Selwyn College

E nga mana, e nga reo, e te iwi o te motu, tena koutou, tena koutou, tena koutou katoa

To the honoured, to the other speakers, to all the people of this place, my warmest greetings. Nga mihi o te tau, tena koutou. Thank you for your greetings

Mr Carl Peterson, Principal Carol White, and teachers of Selwyn College, guests and students. Thank you again for your welcome, and for your invitation to talk to you today about the Treaty of Waitangi., te Tiriti o Waitangi

The document we call 'the Treaty' is both a well known, yet in other ways a mysterious part of life here in New Zealand. Te Tiriti o Waitangi is often called a founding document of Aotearoa, yet for a long time it had a hazy place in our constitutional and political framework. There are probably many reasons for this. It is neither a treaty in the commonly understood meaning of that word and nor is it in a form which could readily form the basis of a written constitution or even legislation. Moreover for many years it was not given any real legal or political significance in Aotearoa.

A treaty is usually a negotiated formal agreement between states - perhaps to cede territory after a war or to agree on a common trade or defence policy. More recently, since the formation of the United Nations over 50 years ago, the form of a treaty has been expanded to include a document with language negotiated and agreed by numerous member states of the United Nations, which when ratified becomes binding at the national level. A classic example of one of these treaties is the Convention on the Rights of the Child which establishes common standards for the protection of children and the promotion of their rights. The language has been so carefully debated and mulled over, often over a period of some years that by the time it is signed or ratified, it has the status of international law - it represents the common agreement of many states. Many of these Human Rights treaties provide basic language and notions which find their way into domestic law or constitutions.

A cursory reading of the Treaty of Waitangi demonstrates immediately that it is not a document which has been debated, negotiated and given thoughtful consideration over the sort of period that most treaties have. It is a short document, it is not framed in the usual language of Treaties, and it is difficult to understand - at least in part because the English and Maori versions differ. Clearly no lawyer or constitutional expert wrote it.

So how did the Treaty come about? Well, thousands of words have been written on the Treaty of Waitangi, signed in the Bay of Islands early in the summer of 1840. Just six years earlier in 1834, New Zealand had been described in British law as 'not [being] within [the Sovereign's] dominions' But for various reasons, mainly it seems to ensure an orderly means by which land could be bought and sold, and to protect Maori from the dishonesty of British subjects already acquiring land in New Zealand, it was decided to negotiate a treaty between the British Crown and the Maori.

The British were in fact reluctant to acquire another colony. There were likely to be many reasons for this - the fire of enthusiasm for expanding the British Empire was dying down; New Zealand did not have the riches of India, the huge land masses of Africa or Australia; perhaps Great Britain was realising that to administer a country 12,000 miles away was hardly worth the effort.

The delegation sent to New Zealand to negotiate a treaty with the indigenous people was small. Hobson came with no lawyers, no constitutional experts, no one with the wealth of expertise or experience that one would expect if Britain was enthusiastic about colonising this new country and adding it to Queen Victoria's Empire.

Hobson, who was known for his intelligence and his good intentions towards Maori, was chosen to arrange a Treaty between them and the British. His ship arrived on the 29th January, and immediately he sent invitations to local chiefs to meet within the week at the British Resident's - James Busby's - house on the Waitangi Peninsula. The invitation issued, Hobson began drafting the terms of the agreement that he was proposing would be signed between the British Crown and Maori. It is very likely that earlier he had read Treaty provisions used, or suggested for use, in other parts of the world. Busby, the only previous British representative on the scene, also made suggestions about the wording of the Treaty and forwarded them to Hobson on the 3rd of February. After some further changes, the English text was established by 4pm on the afternoon of February the 4th. Overnight Henry Williams, the missionary, translated it into Maori - rather poorly many would later argue - and certainly the English and Maori texts are not exactly the same. Late on the morning of February the 5th te Tiriti was first read in public. And it was signed by Captain Hobson and approximately 46 local chiefs the next day.

So it seems that well meaning but unskilled people wrote a technical text and translated it hurriedly and amateurishly into Maori. Maori had no tradition of the drafting or signing of treaties and many tribes did not even know it had been signed by some of their fellow chiefs.

As a former judge and lawyer, I am not suggesting that amateurs could not have negotiated a treaty which was clear and whose meaning was well understood and accepted. However, the fact is that this appears to have been a exercise undertaken by those who had little experience in the technical niceties and over a period so brief there was no hope of full and adequate negotiation between all the tribes and the British representatives of the Crown. I am reminded, when I think of the exercise preceding the completion of the Treaty of Waitangi, of the unusual documents that people who write their own wills produce - often they are impossible to interpret and omit important technical requirements that render the terms of the will different to what was intended, if ever the intention can be ascertained.

We do know however, that at the time, and before later signings in other parts of the country, the assurance was given to the chiefs signing that it was Queen Victoria who was pledging that the Treaty would be honoured - it was an agreement between the sovereign Maori and the Sovereign of Great Britain.

