Co-Governance or Co-Dependence? The Broken Logic of Treaty "Partnership"

Can Māori be at the same time equal partners to the Crown and its protected beneficiaries? This article exposes the contradiction at the heart of the Treaty "partnership" claim.

The Treaty of Waitangi is increasingly presented in modern political discourse as having created a “partnership” between Māori and the Crown. This framing, once a judicial metaphor, has hardened into a supposed constitutional reality. Proponents claim that Māori are not only co-equal partners with the Crown, but also simultaneously entitled to Crown protection, resourcing, and preferential consideration in governance structures. This argument is politically expedient, rhetorically compelling—and logically incoherent. It attempts to conflate two opposing moral postures: the independence of a partner and the dependency of a beneficiary. Under scrutiny, the “Treaty partnership” claim collapses into contradiction.

Let us begin at the root of this fallacy with the concept of mutual exclusivity in logic. According to classical propositional logic, two propositions that contradict each other cannot both be true in the same respect and at the same time. Aristotle, in his Metaphysics (Book IV), states: “It is impossible for the same thing at the same time to belong and not belong to the same thing in the same respect.” This is the principle of non-contradiction—a foundational law of reason. The assertion that Māori are both sovereign partners and protected beneficiaries violates this principle. If one is a sovereign partner, one cannot simultaneously be under the protection of the other without relinquishing equal status.

In practical terms, partnership requires symmetry of power and responsibility. The notion of fiduciary protection, by contrast, presupposes asymmetry: one party has discretionary authority, the other is vulnerable to it. These two roles—partner and protected—are logically opposed. A partner cannot coherently demand fiduciary protection from their equal, just as a trustee cannot also be a beneficiary of the same trust. As philosopher P.F. Strawson noted in his Individuals: An Essay in Descriptive Metaphysics, identity within relational roles carries structural entailments: to be in one role necessarily excludes you from its logical opposite. The attempt to occupy both positions is not reconciliation; it is confusion.

Modern “Treaty partnership” rhetoric avoids acknowledging this logical contradiction by employing deliberate category blurring. The Crown is simultaneously cast as a co-governor and a trustee; Māori are simultaneously positioned as autonomous and in need of protection. This is not political compromise; it is equivocation—a fallacy identified since antiquity. Equivocation occurs when a single term is used with multiple meanings in an argument, leading to a false conclusion. In this case, “partnership” is invoked in a political sense to assert equality, while “protection” is invoked in a moral-legal sense to assert dependency. The argument toggles between meanings, depending on which claim requires emphasis at any given moment.

Yet no coherent constitutional theory can accommodate both simultaneously. If Māori iwi are political equals to the Crown, then they must assume the burdens and risks of self-determination, including taxation, judicial accountability, and political compromise. In that case, the Crown cannot be held responsible for protecting their interests. Conversely, if the Crown bears responsibility for the welfare, development, and cultural survival of Māori—as a fiduciary would—then it must necessarily possess a higher degree of authority and discretion, which precludes the possibility of co-equal partnership.

This contradiction echoes what Immanuel Kant identified in the Groundwork of the Metaphysics of Morals as a categorical confusion: when one attempts to will a moral principle universally that defeats its own purpose. If all entities in a constitutional structure were both sovereign and subject to the protection of another sovereign, no coherent rule of law could arise. Sovereignty, by Kantian standards, demands autonomy—the ability to legislate for oneself. To simultaneously claim autonomy and require paternalistic protection is to violate the conditions of moral agency.

Advocates of the partnership model often bypass this contradiction by appealing to a dual framework: cultural sovereignty on one hand, and legal protection on the other. But this only defers the contradiction; it does not resolve it. If Māori sovereignty is purely cultural, then it has no bearing on constitutional law. If it is legal, then it undermines the exclusive sovereignty of the Crown. As political theorist John Rawls observed in A Theory of Justice, justice as fairness depends on institutions being capable of adjudicating between claims on a single, common framework. “Each person,” Rawls writes, “possesses an inviolability founded on justice that even the welfare of society as a whole cannot override.” If we replace personhood with group identity, we still require a unitary adjudicating structure. We cannot allow each group to unilaterally assert both independence and privileged status within that structure without fracturing the shared basis of justice.

