“While the Treaty technically can’t be edited, the Treaty Principles Bill could profoundly alter its practical application,” writes Melanie Nelson. (Photo: RNZ Angus Dreaver)

What’s the big deal about the coalition government’s proposed Treaty principles? Melanie Nelson, a licensed Māori language translator/interpreter, explains why the changes set out in the proposed bill matter.

 

Te Tiriti o Waitangi is the founding document of our nation and the very reason that I, as Pākehā, belong in this beautiful land. And yet, the coalition government appears to be undermining it.

They claim they’re simply “clarifying” the principles, not changing the actual Treaty. However, the proposed principles rely on multiple erroneous interpretations, distorting the text and essence of Te Tiriti and the English-language Treaty.

The detail of what Act has proposed can be hard to decipher for those who are unfamiliar with either te reo Māori or Te Tiriti.

Here’s an explanation of some of the core issues that underlie the proposed “Treaty principles” rewrite.

Can Te Tiriti be changed?

Clearly, no one can go back in time and actually change what was signed between Queen Victoria and the Māori people of New Zealand.

But, while the Treaty manuscript technically can’t be edited, the Treaty Principles Bill could profoundly alter its practical application which is currently exercised through the existing Treaty principles.

If the Bill is passed into law, the new definitions of the Treaty principles expressed in it would become law. Te Tiriti, as it was signed, may then remain only in minds and archives, and the 184-year fight to have it honoured would continue.

Why would changing the Treaty principles matter?

On the surface, the government’s proposal is to simply “clarify” the principles of the Treaty of Waitangi, which are separate from Te Tiriti itself. Far from being a minor issue, this is of monumental importance.

While references to Te Tiriti appear throughout our statute books, the text itself has not yet been given full binding legislative effect — although the courts have drifted towards drawing on the text in recent times.

On the other hand, the Treaty principles have legally binding effect when they are referred to in legislation. Failure to adhere to these Treaty principles clauses can be challenged in the courts through judicial review.

How were the Treaty principles developed?

The Treaty principles are not stated explicitly in either Te Tiriti or the Treaty, but they are intended to draw from the spirit of both texts.

The phrase the “principles of the Treaty of Waitangi” first appeared in legislation in the Treaty of Waitangi Act 1975 which established Te Rōpū Whakamana i te Tiriti o Waitangi — the Waitangi Tribunal.

Since then, this phrase has been included in many laws and it has been given differing weight and effect by different laws. Through hearing claims and cases on breaches of the Treaty principles for over 45 years, the Waitangi Tribunal and the courts have defined the meanings of the principles and how they should be applied in different situations.

These meanings, as determined by the courts, form part of our common law. The Treaty principles are not static, and the courts and Waitangi Tribunal have been clear that they may evolve further through their rulings.

What are the current Treaty principles?

The list of Treaty principles defined by the courts and the Waitangi Tribunal, over a period of nigh on half a century, includes:

  • Partnership
  • Good faith
  • Autonomy
  • Governance
  • Reciprocity
  • Active decision making
  • Informed decision making
  • Mutual benefit
  • Equity
  • Options
  • Development
  • Redress

Various governments have applied the Treaty principles in their functions, as required by multiple laws. However, they often fall short of meeting the legal standards required of them by those laws.

What’s the problem with the coalition government’s proposed “Treaty principles”?

The Treaty Principles Bill seeks to replace the existing common law Treaty principles with an entirely different set of values. The newly proposed principles are a far cry from a Treaty partnership between the two very different peoples who signed Te Tiriti. They contain barely an echo of the actual terms and conditions of Te Tiriti. They don’t even mention Māori.

The coalition government’s proposed ”Treaty principles” have no true origins in the Treaty of Waitangi. In fact, they are antithetical to it.

Proposed “Treaty Principles”

David Seymour is on record as stating that the proposed “Treaty principles” draw on the Māori text of Te Tiriti o Waitangi. Indeed, they use cherry-picked, minimal part-phrases from the Māori text of Te Tiriti that, on their own, make no sense grammatically in te reo. They’ve been decontextualised linguistically, historically and culturally, and then recast with new meanings in the proposed “Treaty principles”.

