NZ universities are not normal Crown institutions – they shouldn't be 'Tiriti-led’

As part of its aspiration to be “Tiriti-led”, the University of Otago has embarked on a consultation process to re-brand. The proposed change involves a new logo and a new, deeply symbolic Māori name: Ōtākou Whakaihu Waka.

Universities occasionally change logos, names and marketing strategies. All New Zealand institutions have added te reo Māori to their original titles, often opting for a literal translation – “Te Whare Wānanga” – to describe their status as a university. But Otago is taking it a step further.

Metaphorically, “whakaihu” refers to the university’s place as the country’s oldest university, as well as its Māori students often being the first to graduate from their whanau and communities. And it symbolically includes everyone on the “waka”.

That is exactly what a university is supposed to be, of course – a place for everyone. A place where people are free to think and develop ideas, even contested or unpopular ones. As the Education and Training Act 2020 says, universities must operate as the “critic and conscience of society”.

But being “Tiriti-led” is not as straightforward. It throws into sharp relief where universities sit in relation to the Crown under te Tiriti o Waitangi/Treaty of Waitangi. This, in turn, raises quite fundamental questions about what a university is in the first place.

Read more: Explainer: the significance of the Treaty of Waitangi

What is te Tiriti, what is a university?

Essentially, te Tiriti o Waitangi was the Māori language agreement in 1840 between Māori hapu and the British Crown which set out the terms of British settlement. Britain could establish government over its own people, hapu would retain authority over their own affairs.

Māori would enjoy the “rights and privileges” of British subjects, a legal status which continues to evolve as New Zealand citizenship. The Treaty of Waitangi is an English language version of the agreement with different and less favourable emphases for Māori.

By wanting to become “Tiriti-led”, Otago has decided it is part of the Crown party to this agreement. This makes Kai Tahu, as mana whenua (people of the land), the university’s “principal Tiriti partner”.

By contrast, when Massey University says it’s Tiriti-led, it doesn’t explicitly say it’s part of the Crown. Auckland University of Technology’s vice-chancellor has said his university is Tiriti-led, but there’s no definition to be easily found on the public record.

Read more: Colonial ideas have kept NZ and Australia in a rut of policy failure. We need policy by Indigenous people, for the people

Styling a relationship in this way is significant – but not necessarily in ways that keep faith with te Tiriti o Waitangi, or with the essential purposes of a university.

Universities are owned and principally funded by the Crown. But their obligation to independent scholarship means they can’t be part of the Crown in the same way as a government department. Universities don’t take direction from ministers in the same way, and their staff are not public servants. They are not part of the executive branch of government.

Together with their students and graduates, academics are the university – a community of scholars obliged to contribute to the discovery and sharing of knowledge, but not obliged to serve the government of the day.

Us and them

Parliament and the executive (government ministers) together decide what te Tiriti means to the Crown side of the relationship. Public servants offer advice, but ultimately take ministers’ instructions on giving effect to whatever is the Crown’s Tiriti policy.

Academics, however, can take a different view. They’re not bound by what the Crown side of the agreement thinks. And, as developments in te Tiriti policy show, academic independence makes a difference.

In 1877, New Zealand’s Supreme Court found the Treaty was legally a “simple nullity” because it had not been incorporated into domestic law. It wasn’t the public servant’s role to object, at least not in public. That kind of intellectual freedom belongs elsewhere. Explicitly, it’s one of the reasons universities exist.

Read more: Putting te Tiriti at the centre of Aotearoa New Zealand’s public policy can strengthen democracy – here's how

Academics – Māori and others – have contributed significantly to developments in te Tiriti policy since 1877, especially in more recent years. Their contributions have often contested prevailing political thought. Universities have given Māori academics – and through them, Māori communities – the kind of voice unavailable to public servants working for the Crown partner.

Partnership is one of the “Treaty principles”, developed legally and politically as an interpretive guide to the agreement. But partnership creates a “them” and “us” binary.

In my book, Sharing the Sovereign: recognition, treaties and the state, I show how this binary encourages people to think of the Crown as exclusively Pākehā. Any institution that is not solely Māori is an institution that belongs to “them”.

This reinforces Māori separation from the university as an institution that should belongs to all of us – and to each of us in our own ways.

Academics are not public servants

If an institution represents one side of a partnership, that institution cannot be a “place for everyone”. A Māori student or staff member should be able to say, “I belong here as much as anybody else, with the same rights, opportunities and obligations to contribute to the institution’s culture, values and purpose.”

That includes the right to study and teach te Tiriti with an independence that is not available to public servants.

In 2020, I helped develop “Critical Tiriti Analysis”, a policy evaluation method that could be used to assess public policy consistency with te Tiriti. While anecdotally it seems now to be widely used across the public service, it’s not something likely to have been written by a public servant. The Crown is a cautious Tiriti partner.

Thoroughness and objectivity – but not political caution – guide academic contributions to policy debate. Such contributions are different in style and purpose from the kind of policy making that it is the duty of the public service to undertake.

Universities are not the Crown in the same sense, and this is why they are not Tiriti partners.