Expert opinion from University of Auckland - Waipapa Taumata Rau
Opinion: David Seymour has been citing my work to imply that I support Act’s attempts to rewrite Te Tiriti o Waitangi. I do not, for the following reasons.
When Te Tiriti was debated and signed in Waitangi and elsewhere, it was debated and signed in te reo. In order to understand the promises that the rangatira and Queen Victoria exchanged, it is the text in te reo, Te Tiriti o Waitangi, that is the most authoritative record.
In 1840, te reo was the dominant language, and English was spoken by a relatively small minority of the population, although some people were bilingual. Today, the situation is reversed; and to make matters more difficult, both te reo and New Zealand English have changed quite a bit over the past two hundred years.
In 2023, relatively few New Zealanders can read Te Tiriti in the original. Most lawyers, politicians, scholars and citizens have to rely on the English text, the Treaty of Waitangi, and/or translations of Te Tiriti into English. This is understandable, but it can be very misleading.
Where the languages reflect very different understandings of the world (as was the case with te reo and English in 1840), there will always be room for debate about different translations, but that needs to be informed and respectful.
In the case of the Treaty, the key concepts in the English text – ‘sovereignty’ in Article 1, ‘property’ in Article 2, and ‘the rights and privileges of British citizens’ in Article 3; and the parallel concepts in Te Tiriti – ‘kawanatanga’ in Ture 1, ‘tino rangatiratanga’ in Ture 2, and ‘nga tikanga rite tahi’ in Ture 3 had very different meanings and practical implications.
Over the past 50 years, many distinguished scholars, te reo experts, lawyers and decision-makers have grappled with these differences, and tried to reconcile them. Now, however, ACT proposes to sweep all this aside, by rewriting the Treaty of Waitangi from scratch. Unfortunately, however, their proposed ‘Principles’ of the Treaty bear almost no resemblance to the original document.
Far from trying to reconcile different understandings of the Treaty, their text ignores or distorts the original promises. This is disrespectful, and arrogant. For a party that won just 8.6 percent of the vote in the recent election to attempt to rewrite a pact that involves Queen Victoria and her descendants as well as the rangatira and theirs is presumptuous in the extreme.
In these times of crisis, a new government will be assessed on its ability to bring New Zealanders together. ACT’s proposed approach to Te Tiriti will do the opposite. I agree with Helen Clark that it would ‘rip us down the middle,’ and with Jim Bolger that it’s a ‘bloody stupid’ idea.
Totally agree. Arrogant and disrespectful, which Seymour reiterated along side deputy leader van Velden, and Act’s third-ranked Kūpapa MP McKee:
“ Thats obviously an area that we believe is very important for the future of New Zealand ..’’
Seymour said going back to the polls would be “nuclear”.
So would racially inspired civil disobedience.
Totally agree. Arrogant and disrespectful, which Seymour reiterated along side deputy leader van Velden and Act’s third-ranked neo Kūpapa MP McKee: “ Thats obviously an area that we believe is very important for the future of New Zealand ..’’ Seymour said going back to the polls would be “nuclear”. So would racial civil disobedience.
https://www.nzherald.co.nz/nz/david-seymour-speaks-about-coalition-talks-in-auckland/WCJ3Y2KKJPUGLD7HO32YBAX52U/
ACT’s dismissive contempt for the Treaty is made clear in their description of it as “a quaint and illiberal South Pacific constitutional experiment.” Those are the exact words they are using right now, on the ACT referendum page. They also want their specifically defined replacement principles to “prevail over any contradictory enactment by Parliament, or finding on the matter of Treaty Principles by the Courts.”
I agree with much of what Dame Anne says but see some aspects differently. The important point is that Dame Anne fails to differentiate between the Treaty and the principles of the Treaty.
First, the Treaty.
At Waitangi, Governor Hobson signed and presented for signature by the chiefs, a document in Te reo (“Te Tiriti”) prepared by Henry Williams with the help of his son, based on a document in English given to Williams by Hobson. As Dame Anne says, Te Tiriti was the document “debated and signed.” It is the only document signed by Hobson for the Crown and also by the chiefs (apart from an exception which occurred later at Port Waikato where Hobson and a few chiefs signed a document in English, because a copy of Te Tiriti was unavailable).
On 5 February 1840, the Governor read the English text document to a gathering of chiefs. Henry Williams read Te Tiriti to them. The English text has been lost and has had to be reconstructed from drafts. Some 43 northern chiefs signed Te Tiriti at Waitangi on 6 February and 7 February, and it was then taken around the country and signed by about 500 more.
The English text document would not have been understood by any of the chiefs. That’s why it was translated into Te reo. It was not intended to be a literal translation. According to Henry Williams, “In this translation it was necessary to avoid all expressions of the English for which there was no expressive term in the Maori, preserving entire the spirit and tenor of the treaty” (https://www.enzb.auckland.ac.nz/document/?wid=1048&page=0&action=null#note_ref11, 1877 – Carleton, H. The Life of Henry Williams [Vol. II.], p 12.) The translation was discussed with Hobson and Busby on 5 February, and some alterations made before a “fair copy” was prepared for Williams to read to the assembled chiefs (Ibid.).