These are the proposed “Treaty principles”, with the reo Māori part-phrase on which each is based:

Article 1: kawanatanga katoa o o ratou whenua Article 2: ki nga tangata katoa o Nu Tirani te tino rangatiratanga o o ratou whenua o ratou kainga me o ratou taonga katoa Article 3: a ratou nga tikanga katoa rite tahi
The New Zealand Government has the right to govern all New Zealanders The New Zealand Government will honour all New Zealanders in the chieftainship of their land and all their property All New Zealanders are equal under the law with the same rights and duties

 

Only a tiny proportion of words from the actual text of each article of Te Tiriti has been relied on. The text boxes below show where they fit into the full wording of the articles of Te Tiriti — first in te reo Māori, and then in the English translation of Te Tiriti.

The extent of the surrounding text that has been excluded is striking to anyone, regardless of whether or not they speak Māori.

 

Proposed Article 1 “Treaty Principle”:

The New Zealand Government has the right to govern all New Zealanders.

. . . kawanatanga katoa o o ratou whenua . . .

Act’s proposed Article 1 “Treaty principle” focuses on the New Zealand government’s “right to govern all New Zealanders”.

While Article 1 of Te Tiriti does talk about government (Kāwanatanga), it must be read alongside Article 2, which promises that Māori will retain their tino rangatiratanga: absolute authority or self-government over their whenua, kāinga and all taonga.

The proposed Article 1 “Treaty principle” must also be read alongside the other two proposed principles.

In summary, the proposed Article 1 “Treaty principle” would elevate the power of the Crown and entrench the government’s authority to enforce the ideals expressed in those proposed principles 2 and 3, which respectively erase tino rangatiratanga and Māori rights.

 

Proposed Article 2 “Treaty Principle”:

The New Zealand Government will honour all New Zealanders in the chieftainship of their land and all their property.

. . . ki nga tangata katoa o Nu Tirani te tino rangatiratanga o o ratou whenua o ratou kainga me o ratou taonga katoa . . .

Article 2 of Te Tiriti is not about individual property rights nor the rights of all. It guarantees the pre-existing tino rangatiratanga of Māori.

As seen in the text box, Act’s proposed Article 2 “Treaty principle” includes a small extract from the original Māori text of Te Tiriti. However, this part-phrase excludes the preceding contextual words “ki nga Rangatira ki nga hapu”, which means “to the chiefs and the subtribes”.

Clearly, the phrase “ki nga tangata katoa o Nu Tirani” (to all the people of New Zealand) refers to “all the people of New Zealand associated with those chiefs and subtribes” — NOT “all New Zealanders”. Using the part-phrase in isolation delivers an incorrect meaning of Article 2.

Additionally, the interpretation for the proposed principle omits the historical context: at the time Te Tiriti was signed in 1840, the British exclusively referred to Māori as “New Zealanders”. There were only about 2,000 Europeans here — primarily from Britain and identifying as British, not as New Zealanders.

It also omits the cultural context. David Seymour is on record saying he wants tino rangatiratanga (which he wrongly interprets as being about individual self-determination and rights) to apply to everyone, not just Māori.

The expertise of Māori people who are endorsed by their iwi or by te ao Māori as exponents in tikanga and tino rangatiratanga must be paramount. There are many highly regarded Māori experts who can understand and analyse the concept of tino rangatiratanga from within a Māori conceptual thought framework. The concept cannot be removed from its cultural context and understood in isolation.

The original English text of Article 2 of the Treaty also makes it clear that Article 2 was an undertaking to Māori. It said: “Her Majesty the Queen of England 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”. This text is easily accessible to any English speaker.

Clearly, enforcing the private property rights of all New Zealanders is not what is meant in Article 2 of either the Māori or the English text.

In summary, Article 2 of Te Tiriti is not about individual sovereignty, private property rights or the rights of all New Zealanders. It’s about protecting the pre-existing rights and tino rangatiratanga of Māori.

 

Proposed Article 3 “Treaty Principle”:

All New Zealanders are equal under the law with the same rights and duties.

