Royal Australasian College of Physicians

Mr President, distinguished guests, Councillors and Fellows of the Royal Australasian College of Physicians, ladies and gentlemen:

It is a great honour to speak to you this evening: both as a newly admitted Honorary Fellow of this most respected College; and as successor to the 35 eminent men and women who have delivered the Arthur E Mills Oration since its inception in 1951.

An invitation to speak on whatever topic one fancies poses considerable difficulty. I took heart however from 1993, when Dame Leonie Kramer addressed the College on 'Shakespeare in Daily Life.' It was a marvellous reminder that our daily life must not be limited to our particular field of professional endeavour. We are, after all, part of a wider culture and a wider community.

I therefore thought I would take as my topic, one that is of the profoundest importance to all who live in this country. It is a topic about which many New Zealanders have much to learn; it excites considerable emotion; it presents problems which will be resolved only by tolerance and understanding. It is of course a New Zealand topic, and I know I am not addressing an exclusively-New Zealand audience. Nonetheless I believe that our close trans-Tasman affinities call for us to understand and share with each other. Moreover, in what underlies my topic, there are things that our two nations have in common, different though circumstances and solutions may be. I trust that those who come from further afield may find the topic of interest, if only as an insight into their host country.

It is not my purpose to give a legal dissertation, but rather to describe a little of the history of the Treaty of Waitangi, including its legal implications, for only by seeing it in this context can we understand the relevance it so plainly has today.

The first signing of the Treaty was on 6 February 1840, on a lawn at Waitangi in the Bay of Islands, some 240 kilometres north of Auckland. It was signed on behalf of Queen Victoria by Captain William Hobson, RN and by 46 "head chiefs", as Hobson was to describe them, and a number of lesser chiefs, from an assembly of Maori who had been invited for the purpose.

In 1840, New Zealand and its Maori people were no strangers to the colonial authorities in Sydney and in London. From the time of Cook's three exploratory voyages, New Zealand had been a port of call for increasing numbers of naval and commercial ships: some to obtain provisions or to refit, others to establish seasonal bases for whaling and sealing; and, later, others to trade with the Maori, who were keen purchasers of such things as weapons, blankets and clothing. European settlement however, was not extensive; only about 2,000 Europeans, Pakeha as the Maori soon came to call them, could be regarded as permanent residents by 1840. Missionaries had been here since 1814, and exercised a strong influence. They committed the Maori language to writing, taught many Maori to read and write, encouraged some to travel to Sydney, even to London, and gave impetus to a substantial Maori market gardening industry.

Missionaries, traders, and all others who set foot in New Zealand, were heavily dependent on the protection of the local chief. They well understood that though Maori throughout the country had a common language and culture, there was also a strongly tribal structure, often fiercely competitive, in which chiefly mana - authority or prestige - and tapu - sacredness, sacrosanctity - were of immense importance. It could be said that, for many years after 1840, Pakeha lived in New Zealand on sufferance; Maori could very easily and quickly have driven them into the sea. But the Europeans were of obvious value. They brought mana to the chief under whose protection they lived. And they brought technology, not only in the form of weaponry, but also in the form of domestic animals and crops. A people dependent on wooden and stone implements and weapons, subsisting largely on a diet of fish, birds and kumara - the sweet potato - could see their future transformed by cooperation with the newcomers.

The advisability of Britain exercising some form of authority in the country became apparent to both Maori and Pakeha early on. There was, amongst other things, the need to control the excesses of seafarers and other visitors; there was concern about speculative land purchases by New South Wales entrepreneurs; there was the worry that the French might establish a presence; and some chiefs hoped for protection from their more aggressive neighbours.

The Colonial office was, at first, loath to intervene. Eventually however, it appointed a representative - a Resident, James Busby - but gave him little authority and less means of exercising it. In this situation, he endeavoured to establish a pan-Maori authority, a government of confederated chiefs. In 1834, a national flag was created and was given official Admiralty recognition. On 28 October 1835, in the face of a feared incursion by a Frenchman, Baron de Thierry, Busby called a meeting of 34 northern chiefs, who signed a declaration of independence, asking the king, William IV, "to be the parent of their infant state..."; its protector from all attempts upon its independence. The signatories designated themselves the Confederation of the United Tribes of New Zealand and they were later joined by 18 others, including paramount chiefs of Hawke's Bay and Waikato further south.

