Wanted: Dead or Alive? The Treaty of Waitangi

Written By: - Date published: 1:55 pm, December 17th, 2023 - 28 comments
Categories: Deep stuff - Tags: , , ,

Some would like to the Treaty buried in a museum archive or even better, burnt forever on a bonfire (and together with Regulations). Some may not object to having their version in full view and the other in a dark dusty display in a far corner of the History section. Some treat the Treaty as a guide or manual for NZ society. There are many different views of the style and the substance of the Te Tiriti – the Treaty. Likewise, the path of public discourse is broadly divided into tracks of deliberation versus persuasion, with the former being pluralistic, inclusive, constructive, compromising, rational, and respectful and the latter being binary, exclusive, antagonistic, polarising, emotive, and contemptuous. Suffice to say, the paths will lead to different destinations.

Only two days ago, Anne Salmond wrote another excellent piece on the Treaty in which she juxtaposes different ways of thinking.

Different ways of thinking can put people at loggerheads, so they talk past each other – reasonable people who reason differently. This can create impasses that are almost intractable. Current discussions over Te Tiriti o Waitangi may be a case in point.

However, Anne Salmond’s piece doesn’t pre-empt this Post, for which I already had an advanced draft, and they sit nicely side-by-side.

While the debate regarding the Treaty continues and is heating up, I’d like to focus on two main perspectives that are often ignored in the public discourse and that appear to be confined to academic circles: the ‘Living Document’ and ‘Originalism’.

The ‘Living Document’ perspective 1 suggests that the Treaty’s interpretation should evolve over time, reflecting changing societal values and circumstances. This viewpoint allows the Treaty to remain relevant and adaptable, addressing issues unforeseen at the time of its signing in 1840. It acknowledges the dynamic nature of the relationship between Māori and the Crown and by implication, between all peoples in and of Aotearoa – New Zealand. When this view comes into focus, it is embraced wholeheartedly or rejected in a business-like manner.

A comparison can be made of the Treaty to the evolution of law and democracy.

Law is often considered a ‘living’ entity, as it is interpreted and reinterpreted by courts, and updated through amendments or new legislation to reflect societal changes. This process allows the law to remain relevant and adaptable, much like the ‘living document’ perspective of the Treaty.

Similarly, democracy has evolved over centuries to adapt to changing societal values and circumstances. The adoption of the mixed-member proportional representation (MMP) system in New Zealand in the 1990s is a prime example of this evolution. It represented a significant change to the electoral system to reflect better the diversity of views within the population.

These examples lend support to the perspective of the Treaty as a ‘living document’. They highlight the importance of adaptability and evolution in maintaining the relevance of such foundational documents and systems in a changing dynamic society. This perspective allows for the ongoing development of the relationship between Māori and the Crown, and the continual reassessment and resolution of Treaty claims.

Conversely, the ‘Originalism’ perspective 2 argues for an interpretation based on the original intent and understanding at the time the Treaty was signed. This view emphasises the historical context and the specific words used in the Treaty. However, applying originalism to the Treaty of Waitangi has its limitations due to the differences between the Māori and English texts and the manner in which the Treaty’s provisions were devised, drafted, and subsequently acceded.

The debate becomes more complex when considering the socio-economic disparities faced by Māori people. Some stakeholders argue for a multi-ethnic society without favouritism based on race or ethnicity. However, this perspective can overlook the historical and ongoing inequities faced by the Māori people. The Treaty was intended to protect Māori rights and interests, and many argue that this includes addressing socio-economic disparities and historical injustices.

The political landscape and the diametrically and ideologically (!) opposed new Government, relative to the previous one, further complicate the debate. The lack of Māori representation in the government can be a concern for those seeking to ensure that Māori rights and interests are adequately addressed. The push for a referendum on the Treaty by a coalition party reflects one perspective in the debate. However, even though a referendum is a democratic process that allows all eligible voters to have a say and that could potentially provide an opportunity for a broader public discussion about the Treaty and its implications, the actual nature of the debate is crucial for the outcome.