. . . a ratou nga tikanga katoa rite tahi . . .

The proposed Article 3 “Treaty principle” also focuses on “all New Zealanders” in a way that misrepresents Article 3 of Te Tiriti, where the Queen of England undertakes to protect all Māori people of New Zealand (the struck-through words “nga tangata maori katoa o Nu Tirani”). Here, the Queen gives Māori the same rights and duties of citizenship as the people of England (“nga tangata o Ingarani”).

As with Article 2, Article 3 of the original English text of the Treaty also makes it clear that Article 3 was an undertaking given to Māori: “Her Majesty the Queen of England extends to the Natives of New Zealand Her royal protection and imparts to them all the Rights and Privileges of British Subjects”.

To be clear, this is entirely different from assigning the exact same rights and duties to Māori and non-Māori in New Zealand. Having the same rights for all — individual self-reliance — can bar preferential treatment based on any criteria. Article 3 of Te Tiriti must be read alongside Article 2, which guarantees the continuation of pre-existing Māori rights.

This proposed principle may be leaning on a linguistic point to do with Māori being spelt with a little “m” instead of a capital “M” in Article 3 of Te Tiriti. The original meaning of the word “māori” (meaning “common” or “normal”) is the origin of the term we use for Māori people collectively today.

Before European contact, Māori identified within whānau, hapū, iwi and waka, rather than as a single nation. In contrast to the strange, newly arrived Europeans, they were the “māori” (or normal) people. They began to refer to themselves as such, and the British followed suit when referring to Māori.

All in all, this phrase in Te Tiriti clearly refers to the Māori people. The proposed “Treaty principle” conveys the false impression that Article 3 offers the same rights and duties to all New Zealanders today. This is a reversal of the clear meaning of both the Māori and English texts.

In summary, Article 3 of Te Tiriti is not about the rights and duties of all New Zealanders. It gives Māori the rights that the people of England have, in addition to the Article 2 preservation of pre-existing Māori rights.

Painting over the Treaty with words

Although the coalition government is probably not heading to Te Papa to literally paint over the entire text of Te Tiriti, that’s precisely what their proposal does with words.

Any English-speaking person can verify for themselves that even the original English text of the Treaty of Waitangi explicitly protects the rights of Māori and gives to Māori the same rights and duties of citizenship as the people of England. The preamble to Te Tiriti also provides essential context. Cherry-picking and then misinterpreting parts of the Māori text of Te Tiriti obscures multiple linguistic, cultural and historic realities.

In effect, the proposed “Treaty principles” erase the guarantee of tino rangatiratanga, remove Indigenous rights, create a seismic shift of focus away from equity to the same individual rights for all, and introduce the concepts of individual private property rights, individual sovereignty, self-reliance and the rights of all New Zealanders.

The proposed “Treaty principles” are a wolf dressed up in sheep’s clothing. They use words selected from the Māori text of Te Tiriti o Waitangi and mimic the structure of its articles. But they don’t accurately represent Te Tiriti or the Treaty by any stretch of the imagination.

Embodying our current Treaty principles

The existing Treaty principles are inclusive, adaptable and constructive. They are admirable values that would benefit any type of relationship, particularly one that is between peoples working towards a harmonious coexistence.

The National-led coalition government would do well to continue to grow its understanding of our current principles and to uphold them more consistently — yes, for the benefit of all New Zealanders — as we mature towards a full national conversation on giving effect to Te Tiriti.

Every one of us has the power to take responsibility for how we each embody te Tiriti o Waitangi. How else can we honestly and wholeheartedly affirm our place in this land?

 

Melanie Nelson (Pākehā) is a licensed Māori language translator and interpreter, and a consultant, educator and writer on cross-cultural issues. She is a graduate of Te Panekiretanga o te Reo Māori / Institute of Excellence in the Māori Language and holds a master’s degree in Māori Language Excellence — Te Tohu Paerua o te Reo Kairangi. Her podcast, Weaving our Worlds, seeks to foster mutual understanding between peoples in Aotearoa. www.melanienelson.co.nz

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