The declaration was acknowledged by the Colonial Office and the requested protection was promised. Maori ownership of the land was recognised. Even so, this did not entitle Maori to recognition at international law as an independent sovereign state, for there was not the necessary social or political cohesion, but it shaped the terms of the instructions subsequently given to Hobson.

The pressure for settlement increased markedly in the late 1830s, and with it, a desire to ensure British control, in order to promote the interests of the settlers. British sovereignty - in other words, supreme authority over the land and peoples - was therefore Hobson's prime objective, but the recognition of the declaration of independence meant that it could be obtained only by cession, by a willing transfer. His instructions were, consequently, to acquire sovereignty over the whole or any parts of New Zealand that the Maori wished to cede; British authority was at once to be assumed over the land ceded, which was then to become, temporarily, a dependency of New South Wales, with Hobson as Lieutenant-Governor. The Colonial Office was imbued with the humanitarian ideals of the age; and it had learned from the experience of colonisation in Canada and in Australia. Hobson was therefore enjoined to conduct land dealings in sincerity, justice and good faith and not to permit Maori to enter into transactions that were injurious to themselves. How different our history would have been had his successors carried out these instructions.

An extraordinary feature of the Treaty was the speed with which it was drafted, and by amateurs at that. Hobson arrived on the second of February, and immediately invited the chiefs to meet him on the fifth. He prepared some notes and gave them to Busby, who used them as the basis for a draft treaty he submitted to Hobson on 3 February. Hobson approved it and on the fourth of February, he asked Henry Williams, one of the pioneer missionaries, to translate it into Maori. This was no easy task, as Williams himself confirmed, for there were no Maori equivalents for some of the crucial English expressions. However, he had completed his task by the time the chiefs assembled on 5 February. And so, after Hobson read the English version, Williams read it to them in Maori, giving them some explanation of its meaning. There was much debate. The dominant Maori concern was loss of control over their land, and the weakening of their authority by having to share it with the British government. They were assured by Hobson and the missionaries that they had nothing to fear, that their land would be protected and that a British administration, with its suppression of warfare and control of lawlessness, would be to their benefit.

At the end of the day, it was agreed to convene again on 7 February, giving time for further discussion. But by the next morning, the chiefs had decided that the matter should be dealt with at once. Accordingly, arrangements were made very hastily. Everyone assembled, the Treaty, in Maori, was laid on the table. Williams again read it out, but without further explanation, and those present were invited to come forward one by one to sign it.

Before they did, there was an interruption. William Colenso, the missionary printer, asked Hobson whether he thought the chiefs understood what they were signing. They had not all been present during Williams' reading and explanation the day before, and in any event, Colenso believed, Williams' Maori text failed to convey the full meaning of the cession of sovereignty, and the explanations that had been given were inadequate. The response was that the Maori should trust the missionaries. The missionaries were convinced that Maori would fare much better under British rule than without it; and it was doubtless this conviction that had led them, and would again and again lead them, to urge Maori to have confidence in the good faith of the Crown. The chiefs accepted these assurances, then and over the following months, during which copies of the Treaty were carried throughout much of the country and were signed by the great majority, but by no means all, of the significant Maori chiefs.

Only one copy of the original English language version of the Treaty was signed, and that was by 39 chiefs at one place. This version however, became the official version. All other signatures were affixed to Maori language copies. The most substantial difference between the two turns on the crucial point of sovereignty.

The English version begins with a high-sounding preamble, reflecting the anxiety of the Queen to protect the just rights and property of the Maori, and her desire to treat with them for the recognition of her sovereign authority over the country. There follow three Articles. By the First, the chiefs ceded to the Queen, "absolutely and without reservation, all the rights and powers of Sovereignty" which they exercised. By the Second, the Queen guaranteed to the chiefs and tribes "the full, exclusive and undisturbed possession of their Lands and Estates, Forests, Fisheries and other properties"; while they in turn, yielded to her "the exclusive right of Preemption" over such land as they wished to dispose of, at prices to be agreed upon. By the Third Article, the Queen extended her Royal protection to the "Natives of New Zealand" and imparted to them "all the Rights and Privileges of British Subjects."

