The rejection of Maori Party MP Te Ururoa Flavell’s Oaths and Declarations (Upholding the Treaty of Waitangi) Amendment Bill may indicate that the claimed political unanimity on treaty matters is not so united. A closer look at what Flavell was trying to achieve shows that his oaths bill was part of a wider Maori Party campaign to weave a “cash cow for Maori’ version of the treaty into law and into the day-to-day activities of as many people as possible.
The purpose of Flavell's bill was "to ensure that a person taking any oath set out in statute may, in addition to the words of the oath, elect to state that they will uphold the Treaty of Waitangi", which would recognises "that the Treaty of Waitangi is New Zealand’s founding document and the Government is committed to fulﬁlling its obligations as a treaty partner". (1)
The bill was defeated, 69 votes to 48 with National, New Zealand First, United Future and ACT all voting against it.
National list MP Tau Henare, who spoke passionately for the bill and voted against it, said the outcome told the rest of world New Zealand was just the same as all the other "colonial conquering nations". (2)
Maori Party co-leader Pita Sharples said that National's actions in opposing the bill “contradicted its words in the confidence and supply agreement in which Prime Minister John Key acknowledged the status of tangata whenua and recognised the treaty as the founding document of the country”. (3)
Green MP Catherine Delahunty said the bill would “herald a new age of respect for Te Tiriti o Waitangi, and not only for Maori but also for tangata tiriti, for pakeha” like herself who tried to swear and affirm on both Te Tiriti o Waitangi and the other oath. (4)
In opposing the bill, ACT’s John Banks pointed out that an oath of allegiance is defined as “an oath whereby a subject or citizen acknowledges a duty of allegiance and swears loyalty to monarch or country”.
What is wrong with allowing MPs to swear an oath on the treaty if they so wish?
Flavell’s oaths bill should be viewed as part of a Maori Party campaign to weave the treaty into law and into day-to-day habits. The Maori Party’s push through its creation, the Constitutional Advisory Panel, is to get a written constitution with the treaty as supreme law.
The Treaty of Waitangi is NOT New Zealand’s founding document as Flavell would have us assume. The signing of the treaty from February 6, 1840, by 512 chiefs was a part of a process whereby Britain asserted sovereignty over New Zealand, a process that also included proclamations, occupation, and later, the conquest of dissident tribes.
When Flavell cites the government’s “obligations as a treaty partner”, he would appear to be referring, not to the 1840 treaty, but to the treaty principles that were “discovered” in 1986 after the Maori Council took the government to court over a planned transfer of assets to State-owned enterprises.
Those principles have been taken to guarantee a special deal for Maori that involves consultation, race-based affirmative action, a right of first refusal to Maori of any new financial opportunities that the government may want to get into, and on-going financial redress for any claimed grievance.
Even the treaty Flavell refers differs from the treaty signed in 1840.
All the treaty actually says is that the Queen is sovereign and Maori are her subjects, with the rights of subjects, including possession of property, which may be sold to a government agent. That is all, in both English and Maori versions. Since then, the Queen and her successors have exercised sovereignty for 172 years.
The Maori text of the treaty may be read here on the Waitangi Tribunal’s website (5).
It is important to bear in mind that the treaty was drafted in English and translated into Maori. The tribunal’s website does not show the draft that the Maori text was translated from.
Instead, the tribunal shows the official English version that was cobbled together from rejected earlier drafts by Governor William Hobson’s secretary James Freeman and includes a number of variations in phrasing and content from the Maori text. (6)
The tribunal’s website also displays a translation done by former tribunal member Professor Sir Hugh Kawharu that mistranslates the words “kawanatanga” and “rangatiratanga” as “government” and “chieftainship”. (7)
Anybody seeking the meaning of a document drafted in and translated from another language should surely check the intended meanings of key words in the source document.
James Busby’s February 4, 1840, draft, reproduced below, translates almost exactly to the Maori text.
Because the treaty has become the source of discontent and division, caution is required on bids to bring the treaty into law and day-to-day practice. The National-led government has shown good sense in rejecting Flavell’s oaths bill, and hopefully this government will treat carefully any CAP proposals from the Constitutional Advisory Panel.
Busby's February 4 draft (Littlewood treaty)
Her Majesty Victoria, Queen of England in her gracious consideration for the chiefs and people of New Zealand, and her desire to preserve them their land and to maintain peace and order amongst them, has been pleased to appoint an officer to treat with them for the cession of the Sovreignty [sic] of their country and of the islands adjacent to the Queen. Seeing that already many of Her Majesty’s subjects have already settled in the country and are constantly arriving: And that it is desirable for their protection as well as the protection of the natives to establish a government amongst them.Sources
Her Majesty has accordingly been pleased to appoint me William Hobson a captain in the Royal Navy to be Governor of such parts of New Zealand as may now or hereafter be ceded to Her Majesty and proposes to the chiefs of the Confederation of United Tribes of New Zealand and the other chiefs to agree to the following articles.-
The chiefs of the Confederation of the United Tribes and the other chiefs who have not joined the confederation, cede to the Queen of England for ever the entire Sovreignty [sic] of their country.
The Queen of England confirms and guarantees to the chiefs and the tribes and to all the people of New Zealand, the possession of their lands, dwellings and all their property. But the chiefs of the Confederation of United Tribes and the other chiefs grant to the Queen, the exclusive rights of purchasing such lands as the proprietors thereof may be disposed to sell at such prices as may be agreed upon between them and the person appointed by the Queen to purchase from them.
In return for the cession of their Sovreignty [sic] to the Queen, the people of New Zealand shall be protected by the Queen of England and the rights and privileges of British subjects will be granted to them.
Signed, William Hobson
Now we the chiefs of the Confederation of United Tribes of New Zealand assembled at Waitangi, and we the other tribes of New Zealand, having understood the meaning of these articles, accept them and agree to them all. In witness whereof our names or marks are affixed. Done at Waitangi on the 4th of February, 1840."
1. Oaths and Declarations (Upholding the Treaty of Waitangi) Amendment Bill http://www.maoriparty.org/file_uploads/OathsAndDeclarationsUpholdingTheTreaty.pdf
2. Henare laments failure of oath bill, NZ Herald, Nov 8, 2012, http://www.nzherald.co.nz/politics/news/article.cfm?c_id=280&objectid=10845944
4. Catherine Delahunty on the Oaths and Declarations (Upholding the Treaty of Waitangi) Amendment Bill, First Reading, http://www.greens.org.nz/speeches/catherine-delahunty-oaths-and-declarations-upholding-treaty-waitangi-amendment-bill-first-0
5. Maori text of the Treaty of Waitangi http://www.waitangi-tribunal.govt.nz/treaty/maori.asp
6. English Version of the Treaty of Waitangi, http://www.waitangi-tribunal.govt.nz/treaty/english.asp
7. Kawharu Translation, http://www.waitangi-tribunal.govt.nz/treaty/kawharutranslation.asp