Both the nature of the Treaty (i.e. Living Document vs. Originalism Perspective) and the question about the interpretation of the Treaty document (i.e. English vs. Māori version) are crucial aspects that contribute to the overall understanding and application of the Treaty.

The nature of the Treaty, whether it’s viewed as a living document or through the lens of originalism, can influence how its principles are applied in contemporary society. This perspective can shape policies, legal decisions, and societal attitudes towards the Treaty.

The interpretation of the Treaty, particularly the differences between the English and Māori versions, is also a significant factor. It directly impacts on the understanding of the Treaty’s intentions and the rights and obligations of the parties involved.

In an ideal scenario, these aspects should not be mutually exclusive but should inform each other to ensure a comprehensive and respectful approach to the Treaty of Waitangi – the people of Aotearoa – New Zealand deserve no less.

What is the path forward? It’s clear that (public) opinion of the Treaty involves a range of perspectives and interests. It’s a complex issue that requires ongoing dialogue and mutual respect. In my opinion, the Treaty, much like the evolution of law and democracy, is a living entity that should adapt to the changing societal values and circumstances. It’s crucial that all stakeholders, including Māori, are genuinely engaged in these discussions. The goal should be justice and reconciliation, guided by the principles of the Treaty.

Looking at the future, let’s imagine a New Zealand where socio-economic disparities have been all but eliminated. In this future, Māori health outcomes are no longer disproportionately poor compared to the rest of the population. Māori life expectancy matches, if not exceeds, the national average. Māori children grow up with the same opportunities for education and employment as their peers, unhampered by the socio-economic constraints of their ancestors. In other words, Māori are uplifted and they’ll have the same outcomes.

In this vision, the principles of the Treaty are fully realised. Te Reo flourishes in schools, in media, and in everyday conversation, reflecting a society that values and preserves its indigenous culture. Māori people have an influential voice in the government, ensuring their rights and interests are always properly represented.

Land and other natural resources returned through Treaty settlements is managed sustainably, benefiting both the Māori iwi (tribes) and the wider community, and future generations. The relationship between Māori and the Crown is characterised by mutual respect and collaborative relationship, as originally intended by the Treaty.

Working backwards from this vision, we can identify key steps towards achieving this future:

  1. Address Health Disparities: Implement health policies and programs that specifically target areas where Māori health outcomes are currently lagging.
  2. Promote Māori Language and Culture: Encourage the teaching and use of Te Reo in schools and public life. Recognise and celebrate Māori culture and traditions.
  3. Ensure Māori Representation: Advocate for greater Māori representation in government and other decision-making bodies.
  4. Honour Treaty Settlements: Ensure that land returned through Treaty settlements is managed in a way that benefits Māori communities and respects their cultural connection to the land.
  5. Foster Mutual Respect and Relationship: Promote understanding and respect between Māori and non-Māori communities. Encourage relationships that honour the principles of the Treaty.

I believe this is a future we can all look forward to, without fear and prejudice, and it provides a possible roadmap for how New Zealand can move forward. I think it’s a future worth striving for.

  1. written by Paul Goldsmith for the NZ Initiative ↩︎
  2. written by Paul Moon ↩︎

28 comments on “Wanted: Dead or Alive? The Treaty of Waitangi ”

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  1. roblogic 1
    17 December 2023 at 5:00 pm

    Vision is something we sorely need at the moment. A really positive way forward. I don't see Te Tiriti as a left/right issue – it's something that Seymour and Peters enjoy using as a lever but racist b.s. tends to blow up in your face & I hold out some hope that the Nats remember their legacy of good work in the past.

    There are certainly complexities made worse by ongoing poverty and inequality and the bad attitude of a few old (and young) codgers. But there is also a lot of good will out there as Aotearoa grows up as a nation and we have more young people embracing their identities and standing up. I was young once, and I have a bit of Māori heritage, but saw very little of the culture and language growing up in the seventies. It's been really cool to see the Māori renaissance in the ensuing decades.

