Restoring the mana of the Treaty

The English version of the Treaty of Waitangi has long been dismissed as a flawed translation at best and a deception at worst. Alistair Reese, a historian and theologian, argues that it’s time to reconcile it with Te Tiriti, the Māori version, and restore its mana — especially in light of recent research adding weight to the argument that the two versions are essentially the same.

 

In 1934, when former Governor-General Lord Bledisloe gifted the land on which the Treaty of Waitangi had been signed to the nation, he declared: “Let Waitangi be a tatau pounamu [greenstone door] for us all.” Borrowing an ao Māori metaphor for reconciliation, his intention was clear: the Treaty offered a reconciliatory pathway for Māori and Pākehā, tangata whenua and tangata tiriti.

Yet I’d argue that before we can be reconciled by the Treaty, we need to reconcile the Treaty to itself and restore its mana.

Since the 1970s, it’s become accepted wisdom that Te Tiriti o Waitangi, the Māori language version, is an — if not the — authoritative version of the covenant between rangatira and Queen Victoria.

This is for a variety of reasons, not least that the majority of rangatira signed this version, as well as the international legal understanding of contra proferentem, whereby any ambiguity in a treaty is construed against the drafting party and in favour of those being invited to sign.

But what about the English version? Since historian Ruth Ross’s influential article in 1972 in the New Zealand Journal of History, the English version has been severely critiqued. Her article not only called into question the relevance of the English text, but also challenged the integrity of the translators, especially the CMS missionary translator Henry Williams.

The English version has also been largely rejected in a variety of other quarters, including some educational institutions, as seen in the recent Te Pūkenga edict.

These perspectives find support in the Waitangi Tribunal’s influential Te Paparahi o Te Raki Report (Wai 1040)and the report of Matike Mai Aotearoa, the Independent Working Group on Constitutional Transformation.One submitter to Matike Mai commented: “From our perspective there is only Te Tiriti . . . that is what is signed (at Waitangi) . . . The other text, I beg to offer, is just the English version. It is not the same as Te Tiriti o Waitangi and has no mana. It is an English language version that meant nothing to our tūpuna, nothing.” Claimants of Te Raki stressed the impossibility of reconciling the meaning of the two texts.

It concerns me that the English version has been so summarily dismissed. My disquiet was initially for the reputation of the signatories of that version, rather than over textual concerns. Moana Jackson provided important context when he stated: “There was a mechanism in Māori law to try to ensure that those agreements [treaties] were honoured, and there was a belief that once an agreement was sealed it would be cloaked with the mana of the iwi. Therefore, to breach a treaty was to abuse the mana of the iwi.”

If the English version has no mana, what does that say about the 39 rangatira whose tohu adorns the English copy from Port Waikato and Manukau? What does it say about their cloak? What of Rev Robert Maunsell and Benjamin Ashwell, the two Anglican missionaries whose signatures sit adjacent to the Waikato rangatira as witnesses. It is an issue of mana tangata.

The sentiment to whakaiti or dismiss the English version is understandable if, as has been asserted for the last 50 years, it’s a flawed translation at best and a deceptive one at worst.

Certainly, the application by ensuing 19th-centrury governments of an absolute and unchallengable Crown sovereignty provides ample reason for distrust of the English version.

However, what if it can be shown that the English and Māori versions are consistent with each other? What if they can be reconciled? This would be a mana-enhancing exercise both for the document and the signatories, and would simplify our Treaty conversations.

To cite Moana Jackson again, in reference to the second article of the Treaty he says: “There does not seem to me to be a conflict between these two texts [English and Māori], because if you have absolute rangatiratanga then you also have full, exclusive and undisturbed possession — the two mesh together. The difficulty is that for a century or so the words in the English text have been redefined.”

While Moana Jackson and others have pointed to the agreement between “tino rangatiratanga” and “full, exclusive and undisturbed possesion of their Lands and Estates, Forests and Fisheries”, it is the terms “sovereignty” and “kāwanatanga” that have proved the most contentious and around which Ruth Ross and others have largely built their incompatability case.

