The Treaty of Waitangi

When you think about it Britain made lots of treaties in the 19th Century. Some were with the superpowers of the day like France and Germany, others were with indigenous peoples as in Canada and New Zealand.

But for the Treaty of Waitangi the Colonial Office was remarkably unprepared. There was no draft, no legal opinion and it was left to a group of amateurs.

The scissors and paste job done by Busby and Hobson produced an English text which may be a sign of either inspiration or despiration. But it is all we've got and the existence of Māori and English texts which don't mean the same complicates the matter still further.

Ian Ward's judgment is that "at the moment of action Colonial policy was simply: obtain sovereignty, incur no avoidable expense, see what happens."

Questions of meaning and interpretation have been debated ever since the Treaty was signed. In 1840 Nopera Panakareao signed the Treaty and said "only the shadow of the land is to the Queen but the substance remains to us." The next year he reversed the statement. Edward Gibbon Wakefield writing to Gladstone in 1846 called the Treaty "a fraud" and "a sham".

As we know, Chief Justice Prendergast said the Treaty was a legal nullity because it had not been incorporated into domestic law. The recent case before the Court of Appeal may prove to be an important turning point. The case was possible only because Parliament insisted that the principles of the Treaty be alluded to in the State Owned Enterprises Act and for that they must be commended. The Court's judgment has not altered the status of the Treaty of Waitangi as a constitutional instrument but there was a notable willingness to see the Treaty as an aid to interpretation.

Another straw in the wind which may gather momentum is the recent case in which Mr Justice Chilwell re-interpreted the Water and Soil Conservation Act to conclude Māori spiritual values can be taken into account in the determination of applications for water rights to regional water boards. His judgment drew heavily on the Treaty of Waitangi and the importance of the Waitangi Tribunal.

Claudia Orange has given us a clear and detailed historical perspective to work from. She calls her book "an overview, a springboard for further searching into the Treaty's history a basis for understanding the divergence of Māori and Pakeha attitudes to Waitangi."

I am encouraged by the judgments of the Court of Appeal and Mr Justice Chilwell. The Treaty is not irrelevant history which should be buried. The Treaty is a present reality with a lot of mana and power. This year I have been through the experience of attending a Waitangi Day Commemoration at Waitangi in the Bay of Islands. In the midst of the noise and confusion I did not feel under threat. In a rather dramatic way I was being told to shape up and perform, in fact to honour the Treaty. The Treaty is pushing us around like nobody's business at the moment and we had better understand why. Issues of biculturalism, patnership and the allocation of resources will continue to proliferate.

Not everyone is happy with what they see happening. Just read the letters to the Editor of the Listener. The demands of one side cannot be met without the other side letting something go. Even to talk of sides and difference is enough to upset.

But as with most partnerships it is important the partners be equal if the partnership is to flourish. In fact, it is only after power has been distributed that we can look jointly at questions like how do we decide priorities, how do we share resources, how do we support each other.

I have just returned from Niue with the conviction that New Zealand's partnership with Niue, the Cooks and Tokelau, all Polynesian Islands, will never be fully understood until we work out the nature of partnership within New Zealand.

The Psalmist says that when brothers dwell in unity it is like the precious oil upon the head, running down upon the beard of Aaron. We will have to work hard for unity in this country but thank God we have the Treaty of Waitangi to work with.

Unity is not oneness. Unity encompasses differences. The search for unity is an invitation not to fear but to explore what is not familiar.

Claudia's book is a cool hard look at where we have come from. It is also within the stream of where we might go as the heirs and guardians of the Treaty. It is a timely contribution from someone who has marshalled her material and surveyed the scene. Other books on the Treaty of Waitangi will be written but they won't be able to ignore this one.

It gives me great pleasure to launch The Treaty of Waitangi by Claudia Orange