In the Maori version, the word "sovereignty," in both the preamble and Article One, was rendered as "kawanatanga," a word recently arrived in the language, derived from the English, "Governor," and used in relation to such diverse people as Pontius Pilate and the Governors of New South Wales. It was not a word that was likely to convey the full import of "sovereignty."

In Article Two, the English phrase, "full, exclusive and undisturbed possession," was rendered as "te tino rangatiratanga," - "full chieftainship." This expression, with its connotations of chiefly power, was closer to "sovereignty" than "kawanatanga." Indeed, it had been used to refer to the chiefs' independence in the 1835 declaration of independence. So what Maori yielded to the Crown by way of cession, was readily capable of being understood by them as something less than what was reserved for them. And that indeed is what a great many did understand.

Further, the Article Two words, "and other properties," were translated as "taonga," which carries also the meaning of a highly prized possession, thus going a little further than the English, and being readily inclusive of such intangibles as language and culture. Moreover, the Maori word chosen for "Preemption," "hokonga," was a familiar term for general trading, and by no means conveyed the specific meaning of the English word.

Thus the seeds of misunderstanding, indeed of dissension, were sown, no doubt in all innocence, from the outset. It is important for us in this country, who are now so familiar with the debate, to appreciate that the debate began very early on. Land lay at the heart of it. The Treaty acknowledged the position at international law, that Maori owned all the land. This was no terra nullius as Australia was said to have been, until the High Court there demolished the factual basis for it in the now-famous Mabo case. Maori were aware of what had happened in Australia. The Treaty was their guarantee that it would not happen here.

Land was not only their economic and social base, but, as with other indigenous peoples, it had a spiritual dimension, closely connected with the mana of the chief and the tribe or sub-tribe which owned it. As it has been put: "It is part of our link with the ancestors of our past, and with the generations yet to come. It is an assurance that we shall forever exist as a people, for as long as the land shall last." Individual ownership was unknown. The land belonged to the people; and the people belonged to the land. But very quickly, leading Maori became alarmed at the settlers' intentions. They could see that their land, and with it, the mana of the people, was to be taken from them.

First, there was the issue of preemption, understood by the Crown to mean that Maori could sell only to the Crown, and to no-one else, even if the Crown did not wish to buy, or to buy at an acceptable price. The Crown's objective was to buy land cheaply and to sell at a profit to fund the administration of the Colony. But many Maori understood that, if the Crown would not buy, they were free to sell elsewhere. The result was that the value of land in Maori hands was held down, while it became a valuable commodity in the hands of the Crown.

Then, there was the Maori custom that if a gift were no longer required, it would be returned. Maori made generous gifts of land, only to find it later sold, with the donee keeping the proceeds.

Next, there was the "surplus lands" policy. Commissioners were appointed to inquire into pre-1840 land purchases. They were required to disallow inequitable purchases and all purchases of more than a certain area. But where that area had been exceeded, the surplus did not revert to the Maori sellers. Instead, it became Crown land, to be sold by the Crown at great profit.

Fourthly, there were unauthorised sales. The concept of land as a marketable commodity was new to Maori, but in some quarters the idea quickly caught on. The tide of immigrants created great pressure for land, and purchasing agents travelled the country in search of it, often purporting to buy from individuals and groups who had no authority to sell. Maori resistance to the claims of alleged purchasers led to conflict. The well-known confrontation at Wairau in 1843, in which 22 settlers were killed, was the result of an attempt to forcibly occupy disputed land. So was the extensive fighting in Taranaki in 1860.

However, it was land confiscation - raupatu - that caused the greatest outrage and the greatest loss. Confiscation was a penalty exacted upon whole communities, even tribes, for what was labelled as rebellion, but which was usually resistance to the actual or attempted occupation of land which Maori considered they had not alienated or did not wish to alienate. Large areas in Taranaki, the Bay of Plenty and further eastwards were seized for this reason. However, in the case of one of the largest confiscations, of Tainui land in the Waikato, confiscation followed resistance to what seems to have been a totally unjustified invasion of tribal lands in order to crush the King Movement.