The assumption is that “kāwanatanga” is a poor translation of “sovereignty” because the two words describe different levels of governing authority. The basis for this assumption is that the term “sovereignty” is monolithic in its meaning — that is, it always implies an absolute and indivisible authority. This definition leaves no room for nuance or historical context. Sovereignty always means what it has always meant!

But as Moana Jackson noted: “One of the things that common law and international law say about understanding treaties is that it is important to look at them in the context in which they were signed, and examine the preparatory work, analysis and discussion done prior to a treaty’s signing.”

While much research has centred on historical and contextual meanings of “kāwanatanga” and “tino rangatiratanga”, the same can’t be said for “sovereignty”.

Sir William Blackstone’s influential Commentaries on the Laws of England has provided some of the background context for a variety of interpreters, including the Waitangi Tribunal. But, while this 18th-century English jurist is certainly a reputable resource at a generic level to understand a variety of legal concepts, he doesn’t necessarily provide an accurate portrayal of what was in the minds of the mid-19th century framers of the Treaty.

Blackstone declared that in any form of government there must be “a supreme, irresistible, absolute, uncontrolled authority, in which . . . the rights of sovereignty reside.” No room for prevarication here.

However, a more precise question needs to be asked: What did the Treaty framers — Sir James Stephen and others — mean when they used this problematic word in their instructions to William Hobson and ultimately in the English version of the Treaty?

An obvious answer to this question would appear to lie with the Henry Williams’ translation, in which “sovereignty” refers to a limited form of governorship exercised by the Crown, one that was partial and relative to the “tino rangatiratanga” exercised by rangatira. However, Williams’ character and linguistic ability have been questioned to such an extent that this interpretation is considered untenable. Fortunately, there are some other clues as to the drafters’ meaning which we can draw on.

In his comprehensive analysis in The English Text of the Treaty of Waitangi, Ned Fletcher argues that “sovereignty” needs to be understood as partial in the light of its 1830s context.

His principal conclusion is that the British intervention in New Zealand in 1840 was to establish government over British settlers, for the protection of Māori. Government over Māori society was not envisaged, and British sovereignty at that juncture was not seen as inconsistent with plurality in government and law.

Fletcher proposes that if we trace the genealogy of the Treaty use of “sovereignty” via its various interlocutors — Sir James Stephen, Lord Normanby, James Busby and Henry Williams — a convincing case can be made that “sovereignty” is a relative term that is adequately translated by “kāwanatanga”.

In Fletcher’s analysis, the key figure in the genesis of the Treaty project was Sir James Stephen, the permanent under-secretary who ran the Colonial Office. His involvement as the primary architect of the Crown strategy in New Zealand has been under-acknowledged.

Stephen’s background is important to understand, as it lends support to the idea of the Treaty as an altruistic intervention rather than an imperial Trojan horse.

He was a nephew of William Wilberforce, the anti-slavery politician, and the brother-in-law of Henry Venn, the secretary of the Church Missionary Society, on whose committee he served for years. Stephen was also a protégé of the Clapham Community, an evangelical humanitarian group responsible for much of the social reform in 19th-century England.

Stephen’s New Zealand policy was guided by his faith convictions and his experience in the colonies of Sierra Leone and the Caribbean, locations where he implemented radical new policies for the British Colonial Office. At the risk of oversimplifying his influence, it is accurate to suggest that Stephen’s Treaty formulation, including the concept of limited sovereignty, was influenced by his humanitarian outlook and pragmatic approach to colonialism which insisted on retaining an indigenous autonomy.

However, the most compelling evidence, according to Fletcher, “that the Treaty was understood to leave undisturbed intra-tribal government,” is to be found in the explanation given at the Treaty signings as recorded in accounts left by the eyewitnesses. For example, the Catholic priest Father Servant reported that the Treaty gave the Crown authority to “maintain good order and maintain their respective interests” while preserving the power of each rangatira.

