How did Section 9 come into being? When Richard Prebble was Minister of State-Owned Enterprises in 1986, during the early days of the Fourth Labour Government, he wanted to sell state-owned enterprises. To quieten the dissent that started to affect the Labour’s relations with its Maori voting base, Prebble asked his colleague Geoffrey Palmer to insert, in the new State-Owned Enterprises Act, what was thought to be a pious yet meaningless piece of lip-service, quoted above.
What were the principles? No one knew because they had not at that stage been defined. It wasn’t until the following year that the president of the Court of Appeal, Justice Robin Cooke, provided the first summary of the nebulous principles in the decision of that court in New Zealand Maori Council v Attorney-General in 1987. Cooke said that there were six principles:
(a) ‘[T]he Queen was to govern and the Maoris were to be her subjects; in return their chieftainship and possessions were to be protected, but . . . sales of land to the Crown could be negotiated.’
(b) Because there was some inevitable potential conflict between those principles, both parties had a duty ‘to act reasonably and with the utmost good faith’ towards one another.
(c) ‘The principles of the Treaty do not authorise unreasonable restrictions on the right of a duly elected government to follow its chosen policy.’
(d) The Crown assumed a duty of protection towards Maori: ‘the duty is not passive but extends to active protection of Maori people in the use of their lands and waters to the fullest extent practicable.’
(e) The Crown has a duty to remedy past breaches: ‘the Crown should grant at least some form of redress, unless there are good grounds justifying a reasonable Treaty partner in withholding it – which would only be in very special circumstances, if ever.’
(f) The Crown had an obligation to consult with Maori in the exercise of kawanatanga. Justice Cooke was guarded, however, as to the practical extent of that obligation.
This is where the fictions of biculturalism and treaty partnership were born, and this was the beginning of the deluge of claims based on these twin fictions.
Tariana Turia clings to Section 9, with the Maori Party threatening to leave the confidence and supply agreement it has with the National Party, should Prime Minister John Key removes or in any way dilutes Section 9, because she sees it as a “legislative clause which many have described as establishing the foundation for a treaty-based nation”, but more tangibly, “it had direct bearing on the coal case, the broadcasting assets case that was central to the creation of Maori Television; the New Zealand Maori Council's settlement over the forestry assets”.
Turia described her “treatifarian” faith by using the metaphor of a family, saying “ we refer to Waitangi as the birthplace of the nation; the signing of the Treaty as the birth of this land we know as Aotearoa”. She went further, in referring to “several true parents” in the New Zealand Maori Council v Attorney-General 1987 lands case; “Dame Whina Cooper, the matriarch of the 1975 land march; Matiu Rata, the visionary behind the Waitangi Tribunal; Nganeko Minhinnick, the driving force in the Manukau claim”.
Turia attributed the “true parent” description to Justice Sir David Baragwanath, who as QC, led Sian Elias (current Chief Justice of the Supreme Court) and Martin Dawson for the plaintiffs in that case. If the plethora of unintended consequences of partnership and biculturalism are anything to go by, these “true parents” were more like indiscriminate breeders. Such excessive language shows that partnership process is high on emotion and flaky on fact.
She argues: “We must honour the legacy of those who campaigned to create the constitutional guarantee to Maori that has arisen through interpretation of the Treaty principles”. It would seem that in her view, the treaty, it’s principles, and Section 9 have been exalted to a metaphysical realm and can only be interpreted by treatifarian high priests.
She goes on to say: “the principles outline a prescription for a relationship which is central to our constitution; an exquisite blueprint for a nation in which kawanatanga and rangatiratanga sit alongside each other. There is a natural tension between these two forces which must be resolved in each case as it occurs.” Any apparent clash between the words “kawanatanga” and “rangatiratanga” results from a combination of colonial government blundering, a language barrier, and self-serving mischief. Since chiefs signed the Maori text, here is that text in English:
Her Majesty has accordingly been pleased to appoint Mr. 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
Consul and Lieut. Governor.
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.
The word “sovreignty”, which was misspelled in this handwritten text that I saw on display on the strong room at National Archives in Wellington appears in Article 1 of the Maori text as “kawanatanga”. The word “rangatiratanga” appears in Article 2 of the Maori text to convey “the possession of”. The complete phrase is “te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa”.
Turia is one of a handful of undoubtedly sincere radicals who take “tino rangatiratanga” to mean both “ownership” and “self-government”, allowing the treaty to both cede and retain sovereignty, which is nonsense. Even Cooke's treaty principles assume that the treaty both cedes and retains sovereignty.
The official English version of the treaty has the phrase "lands estates forests fisheries and other properties", a phrase that does not appear in the Maori version signed by the chiefs. That phrase has been used as part of the basis for the 1992 "Sealords" commercial fisheries settlement and the 2008 Central North Island "Treelords" deal, both of which could be argued to be colossal governmental blunders.
Incidentally, I saw the handwritten text that translates perfectly into and from the Maori text while researching family history at National Archives, after going through papers including many written by British Resident James Busby, who was involved in drafting the treaty. With the same blue paper and identical handwriting, there is no doubt that this text was written by Busby, and is arguably the missing final draft from which the Maori text was translated.
Another curious observation is that in her open letter, Turia only mentioned Te Tiriti o Waitangi in passing. It seems that for her, the deal is Section 9 and the treaty principles, and for this we can blame Richard Prebble, Geoffrey Palmer, and Robin Cooke.
A note on principle (c), which says “the principles of the treaty do not authorise unreasonable restrictions on the right of a duly elected government to follow its chosen policy.” If the threats, legal action, and general tossing of toys out of the cot by Turia, co-leader Pita Sharples, the Maori Council, the Waitangi Tribunal, and Mana Party leader Hone Harawira are deemed to be exerting unreasonable restrictions on the duly elected government, they would show that they regard the principles to constrain the government, not Maori.
Tariana Turia: Open letter to NZ http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10783608