The King Movement was an attempt to establish that "rangatiratanga," that was guaranteed by the Second Article of the Treaty. It was not a challenge to the Crown. It was a means of creating a pan-tribal sense of Maoriness in the face of an increasingly unsympathetic government, and in an effort to restrict the alienation of land. Maori envisaged an equal Crown-Maori relationship. But the government would have none of it, saw it as rebellion, and sent the troops in. Maori resistance led to the confiscation of the Waikato lands, an injustice put right only with the Tainui Raupatu Settlement, formalised during the Queen's visit in 1995.

The Waikato confiscations did not put an end to Maori demands for the promised te tino rangatiratanga. The King Movement had not been broken and the King, who had taken sanctuary with a neighbouring tribe, later emerged and was joined by other influential chiefs in endeavours to negotiate at least a measure of Maori self government. Having no success with the politicians, the King set up his own council and constitution in early 1890s. In the meantime, another initiative resulted in agreement to establish a national Maori parliament, to ensure that the Treaty was properly implemented, and in particular, that Maori could control their own land. This was Kotahitanga, the "union under the Treaty" movement. The movement gathered strength for some years, but failed to gain any recognition from central government and finally died out.

As this brief summary shows, issues of land and sovereignty arose almost immediately after the signing of the Treaty; they arose because of the differences in understanding conveyed by the words of the two versions, and by the explanations and assurances that were given at the time and subsequently; and they arose because settlers, who had known little or nothing of its origins, found it a hindrance to their ambitions. The official stance, before effective control passed from the Colonial Office in London to a New Zealand legislature - and it was a stance supported by the missionaries - was one of reassurance to Maori that their rights would be protected by the Crown. It was this attitude that led Maori to a perception which is still widely held, that the Treaty created a special relationship with the Sovereign herself, and that they were entitled to rely on the good faith of the Crown as their guarantee that the Treaty would be honoured.

Reassurances by colonial officials and missionaries proved hollow as administration passed into the hands of the settlers under the constitution of 1852 and the demand for land increased. Article Two was the impediment to that, but it was largely nullified by the Maori Land Acts, which resulted in the fragmentation of tribal holdings and their ready acquisition by settlers; as well as by their taking by proclamation under the Public Works Acts. As the land went, and with it, Maori's economic base, their numbers began to diminish. Some even thought the race would die out.

As the government minimised the Treaty, Maori increasingly looked to it as a rallying point. The now-familiar cry to "Honour the Treaty," is more than 120 years old. It was carried to the Sovereign herself. In the 1880s, two Maori deputations went to London. There were warm receptions, but no Royal audiences, and the official view was that the complaints were the concern of the government in New Zealand. Petitions to Parliament - there were over 1,000 of them in the 1880s - were no more fruitful.

Nor was recourse to the Courts. This was one of the rights of British subjects confirmed by Article Three, and Maori were encouraged to have faith in the law to protect their Treaty rights. It was more than a century before that faith was effectively vindicated. At first, the precedent was set by the case of Wi Parata v Bishop of Wellington in 1877. This was a claim, based on the Treaty, for the return of land granted for a particular purpose but no longer required. It failed. Chief Justice Prendergast declared that the Treaty was a "legal nullity," because it had not been incorporated in legislation. That was orthodox legal thinking at the time and it still is: it has the confirmation of the Privy Council in a 1941 case, Hoani Te Heu Heu Tukino v Aotea District Maori Land Board.

This is not to say that the Courts refused to recognise that the Crown had an obligation under the Treaty. Such an obligation was referred to in a number of Court decisions. But it was not one enforceable at law. In 1901, the Court of Appeal put it in these terms: "The Crown is under a solemn engagement to observe strict justice in the matter, but of necessity it must be left to the conscience of the Crown to determine what is justice." That is still, basically, the legal position where the Treaty has not been incorporated into legislation. But increasingly, it is being incorporated, and as a result, the Courts have made a significant contribution to restoring the guarantees the Treaty gave.