Another eyewitness at Waitangi, the newly appointed Surveyor General Felton Mathew, wrote of the occasion: “Henry Williams pointed out the necessity which existed for the [British] Government to interfere for their [Māori] protection on account of the number of white people who had taken up abode in this country.”

The effect of the Treaty, Mathew continued, was that Māori were “throwing themselves on her [Queen Victoria’s] protection but retaining full power over their people.”

Further anecdotal evidence is provided by an influential rangatira of the day, Nōpera Panakareao, a Te Rarawa chief who signed the Treaty in Kaitaia. It’s reported that Panakareao influenced 45 other northern chiefs to sign the Treaty by dint of his seniority and pervasive rhetoric.

His comment: “Ko te ātārangi o te whenua kua hoatu ki te Kuini, ko te oneone i mau” (The shadow of the land will go to the Queen, but the substance will remain with us) has become well known. However, less well known is the background to his whakatauākī.

The night before the Kaitaia signing, Panakareao spent some hours at the home of the resident Anglican missionary William Puckey, in the company of the newly appointed Colonial Surgeon John Johnson and another missionary, Richard Taylor.

William Puckey was fluent in te reo and one of the translators of the Māori New Testament. Richard Taylor had been at the Waitangi translation discussions with Williams and Busby on February 5 and had thus heard all the explanations given about the content and implications of the Treaty.

According to Johnson: “Noble [Nōpera] called upon us in the evening to question Mr Puckey as to the nature of the Treaty he was about to sign and particularly as to the meanings of the word sovereignty and kāwanatanga.”

Johnson’s diary records that Panakareao was reassured by the explanations and consequently expressed his support for the Treaty. This understanding inspired his famous maxim.

Nōpera’s understanding of the Treaty arrangement was that his authority as a chief was the substantial authority in the land, while the Crown sovereignty, as a shadow of this authority, was to reflect the mana of the former.

However, within a few years, he concluded that he had been misled and famously revised his expression. In the amended saying, the Crown had assumed the ultimate authority or substance in the land, and rangatiratanga had become the shadow. This revision came not only from the loss of land but, like Hōne Heke of Kororāreka flagpole fame, Panakareao saw that the new colonial presence had usurped his mana and his tino rangatiratanga.

While plural governance is not an easy concept for many Pākehā to grasp, in te ao Māori it’s less problematic. According to esteemed jurist Sir Eddie Durie, there has always been tension between kāwanatanga and tino rangatiratanga, but the “Māori view has been not to promote one above the other but to provide adequately for both.”

He sees this view expressed succinctly by Paora Te Ahura in 1857 with reference to the establishment of a Māori King. According to Durie: “He left us with the image of ‘the Māori King on his piece, the [English] Queen on her piece, God over both and love binding them together’. The English Queen retained her mana and the Māori King retained his.”

Historically, the Crown diminished the mana of Te Tiriti and the mana of its signatories, dismissing the Treaty as a “simple nullity” and “worthless” because it had been signed “between a civilised nation and a group of savages”.

Since Ruth Ross’s influential research, the mana of the English Treaty and thus its signatories has also been diminished. An unintended consequence has been to fuel the narrative that Māori gave the Crown unmitigated sovereignty.

Hopefully, the recent contextual research by Ned Fletcher and others will correct this misconception. The sovereignty issue is undoubtedly complex, but regardless of the complexity, the governance conversation would be simplified if we were able to reconcile Te Tiriti and the English Treaty. For at its core, it’s a matter of mana: the mana of the Treaty and the mana of the people.

 

Dr Alistair Reese is a Pākehā theologian and historian with a particular focus on social reconciliation, seeking to strengthen the relationship between Māori and Pākehā in Aotearoa. He is also a farmer in the district of Tapuika, Bay of Plenty.

See also:

Ned Fletcher: There’s no clash between Te Tiriti and the Treaty

David Williams: The Treaty, in English or Māori, is still our best way forward

 

© E-Tangata, 2023