    Anne Salmond is brilliant but her article is a bit too abstract and philosophical, and probably confused readers. IMHO she gives far too much credit to Seymour's worldview as something complex and taxonomically structured instead of the self serving machiavellian bag of snakes it is

    Really appreciate Te Ao Māori approaches of seeking unity and growth instead of the oppositional and antagonistic way of some politicians.

  2. Ad 2
    17 December 2023 at 5:08 pm

    New Zealand has everything to gain from an open and well structured national dialogue about the Treaty of Waitangi.

    Conversely, the left won't get back into power unless it it has a well structured Treaty dialogue ready. And needs to be better at it than last time.

  3. Obtrectator 3
    17 December 2023 at 5:26 pm

    US Constitution = "originalism"?

    UK constitution (l/c initial intentional) = "living document"?

    Discuss. Both have their advantages and disadvantages, of course.

  4. Robert Guyton 4
    17 December 2023 at 6:56 pm

    "Different ways of thinking can put people at loggerheads, so they talk past each other – reasonable people who reason differently. This can create impasses that are almost intractable."

    Yes. Climate change, vaccinations, private property, agriculture, gender, etc.

    There will not be agreement between reasonable people who reason differently. The path taken to points of view are multitudinous and unreproducible – we cannot hope to persuade now, given the fractured nature of communication now. This is new territory.

    • Gosman 4.1
      18 December 2023 at 8:56 am

      What's your solution to this issue then? Do you simply ignore the other side and impose your views whenever you get a chance to grab power?

      • Robert Guyton 4.1.1
        18 December 2023 at 9:20 am

        That's certainly what the present Government is doing, isn't it!

        As much as anything, I believe it's the deeper sentiments of society that give direction and destination; governors of various stripes seek to lever this way and that in the short-term, mostly with genuine good intent, imo, but playing the long game, as tangata whenua are so well practiced, is where the compass is set. Presently, we're perturbed by the political back-sliding in response to fear of the new, but overall, society in NZ has sensed the importance of fairness and kindness and will, sooner rather than later imo, press the leaders in that direction, once they've had their prancing-in-the-centre ring moment.

        • Gosman 4.1.1.1
          18 December 2023 at 10:16 am

          Or perhaps the wider society has dedicded to push back against a set of policies that seek to split the nation along ethnic lines and award people different rights according to accidents of birth. Both your view and that are potentially valid. What we should do is have a debate on the subject to work out where the societal consensus point is.

          • Robert Guyton 4.1.1.1.1
            18 December 2023 at 10:50 am

            The position you describe is the one used as leverage by the present coalition Government in order to gain power and you've used weighted words to try to cast the progressive politics of the previous Government in a bad light ("split the nation", "accidents of birth" etc.)

            Such methods succeed, in the short-term, but don't benefit society overall, imo.

            The consensus point you talk about ought to one arrived at without the use of "political tricks" such as lying, obscuring matters, creating fear where none is needed, and so on. I believe, obviously, that the present Government is adept at those strategies; you perhaps won't agree.

            How to reach political consensus amongst the NZ society?

            Easy.

            Form a Grand Coalition between National and Labour, then install The Greens as their governors 🙂

            • Gosman 4.1.1.1.1.1
              18 December 2023 at 12:02 pm

              You state it is lying but many people disagree. If you feel it is a lie you should be able to easily point it out as part of your counter-argument. Please explain to me why co-goverance does not give people more rights over governance decisions than others based on their ethnicity?

              • Robert Guyton …
                18 December 2023 at 1:46 pm

                You state co-governance gives more rights over governance decisions than others based on their ethnicity but many people disagree (see what I did there?)

                I continue to believe what I wrote about the strategies the present government is adept at, and feel no compulsion at all to mount an argument for you, given you believe the opposite, which is the point of this section of the thread, nei ra?

                To and fro we continue to go…

                I believe the media will erode Luxon's credibility more and more over the holiday period, using examples he's already supplied (tax-payer funded reo lessons, etc.) and lampoon his foolish crew (cycle-lane killer, ferry destroyer etc.) So much for the cartoonists and journalists to work with already!

