is therefore our modus operandi for common nationhood. It is not about the dominance of one signatory over the other, but as Norman Kirk said many years ago, about how we all live together in these islands. In that regard, the Treaty Principles Bill is simply the wrong answer to a question that does not properly exist.

The division, misinformation and dislocation it is causing in many quarters is not justified by either our history or the blinkered determination of those seeking to win narrow partisan political points.