Sun, 6 Feb 2005

The meaning of the Treaty of Waitangi

Deputy Prime Minister, Hon Dr Michael Cullen, delivers a speech on the occasion of Waitangi Day 2005.

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What is the meaning of the Treaty? Speech at the Cathedral of St John, Napier.

Nearly all countries have some kind of national day. In the U.S. Independence Day, across the Tasman, Australia Day are days where the nation as a whole celebrates its identity and history.

In New Zealand we could say that we have two days which are like national days. One used to be the source, 30 years or so ago, of great bitterness and division. Now, Anzac Day is a day where, despite all our differences of perspective, we remember our past. That is even though in doing so we commemorate our biggest military disaster.

Our other national day, today, remains for many a source of argument and division rather than celebration or commemoration.

This despite all that we in New Zealand have to be grateful for, to celebrate, to commemorate, even to just enjoy. A country of enormous beauty (still, despite our best efforts over many generations), a country which by any reasonable standards is prosperous, a country with a continuous political tradition unbroken by civil war or revolution for over 150 years, something a bare handful of countries can celebrate.

Yet at the heart of our nation and its history lies a not yet finished debate as to the meaning of the document which in one sense begins that unbroken history, the Treaty of Waitangi.

The fact that there is such an ongoing debate is not necessarily a bad thing; it may reflect the vital, vibrant, and changing nature of our society. Debate can be either constructive - if it leads to better understanding and agreement - or destructive - if it destroys the basic fabric of tolerance essential to a modern democracy.

In an age where the media - especially the electronic media - wish to highlight conflict and drama the danger is always that the bias is towards the destructive end of the spectrum.

In the case of the place of the Treaty in the past and in our present and future that risk is further increased by its racial connotations. It is also not helped by the fact that most of us were educated at a time when we learned little or nothing of substance about the Treaty.

Work by historians from the 1970s onwards has greatly increased our understanding of what happened at the time the Treaty was signed. We now appreciate, for example, that there are significant differences between the English and Maori versions of the Treaty.

The differences are important because we need to understand the version of the Treaty that the Maori chiefs who signed could have been expected to have understood. That is, of course, the one in Maori. The Maori version both seemed to guarantee more to Maori than the English version and was much less clear on the key issue of the transfer of sovereignty to the British Crown.

For example, whereas in the English version Maori were guaranteed the exclusive possession of their lands, forests, and fisheries what was guaranteed protection in the Maori version were their taonga - the much more extensive concept of treasures.

Increasingly, the New Zealand courts and the Waitangi Tribunal have placed more emphasis on the Maori version where these differences remain of significance.

On the issue of sovereignty I believe - as others have argued - that it is pushing things too far to argue that the chiefs willingly transferred what the British at the time, and we today, would understand by the term sovereignty. In a society based on tribal or sub-tribal groups, with no national political, administrative, or legal structures it is hard to believe that that could have been the case.

So, what can we say about what can be reasonably drawn as to the meaning of the Treaty?

First, that Maori accepted that some form of authority was going to be exercised over New Zealand by the British Queen through her local agent, the Governor. But Maori would continue to have significant authority themselves over those matters that related to them, especially to them alone.

Second, that the authority the British were to exercise was in large part to be used to protect Maori from the negative impacts of colonial settlement.

Finally, that Maori would acquire the same rights and duties as British citizens.

In practice, of course, the first element became the assertion of sovereignty by the British Crown which was proclaimed some three months later. And that sovereignty has been exercised continuously since and has created the political, administrative, and judicial framework within which we now live.

Whatever the understanding or misunderstanding in 1840, in 2005 it is now too late to revisit the issue of sovereignty and no New Zealand government is going to do so, at least not if it wishes to continue to be the government.

What has dominated Treaty issues over the last quarter of a century has not been that, despite the almost continuous rumblings of a Maori sovereigntist movement in one form or another. It has been the issues around Article II of the Treaty, the article that deals with the matter of the protection of Maori possessions or taonga.

