"Parliament said in 1975 that the Treaty has two texts, when it does not, and justified recourse to 'principles' of the Treaty because of the fiction that the Treaty has two texts."

"[T]he idea that the Treaty has principles first surfaced publicly in Labour’s manifesto for the 1972 general election. It subsequently gained legislative status by its inclusion in the Treaty of Waitangi Act 1975. ... giving the Waitangi Tribunal jurisdiction to make recommendations based on findings that actions were contrary to or inconsistent with the principles of the Treaty, rather than findings that actions which were a breach of the Treaty itself. 

    "[The reason for this, it was argued,] was that the treaty has two texts, one in Māori and the other in English. ... But as I have shown there is only one text, the one that was signed at Waitangi. There are two texts only because the Treaty of Waitangi Act 1975 said that there are. ....

"So, the situation is that Parliament said in 1975 that the Treaty has two texts, when it does not, and justified recourse to 'principles' of the Treaty because of the fiction that the Treaty has two texts. ...
    "The solution to the problem Parliament created must be either to undo what was done in 1975 upon the basis that what was done was based on flawed reasoning, or to accept that what has been done is done and to remedy the 1975 omission, by Parliament’s doing what it could have done in 1975 and defining the principles to be applied by the Waitangi Tribunal, the courts, and those agencies which are required in some way to observe the principles."

~ Gary Judd from his post 'Treaty of Waitangi “principles” — only one text'

Mush ado about ACT's (revised) Treaty Principles Bill.

 

Cartoon by Nick Kim

We now have our first look at the wording to be used in ACT's proposed Treaty Principles Bill. 

You'll recall that the aim of the Bill is not for Parliament to redefine Te Tiriti, which lacks too much to ever become a fully-founding document in any case, but to define —for the first time — the Principles that Geoffrey Palmer and followers began inserting into law without definition, and without any guidance to the courts. Which left the courts (and the self-serving Waitangi Tribunal) to simply make them up. And has transformed Te Tiriti into a welfare cheque for tribal leaders.

The Bill's proposed wording is grouped under three headings, to match the three Treaty/Tiriti articles: 

1. Civil Government; 
2. Rights of Hapu and Iwi Māori; and
3. Rights to Equality.

David Farrar has helpfully laid out the proposed wording against both ACT's initial proposal and the official "Kawharu" translation of Te Tiriti. It's quickly apparent that the weasel words of "partnership" and "participation" haven't been slipped in. And that "protection" only occurs in association with the word "rights," as it did in the original document. But also that a whole lot of precision has been lost. Much has been added to dilute the impact of the previously clear exposition of principle. Politically-necessary mush perhaps, but mush is mush, gumming up the finely-grinding machinery of law.

And what's been lost, I think, is the clear Lockean principle of the Treaty: i.e., that tribal sovereignty was being ceded in return for protection of natural rights, including the right to private property. In which case, is anything to be gained by the Bill?

Let's have a look article by article ...

The First Article is the sovereignty article. About who governs. Which this says, in so many words. But in bending over backwards to avoid the 's' word, a whole lot of mush has been added. Remember that good, objective law should be rights-based, and allow you to know in advance what you can and can't do by law — and since law is, or can be, a matter of life and death, one needs to know with precision. So what the hell does "in the best interests of everyone" mean precisely? How will the courts decide (since it is they, and the Waitangi Tribunal who will interpret this in their own best interests) what should be done for "the maintenance of a free and democratic society."

The Second Article used to be known as the Property Article. The recognition of the property held by tribes and tribal leaders,  and the insistence that government agents would have a coercive monopoly in buying it from them. So, about property rights, and how they're transferred. The Bill however now suggests the principle to be drawn from this clause is one about rights in general. Which is a different thing (especially since bogus "rights," requiring the labour of others, are being constantly added and expanded).

"The Crown recognises the rights that hapū and iwi had when they signed the Treaty." What were those rights? More mush. The Bill would again require the courts and Waitangi Tribunal to decide — oh, and they will! And remember that these are phoney collective rights, not individual rights. (And to thrive here as equals, as I've said before, we need to take off our collectivist lenses.)

And what's this? "Those rights differ from the rights everyone has a reasonable expectation to enjoy ..." Really? Oh: " ... only when they are specified in legislation, Treaty settlements, or other agreement with the Crown."  Ah: meaning that any explicitly race-based legislation etc. has to be explicit in its racial favouritism. Which is probably about as much as one can now expect, but much less than one would have hoped for. 

