Barrie Davis: Temerity after Temerity

Prior to Mr Tuheitia’s hui at the Turangawaewae Marae the media made a fuss about the ‘leaking’ of a draft document from the Ministry of Justice regarding a Bill by the ACT Party to update the Treaty of Waitangi. That proposal to legislate for racial equality in New Zealand had been on the ACT website for some time, however, and the ‘leak’ served only to prime the passions for the hui.

Following on from my previous post, the Temerity of Waitangi (here), the issue of sovereignty versus partnership gets more audacious still in the case of the Treaty Principles Bill.
The ‘leaked’ draft reads in part:

7. The Bill proposes three new principles based on the Articles of the Treaty:

a. Article 1: “kawanatanga katoa o o ratou whenua” – The New Zealand government has the right to govern all New Zealanders.

b. Article 2: “ki nga tangata katoa o Nu Tirani te tino rangatiratanga o o ratou whenua o ratou kainga me o ratou taonga katoa” – The New Zealand Government will honour all New Zealanders in the chieftainship of their land and their property, and

c. Article 3: “a ratou nga tikanga katoa rite tahu” – All New Zealanders are equal under the law with the same rights and duties.

Note that the portion in Maori has been lifted verbatim from the 1840 Treaty (in Maori), so the updated part can only be that given in English, which I will consider here together with the concept of ‘partnership’.

The Waitangi Tribunal heard the Te Paparahi o te Raki from 2010 to 2017 to consider claims about nineteenth century Treaty breaches in Northland. The subsequent reports comprised two stages: Stage 1 was published in 2014 and is 574 pages in 2 Volumes (see 1Vol1 & 1Vol2). It claims the chiefs who signed the Treaty in February 1840 did not cede sovereignty to Britain but that they instead agreed the Governor and the chiefs were to be equal while having different roles and different spheres of influence. Stage 2 was published in 2023 and is 1487 pages in 3 Volumes (see 2Vol1, 2Vol2 & 2Vol3). Its recommendations include that the Crown returns all Crown-owned land in the area to Te Raki Maoris, provides “substantial further compensation” to Maoris in Northland, and with Te Raki Maori determine “constitutional processes and institutions” to give effect to their Treaty rights. The 2000 page report (Stage 1 and Stage 2) includes the words ‘partner(s)’ and (more often) ‘partnership’ 489 times.

Judge Craig Coxhead, who presided over the inquiry, wrote “We have no doubt that this process will be challenging for the Crown, but undertaking it in good faith is essential if the treaty partnership and the Crown's own honour is to be restored.” Prior to the 2023 election the Maori party said accepting the recommendations of the report is a bottom line for the party and co-leader, Rawiri Waititi, claimed the “report can go across all iwi that signed te Tiriti o Waitangi”.

Professor Dame Anne Salmond of the University of Auckland was called to give evidence in 2010, which she did in August of that year. Salmond additionally made a 93 page submission to the Waitangi Tribunal, “Maori understandings of the Treaty of Waitangi, Brief of Evidence for the Waitangi Tribunal WAI 1040”, 17 April 2010 (see here). Moreover, in 2023 she published Knowledge is a Blessing on Your Mind: Selected Writings, 1980 – 2020, which includes a revised version of her submission as chapter 14, “Te Tiriti o Waitangi (2010)”.

Salmond’s 2023 book, but not her 2010 submission to the Waitangi Tribunal, includes the following regarding ‘partnership’ when considering Article 3 of the Treaty (p. 365):

“While the relationship between Maori and the Queen has often been described as a ‘partnership’ between the ‘Maori race’ or the ‘Maori people’ and the Crown, this is a misunderstanding. Nga tangata maori, often translated as ‘the Maori people’, describes indigenous individuals in their personal capacities (literally, ordinary human beings), not as an ethnic or racial group (e.g., te iwi Maori).”

Salmond explains,

“In English, there is only one definite article (the), while in te reo there are two, singular (te) and plural (nga). To define ‘nga tangata maori’ in the plural as ‘the Maori people’ in the singular, as in the 1975 Treaty of Waitangi Act, or ‘the Maori race’ in the 1987 Lands Case, is a translation error. This grammatical difference – at least in part – allows an interpretive slippage into a reading of Te Tiriti as a ‘partnership between two races’.”

So, there is not a partnership between the Maoris collectively and the Crown in the Treaty, as the Waitangi Tribunal may have believed, but a personal relationship between the Queen and individual Maoris. Salmond continues (in the 2023 revised version, p. 365):

“This echoes Ture 2 [Article 2], in which the Queen agrees to uphold te tino rangatiratanga of nga tangata katoa o Nu Tirani (all the inhabitants of New Zealand), as well as the rangatira and the hapu; i.e., a multilateral and personal relationship with these different parties.”