And that, of course, has been itself dominated by the matter of grievances. It is fashionable now, in a sort of political correctness of the right, to bemoan the development of a so-called grievance industry.

It is not my role today to argue that there are not too many lawyers making too fat a living out of Maori grievances. But to concentrate on this effect is to ignore the cause of the problem. That is that, in the nineteenth century in particular, the Treaty was breached with monotonous regularity by New Zealand governments. Not merely was there a failure to exercise protection, the Crown was at times in the forefront of the process of dispossessing Maori of their language, their lands, their culture, and much else. That it did so under intense pressure at times from the settler communities is an explanation, not an excuse.

As a first generation Kiwi who immigrated as a ten year old fifty years ago I refuse to bathe in the self-righteous glow of guilt over this - my ancestors were being oppressed in different ways at the same time. Nor can collective guilt be visited on present generations. But, as a New Zealander, I recognise that putting right these grievances, acknowledging wrongs and providing redress is a necessary phase of our history.

As a well-known TV commercial used to say, it is the putting right that counts. We do not yet know the final cost of all this. But so far - with some big settlements already made - it is a tiny, tiny fraction of our national income over the period of the settlements. It comes to less than one dollar in every $1100. Over the same period the government has spent nearly 70 times as much on health as on treaty settlements.

People worry that the process will go on forever. It will not - but it will take some years yet. Settlements are complex things. They involve time to establish who has the mandate to negotiate, what the facts are, then negotiate, ratify, and legislate. To rush is to risk getting it wrong thus creating the basis for revisiting the settlements in the future. What is reasonable is to put a time limit on the lodging of claims so that people can see there is an end point. And the government believes the process itself should be able to be completed within ten to fifteen years.

I suspect that more concern arises from fears about what the so-called principles of the Treaty of Waitangi are and what they mean for our shared future as a nation.

The notion of the principles of the Treaty of Waitangi is one that has developed over the last twenty or thirty years as both the Courts and successive governments have attempted to define the ways in which the Treaty continues to have meaning in a changing society.

There is no definitive statement of what exactly they are. There is a statement of the principles the Government adopted in 2000 to guide it in negotiating the settlement of historical claims. But those are only marginally relevant to the broader principles.

The Courts and the Waitangi Tribunal have nevertheless elaborated on the term.

The first, most difficult, and, in my view most misunderstood is what has been called the principle of partnership. By that the Courts in particular have meant the duty, on both parties, and I emphasise both, to act reasonably, honourably, and in good faith. Unlike the Tribunal, the Courts have made it clear that this is not necessarily a partnership of equals but it is a genuine partnership.

What is sometimes very slippery about the concept of partnership is who the partners are. Again in my view it is abundantly clear they are the government (or the Crown) and Maori, whether whanau, hapu, or iwi. That is who signed the Treaty.

It is not a partnership between two races as has sometimes been argued. That might have made some sense in the context of 1840. But in the context of 2005, when the term pakeha is an umbrella one covering all non-Maori, it cannot be so. New Zealanders of British, Irish, Samoan, Tongan, Chinese, Indian and whatever ancestry cannot be blancmanged into one race.

In any case, races do not have legal or other duties. That burden falls upon the government, and in this case properly so since it was the Crown which was the other party to the Treaty.

What can be argued is that the Treaty provided some kind of legal basis for post-1840 migration to New Zealand. But let us be in no doubt that if the chiefs in 1840 had known that within forty years the newcomers would outnumber Maori by more than ten to one it is very doubtful they would have signed up to such a prospect! Moreover, with or without the Treaty it is likely much migration would have occurred, forcing the British government to an assertion of sovereignty sooner or later.

The principle of partnership does impose upon the government the duty to make informed decisions on matters affecting the interests of Maori. This also leads to a strong bias, at least, in favour of consultation.