And, as everywhere else in New Zealand law, property rights have disappeared.

This Article has suffered the least damage in the re-write. And as an added bonus, the concept of "duties" has been lost, and "protection" clarified to be about protection by law, an equal protection, not about unspecified welfare claims for "ordinary New Zealanders," i.e., Māori (which is how this clause has begun to be interpreted by activists and the Tribunal). So maybe an improvement through the added mush — though a clear contradiction with the second article: how, for example does one enjoy "the same fundamental human rights without discrimination" if government can legislate for collective 'rights' for hapū and iwi that "differ from the rights everyone [else] has a reasonable expectation to enjoy"?

The answer, of course, is at the back of the next Tribunal report. Just under the money-amount awarded to claimants.

Remember that the words "the principles of the Treaty of Waitangi" have been inserted at the heart of every second bill that's passed through Parliament, so any mush injected here would infect every second law everywhere.

And it's now full of mush.

That's not an improvement.

The Bill may not be successful by the standard of "will it be passed into law." But it's already wildly successful by the standard of "let's talk about these made-up principles, and about what they should be."

But I'm not sure these re-writes should be part of law.

Again, why did chiefs sign?

 

p. 62, Michael Belgrave's Historical Frictions

"[Historian Michael] Belgrave argued* that a study of the debates that took place at the Treaty meetings revealed that they were mostly about land and religion, rather than sovereignty, indeed that these matters overshadowed everything else. ...
     "[O]ne of the most important messages the chiefs would have taken away from what the British or Pākehā advocates of the Treaty had declared was that Māori would be protected in their lands, and that this was a vital consideration for those who agreed to sign ...
    "Belgrave argued that while the Treaty was made in a world in which Māori remained dominant, the chiefs were acutely aware that times were changing and they felt vulnerable, and that in these circumstances they believed it made sense to sign the Treaty and hoped that the British Crown would uphold the promises it had given ...
    "He held that a properly historical account revealed ... [that] by the time the Treaty was made, Māori had adopted, adapted and adjusted [to] the European ideas they had encountered ...
    "[T]he ‘modern’ interpretation of the Treaty [however] — which he attributed to those he called ‘non-historians’, thereby obscuring the role that academic historians, most of all Claudia Orange, had played in its creation — ... had become so preoccupied with the texts that it had become blind to matters of context. ...
    "[T]he worldview that informed [chiefs'] understanding of it in 1840 had become opaque to contemporary readers because of an undue focus on the written texts. In and of themselves, he held, the texts were extremely limited sources on which to base any historical interpretation ... [and so] the story the Tribunal had been telling was more or less a fiction or an invented history ..."

~ Bain Attwood, from his 2023 book A Bloody Difficult Subject

* In his 2005 book Historical Frictions: Maori Claims & Reinvented Histories, esp. pp. 46-66

The Coming of the "Principles"

Matiu Rata: "... the most effective NZ
politician of the last half-century?"

As 1975 began, neither Treaty nor Tiriti were part of New Zealand law. By years end, the Treaty's legal status was transformed, and "it's place in the new Zealand polity and the country's history and culture were assured." [1]

This is when the "Treaty Principles" were born. "Treaty" was the English text (and was only ever a draft). "Tiriti" was in missionary Māori, and was the document that was signed. Arguably the actual treaty. Something called the "Treaty Principles" was supposed to moderate between these two allegedly irreconcilable documents, with the priesthood of the Waitangi Tribunal empowered to "interpret" the space between. Under Eddie Durie's stewardship, that space was gently but firmly prised open to reveal an ever-flowing vein of political privilege and alluring economic wealth.

It all began with a Labour Party manifesto. Historian Bain Attwood explains:

What transpired amounts to a case of unintended — and thus unforeseen — consequences.... The Labour Party, led by Norman Kirk, had been returned to power just two months earlier for only the second time in twenty-two years; [Matiu] Rata had become both the Minister of Maori Affairs and the Minister of Lands; ...

The Labour Party had been elected on the basis of a manifesto (in both English and Māori) that included a promise to examine a ‘practical means acknowledging legally what it called ‘the principles set out in the Treaty’. After introducing legislation about Waitangi Day shortly after winning office, it belatedly turned its attention to this commitment, directing its caucus committee on Māori affairs to provide a report on the matter. In undertaking this work the committee largely conceived of its task in terms of this question: whether any legislative action could be legally taken regarding the Treaty? Answering in the affirmative required it to demonstrate that the Treaty was a valid legal agreement and a binding one....

