A clever new look at the Treaty
This is one of the most important books written about the Treaty this century, says Morgan Godfery.
The Treaty of Waitangi means whatever you want it to mean, as long as you’re against it. The popular account seems to consist of two jointly asserted and mutually exclusive ‘‘facts’’. Under the first account, the Treaty is a rat-eaten relic, ‘‘a praiseworthy device for amusing and pacifying savages’’. It should remain in the storage rooms at Archives New Zealand. Ancient promises are irrelevant in modern countries.
But the second account declares we must dutifully comply with the ‘‘principles of the Treaty of Waitangi’’. The English and Maori texts work at cross purposes and rather than priviliging one understanding over another, we should adhere to a new understanding. The Crown agrees to adhere to principles like active protection, so long as Maori accept its sovereignty.
Which account you prefer depends on whether you want to deny or attack Maori rights. If it’s the former, the claim must be that the Treaty creates no rights – it means nothing – and if you prefer the latter the claim is that the Treaty creates some rights – it means something – just not what the Maori text says.
The truth – or the best interpretation – doesn’t sit somewhere in the middle, nor is it even adjacent, it’s entirely removed from the two popular accounts. This is where Dr Carwyn Jones, a legal academic at Victoria University, and author of New
Tradition, New Treaty, arrives. Jones helps us understand and imagine what a third account might look like.
On its surface, the book is an attempt to ‘‘reconcile New Zealand and Maori law‘‘. The beauty of Jones’ analysis is he treats Maori law on its own terms. Yes, it’s part of New Zealand law, but it’s also the first law of these islands.
This seems like stating the obvious – of course, you should treat Maori law on its own terms – but the recurring conundrum for indigenous peoples across the world is that to be recognised by the colonising system they must appeal to the values and norms within that system. That sometimes means Maori law or the Treaty is treated as simply comparative.
But Jones uncovers and analyses Maori law as it is. He opens each chapter as a story from father to son, a neat literary device, and a nod to the form in which you’ll find Maori law (that is, in oral history rather than just statutes and regulations). Perhaps this is the central tension for the general reader – Jones has written a book for general audiences, but to truly appreciate its intellectual innovations requires knowledge of the field.
As a latter reader, this is one of the most important books written about Maori law and the Treaty this century.