Equal Rights or Equal Claims? An Open Letter to David Seymour on the Treaty Debate

A respectful response to David Seymour, reframing Treaty of Waitangi not as a race-based policy, but as part of NZ’s broader web of claims on the Crown.

Dear David,

Thank you for your continued engagement in matters of national importance, especially those relating to the Treaty of Waitangi / Te Tiriti o Waitangi and the nature of equality in modern New Zealand. I write this letter with sincerity and respect. I do not presume to have perfect answers, but I would like to offer a lens that may help reframe the discussion - not to contradict you, but to deepen the shared ground on which we all stand.

As I understood it, your NZ Herald piece argued that the Treaty of Waitangi should mean “equal rights, not race-based policy.” That statement resonates with many New Zealanders. The idea that the state ought to treat all citizens equally, regardless of ethnicity, is an intuitively fair principle, one which sits at the heart of liberal democracy.

Yet the moment we move from principle to practice, we begin to discover that equality, understood purely as sameness of treatment, is not the full story of modern governance. I’d like to gently propose that what distinguishes modern democratic societies is not simply equal rights, but the structured recognition of different claims - claims made by individuals and groups against the institutions that govern them.

Let me explain.

In New Zealand today, every citizen already has certain “equal rights”: the right to vote, to freedom of speech, to protection from arbitrary detention. These civil and political rights are universally held, entrenched in legislation (Bill of Rights Act, Human Rights Act) and broadly undisputed.

But alongside them is a much more complex architecture: the network of material, institutional, and service-based claims made by individuals, groups, or regions against the state. These are not abstract moral ideals; they are structured entitlements (legal, economic, social) backed by public money.

Take for example:

• A war veteran’s entitlement to support and recognition.

• A cancer patient’s access to public healthcare.

• A homeowner’s property rights and Crown-backed land title.

• A student’s access to subsidised education.

• A community’s expectation of road repairs or flood mitigation.

• A tenant’s protection under the Tenancy Act.

• A rural family’s reliance on the Ministry of Health for air ambulances.

• A farmer’s interest in nitrate regulation and water infrastructure.

Each of these, while held by individual citizens, operates as a claim on the state’s purse and priorities.

Legal philosopher Wesley Hohfeld was perhaps the most precise in helping us understand these dynamics. He insisted that we stop talking vaguely about “rights” and instead see them as relationships. If someone has a claim-right, it must correlate to someone else’s duty. Rights don’t float freely; they imply obligations. If I have a right to clean water, someone (usually the state, via a local authority/council) has the duty to ensure its provision. If a sick person has a right to care, the hospital must treat them. If a worker has a right to paid leave, the employer must provide it.

In modern democracies, the ultimate bearer of many of these duties is the state, and in our case, the Crown.

Which leads us to a subtle but crucial shift: what holds us together as a nation is not just equal rights in the abstract, but a shared structure of claims on the Crown’s resources and responsibilities. This is how we manage difference. Not by pretending we are the same, but by giving structure to the various forms of need, history, contribution, and vulnerability that exist among us.

Some claims are universal, like education. Others are circumstantial, like unemployment support. Others still are historically grounded, like Treaty settlements. But they all rely on the same basic machinery: the Crown’s acknowledgement of a duty, and the provision of public resources to meet it.

Seen this way, the Māori claims you comment on are not unusual. They are entirely consistent with the broader framework of how our society functions.

Let me put it differently: we all want something from the Crown. A fair slice of the budget. A just policy setting. A well-functioning health or justice system. A school that works. A land title that is secure. A hospital that doesn’t collapse in a quake. A pension that arrives on time.

What makes Māori claims distinctive is not that they are different in kind, but that they are grounded in a specific historical relationship: a treaty. That treaty, Treaty of Waitangi / Te Tiriti o Waitangi, is not merely symbolic. It was a compact in which the Crown took upon itself ongoing obligations: to protect, to honour, and to support.

Over the last 50 years, our courts, Parliament, and scholars have come to understand this treaty as creating a fiduciary relationship, one in which the Crown has duties of loyalty, good faith, and care. In legal scholarship, thinkers like Evan Criddle and Evan Fox-Decent describe fiduciary government as a model in which public power is always held “in trust” for the benefit of those whom it affects. Under this view, the Treaty doesn’t create race-based entitlements. It creates a specific duty to a specific group of people, arising from a specific promise.

This framing helps us avoid unhelpful binaries. The Treaty is not a racial document. It is a constitutional one. It does not give Māori “special rights”. It gives the Crown special responsibilities.