The committee was struck by [a recent academic] argument that whereas the English version had long been regarded as the authoritative version, the Māori version should have primacy because it had been widely circulated and signed by most of the 540 Māori chiefs and it was the one that was first signed (at Waitangi). ... Moreover, it held that ‘the question of versions’ was primarily important only in respect of the first part of the Treaty’s second article, and this was because Ross had noted that the English version was more specific about the kinds of Māori property the Queen had guaranteed to protect than was the Māori text.

[T]he committee was determined to demonstrate that Parliament could give some legal effect to the Treaty. Consequently, it asserted that the central issue was not whether the Treaty was in Māori or English but that it was a binding agreement that had been made by the Crown and the Māori chiefs. This was in keeping with its insistence that the Treaty could become ‘an instrument of mutuality.’... that, as far as Māori were concerned, ‘no amount of legalistic argument’ could detract from the fact that their forebears had entered into a binding agreement with the British in good faith and that the Crown had a responsibility to uphold the Treaty’s principles. Clearly, the committee regarded the Treaty in the same way that Māori and some Pākehā ... had long conceived of it — as a moral agreement rather than a legal contract — and so it emphasised the spirit it believed the Treaty symbolised rather than any strict rights it might be said to contain.

In short, the actual words of the Treaty/Tiriti became less important than the spiritual importance of this binding agreement, this "instrument of mutuality," this beginning of a "relationship" —or of something said to be "akin" to it. 

Observe here that Parliament itself never bothered to define the principles, leaving it open to the Waitangi Tribunal and later the courts to do so. And nor does the Treaty, in either language, state principles. As Gary Judd KC explains, 

It is an agreement recording an exchange of values, including future obligations. Parliament created the fiction that there are principles, which produced the opportunity for creativity in their formulation. The Ministry of Māori Development’s 2001 summary shows how this can be done. If one is able to search for, “underlying meanings, intention and spirit,” the scope becomes very wide, and open to adoption of subjective viewpoint.

So as the words lost importance in a legalistic sense, at this very same time a new organisation was established, a tribunal, that was empowered to fill that vacuum themselves. Their pronouncements became known as the Treaty Principles, which would encompass some of those more "mystical" interpretations of meaning. This is how it happened:

The committee ... recommended the establishment of a tribunal ‘for the purpose of maintaining, upholding, advising and hearing of any matters related to the treaty to which existing laws offer no redress’. However, once the Cabinet agreed to endorse this proposal, an unexpected question arose, and the way it was answered would, inadvertently, enable the Waitangi Tribunal to do the transformative work that it eventually undertook.... 

[But] the Secretary of the Department of Maori Affairs, J. McEwen, realised that an important question had to be addressed because the committee had recommended that both the English and Māori texts of the Treaty be considered in any legislative enactment. ‘As the two versions differ, it will be necessary to state clearly which version is to be authoritative’, McEwen pointed out to Rata. ‘It can be either the English version or the Maori version, or both, but if the latter alternative is chosen, there will have to be a specific provision which empowers somebody to decide the true meaning of the words. I would suggest that the way around the difficulty would be to make both versions authoritative and expressly empower the Tribunal to decide any issues arising from the differences in wording.’ Consequently, he drafted a clause that stated: ‘In exercising any of its functions under this section the Tribunal shall have regard to the two texts of the Treaty set out in the First Schedule to this Act and, for the purposes of this Act, shall have exclusive authority to determine the meaning and effect of the Treaty as embodied in the two texts and to decide issues raised by the differences between them.’  

In time, this clause would see the matter of the two texts become central to the Tribunal’s work and allow it to bestow a degree of authority on the Māori text that McEwen could never have imagined and which he had actually tried to prevent in his drafting. Nor did anyone in government anticipate that McEwen’s adoption of the Labour Party manifesto’s mention of ‘the principles’ of the Treaty would prove similarly vital to the work the Tribunal did.

And lo, 'the principles' were to take on a life of their own.

He might have only read comics, but there's a strong case to be made that the most effective political reformer of the last half century isn't Roger Douglas; it's Mat Rata.

* * * * 

1. Bain Attwood, A Bloody Difficult Subject: Ruth Ross, te Tiriti o Waitangi and the Making of History. 101 

2. ibid, pp 101-3

3. ibid, p. 103

Treaty Principles: Still much the same after all these years?

