The Te Tiriti o Waitangi journey 

[As published in March/April BayBuzz magazine.]

I didn’t vote for David Seymour. 

Jacinda Ardern may be right in that he’s “an arrogant prick”, but at least he has courage. Seymour’s End of Life Choice Act was a remarkable achievement. It’s the sort of issue that upsets a lot of people, me included. To confront difficult issues requires you to put your political capital on the line. 

And so it is with any discussion about the Treaty of Waitangi. Seymour has the cojones and Luxon doesn’t. One of the best parts of MMP is it brings us fringe parties with fringe ideas and the courage to air them.

Seymour is right to try to engage the public on the Treaty. 

In my lifetime the application of the treaty has changed radically. Putting aside the merits of these changes, it’s worth considering how this has happened. The evolution of the Treaty has been influenced largely by successive governments, the Waitangi Tribunal, government departments, academics, iwi, the media. 

Some fine people reside in all these groups, but also a swathe of numpties. Notable amongst these are academics in the social sciences who dream up baffling PhD topics or postgraduate work. A lesser offender is the Waitangi Tribunal, which started out sounding a bit like an apparatus of the state. It was subsequently given a Māori majority and had become the mouthpiece for a more progressive kaupapa. 

The approach to date has been for the groups above to tell us what it means rather than to take us on the journey.

The Te Tiriti o Waitangi was an exceptionally noble endeavour. The Crown may have subsequently failed to live up to their obligations, but they started well. 

The honourable sentiments began in Lord Normanby’s Brief in which William Hobson was instructed to act with “mildness, justice and perfect sincerity”. Normanby also observed that many of the British subjects that resided in NZ at that time were of “doubtful character”. And without the establishment of British sovereignty and justice, they would continue to be ‘”authors and victims of every species of crime and outrage”. There were already boatloads of new immigrants on their way. 

While the Treaty was an honourable concept, its execution was far from perfect. Normanby admitted that Māori would be “unable to comprehend the exact meaning or probable results”. Maoridom as a cohesive entity also didn’t exist and so a lot of relevant Māori interests weren’t there or were never consulted. The signing of the Treaty was a shambles by modern standards. At least 40 chiefs signed the Treaty on the 6th of February 1840, while more than 450 others signed around the country over the next seven months. There was an excellent debate on the Treaty on 5th of February, but various chiefs continued to arrive and this discussion was not enjoyed by all, or by signatories over subsequent months. The understanding of what the Treaty meant would have been different based on when and where the chiefs signed.

Various missionaries, some fluent in Māori, offered advice to the chiefs, encouraging them to sign. A cynic would suggest that they were extremely biased, but there was also genuine compassion. There is little doubt that they believed the lives of Māori would be improved through the Treaty. They would also have been familiar with British imperialism. The parties with the economic and military power, ultimately prevail. 

The word ‘genocide’ wasn’t to be invented for another 100 years, but it was well practiced by the colonial powers of Europe or their unrestrained colonists. The musket wars demonstrate that Māori understood and applied these principles too. If they could secure a cache of superior weaponry, they had no hesitation in trying to wipe out their adversaries. When the pen gives way to the sword; might is right. 

By 1840 the British knew that Māori were skilled and courageous warriors and Māori knew that more British guns and soldiers would arrive on the next boat. Ultimately the only two options were a deal or a fight. 

Te Tiriti was first addressed in legislation in the Treaty of Waitangi Act 1975. Previous to this it was considered of great constitutional importance, but its application wasn’t specifically considered in law. This Act has several troublesome components, most notable of which is that it talks about principles, but doesn’t define them. 

It also talks about the treaty existing in both Māori and English. Only the Māori version was signed on that day at Waitangi and this was the only version Māori could fully comprehend. The English version came subsequently and is signed by fewer Māori. Indeed there is an argument that the legitimate version of the Treaty in English was the Littlewood translation. This version was lost and then rediscovered, so isn’t particularly helpful. Make no mistake, the Māori version of Te Tiriti should be the only version that counts.

In 1989 the Lange Government introduced definitions of the Treaty principles, including the idea of partnership. I have tried and failed to understand this idea. I’ve signed hundreds of agreements and never wanted a partnership and neither did the Treaty signatories. 

Māori understood that their way of life was under threat by colonial powers or groups of immigrants and the Treaty was portrayed to them as a mechanism whereby the Crown would protect their interests. The British clearly sought sovereignty for the establishment of laws and the administration of the colony. I’d suggest both parties liked the Treaty as it gave them the best pathway to carry on with their ambitions without too much interference from the other party. 

Certainly both parties would be baffled by the establishment of a co-governance board for ‘Let’s Get Wellington Moving’. 

Lange’s principles were helpful, but the application of these principles has been haphazard. The Treaty itself is a fairly simple document and the signatories didn’t want it to be much more. Māori remain a diverse group with diverse opinions and that is a good thing. Some suggest that Treaty obligations are to iwi and that would make life more straightforward. The Treaty of Waitangi Act states that our obligations are to Māori more generally. This suggests Winston Peters, David Seymour and Debbie Ngarewa-Packer all have equal rights under the Treaty, but no chance of agreeing as to what these are. 

One of the most fractious issues is that of sovereignty. 

The Waitangi Tribunal insists that sovereignty was not ceded and based on the Māori version of the Treaty, that’s a reasonable position. When interpreting agreements the courts typically look beyond the actual text however. They consider the ‘meeting of minds’ which could include correspondence or notes from meetings. Such notes were taken by Willam Colenso on the day before the Treaty was signed. When reading these it is impossible to conclude that the chiefs present did not understand they were ceding sovereignty. Hobson wasn’t trying to hide the objectives of the Crown and his explanations were unambiguous.

Many chiefs spoke against the treaty on the basis of the power it sought to give the Crown. Te Kemara of Ngāti Kawa spoke strongly against it, saying “for the Governor to be up and Te Kemara to be down … no, no, no”. Similarly Rewa, of Ngāi Tawake clearly said, “The Māori people don’t want a Governor”, and Tareha of Ngāti Rēhia said, “We chiefs are rulers of our lands and we won’t be ruled over.” 

After the debate, discussions continued into the night. Hobson must have thought his cause was lost. To his surprise, most chiefs signed the following day, including the three mentioned above. Tareha’s son Mene actually signed on his behalf and later Rewa changed his mind and actively discouraged other chiefs from signing. What I conclude from various documents is that the Crown sought sovereignty above all else and that the chiefs at Waitangi that day, understood this. The Waitangi Tribunal is wrong. 

The only thing everybody can probably agree on is that we haven’t got the interpretation of the Treaty right and maybe we never will. 

That doesn’t bother me greatly. I have great respect for the many Māori I’ve known and worked with over the years and it’s hard to recall any of them mentioning the Treaty. Day to day we get on OK, living our lives and trying to keep our kids out of trouble. I think I’ll leave the Rangitira and the politicians to bicker about the words. I have much more respect for the mahi of the common people.

I wish I had some Māori blood in me. I think it was Dr Ranginui Walker that said “Race relations will be solved in the bedroom”, and he’s right. A Māori lady, replete with daughters, once cheekily grinned at me and said, “You’d like those Māori girls Paora – they’ve got that rhythm.” My opportunities in this regard are long gone, but Māori are getting a little paler and Pākehā a little browner with each generation. 

Hobson is purported to have shaken the hand of each chief after they signed the treaty and said, “He iwi tahi tatou” – we are [now] one people. That is truer now than it was in 1840 and in future generations it will be truer still.

Paul Paynter is our resident iconoclast and cider maker. Weather permitting, he grows stuff at Yummyfruit.