                • Gosman …
                  18 December 2023 at 1:49 pm

                  I'm not claiming anyone on your side is lying or misleading people. I am confident that you truly believe your position. However you don't accept that for people like Peters and Seymour. Why is that?

                  • Robert Guyton …
                    18 December 2023 at 6:56 pm

                    That's because they're not 🙂

                    I believe Seymour and Peters genuinely believe most of what they profess, but this co-governing arrangement has pressured them to compromise their ideals and cover the details of that in the hope that no one will notice. Luxon has had to do this also and we are getting a crooked deal as a result. It's going to get even more crooked as the 3 years go by 🙂

  5. Robert Guyton 5
    17 December 2023 at 7:08 pm

    In the context of this discussion, this exploration of Ursula le Guin's work and her focus in the Demiurge is fascinating (to me) and I hope, to you 🙂

    demiurge

    /ˈdɛmɪəːdʒ,ˈdiːmɪəːdʒ/

    noun

    1. a being responsible for the creation of the universe.

      • (in Platonic philosophy) the Maker or Creator of the world.
      • (in Gnosticism and other theological systems) a heavenly being, subordinate to the Supreme Being, that is considered to be the controller of the material world and antagonistic to all that is purely spiritual.

    https://www.google.com/search?client=safari&rls=en&q=ursula+le+guin&ie=UTF-8&oe=UTF-8#fpstate=ive&vld=cid:c04757ce,vid:vRC0cK_MSA0,st:0

    • roblogic 5.1
      17 December 2023 at 10:07 pm

      Wow Robert that’s a great watch, thanks for sharing. SciFi + philosophy + human rights + psychology

      Riches! All stuff I find fascinating

      I’m a LeGuin fan but haven’t read her for a while, need to rectify that. Le Guin’s take on the hero’s journey is a neat inversion of Tolkien. And the narrator’s take on women authors in history is something I’d never heard before

      How gave I not seen that channel before??!?

      chur bro

      • Robert Guyton 5.1.1
        18 December 2023 at 6:29 am

        You are welcome, roblogic.

        She was a fabulously insightful writer. A wizard of Earthsea shaped my life 🙂

        I still meditate on the true name of things.

  6. Pat 6
    17 December 2023 at 7:53 pm

    The following 2 links demonstrate Tino Rangatiratanga in action.

    https://ngaitahu.iwi.nz/assets/Documents/State-of-Ngai-Tahu-Nation-2021-web.pdf

    https://whairawa.com/

    Ngai Tahu are not waiting for anyone and have organised themselves (imo) well to improve their future.

    Some of the programmes and associated statistics the Government would be overjoyed to achieve for the country as a whole.

    • Gosman 6.1
      17 December 2023 at 8:25 pm

      That is exactly what the Treaty settlements were designed to enable. All major political parties support that.

  7. Gosman 7
    17 December 2023 at 8:19 pm

    Maori have significant representation in the current government. 40% of the Cabinet have Maori whakapapa. That is more than the last government.

  8. observer 8
    18 December 2023 at 11:05 am

    There is nothing wrong at all with Luxon using taxpayers' money to learn Te Reo. It would be great if he had tutors in history as well. I'd like our PM to be better informed.

    But could he and his government please stop being so petty to the rest of us?

    Christopher Luxon under fire for using public funds to learn te reo Māori – NZ Herald

  9. Ed1 9
    18 December 2023 at 12:54 pm

    I am a little confused. The home page uses a photograph of a partially graffiti attacked version of what is presumably one of several drafts of the Treaty in the English Language As I understand it there still are about 7 different versions in the English language – some were clearly drafts, and at least one that was sent to England apparently had inconsistencies with other English drafts and with the Maori language Treaty document that was signed by a majority of those that signed.

    If we think about business contracts, in many cases there will be multiple drafts, possible from each side – but it is the signed / registered version that is the only effective contract – why should that be different for Te Tiriti?

    There are references to Paul Goldsmith and Paul Moon – it is not clear which parts of the post they wrote or which are taken from their writings.

