Should New Zealand change its flag or its Prime Minister?
Wednesday, 3 February 2016
New Zealand celebrates a day of protest and controversy as the national day
While most former colonies, celebrate their independence with a national holiday, New Zealand celebrates the establishment of colonialism, thereby perpetuating old grievances arising from an 1840 document that was drafted by misguided amateur lawyers.
|One of the few surviving copies|
of the Treaty of Waitangi
The Treaty of Waitangi lacked many of the provisions that one would expect to find in any contract or agreement. The drafters failed to include dates for commencement or termination, or clauses permitting amendment or revocation. It also failed to adequately define the territory that it was to apply to, and it failed to establish a structure for government. Even more disastrous was the failure by missionary Henry Williams, who drafted the Maori version, to give it the same meaning as the English version.
The English version of the Treaty of Waitangi was drafted by William Hobson, James Freeman and James Busby in just four days. All were without any legal or constitutional training. Hobson’s father, however, had been a barrister in Ireland, but it is unlikely that the son learned much about legal matters before joining the Royal Navy and sailing away at the tender age of eleven.
Little has been recorded about James Stuart Freeman, who was Hobson’s secretary and is generally credited with drafting the Treaty, assisted by Hobson and Busby. However, in 1844 when Freeman was living in Auckland, where a bay was named after him, Doctor John Logan Campbell described him as “the most disgustingly immoral swindling scoundrel in town”.
James Busby was the son of a Scottish engineer, whose greatest achievement was to introduce viticulture to Australia and New Zealand, and his Waitangi grapes were producing wine in time for the drafting of the Treaty, but no record exists about the amount imbibed during the drafting. Although not trained in legal matters, Busby did have experience with his failed attempts, as British Resident, to mediate between settlers and natives. There was also his unauthorised 1835 Declaration of the Independence of New Zealand which was signed by chiefs of the United Tribes of New Zealand, which became yet another document of enduring controversy.
|British Resident James Busby|
The Declaration was a dead-end document that had largely been forgotten by the time Hobson arrived on the scene to set up a colonial administration. The United Tribes had failed to meet or to pass any laws, but even so the 1940 Treaty lacked a clause that revoked the earlier Declaration. Debate still rages regarding the status of both Declaration and Treaty. It is New Zealand’s greatest and most controversial legal can of worms.
After the Treaty of Waitangi was signed, the imperial government and later the colonial government conveniently ignored it for many years. They have been criticised for that, but how could they have made any sense of two conflicting and incomprehensible conundrums? In 1877 Chief Justice James Prendergast ruled that the Treaty was a ‘legal nullity’.
The signing of the Treaty was largely a forgotten fiasco until the 1920’s when it became popular to commemorate it occasionally on the anniversary of Hobson’s arrival on 29 January 1840. Later it became an annual celebration and the date was moved to 6 February.
|Governor William Hobson|
Meanwhile, Maori, who had a different interpretation from their Treaty version, seethed quietly. To them it was clear that they had been let down by the Crown and they wanted redress. The colony had been at war, the war directed from London, and Maori had lost land and lives so that British settlers could occupy their land.
The passage of the Treaty of Waitangi Act 1975 gave significant legal standing to the Treaty, but did little to clarify the intent of the original document. The Act did, however, open the way for the establishment of the Waitangi Tribunal charged with hearing claims and compensating the aggrieved. Many millions of dollars in compensation have subsequently been paid and some lands have been returned. Hearing and settling claims is a slow and ongoing process and not all claims will be settled.
Many claims depend on what some claimants perceive as implied guarantees made by the Crown in 1840. The Treaty is still an exceptionally murky document and for as long as the Treaty remains a treaty in New Zealand law, it will generate grievances and problems of interpretation.
|Protestors at Waitangi|
The imperial government should have responded immediately the extent of Hobson’s fiasco was realised, with an act to replace the Treaty with a workable and fair piece of legislation. It is doubtful that the colonial government in New Zealand had that power prior to independence in 1947. In short, the British government created the mess, but the New Zealand government, 176 years later, is still trying to end the fiasco. Some authorities even go as far as to say that the British created the problem and they alone should be paying the compensation.
There can be little argument that successive New Zealand governments have been far-sighted on social, racial and human rights issues, and since 1975 they have done much to redress the wrongs of the past. But in spite of that, the Treaty fiasco is unlikely to go away any time soon, making Waitangi Day a day that will never be free from protest and disagreement. It has little chance of ever being a day of national unity. It is a shame that Waitangi Day has become the standard day to abuse, insult and assault politicians and dignitaries from the Queen down.
Yet New Zealand has much to celebrate. We have come a long way since 1840. We have enacted world-leading social and economic reforms. Waitangi aside, New Zealand has been a model democracy. We have stood on the world stage in many spheres including business, politics, sport, science and innovation.
If we genuinely want to celebrate our achievements and bury the wrongs the past, we should be replacing Waitangi Day with Independence Day on 25 November. Next year it will be 70 years since New Zealand ratified the Statute of Westminster as the most significant step to independence and nationhood. Independence Day could be a true day of national celebration and unity.
This writer believes that 25 November should also be a public holiday alongside 6 February until the public decides which of the two days best represents a united multi-cultural New Zealand.
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