Moreover, the relational logic of protection—particularly in fiduciary settings—requires unidirectional responsibility. As legal philosopher Tamar Frankel explains in her treatise Fiduciary Law, “A fiduciary must subordinate its interests and judgment to that of the beneficiary, and cannot seek to dominate or equalize the relationship.” The very moment the beneficiary demands equal authority, the fiduciary duty dissolves. There is no precedent in fiduciary theory—whether in trust law, agency, or guardianship—for co-equal fiduciaries. The position of the weaker party necessitates the submission of judgment to the protector, not its replacement.

We might use a reductio ad absurdum to test this contradiction. Imagine a scenario where a child demands from her parent not only full rights to self-determination, but also the continued parental obligation to provide shelter, education, and financial support. The child demands independence of will while simultaneously invoking the obligations of dependency. This request, under scrutiny, becomes incoherent: to be a free agent is to forfeit the entitlements of dependency; to be under parental care is to accept limitations on one’s autonomy. The same holds true in constitutional relationships. One cannot be both an autonomous constitutional partner and a dependent constitutional beneficiary. One must choose.

Even more troubling is the asymmetry in this double claim: while Māori groups are increasingly portrayed as co-equal constitutional partners, the Crown retains the sole burden of responsibility. It must consult, accommodate, redress, and fund. The notion of “partnership” does not extend to joint accountability, joint taxation, or joint exposure to legal remedies from the Crown. The risks and duties remain lopsided. As legal scholar Jeremy Waldron argues, justice is perverted when “claims of right are made without acceptance of mutual responsibility.” He continues: “A society cannot endure when one segment insists on entitlements from another while denying the reciprocal obligations that entitlements entail.”

This asymmetry is also incompatible with the common law principle of the indivisibility of the Crown. The Crown, as a unitary legal entity, cannot be split into multiple co-equal partners without surrendering its constitutional coherence. As noted in the Privy Council case Attorney-General v Ngati Apa, sovereignty was vested undivided in the Crown. The Treaty's protective obligation flowed from that undivided sovereignty. There was no offer of shared governance, nor was one sought in the 1840 context. The “partnership” metaphor, invented in late 20th-century case law, has no basis in the Treaty's original wording, structure, or legal doctrine. It reflects a desire for symbolic reconciliation, not judicial clarity.

To accept the partnership myth uncritically is to embrace what Ludwig Wittgenstein described as a “bewitchment of our intelligence by means of language.” In his Philosophical Investigations, he warns us against the temptation to confuse language-games for conceptual truth. “Philosophy is a battle against the bewitchment of our intelligence by means of language.” When judges or politicians casually invoke “Treaty partnership,” they are not articulating a legal principle; they are conjuring a semantic illusion. The metaphor of partnership becomes a talisman—immune to logical analysis, wielded to bypass the constitutional fact of singular sovereignty.

There is nothing dishonourable in acknowledging asymmetry. Justice does not require equality of power, only the just use of power. The Crown may have been—and remains—the more powerful party, but that very imbalance is what grounds its obligation to protect Māori rights, language, and property. The moral integrity of the Treaty lies in its recognition of that imbalance and the promise to mitigate it through good faith governance. That is a model of fiduciary duty, not partnership. We should not replace moral clarity with rhetorical comfort.

Finally, one must ask: what are the practical consequences of continuing to blur this distinction? If the metaphor of partnership continues to be enshrined in law, then each legislative or policy disagreement risks being interpreted as a constitutional breach. The moment Māori interests are not given effect—as partners—they may claim betrayal, not mere disagreement. This destabilises governance. It invites perpetual grievance by conflating unfulfilled policy aspirations with breaches of a non-existent constitutional contract.

Alternatively, if we were to honestly embrace partnership in the strict constitutional sense, we would face an even graver danger: the balkanisation of New Zealand into ethnic sovereignties. Every group could assert its own status as partner to the Crown, demanding special rights, veto powers, and differentiated legal status. This would not heal the nation; it would shatter it. A common citizenship depends on shared subjection to a single constitutional authority—not partnership but unity.

There is a way forward that preserves both the dignity of Māori and the integrity of the Crown: to ground our Treaty obligations not in imagined constitutional symmetry, but in moral responsibility. We should uphold the Crown’s fiduciary duty with seriousness and care, while respecting the mana and autonomy of Māori. However, both must operate within a single, democratic constitutional system. That is the honest promise of the Treaty. Not partnership, but protection. Not symmetry, but justice.