Since the late 1980s, there’s been general acceptance of the idea that upholding the Treaty of Waitangi requires a set of extrapolated principles to resolve the problem of the English and Māori texts saying different things.
These principles were first defined by the Court of Appeal in 1987 when it considered the impact on Māori of transferring Crown assets to state-owned enterprises, in what was known as the “Lands” case.
The definitions provided in that case by Judge Robin Cooke, then president of the Court of Appeal, and his colleagues, have since been applied widely in legal and political life.
But in this conversation with Connie Buchanan, Professor David Williams explains why he believes the principles are a distraction from what both texts promised.
Back in 1987, the Court of Appeal came up with “principles of the Treaty” as part of its findings in the “Lands” case.
The principles were based on the assumption that the two Treaty texts were not translations of each other and didn’t convey the same meaning. Therefore, the court felt free to explore what the judges thought was the “spirit” of the Treaty.
We really need to look at that again because it’s no longer acceptable, historically speaking, to say that the Treaty texts are completely different from each other.
The reason I think it’s no longer acceptable is because of research by legal historian Ned Fletcher, which I supervised over a period of seven years. His thesis sets out a compelling and thorough argument for reconciling the Māori and English texts of the Treaty.
It’s a brilliant piece of scholarly research with massive footnotes and citations to every conclusion that is made. It’s a long read, but if people want to just look at one page, it’s page 529 where Ned summarises why we should assume that the text in Māori and the text in English said roughly the same things.
In particular, the thesis demonstrates that both texts guarantee the continued rangatiratanga and authority of Māori in New Zealand. It argues that cession of sovereignty as understood in 1840 did not impose English law on Māori. Rather, it assumed that tikanga, as the law in operation for the Māori world, would continue.
Historian Ruth Ross, in her famous essay in 1972, was quite correct to say we must stop looking at the English text as the only text of the Treaty. She reminded us that New Zealand in 1840 was a te ao Māori world, in which Māori was the relevant language. Te Tiriti therefore remains the paramount text because that’s the version that Māori talked about at hui and then signed.
But along with that reminder went her second statement, which was that the English text was purposefully different from the Māori text. She argued that the English version of the Treaty was deceitful and therefore irrelevant.
If you look only to Te Tiriti because you believe the English text was flawed and intended to improperly gain Māori consent, then the whole transaction becomes a trick and a fraud.
Whereas, if we look to what I now think is the historically-correct context — the Treaty as a genuine attempt at a relationship-building exercise — then it opens the possibility of doing things better in our society today. We can proceed on the basis of the original bargain, not on the basis of a 1987 reinterpretation of the bargain.
We need to get back to the original understanding. That will give us some good hints about how we can solve some of our major issues like cleaning up our rivers and natural environment, looking after our precious places, deciding customary rights, and the way in which water is allocated and cared for.
There are signs that court judgments are indeed referring back to the agreement’s actual words rather than its perceived principles. In some recent decisions, judges have said the rangatiratanga guaranteed to Māori is the most important aspect to be considered. So that’s a much more text-consistent approach than what we’ve had since 1987.
I think that’s because judges and lawyers are now becoming much more aware of the view that’s always been held in te ao Māori, which is that Te Tiriti is the paramount text.
There’s an awareness that judges are on much safer ground if they are referring directly to language that was actually used in Te Tiriti, rather than making up new concepts as to what interpretations of principles should look like. So, applying taonga and rangatiratanga when interpreting statutes is becoming important.
What Ned’s research allows us to do is to align the basis for contemporary decisions with the intentions of both Te Tiriti and the Treaty. It doesn’t matter so much which text you’re quoting from when you understand that they say roughly the same thing.
I first presented some of Ned’s ideas to a legal history conference in Australia a few years ago, and Nēpia Mahuika from Waikato University was there. He said: “Well, that’s all very interesting. But no matter what version of the Treaty says what, they went ahead and broke it anyway.”
And, of course, that’s true. The attempt to find some correct historical understanding of what the Treaty meant in 1840 doesn’t change the fact that Treaty guarantees were deliberately disregarded by colonial governors and settler-elected representatives under the Constitution Act that followed.