So even though it cannot be described as having all the elements of a conventional treaty, this was a promise - 'an undertaking to do or to keep from doing something; an expectation, or that which raises an expectation; a ground for hope of future excellence' As a verb, to promise is 'to undertake by promise to do, giveto encourage, to expect, to assure'

These days it is accepted that the Treaty is not legally a personal compact between Maori and the Queen. And for generations it was largely ignored. You may find it hard to believe but when I was at school and University there was no reference to the Treaty of Waitangi that I can recall in history lessons, in discussions of our constitutional framework, in international law, in political science, and no debate about its meaning or whether it had been observed. Only in the 1960s did I become aware of the significance of the Treaty and the way in which Maori had been treated by the Europeans who settled here. In the last 30 years the debate about the place that te Tiriti o Waitangi has in our nation has become more intense. We are all much more interested in our unique history and more open to all the influences on it by both Maori and Pakeha. Te Reo and tikanga Maori have been absorbed more naturally into our society than before. And we can discuss the horrors of Parihaka without arguing about whether the Maori leaders there were stirring up trouble for the virtuous British or were indeed pacifists. We are maturing at last as a nation.

But whatever questions there may be about the Treaty as a legal instrument, it still has the force of a moral obligation inherited by Pakeha from Queen Victoria's representatives and the descendants of the Maori Chiefs who signed it. So modern-day tangata Tiriti - all of the descendants of those who signed and Victoria's heirs and assigns - are bound to live up to the Treaty's three articles to the extent that we can understand them and in a spirit of the utmost good faith. In legal terms this is what is expected of a fiduciary relationship, perhaps between two companies which have embarked on a joint venture, that they will not limit their relationship to the strict terms of a contract, but they will always act faithfully and honourably to each other.

What do we now consider to be the Crown's Treaty obligations? In English, the first article says that those signing it ceded or gave to the Queen 'absolutely and without reservation, all the rights and powers of sovereignty' previously exercised by the chiefs. In the second article the Queen guaranteed to the chiefs and the tribes 'the full, exclusive and undisturbed possession of their lands and estates, forests and other properties' And in the third she extended to them her royal protection, and granted them all the rights and privileges of British subjects - legal equality

But the translation created problems. 'Sovereignty' in article 1 is translated as 'kawanatanga' but that word was also used for 'sovereign authority' and 'civil government' in the text. So what was in fact Maori ceding to the Queen - what the English text said, which tends to imply the handing over of the complete power to govern to the British, or what the Maori translation said, which tends to suggest a lesser power, a form of government - perhaps 'governorship'?

And to add to the confusion, in article 2 'full and undisturbed possession' was translated into Maori as 'te tino rangatiratanga' more usually understood as 'sovereignty'. And what is more, te tino rangatiratanga, was to cover only lands, dwelling places, and property of all kinds, omitting forests and fisheries mentioned in the English text. And 'taonga' or 'treasures' in English was the word used for 'other properties'

As a former President of the Court of Appeal put it in one of the most significant cases which lead the way to fuller observance of Treaty principles:

As is well known, the English and Maori textsare not translations the one of the other and do not necessarily convey precisely the same meaning

He then sets out what distinguished Professor Sir Hugh Kawharu called his 'attempt at a reconstruction of the literal translation' of the Maori text.

Even had the process been more orderly, the Treaty itself was lacking in the sorts of terms that a modern treaty would contain. It has no mention of the rights, privileges and obligations that British citizenship might entail. Perhaps this would have been impossible in any event. Britain like New Zealand has no written constitution, drawing its constitutional principles from a variety of sources: legislation, cabinet practices, and longstanding custom.

So what does the Treaty mean for all of us - Maori and Pakeha today? Because of the confusion over the text, because it was a hurried, poorly drafted and translated document, does this mean that we can consign it to the rubbish bin as part of our quaint but irrelevant history? Well, not in my view, and nor in the view of most New Zealanders.

For a start its very existence has in part shaped who we are and how we conduct our society today. If there had been no Treaty then, for example it is at least possible that New Zealand would have been colonised by another European power, and whether that would have been a good or a bad thing is now immaterial - we are New Zealanders, composed of the stock which now mingles predominantly indigenous Maori and descendants of British settlers, but with an increasing number from Pacific states and from other parts of the world - Europe, Asia, Africa, and Australia.

Let's assume for a moment that we had been colonised by the French - our language, our legal system, our food and our education systems would all be markedly different. Perhaps we would all yearn for snails instead of KFC, Rose wine instead of beer.

Secondly, it has had a profound impact on our society particularly in recent decades. Take for example the case from which I read out earlier the quote from the President of the Court of Appeal¹. At the time when the government had decided to establish State-Owned Enterprises to corporatise some Government Departments and functions, and to transfer to those SOE's a significant portion of Crown land, the Court of Appeal held that this could not occur unless government made provision for current and future claims for the return of land on the recommendation of the Waitangi tribunal.