The first important case, however, was one where the statute in question referred not to the Treaty, but to an aspect of what is generally known as aboriginal title, or native customary rights. This is a subject that is very much to the fore in Australia as a result of the judgements of the High Court in the Mabo and Wik cases. There is nothing novel about the concept. Both English common law, from which much of the law of Commonwealth countries is derived, and international law, recognise the right of indigenous people, in accordance with their customs, to ownership of their land and the enjoyment of those activities, such as fishing and hunting, that are incidents of that ownership. As a general proposition, those rights can be extinguished only by clearly inconsistent Crown grant, or by abandonment.

These principles, often applied in Canada, were applied by the New Zealand Court of Appeal in a 1994 case concerning the right of power authorities to harness river water for electricity generation. The Court held against the claim in the particular circumstances; but it affirmed the concept of customary rights, at the same time making the point that, in New Zealand, questions of customary rights were not likely to arise frequently, because they tend to be at least partly the same in content as Treaty rights.

There are, however, statutes which specifically preserve customary rights, and these mean that the Courts' only duty is to ascertain the nature of those rights. Thus, in the case of Tom Te Weehi in 1986, a prosecution under the Fisheries Act for taking under-sized shellfish, paua, the Act itself provided that nothing in it was to "affect any Maori fishing rights." The defence was that the defendant had simply been exercising traditional fishing rights; and this was upheld. The decision was of very limited application and will not lead me to talk about the recent District Court decision that a Maori fishing for trout did not need a licence.

Returning to the Treaty, the most important of all the cases is New Zealand Maori Council v Attorney-General, in which the Court was required to make statements of fundamental principle. This was made necessary by the terms of a statute, the State Owned Enterprises Act 1986. It was that Act which corporatised state enterprises and provided for the transfer of Crown assets to them. Section 9 says that nothing in the Act "shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi." The Act did not define those principles, or give any guidance about them. Parliament left that to the Courts.

The Court of Appeal held, in brief, that the Treaty signified a partnership between the races, a relationship creating ongoing responsibilities on both sides, analogous to fiduciary duties: duties to act reasonably and in the utmost good faith the one toward the other. This principle is of continuing application, according to circumstances from time to time. The Treaty is "a living instrument." On the Crown's part, the duty is not merely passive, but extends to active protection of Maori people in the use of their lands and waters, to the fullest extent practicable. On the Maori side, there is a duty of loyalty to the Queen, full acceptance of her government, through the government of her responsible ministers, and reasonable co-operation. These principles have been accepted by successive governments and must be seen as fundamental to our national identity.

It is not only the Courts of course, that have given new life to the Treaty. In 1975, the Treaty of Waitangi Act established the Waitangi Tribunal with power to inquire, at the instigation of Maori, into any action by the Crown that was or is inconsistent with the principles of the Treaty; and to make recommendations for appropriate compensation. The Tribunal is slowly working its way through a mountain of claims, and in the course of doing so, has given New Zealanders a rather different perspective on our history than the one many of us were brought up with. In the provision of this mechanism for bringing into the open the injustices of the past, and in the implementation of policies to achieve the just settlement of claims, much good has been done. Much remains to be done.

In 1987, the Maori Language Act declared Maori to be an official language of New Zealand. The Act reflects the resurgence of Maori culture, once thought destined to die out, and acknowledges the crucial importance of language as the foundation and the context of culture, and the fact that a people's culture is fundamental to their very identity. Once suppressed, te reo Maori, the language, is now recognised as a taonga, a treasure, in terms of Article Two of the Treaty. This Act, too, has given rise to litigation, as Maori have endeavoured to have the language brought from the sidelines into the mainstream of New Zealand life, through prime time radio and television. The litigation has not been successful, but it has highlighted the need for positive action.

Mr President, I have endeavoured to show how the Treaty can now once again properly and fairly be described as the founding document of New Zealand. A relationship between peoples is not a static thing. It requires constant nurturing. We are aware of that, as never before. I am sure that with goodwill, and common sense, and generosity on all sides, and with a full appreciation of the diverse cultural heritage available to us, the Treaty partnership will achieve full reality. There is, indeed, little other choice for any of us.