    My understanding is that contracts between colonising nations and indigenous people that are written in different languages are generally, in accordance with United Nations standards, deemed to be effective with the meanings taken by the indigenous people in the document that they signed – and that some form of this principle has been taken by the Maori Court / Tribunal.

    Some settlements were sadly affected by poor business management by those receiving money – later settlements ensured that there were suitable trustees with appropriate training and acceptance by the claimants to maximise benefit from money given, but ultimately a settlement does not indemnify those receiving assets from poor business decisions.

    The most common area of disagreement relating to the Treaty appears to be more about sovereignty or the equivalent / close concept in Maori society of the time, and the application of joint sovereignty of certain assets – these do not appear to be covered in the numbered paragraphs in the post.

    I am far from an expert in this area, but I suspect it is more complex than many believe – including perhaps some government politicians regardless of whether they have ancestors who identified as Maori – I suspect whakapapa represents more than a statistical genealogy concept.

    • Gosman 9.1
      18 December 2023 at 1:52 pm

      Why did Hobson get some Maori leaders to sign the English language version and why did he send both an English version and a Te Reo oine to London to be acknowledged? It makes no sense if only the Te Reo version was the one that was legitimate.

      • Ed1 9.1.1
        18 December 2023 at 4:52 pm

        Re your first question, I do not know why two versions were used – perhaps the Maori one was being sent elsewhere at the time.

        Re why an English language version was sent to England, surely because the people likely to read it did not speak Maori; and perhaps it is telling those back Home what they wanted to hear . . .

        If you bought a property in Japan, there may be legal documents in Japanese; you may be sent a coy translated to English, but in the event of any dispute the contract in Japanese would be determinative, and interpreted subject to Japanese law. Why should that not apply to a contract written in Maori and signed by Maori not be interpreted in terms of the language as it was used and understood at the time by those that signed it?

        • Gosman 9.1.1.1
          18 December 2023 at 6:05 pm

          What they wanted to hear??? Are you claiming that the point of the Treaty from the British side was to gain Sovereignty over NZ? I thought the British merely wanted to take control of matters related to British Settlers and it was a Protection Treaty. Now you are seemingly stating that the Colonial office did actually want to create a formal Colony.

        • Gosman 9.1.1.2
          18 December 2023 at 6:08 pm

          There is an international accepted norm in interpreting Treaties written in more than one language (as the Treaty of Waitangi was) It is spelt out in Article 33 of the Vienna convention of the law of treaties. It does not state one version takes precedence depending on numbers of signatures either.

    • Populuxe1 9.2
      18 December 2023 at 4:11 pm

      Surely that's obvious – the drafts aren't legal and the one sent back to England is.
      And you're wrong about international law, Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations 1986, Article 33 states:

      Interpretation of treaties authenticated in two or more languages:

      1.When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.

      2.A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree.

      3.The terms of a treaty are presumed to have the same meaning in each authentic text.

      4.Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.

      • Ed1 9.2.1
        18 December 2023 at 4:55 pm

        I was not aware that any of the English versions of the Treaty were authenticated – is there any evidence of that, and if so which English version was authenticated?

        • Gosman 9.2.1.1
          18 December 2023 at 6:19 pm

          "The term "authentication" refers to the procedure whereby the text of a treaty is established as authentic and definitive. Once a treaty has been authenticated, states cannot unilaterally change its provisions. If states which negotiated a given treaty do not agree on specific procedures for authentication, a treaty will usually be authenticated by signature, signature ad referendum or the initialling by the representatives of those states.

          [Art.10, Vienna Convention on the Law of Treaties 1969]"

          https://treaties.un.org/pages/overview.aspx?path=overview/glossary/page1_en.xml#:~:text=of%20Treaties%201969%5D-,Authentication,cannot%20unilaterally%20change%20its%20provisions.

          Maori did not have a formal method for Treaty authentication so we have to rely on their actions and those of the British to determine this.

          The very fact that 33 Maori leaders signed the English version of the Treaty AND that both versions were delivered back to the UK AND that Hobson annexed the North Island in May of 1840 for the British Crown in May 1840 without ANY person who signed the Treaty on the Maori side objecting is probably enough authentication.