This resulted in the development of policy which enabled Maori to make claims upon land even if it was technically no longer in Crown ownership, but was held by an SOE. And the statements in the case reflect a strong emphasis on the need to honour the principles of the Treaty in all government legislation and policy, an approach since followed consistently by governments from both sides of the political spectrum. And because there is confusion between the Maori translation and the English text, the contemporary approach used in legislation such as the State-Owned Enterprises Act is to use the term 'the principles of the Treaty' rather than the more legalistic - 'the terms of the Treaty'. This means that the principles, not the literal words of the Treaty are to be applied.

But even more importantly, this document made promises - of good faith and equality for all. This was never intended to be a classic takeover by an invading nation - it was the means by which the British would control the unlawful and unruly of their number, establish a government and a legal system, and in return get the chance of acquiring fairly, land for farming and other purposes.

The fact that the Treaty has not always been honoured is a sad fact of our history - and a primary reason for this era of settlement of grievances over land taken unfairly. Had the Treaty been complied with and land and other assets bought and sold fairly as between equal parties, this period when it has been essential to make good the injustices of past practices and to apologise for them, would never have been necessary.

So what of the future? For a start there is much more willingness to comply with the spirit or the basic principles of the Treaty than there has been for many years. This willingness has been demonstrated by governments of both the right and the left for some time now. I am not suggesting that government suddenly decided to do the honourable thing - frankly there have been many political risks in going down the path of investigation, apology and reparation and the task is not over yet. But the courts and the advocacy of Maori and those who support their claims for honouring of the principles of fairness and equality are at last being heard.

And there can be no going back - as a matter of principle or for more pragmatic reasons. Maori are growing as a proportion of our population. Even though Maori remain divided on what outcomes they want for their society - just as European new Zealanders will never agree on where we see our best options for the future prosperity and welfare of our citizens lie, Maori, and I believe the majority of Pakeha New Zealanders want to ensure that what was agreed under the Treaty is given effect as far as is possible in a society that is today far more complex than it was 161 years ago.

Another reason for observing the Treaty is that internationally, New Zealand is regarded as something of a model for two ethnic groups working together and for the current efforts being made to redress past injustices. Whether we think we are a model or not, we are, Maori and Pakeha, making a much better fist of it than other nations where the growth of tribalism, unfair practices imposed on the indigenous people by the descendants of the colonisers have created huge disparities between the rich and the poor, and have led to gross distortions in societies and gross violations of human rights.

We need think only of the terrible legacy of Apartheid in South Africa, the genocide in the States of the former Yugoslavia, in Sierra Leone, and Rwanda and Cambodia, to be thankful that Maori and Pakeha have lived together relatively peaceably since the time of the signing of the Treaty. That is not to ignore the excesses of the Land Wars or the deprivation caused to Maori by greed or unthinking but discriminatory practices, over the last century and a half.

And there is so much more to be done in New Zealand to ensure that the indigenous Maori do not remain disproportionately represented in all the negative statistics - health, education, the criminal justice system, to name a few. But we do have much to be proud of in our record of pursuing a partnership between the Tangata Tiriti as the Treaty itself contemplated. And that is one reason for continuing to honour its principles: national pride in what we have achieved and in what we will achieve in race relations in the future.

How then do we who live in New Zealand today best honour the spirit of that founding Waitangi promise? First we must know something of this country's history, so our knowledge of the past illuminates our understanding of the present and gives a foundation for our hopes for the future. That way we learn why we must put right wrongs that were done.

We cannot undo them or assume personal guilt for them. But as a matter of fundamental justice and human rights, we have as much, and probably more responsibility to make amends than the average offender has when he or she causes damage in the course of the commission of a crime. It is also a matter of common sense. A person with a grievance which is not put right will often become bitter and seek reparation in other ways. We must use open and fair means to settle past injustices; to do otherwise is to invite discord in the community and condemnation from other nations.

And we have already made progress in recent times in New Zealand. I do not suggest that the end is in sight, but at least we are well advanced on our journey towards ensuring that the promises made of fairness and equality in the Treaty are fulfilled. And to the people of many other nations we are far further down that road than most others. So even though our record for keeping Treaty promises is far from perfect, we are making progress and we are improving.

The permanent challenge for the future, the wero, that the Treaty presents is this: we New Zealanders must continue to work to understand and respect each other. The Treaty did not represent a document signed by a defeated people and their conquerors. The original promises made were based on trust and respect between the two peoples; this was a treaty between them for their mutual future benefit. And because Maori were the tangata whenua, the first people of this land their views must always be taken into account. What is important to Maori must be treated with respect by all of us. That is not to say that there cannot and will not be discussion, and compromise, give and take. That is the mark of a democratic society, one which is committed to fairness and equality for all.

And it is a rule that applies to the relationships between all the different peoples in our beautiful country. It is not one confined only to Maori and the descendants of the original European settlers. So Selwyn College with its active programme which promotes bi-culturalism as the pre-requisite for a successful multi-cultural school and society is a leader when it comes to understanding what the Treaty of Waitangi asks of all of us - that we live in harmony and with respect for each other, that we create an enduring culture of peace here in our Land of the Long White Cloud, Aotearoa/ New Zealand .

Kia ora, kia ora tatou katoa.

Footnote
1 New Zealand Maori Council v Attorney General [1987] 1 NZLR 641