"New Zealanders are involved at the moment in a somewhat introspective examination of what their heritage means to them," said Geoffrey Palmer. "To outsiders the process must seem somewhat curious. Yet it is not inappropriate in the 150th year after the signing of the Treaty of Waitangi."

What's that? ... 150 years?  ...when did he say that?

He said it in 1989, thirty-five years ago, as Attorney-General -- explaining to an audience of legal academics what he reckoned to be the government's five Treaty Principles. 

Thirty-five years ago! And we're still engaged in that same introspective examination.

It's instructive to compare Geoffrey's five principles -- as well as his argument for them and why they were thought necessary -- which is worth reading -- with those contained in this week's leaked Treaty Principles Bill.

The 3 principles in what's said to be the proposed Treaty Principles Bill are:

1. A Governance principle: "the New Zealand Government has the right to govern all New Zealanders"
2. A Rangatiratanga principle: ""the New Zealand Government will honour all New Zealanders in the chieftainship of their land and all their property"
3. An Equality Principle: "all New Zealanders are equal under the law, with the same rights and duties"

Curiously, despite all the tedious scholarship since and the fumarole of huffing and puffing this week, those principles aren't a million miles from those espoused by Geoffrey Palmer's Government back in 1989, in response to recent decisions from the Court of Appeal and the Waitangi Tribunal:

In summary .... the Crown has identified five principles which will guide its activity in dealing with issues which arise out of the Treaty of Waitangi:

The Kawanatanga Principle [which] recognises the right of the Government to govern and to make laws.

The Rangatiratanga Principle[which]  recognises the right of iwi to organise as iwi and, under law, to control the resources they own.

The Principle of Equality [which] recognises that all New Zealanders are equal before the law.

The Principle of Reasonable Co-operation [which] recognises that both government and iwi are obliged to accord each other reasonable co-operation on major issues of common concern.

The Principle of Redress [which] acknowledges that the Government is responsible for providing effective processes for the resolution of grievances in the expectation that reconciliation can occur. This principle makes it clear to New Zealanders that the system of grievance resolution will be orderly, fair, and effective. We will take the steps necessary to ensure that justice is done and seen to be done.

I know that as the whole picture of this complex matter becomes clear to New Zealand the country will see that this is an issue that can be dealt with calmly and rationally. Moreover they will see that there are no hidden traps. That this is a process from which we can all emerge winners.

I make no judgement here on the value or otherwise of Palmer's Principles. 

I simply observe that while history doesn't always repeat, it does sometimes rhyme.

"Reputable historians do not present grown human beings as innocent children, or confused savages, incapable of understanding the political, economic and military realities of their time."

"History, like so many other subjects, has become a bitterly contested ideological ground. A discipline where angry partisans struggle for supremacy.
    "For the moment, at least, the upper hand [in NZ] lies where it has lain for the past 50 years – with the [Waitangi] Tribunal. For most of that time New Zealanders assumed that those weighing the evidence which claimants brought before the Tribunal were dispassionate professionals. Only relatively recently has it become clear that the Tribunal’s “history” is little more than compensatory fiction, composed by Māori and/or Māori-identifying “historians” to clear the way for the Crown’s acknowledgement of wrong-doing and, ultimately, to secure compensation for the manifold sins of our colonial fathers. ...
    "[The Tribunal is clearly in steadfast agreement with] Māori Treaty historians. Māori scholars, and their allies, [who] present colonisation as an unmitigated disaster: an historical catastrophe from which the indigenous people of New Zealand are only now beginning to recover. ...
    "Its reports are based on the testimony of the aggrieved, and upon their carefully curated historical grievances. Only to this 'evidence' does the Tribunal accord the status of unchallengeable truth. And only these, the Tribunal’s truths, are allowed to prevail over what is invariably characterised as the evil historical choices of the Crown.
    "That this Manichean historiography cannot help but infantilise Māori, turning them into trusting dupes of the wicked Pakeha, and denying them the dignity of effective historical agency, is deemed an acceptable price to pay by a Waitangi Tribunal determined to deliver to Māori claimants a browbeaten and guilt-ridden Crown. ...
    "Reputable historians do not present grown human beings as innocent children, or confused savages, incapable of understanding the political, economic and military realities of their time. Nor do they construct frankly ridiculous constitutional scenarios in which the British Government of 1840 was happy to share power ... Since 2014, the Waitangi Tribunal has been indulging in what might best be called 'Bridgerton History' – i.e. refashioning the realities of the past to meet the ideological specifications of the present."

~ Chris Trotter, from his column 'Contested Ground'