In that sense, Māori claims are not an exception. They are part of the very same moral and institutional logic that allows a pensioner to claim a benefit, or a student to expect subsidised university, or a rural council to expect disaster funding after a flood. All such claims reflect a basic structure: “You - the Crown - have undertaken a duty. We are now exercising a right, correlating to that duty.”

And as T.H. Marshall noted in his influential theory of citizenship, modern states evolved precisely by expanding the types of claims citizens could make: from civil rights (like speech and property), to political rights (like voting), and finally to social rights (like healthcare, education, and welfare). It is these social rights, which always imply fiscal commitment, that most often stir political debate.

But if we accept these other claims - and we do, across party lines - why do Māori claims cause such disquiet?

I think part of the answer lies in the way we see our own position. Many New Zealanders see their own entitlements as neutral or deserved, while viewing Māori entitlements as political or racial. But this perception may be mistaken. Every entitlement, every claim on the state, is political. Every system of resource allocation reflects history, design, and power.

Notwithstanding all of the above, it would be unfair to ignore a growing sense of unease among some New Zealanders. I suspect part of the friction often felt toward Te Tiriti-based obligations may not stem from the Treaty itself, but from the way the Crown has quietly outsourced its duties.

Instead of directly carrying the costs and moral weight of its fiduciary responsibilities, the Crown has increasingly shifted Treaty-linked expectations onto councils, schools, farmers, community boards, and regulatory bodies. This pattern - what we might call inconspicuous fiduciary reallocation - creates the impression that ordinary citizens are being held responsible for promises they never made, or policies they can’t shape.

When school boards are asked to reconcile curriculum with historical injustices, or farmers face water allocation rules linked to Treaty principles, or councils are pressured to implement co-governance without adequate funding or guidance, the discomfort is real. But the source of that discomfort may not be the Treaty itself - it may be the Crown’s unwillingness to hold the duty squarely in its own hands. Reallocating the fiduciary burden without maintaining the responsibility breeds confusion, friction, and, eventually, backlash.

So, what happens if we shift the lens?

Let us imagine that Māori are not asking for extra privileges. Instead, they are asserting a long-standing fiduciary claim against a party (the Crown) who took on that duty voluntarily, in exchange for sovereignty. In that light, Māori claims become entirely legible within the wider democratic framework. In principle they are asking for what is owed to them, like everyone else. They are asking for something different in basis, but comparable in function.

This helps us see that New Zealand is not a flat plane of equal units. It is a layered society, full of obligations, expectations, and reciprocal duties. We are all embedded in roles: patients, workers, students, homeowners, taxpayers, iwi members, trustees. And each of these roles carries with it a claim on the machinery of the state.

In fact, we could go further and say this: New Zealand society is a map of overlapping claims against the Crown. And what we call “government” is the ongoing attempt to respond to, prioritise, and resource those claims fairly.

When you, David, speak of “equal rights”, I think you are defending the principle that no person should be excluded from public life based on their ancestry. I wholeheartedly agree. But I also believe we must distinguish between equal dignity and identical claims. Equal dignity does not require that everyone have the same legal relationship to the Crown. It only requires that we respect each person’s claim as legitimate and assess it fairly, according to its origin and merit.

Some people have claims because they are children. Others because they are veterans. Others because they are sick. Others because they are Māori, and for them the Treaty remains a relevant living document.

None of these claims erode the equal moral worth of others. In fact, what makes a society just is not the erasure of difference, but the fair treatment of different claims.

John Locke taught us that government arises from consent and is justified when it protects rights. But he also insisted that rights include property, and that people have a legitimate interest in the fruits of their labour and agreements. Robert Nozick took this further, insisting that any interference with property or agreements must be justified by consent.

In this light, the Treaty is not an anomaly. It is foundational: a prior agreement, the observance of which gives legitimacy to the very state that now purports to govern.

So, I ask: why treat this one claim - the Treaty-based claim - as if it lies outside the bounds of legitimate political discourse?

It is not “special pleading”. It is a recognition of the plural ways in which different members of society relate to the Crown. It is not a breach of equality. It is an expression of historical justice.

In the end, David, I believe we are after the same thing: a society in which no one is excluded, no one is permanently disadvantaged, and everyone feels that the state serves them fairly. But to achieve that, we must not flatten all claims into sameness. We must acknowledge that justice sometimes requires differentiated obligations, especially when those obligations were freely undertaken by the state itself.

To do otherwise would not make us more equal. It would make us less honest.

Thank you for reading. I welcome your thoughts, your critique, and above all, your continued voice in this necessary national conversation.

With respect,
Zoran Rakovic