Anyone who’s really concerned about how our society is constituted today needs to understand that the Treaty was massively breached over many, many decades. That’s the main historical fact.
But Ned’s historical research allows us to look to the future in a more positive way. When people criticise initiatives like Māori wards in local government, when they criticise co-governance regimes over the Waikato River, or legal personality for the Whanganui River, those criticisms are often on the basis that the Treaty was an absolute cession of sovereignty and governments today should not bestow “privileges” on Māori that are not equally available to all citizens.
But if we look carefully at Ned’s conclusions, then it’s clear that simply isn’t what was meant by cession. The Treaty relationship, in both versions, sets out a role for Māori which is a great deal more than just becoming subjects of the Queen. We need to remember that when people claim to find apartheid and racial separation in the way some of our laws have been drafted in recent years.
This takes away the assumptions that the Crown has worked on for a very long time — that the Crown alone can always decide what is the appropriate way of acting, and that if it chooses to make concessions to Māori then that’s a result of being kind and generous, rather than being required by good faith and the Treaty to act differently.
Ned’s conclusions should force Pākehā New Zealanders to recognise that they can’t just keep going on with the idea that Māori gave up all of their authority and laws in order to be governed by the Queen. That is not what the Treaty, either in English or in Māori, intended.
So, when politicians say that Māori ceded all sovereignty, they’re wrong. They are factually wrong. We must challenge those arguments when people put them forward. We should all be aware that the Treaty, in its English text as well as the Māori, was not the type of absolute cession of sovereignty that’s been talked about in the past.
Many of the people who need to understand this are people of influence, people with power, people with lobbying capacity on legislative proposals like Three Waters. Because today’s co-governance proposals are actually Treaty-consistent ways of creating relationships in the contemporary context for dealing with issues that are important to us all.
The opposite path is that we remain happy with a mono-legal system and a monocultural system. And we ought not to be happy with that.
We do need to be bilingual and bicultural in our laws. We do need to accept the Treaty as the foundation for our constitution. And there has to be some shedding of power for that to work. It can’t just be that the government, as currently constituted, and the judges, as currently appointed, become the people who decide what these things mean all by themselves.
It’s always going to be a struggle for an Indigenous minority to have a significant impact on power and authority. Māori are a minority, and they exist within a system which we call democratic, which usually says that everything must be decided by democratically-elected representatives.
But those democratically-elected representatives, once they’ve been elected, have to then put in place policies that are true to our constitutional heritage and history, with the Treaty of Waitangi as the source for the legitimacy of the power now wielded by those representatives.
We should also remember that there wasn’t a democracy in the 19th century. What we had was just a few white men who owned property and had the right to vote. They were the ones who instituted policies for land confiscation and land alienation to the benefit of settlers and at the expense of Māori.
It looks pretty odd to me when people now say we must adhere to one law for all and must only decide things by one-person-one-vote because that’s the democratic foundation of our country. Most of our state institutions were set up during our colonial past, and they were created by governments that weren’t democratic at all.
So, while democracy is a very important element of our constitutional arrangements now, it’s not the only element. The Treaty is another element, and it must be a basic component of our constitutional arrangements too.
We shouldn’t be frightened by the thought that, as a result, colonial instruments of power might need to be given up in certain circumstances.
Giving them up might take us closer to the original, positive intent of both the Treaty and Te Tiriti.
You can read a summary of Ned’s research in this conversation with E-Tangata, and a review of his book by Morgan Godfery for The Spinoff.
Dr David V Williams is a Professor Emeritus at Waipapa Taumata Rau | The University of Auckland. He was a Rhodes scholar at Oxford University, and his PhD is from the University of Dar es Salaam in Tanzania where he taught in the 1970s. He has tertiary qualifications in history, law and theology, and continues to work as an independent researcher on Treaty of Waitangi issues.
As told to Connie Buchanan, and made possible by NZ On Air through the Public Interest Journalism Fund.
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