Mike Butler: A vote on the treaty?

Would a referendum on the treaty of Waitangi be corrosive and unfair, as anthropologist Dame Anne Salmond wrote three days ago, and how sound is the dame’s reasoning?

With the ACT Party likely to become party of a new government, Dame Anne dashed off a column to explain why she felt giving everyone the opportunity to vote on the issue was mean and unfair. She wrote:

1. Most voters can’t read the Maori text and their understandings would be shaped by non-Maori understandings.

2. Any referendum would be conducted by the Crown, which would give it more power than Maori.

3. A referendum when Maori are a relatively small minority would give them little say.

4. All this would breach the “contra proferentem” rule (created in Canadian law in 1952) which says that if an agreement is ambiguous (as the treaty appears to be), the preferred legal meaning is ‘the one that acts against the interests of the party who provided the wording.

However:

1. Does Dame Anne include Maori voters among those who cannot read the Maori text of the treaty? Since four out of five Maori don’t speak Maori, they would be as disadvantaged as non-Maori by not being able to read the treaty in Maori.

2. She offers no evidence that a government’s power as referendum conductor would eclipse Maori power.

3. Salmond’s “minority would be outvoted” point appears to assume that “Maori” have a uniform view about what the treaty means which is contradicted by the existence of the three ACT Party MPS with Maori ancestry whose treaty views differ from Dame Anne.

4. Her the “contra proferentem” rule argument assumes that the treaty is ambiguous but anyone who reads the one-page document can see it is quite clear in what it says.

To be quite clear, 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. That is all, in both English and Maori versions. Since then, moreover, the Queen and her successors have exercised sovereignty for over one and a half centuries, according to Canterbury University law lecturer David Round.

Older readers may remember a simpler time when there were hardly any unemployed, when the races were events to go to and place a bet, and when the treaty was something seen in a museum or library.

Things changed in the 1970s, when the Vietnam War, civil rights protest in the United States, and anti-apartheid activism in New Zealand coalesced to give birth to the Maori sovereignty movement.

Political and administrative blunders along the way led to the toxic mix we have in New Zealand today in which Maori roll MPs threaten direct action should any perceived entitlements come under threat.

Meanwhile, the multi-million-dollar treaty settlements that recommenced in the 1990s, described by activists as “peanuts”, have created billion-dollar tribal empires which don’t pay tax and which expect to have their people sitting in government as of right.

The first blunder appeared in the Treaty of Waitangi Act, ushered through Parliament by Maori Affairs Minister Mat Rata of the Third Labour Government. This occurred while a Maori land protest march made its way from the Far North to Parliament.

The blunder in that Act was giving the tribunal that the Act created the sole authority to interpret the treaty.

At that time, that appeared to make sense although the decision turned out to be naïve and should be repealed.

Appended to that Act were copies of the treaty – the Maori text, which was regarded by New Zealand’s first Governor, William Hobson, as the treaty, and an English text that formed part of a signing in April 1840.

This English text has 88 more words than Te Tiriti, and has the words “lands estates forests and fisheries” and “pre-emption” that do not appear in the Maori text.

The substantial differences between the texts led a number of historians to conclude that the final draft of the treaty had gone missing.

By 1987, when the lands case named Maori Council v Attorney General went through the Court of Appeal, a new interpretation of the treaty appeared.

A tribunal member (and Auckland treaty claimant) named Sir Hugh Kawharu “retranslated” the treaty into his “what the chiefs might have understood” version.

In 11 footnotes, he declared that the chiefs could not understand what sovereignty was, he redefined the word used to translate “possession”, and declared that “taonga”, which translated the word “property”, means “all dimensions of a tribal estate, both material and immaterial. His footnotes included other innovations.

To be clear, the treaty was drafted in English and translated into Maori.

“Possession” in Article 2 of final English draft was translated into “tino rangatiratanga”

Kawharu declared that “tino rangatiratanga” in Te Tiriti would have been understood as “unqualified exercise of the chieftainship”.

Soon “rangatiratanga” came to mean “the right of Maori people to rule themselves”.

Kawharu created a treaty in which chiefs only agreed to allow a British governor to control migrants from Britain living in New Zealand.

His view that chiefs could not understand sovereignty morphed into a recommendation by the tribunal, in 2014, that northern tribe Ngapuhi never ceded sovereignty.

This revamped “treaty” is posted on the Waitangi Tribunal’s website and appears to be the text used in cases considered by the tribunal.

But wait, there is more. A final draft of the treaty was found, in 1989, while John Littlewood and sister Beryl Needham were clearing out their mum’s house after she died.

This occurred while a multi-million-dollar commercial fisheries settlement was being negotiated with Maori interests.

This document became known as “the Littlewood treaty”.

It is written on paper from that time, it is dated February 4, 1840, it appears to have William Hobson’s signature on it, and the handwriting has been confirmed to be that of British Resident James Busby.

There a single difference between this Busby February 4, 1840, draft and Te Tiriti.

This difference is the addition of the word “Maori” in Article 3 of Te Tiriti, to clarify that it is the Maori people of New Zealand who are being conferred rights as British subjects.

The appearance of this document was reported in the New Zealand Herald and in other publications at the time.

Seventeen years later, the Government commissioned the late Donald Loveridge to conclude that the document was either a back translation of the Maori text of the treaty or “a copy of the missing draft”.

At that time, the Littlewood Treaty was on display in the old National Library. Eleven years later, when the National Library was moved to a new building, the Littlewood Treaty was removed from public view.

So, how could a vote on the treaty move New Zealand on from the web of deceit, vested interest, and unrealistic expectation, that has been woven over 50 years?

ACT leader David Seymour has drafted a three-clause referendum question, which says:

1. All citizens of New Zealand have the same political rights and duties

2. All political authority comes from the people by democratic means including universal suffrage, regular and free elections with a secret ballot

3. New Zealand is a multi-ethnic liberal democracy where discrimination based on ethnicity is illegal

The public would vote for or against the act becoming law, like the End-of-Life Choice Act referendum in 2020.

Such a statement should be uncontroversial in a liberal democracy like New Zealand. It is surprising to have a highly honoured academic such as Dame Anne Salmond describe it as "corrosive and unfair".

A vote is important. This is because the essence of our democracy is that political power is vested in we, the people, and this power is exercised through voting.

For decades, the right to have a say on the race-based policy has been circumvented.

One key architect of treaty policy, former Labour Prime Minister Sir Geoffrey Palmer (of the Fourth Labour Government) unashamedly kept the public well out of the loop.

He proudly declared, in his 1992 book New Zealand’s Constitution in Crisis that he set up “processes, and procedures and the principles on which decisions should be based” to avoid the risk of being outvoted because addressing Maori grievances was politically unpopular.

In 2021, Local Government Minister Nanaia Mahuta (of the Sixth Labour Government) went further when she declared that affected citizens could no longer have a say on the establishment of Maori wards.

Would a referendum on the Treaty of Waitangi be corrosive and unfair?

Three weeks ago, Australia had a referendum on whether to alter their constitution to establish an aboriginal and Torres Strait islander voice.

Voters rejected the proposal. There was grumbling but no unrest.

Can New Zealand do the same?

See Dame Anne Salmond, Why a referendum on Te Tiriti will backfire, https://www.msn.com/en-nz/news/national/why-a-referendum-on-te-tiriti-will-backfire/ar-AA1jdzRr