Hawke's Bay Today

Treaty a true partnershi­p

Difference­s over interpreta­tions since signing resolved by Waitangi Tribunal work

- Sandra Morrison, University of Waikato, and Ingrid L.M. Huygens, University of Waikato Sandra Morrison is Associate Professor, Ma¯ori and Indigenous Studies, University of Waikato. Ingrid L.M. Huygens is Treaty educator, Ma¯ori and Indigenous Studies,

The Treaty of Waitangi is New Zealand’s foundation document. On February 6, 1840, the treaty was signed by representa­tives of the British Crown and Ma¯ori chiefs who acted on behalf of their hapu¯ (sub-tribes). Ma¯ori are indigenous to New Zealand, with historical ties and common narratives extending to Polynesia. The signing of the Treaty confirmed formal European settlement in New Zealand. But debate and confusion have continued ever since regarding the exact meaning of the Treaty text. The debate stems from the fact that the parties involved in its signing, namely the rangatira (chiefs) and New Zealand’s first governor William Hobson on behalf of the British Crown, had different understand­ings and expectatio­ns as to what they had signed and what authority they would exercise. There are two accepted versions of the Treaty of Waitangi: a Ma¯ori text known as Te Tiriti o Waitangi and the English version here after called the Treaty of Waitangi. Under law both are accepted as the Treaty of Waitangi, but they are significan­tly different in meaning. Te Tiriti speaks of the chiefs maintainin­g their tino rangatirat­anga (authority) over their taonga (all that they hold precious, including the Ma¯ori language). The chiefs allow the Queen to have ka¯wanatanga, a nominal and delegated authority so that she can control her people. On the other hand, the Treaty in English tells us that the chiefs ceded their sovereignt­y to the crown while retaining full, exclusive and undisturbe­d possession over their lands, estates, forests and fisheries.

A matter of interpreta­tion

Given that at the time of the signing, the dominant language was te reo Ma¯ori and the majority of the discussion­s would have been conducted orally, the Ma¯ori text of Te Tiriti reflects the intentions of the chiefs. It is a critical reference point in informing our understand­ings, reinforced by the internatio­nal convention of contra proferente­m in relation to treaty making. This rule in contract law states that any clause considered to be ambiguous should be interprete­d against the interests of the party that requested the clause to be included. Claudia Orange, generally considered the most authoritat­ive Pa¯keha¯ historian on the treaty, states: “The Treaty was presented in a manner calculated to secure Ma¯ori agreement. The transfer of power to the Crown was thus played down.” Bear in mind also that the Declaratio­n of Independen­ce, the forerunner to Te Tiriti/Treaty, signed in 1835, had affirmed the authority chiefs already had. This meant they held mana and rangatirat­anga (all power and sovereign authority). This system of political authority had been in place for many centuries.

Legal status of the treaty

Fast forward to 2019 and what has been happening in the landscape of treaty jurisdicti­on. During and after the cumulative impact of introduced legislatio­n and policies which led to systemic colonisati­on, consistent and unwavering Ma¯ori protests at violations of both treaties eventually led to the introducti­on of the 1975 Treaty of Waitangi Act and its 1985 amendment. This gave us the Waitangi Tribunal, which allows for a process to hear claims about breaches of the Treaty, typically the taking of land and resources from Ma¯ori. The tribunal found in 2014 that Maori did not cede their sovereignt­y in Te Tiriti o Waitangi. It also introduced a set of principles which embodied the intention of both treaties in an attempt to mediate the difference­s in the two versions. A series of judgments and mandates by the courts and the Waitangi Tribunal also ruled that the Crown has the right to govern (ka¯wanatanga), subject to the protection of Ma¯ori interests (rangatirat­anga). This position is not accepted by many Ma¯ori who will continue to advocate for the supremacy of rangatirat­anga over ka¯wanatanga. In his book about the Treaty’s place in New Zealand law and constituti­on, Mathew Palmer notes: “The Waitangi Tribunal developed the core of an interpreta­tion of the meaning of the treaty that could and should be applied in contempora­ry New Zealand. This was a forward-looking constructi­ve approach to enhancing relationsh­ips between the Crown and Ma¯ori. “A long-standing education campaign about the Treaty of Waitangi has also helped nonindigen­ous New Zealanders to appreciate the significan­ce of the treaty relationsh­ip.”

Treaty settlement­s

Most discussion­s on the principles of the Treaty of Waitangi generally include the following: Duty to act in good faith, reasonably and/or honourably; Principle of partnershi­p; Principle of protection or active protection. New Zealand’s constituti­on demands that robust public policy gives expression to the principles of the Treaty of Waitangi. This has led to the redesign of Crown agencies which must now be culturally responsive to the aspiration­s of Ma¯ori and actively innovate solutions to reduce the glaring social disparitie­s where Ma¯ori are disproport­ionately represente­d. The Waitangi Tribunal has heard and settled 54 treaty claims since 1989, including financial redress of more than NZ$1.5 billion. The first settlement, in respect of the Waitomo Caves, involved the transfer of land and a loan. Settlement­s since then have included several elements of redress: a formal apology by the crown, financial and cultural redress, the transfer of or the option to purchase significan­t properties, and restoratio­n of traditiona­l geographic­al names. Since the identity of hapu¯ is rooted in their physical and spiritual relationsh­ip with the environmen­t over hundreds of years, these forms of cultural redress acknowledg­e the tribe as the rightful guardians and their deep associatio­n with place. The process seeks to restore the sacred relationsh­ips compromise­d by colonisati­on. The treaty settlement process has been the catalyst for significan­t economic growth for iwi (tribe) controlled assets and Ma¯ori enterprise. This naturally brings positive developmen­t to the New Zealand economy, encouragin­g iwi and Ma¯ori to continue to progress economical­ly, socially, culturally and environmen­tally.

 ??  ?? The Governor General of New Zealand, Dame Patsy Reddy, during a welcome ceremony to the treaty grounds at Waitangi.
The Governor General of New Zealand, Dame Patsy Reddy, during a welcome ceremony to the treaty grounds at Waitangi.

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