The clearest principle of the Treaty is that of the Crown's duty to engage in active protection with respect to Maori interests. That is the core of Article II. The Privy Council, for example, in 1994 made it clear that that duty extended to the protection and preservation of the Maori language and, therefore, the duty to ensure that there was support for broadcasting in Maori. The creation of Maori Television is thus a consequence of a Treaty obligation as defined by the Courts.

The third principle which is commonly recognised is that of redress. In other words, past wrongs give rise to a right of redress. This has been consistently affirmed and reaffirmed by the Courts and successive governments. Until recently, it could have also have been regarded as a matter of broad political consensus.

The notion of redress is also to be found in the recent Foreshore and Seabed Act. In that Act the possibility of gaining customary title was removed. But any group which would have been able to demonstrate such a claim is entitled to redress and the government has a duty to negotiate that in good faith.

Looked at calmly these principles present no threat to our vitality or stability as a nation. The resources involved have by no means been burdensome. Progressively, the wrongs of the past have been righted, though there is still a long way to go.

Moreover, it is important to separate the reality of the process and the outcomes from some of the surrounding rhetoric and even personalities. Tame Iti no more represents the reality of the Treaty process than do those who destroyed graves last year represent most New Zealanders' attitudes to Jews. Even the rhetoric of Maori sovereignty has many different shades of meaning.

Some would argue the Treaty is just a historical document and once past grievances are settled then that should be an end of it.

The problem with that view is that the Treaty does not have a sunset clause. Unless and until it is freely renegotiated between the Crown and Maori it continues in being.

It does not have the force of law unless specifically adopted in legislation in some form or another. But it does colour a wide range of interactions between government and Maori. New situations emerge in which the place of the Treaty is raised - for example over ownership of the airwaves or oil and gas resources. In both cases governments have rejected the Waitangi Tribunal's recommendations that Maori have ownership rights.

In some ways the real question to ask is what would have happened if there had been no Treaty.

If we assume that massive British migration and the assumption of sovereignty by the British Crown would have happened anyway, the most recent source of conflict between the government and many Maori, and between many pakeha and many Maori, gives an answer.

For the foreshore and seabed debate, the most emotionally and politically difficult issue of government that I have ever had to deal with, would have occurred in almost exactly the same way.

That was an issue, not about the Treaty, but about the validity of claims to customary rights surviving the assumption of sovereignty and a range of subsequent legislation which asserted underlying Crown ownership of the foreshore and seabed.

I would be the last person to want to claim that the resolution of that issue was simpler or less divisive than the resolution of Treaty issues under the current legislative framework. Indeed, it was clearly both more complex and more divisive than any Treaty - based conflicts have been. But a very recent poll indicates a majority of all New Zealanders, and a plurality of Maori believe the final outcome represented a fair balance.

Amongst all New Zealanders the second most popular view was that too much was given to Maori. And amongst Maori the second most popular view was that it unfairly took away rights from Maori.

So while there was more common ground between Maori and the rest of the country on this issue than either the media or some others would claim there was also a significant level of division.

This is important because similar countries - Australia and Canada, for example - have dealt with indigenous peoples' issues within this kind of common law framework rather than the Treaty-based one that we are accustomed to.

So if I am asked to say what is the place of the Treaty in New Zealand today in one sense my answer is a simple one. It is that it is a living document which provides an orderly framework for the settlement of historical grievances and the resolution of ongoing debates about the rights of the original inhabitants and owners of the land. Perhaps, despite all the noise, in our understated No 1 Bridge and No 2 Bridge way, this really is a day for quiet celebration after all.

That does not mean drawing a veil over the past and inventing a version which resembles a Disney family film. To go back to where I began today, we do not do that on Anzac Day.

But that day is now one where we come together again. The trials of the past become a beacon for the future. I believe that it is not too much to hope that some day that will be true too of Waitangi Day.

ENDS

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