Sunday, February 19, 2023

Stuart Smith: The Basics of the Treaty

Waitangi Day has been and gone with much ink spilled over what it means for present-day New Zealand, and where we go from here.

The Treaty was drafted in English and translated into Maori and, while there are disputes about the meanings of different terms, there is no compelling evidence that the Treaty said anything more, or indeed less, than the three articles below:

1) The Chiefs of the Confederation of the United Tribes of New Zealand and the separate and independent Chiefs who have not become members of the Confederation cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty which the said Confederation or Individual Chiefs respectively exercise or possess or may be supposed to exercise or to possess over their respective Territories as the sole sovereigns thereof.

2) 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 which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession, but the Chiefs of the United Tribes and the individual Chiefs yield to Her Majesty the exclusive right of Pre-emption over such lands as the proprietors thereof may be disposed to alienate at such prices as may be agreed upon between the respective Proprietors and persons appointed by Her Majesty to treat with them in that behalf.

3) In consideration, thereof 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.

In Te Tiriti, the Maori translation, several keywords were used in the translation for clarity. For instance:

In article 1: Kawanatanga which means complete sovereignty over the land: the Chiefs ceded sovereignty to the Crown.

In article 2: Tino rangatiratanga – whilst there is no unique English translation it was used to establish the property rights of the Chiefs over their lands and estates, forests, fisheries and other properties. It also clearly spelled out that they, the Chiefs, have the right to sell their land exclusively to the Crown.

In article 3: Tikanga Katoa translates to customs and beliefs, but in this context, it specifies that Maori would have the same rights and privileges as British subjects.

You can be forgiven for wondering how anyone can believe that the Chiefs did not cede sovereignty when it is clear in any translation that they did.

The ‘principles’ of the Treaty are referred to in legislation and often quoted in various forms in the media. But interestingly, if you conduct a word search of the Treaty document there is no mention of ‘principles’ anywhere in the Treaty.

If principles were intended to be included in the Treaty, they would have been clearly spelled out. But they were not.

The Treaty is also referred to as a ‘partnership’ between Maori and the Crown.

This reference to partnership arose from the Lands Case 1987, where Maori interests argued that there should be fiduciary duties, like those imposed on Trustees (ie duties to act fairly and honestly with the beneficiaries).

The court, however, saw the duties as more ‘akin’ to those owed by members of a partnership (ie partners are required to act honestly and show fairness and good faith to each other). ‘Akin’ means similar to but different from. The judgment does not say that the Treaty creates a partnership. It is hard to reconcile how a treaty with Maori, who ceded complete sovereignty to the Crown, could be interpreted as a partnership.

Unfortunately, historical revisionists perceive the Treaty as an empty vessel that they can fill with their own view of how New Zealand should be.

The Treaty document is a relatively simple but important one, and while it is a crucial founding document, it is not the means to cure all ills. There were breaches of the Treaty, and they are being addressed via the settlement process. We must continue this.

It is very important that we all know and understand the Treaty.

We should wary of those who wish to rewrite history because if they succeed they will divide New Zealand.

And surely, that is the last thing we want to happen…

Stuart Smith is a N Z National Party politician who has been a member of the House of Representatives for the Kaikōura electorate since 2014. This article was first published HERE


Alan G said...

Good article Stuart. So does this represent your personal opinion or 'set in stone' National Party policy?

Will National commit to:
1. Properly defining the Treaty as what it originally meant,
2. Forcing the Waitangi Tribunal to come into line with the truth,
3. Sacking activist judges who twist the law to suit their own agenda,
4. Re-writing any legislation that incorporates a partnership concept that goes outside the original intent,
5. Stopping the ridiculous National Curriculum refresh, making it about education rather than indoctrination.
NZ is waiting for your party to stand up. Will it? Can it?

Anonymous said...

to Alan G....Here here!

Doug Longmire said...

