THE NEW ZEALAND TREATY

Rodney Hide:
End the Treaty gravy train
New Zealand Herald - Rodney Hide

The Waitangi Tribunal. From left, Pou Temara, Timothy Castle, Ron Crosby
and Chief Judge Wilson Isaac. Not visible is James Busby's wine.
Photo by Mark Mitchell

New Zealand’s Waitangi Tribunal is our Babylonian priesthood. Its members spend their days poring over a tatty old text seeking guidance for modern-day government.

The funny thing isn't that they do it. The funny thing is that anyone takes them seriously.

Treaty priests have rearranged New Zealand's constitutional set-up, redefined our system of government and stopped government policy dead in its tracks. They've held large-scale projects hostage to the principles their search has uncovered.

James Busby, Official British Resident and
New Zealand's first wine-maker

The Treaty priests are forever teasing and torturing the 176 Maori words that make up the three articles of the Treaty. They are greatly assisted by the Maori language being both very limited and obsolete.

That enables them wide latitude in translation and enables very creative interpretations to be given to the Maori version of the Treaty of Waitangi. The priesthood weighs and measures the "kawanatanga" that Maori ceded in Article 1 against the "tino rangatiratanga" guaranteed in Article 2.

"Kawanatanga" is an entirely new word. The early missionaries coined the term to explain King Herod. The Treaty priests now balance that meaning to determine who owns the radio spectrum, fish that are a 1000m deep, geothermal resources and plant DNA.

It's an extraordinary achievement. It's all the more extraordinary that kawanatanga was minted back in 1840 to explain a King of Judea who lived 2000 years ago.

There are simply not enough words in the Treaty to provide all the guidance the priests seek. No matter. The priests have declared the Treaty a living, breathing document. With a spirit. It's at once sacred and immutable and simultaneously living and evolving. New principles leap from the Treaty. Old ones are constantly re-engineered. Parliament, no less, has declared that the Waitangi Tribunal "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".

Captain William Hobson, first Lieutenant-
Governor of New Zealand

The priests have been spurred along by Parliament legislating the "Principles of the Treaty" without detailing what they are and by the courts declaring one principle to be "partnership". Brilliant.

We now supposedly have a partnership between Maori and the Crown, even though neither version of the Treaty mentions it. University of Canterbury law lecturer David Round has succinctly explained why it's nonsense. If Maori truly are the sovereign's partners then they are not the sovereign's subjects.

They are instead equal with the Queen. The only subjects in New Zealand are non-Maori so they must be subjects both of the Queen and of Maori, her partner.

The partnership deal is nonsense. But the priesthood don't have to make sense, they just have to be believed and followed. That's what gives them their power and their force.

Not all Maori can be in partnership with the Crown. There are just too many and it is not practical.

So in practice, only the Maori elite get special status in consultation with the Government and a special say over Government policy. Their agreement to policy is sought and paid for with Government contracts and policy sweeteners.

Quite how the Maori elite get chosen is a mystery. But somehow it happens. And behind the scenes they wield considerable economic and political power.

Signing the Treaty at Waitangi, February 6, 1840

Imagine it. Queen Victoria is recently enthroned in her brand new Palace of Buckingham. Her country is the most industrialized economy the world has ever seen. Her empire stretches around the globe. Maori number fewer than 100,000. They have very limited technology and resources. They have been warring among themselves for more than 30 years. They have killed 20,000 of their own. Another 40,000 Maori are enslaved or displaced. The Musket Wars have overturned traditional tribal territories.

I know, says the Queen, "I will partner up with Maori to govern that far-flung corner of my empire. The Maori and I shall share power. And I will bind my heirs and successors to the deal."

Nope. Never happened. The clear Article 3 promise of "all the rights and privileges of British subjects" was very generous and compassionate. To this day, many peoples of the world wish and dream that they too could enjoy those self-same rights and privileges.

But the priesthood have declared there is a partnership. And Parliament and the Government listen. And so a partnership of sorts there is. The Treaty claims are destined to be endless. There is no agreed list of demands that, once accepted, ends the gravy train.

But Parliament is still all-powerful.

Parliament could simply declare that the final say on what the Treaty means is the clear-cut English text - and that the words mean exactly what they say. That would end it. Overnight.

By Rodney Hide

Peter’s Comment

Rodney Hide is a former New Zealand Member of Parliament and former leader of the New Zealand Act Party. His article on the Treaty of Waitangi, although rather wordy, is basically correct.

The Treaty of Waitangi, drafted on February 5, 1840 and signed the next day, should be recorded in the Guinness Book of Records as the longest enduring document ever written without any understandable meaning or legal standing.

Let’s look at what happened. The architects of the treaty were a missionary, a ship’s captain and a wine-maker. Between them their total legal training amounted to zilch. But that didn’t deter them and they hastily put together a wishy-washy piece of written flim-flam and immediately congratulated themselves on producing the founding document of a new nation.
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Unfortunately, due to their ineptitude the treaty had no commencement date, no provision for amendment, no list of interpretations, no expiry date and no means by which it could be superseded, all normal provisions in a binding contract between parties.  

In short, it was not a legally binding document.

I think I can understand how that happened. The sea captain would have been still trying to get his land-legs again after a turbulent crossing of the Tasman Sea. The missionary would have been thinking about the bibles he could exchange for land and the wine-maker would have been making liberal disbursements of his wares among the parties.

And so 172 years later the Waitangi Tribunal has the all-expenses-paid task of sorting out the mess and that may well take another 172 years.

So what is the answer? The legislative answer is simple but the political ramifications may require some intestinal fortitude. An Act of Parliament should be passed revoking the treaty and the revocation should be retrospective to February 6, 1840, but with no forfeiture of settlements already made.

New Zealand has a modern Bill of Rights that is well drafted and recognizes all citizens as equals.