Note that the above quote in Maori is the same as that in the ‘leaked’ document under Article 2, “ki nga tangata katoa o Nu Tirani te tino rangatiratanga”, the English part of which reads, “The New Zealand Government will honour all New Zealanders in the chieftainship of their land and their property”.

Of the Second Article (in Maori), Salmond further writes (p. 362):

“These phrases, which we have translated as ‘The Queen ratifies and agrees with the Rangatira, the hapu and all the inhabitants of New Zealand to the full chieftainship of their lands, their dwelling places and all of their valued items [taonga]’, suggest that within their own domains, under the new relationship, the rangatira, hapu and all the inhabitants of New Zealand would retain autonomous control over their lands, villages and prized items. This was in effect a promise to these parties that their mana would be upheld in any relationship with the Queen. ‘All the inhabitants of New Zealand’ is not restricted to indigenous inhabitants in this clause.”

Furthermore, the back translation into English by Professor (later Sir) Hugh Kawharu, which was that preferred by the Waitangi Tribunal, also says: “The Queen of England agrees to protect the Chiefs, the subtribes and all the people of New Zealand in the unqualified exercise of their chieftainship over their lands, villages and all their treasures.” Surely the Tribunal must have known that ‘all the people of New Zealand’ includes non-Maoris?

Whereas Salmond says by the 1840 Treaty (in Maori) the Queen ratifies for all New Zealanders – Maori and non-Maori – the full chieftainship of their land and property; the ACT Bill says the New Zealand Government (which is said to be ‘the Crown’) will honour all New Zealanders in the chieftainship of their land and property. Both say they will fulfil the chieftainship of land and property for all New Zealanders. So really, the ACT proposal does not so much update the Treaty, as correct a mistake made by the Waitangi Tribunal and/or the Courts.

Dame Anne also covers the above in an introduction to the book chapter (p. 340):

“Rather than a partnership between ‘races’, Te Tiriti describes a multilateral set of alliances among different parties – Queen Victoria, the rangatira, the ‘hapu’ (kin groups), ‘nga tangata katoa o Nu Tirani’ (all the inhabitants of New Zealand), ‘nga tangata maori katoa o Nu Tirani’ (all the indigenous inhabitants of New Zealand) and the Governor. In fact, the largest collectivity mentioned in Te Tiriti is the ‘hapu’ (subtribe).

“Fourth, in Ture 3 [Article 3], Queen Victoria promises to tiaki (take care of) the indigenous inhabitants of New Zealand, and to give them tikanga exactly equal with her subjects, the inhabitants of England. Here, ‘nga tangata maori katoa o Nu Tirani’ (all the ordinary, indigenous inhabitants of New Zealand) and their tikanga (customary, right ways of doing things) are placed on an absolutely equal footing as persons with the Queen’s subjects as persons, not as a collectivity (say, te iwi Maori). Again, there is no equivalent in the text to a bilateral ‘partnership between races,’ or ‘between the Crown and the Maori race’.
“In many ways, the Lands judgment reflects the 1980s neo-liberal context in which it was written. Its emphasis on a bilateral ‘partnership’ (as in a business) between two races, and its one-way transfers of cash and assets to iwi structures that were then corporatized to receive Treaty settlements is fundamentally unlike the multilateral, reciprocal network of alliances based on equality and gift exchange outlined in Te Tiriti.”

The relationship is between the Crown (i.e., the Government which makes the laws) and we the people; and it is the same for all the people. That concept can be applied to all three of ACTs propositions. Once that is done, we will all be equal. That should not be controversial, although we might well be miffed at the subsequent cost of correcting their mistake in legislation and elsewhere.

Dame Anne has provided a scholarly account of the Maori understanding of the 1840 Treaty of Waitangi. Nevertheless, in my view, we should not be bound by the Treaty because it belongs to a different time and we need to look to the future. But to plan ahead we need to know where we have come from and the ACT proposal starts with the 1840 Treaty (in Maori) for all three Articles. The corresponding propositions in English are fair and reasonable, but neither Mr Luxon nor Mr Peters backs them. However, we really do need to get ourselves out of this foolish mess and I would like a definitive solution please. All I want and all I am asking for is equality now and in the future. What’s the problem with that?

Dr Barrie Davis is a retired telecommunications engineer, holds a PhD in the psychology of Christian beliefs, and can often be found gnashing his teeth reading The Post outside Floyd’s cafe at Island Bay.