I see that the activist Waitangi Tribunal has stated that they intend to "go beyond the words" of the Treaty. (i.e. - ignore the original Treaty and create their own new version of it)

Interestingly - this statement comes from the same Tribunal that devoted great volumes of tangled verbiage into translating and arguing over ONE word from the Treaty document.

Barend Vlaardingerbroek said...

Getting to real fundamental basics, this isn't even a treaty as it is not between sovereign nations - I assume the reference to a 'confederation' is an instance of extreme English diplomatic politeness as there was no such thing in operation and if there was it did not include the South Island. The International Court of Justice held in 2002 that the hundreds of treaties the British concluded with numerous indigenous entities in the 19thC did not abide by the rules of international law then or now.

*** said...

This article quietly and effectively makes the points it makes. However what screams loudly are the points it does not make – the answers to Alan G’s questions. With the avoidance of the important stuff, one can only conclude that the answers are NO, NO, NO, NO, and NO. The NZ National Party is asleep at the wheel. It will not stand up. It cannot stand up.

Anonymous said...

Let's face it, whatever it said we've surely moved on - or should have? If you're a NZ citizen. we all should be equal in the eyes of the law. None of us living committed these purported past injustices, just as no Maori is or has been brought to account for what happened in the Chathams or Matawhero etc. The Japanese, the Germans and others have all committed heinous crimes more recently, but we've moved on and don't hold grievances against them. It's way past time for Maori to similarly show some good faith and let bygones be bygones. Otherwise this will just continue to fester for eternity, or until such time as there is a revolt - and that's fast approaching. Is this really want we want?
Meantime Stuart, it's not at all helpful when your party colleagues prattle on about 'our treaty partners' and mention co-governance in certain situations.

Anonymous said...

You need to get your facts right Mr Smith. That is NOT the correct Article 2. In the correct final draft translated overnight into the Maori version there is NO mention of Forests and fisheries. and where has " And all the people of New Zealand" gone ? You have left that out Mr Smith so that it appears that article 2 applies only to Maori. It is on the basis of the false article 2 you have written that Maori have taken a big share of forests and fisheries which they are not entitled to. If our politicians haven't a clue about the treaty what hope is there?

Kiwialan said...

Stuart, I was in your electorate until a couple of years ago then moved from Waipara to Kaiapoi for medical reasons but I wish I was back there so you can represent my views. Twice I have had meetings with Matt Doocey in his Kaiapoi electorate office to discuss the Maorification of our Country, having te reo forced upon us etc but he was more interested in the treaty" obligations " we have and the usual partnership twaddle. My family and friends will vote for him because he does a good job in the electorate but our Party vote will go to David Seymour. I just wish that Luxon had the guts that he has to stand up to the racist, corrupt Maori radicals running this current government and show a bit of real leadership, not the woke fence sitting he has perfected. Kiwialan.

Anonymous said...

Curious. Mr Smith says Treaty was drafted in English translated into Maori. Correct because Hobson couldn’t speak Maori. And as Hobson on behalf of the Queen was offering the protection the chiefs wanted then it makes perfect sense he would define the Crown’s proposition.
So why did Mr Smith not use Hobson’s document? Instead he has used a subsequent unauthorised fantasy which has been used as a piece of paper on which to collect the signatures of several chiefs when the official document was full and then glued to primary document.( can’t imagine it would have been polite for one chief to put their mark over that of another just to keep everything on the same page). Curious then that the English version quoted post dates the Maori version.

Unknown said...

Anonymous is quite correct in pointing out the error in Mr Smith's statement on Article 2 of the Treaty. Smith quoted from Freeman's fraudulent Treaty which added Forests and Fisheries, and omitted the crucial statement in Te Tiriti Article 2 that the guarantees were for all the people of New Zealand. Politicians not only need to read the Treaty, but must also quote it correctly.

Anonymous said...

There is some discussion about the version of the Treaty Stuart Smith has quoted. The "official" version is in Schedule 1 of the Treaty of Waitangi Act 1975.

Anonymous said...

Yep ToW Act has the legislated official treaty but that is the political fraud on New Zealanders. The “official” version is the post Maori version.