The English text document was not assented to by the chiefs – it was part of the background, the source of what was signed, but not what was signed. That being so, there was no treaty with an English text. To say there was, is like saying that a draft of a contract prepared by one side and used as a basis for the actual contract has the force and effect of the signed contract. That’s a ridiculous idea. The correct description of Te Tiriti is, therefore, that it is *the* Treaty, not that it is “the most authoritative record” of the Treaty.
Now, the principles.
The 1972-1975 Labour government’s Treaty of Waitangi Act 1975 perpetuated the myth that there were two texts. This seems to have been the reason for introducing an invented idea: Treaty “principles”. The preamble to the 1975 Act stated:
WHEREAS on the 6th day of February 1840 a Treaty was entered into at Waitangi between Her late Majesty Queen Victoria and the Maori people of New Zealand: And whereas the text of the Treaty in the English language differs from the text of the Treaty in the Maori language: And whereas it is desirable that a Tribunal be established to make recommendations on claims relating to the practical application of the principles of the Treaty and, for that purpose, to determine its meaning and effect and whether certain matters are inconsistent with those principles:
An English text and Te Tiriti were scheduled to the Act
Te Tiriti had and has meaning and effect (although some effects are now spent), but it does not have principles. Parliament created a legal fiction and made it worse by starting to refer to the “principles” of the Treaty in subsequent legislation.
The amorphous and open-ended nature of the fictional Treaty principles has allowed claims to be made and actions taken which undermine the principles of equality and democracy which are fundamental to a modern civilised nation. By contrast, as Dame Anne has previously pointed out, Te Tiriti (its meaning and effect) is in alignment with equality and democracy.
It is important to note that the meaning and effect of Te Tiriti cannot be changed. Te Tiriti is an historical fact, and its meaning and effect are what they are. I agree with Dame Anne that it would be wrong to legislate a meaning different to the actual meaning and effect. That would compound the “principles” problem – as it is said, two wrongs don’t make a right. Te Tiriti has a meaning, however difficult it may be to ascertain it. Imposing a meaning different to its meaning would defy reality.
The principles are in a different category Te Tiriti’s meaning. As a statutory creation introduced without definition, Parliament may remedy its omission by defining them. There is nothing disrespectful or arrogant about that. It is the way we do things in a democracy. And, as Dame Anne noted last year,
If there is now a concerted effort to honour Te Tiriti in governance structures, it would be timely to revisit the original Ture 3 promise of “nga tikanga rite tahi” (exactly equal tikanga) for “nga tangata maori” and the incoming settlers, to explore arrangements that make leaders more truly accountable, and that empower rather than disenfranchise ordinary people in New Zealand.
At present, with the creation of ever more centralised, top-down bureaucracies and corporations, the Government is establishing ever more powerful and distanced elites. This generates dangerous disaffection, and a mistrust in democratic institutions.
As Kingi Potatau once said, “Kotahi te kohao o te ngira e kuhuna ai te miro mā, te miro pango, te miro whero” (There is only one eye in the needle, through which the white thread, the black thread and the red thread must pass). Questions of governance affect all strands in our society, and it would be timely for an open, inclusive and mutually respectful debate about constitutional matters.
A new look at more egalitarian, participatory approaches that honour the tino rangatiratanga of “nga tangata katoa o Nu Tirani” (all the people of New Zealand) might be a useful corrective to rising inequality, at a time when many Western democracies are in danger of decline and failure.
I couldn’t agree more. And there should indeed be an “open, inclusive and mutually respectful debate about constitutional matters.” As Parliament created the “principles” problem, parliamentary procedure is the way to try to solve it, and the place to have the debate (together with debate within the wider community, to feed in to the Parliamentary process).
Parliamentary processes involve debate in the House and the Committee of the Whole, and public participation through a Select Committee. Whether the principles so established should be as ACT has suggested or something different, and whether any legislation should be the subject of a referendum before it comes into force are matters which ought to be considered as part of that process.
Ideally, all references to the “principles” should be expunged from legislation, but Treaty principles requirements are now embedded everywhere, and it would be a massive task to weed them out.
If ACT were proposing to rewrite Te Tiriti, that is to say change its meaning, I would oppose the policy. But that’s not the policy. The proposal is to introduce legislation to define the “principles” of the Treaty.
In my view *the* Treaty is the Te reo document signed by Hobson on behalf of the Crown and by the chiefs, Te Tiriti. The document written in English Hobson gave to Henry Williams to translate is the source of Te Tiriti, but has no greater standing than a draft would have in a normal contractual situation. It is not what was signed. On 5 February 1840 Hobson, Busby and Williams discussed Williams’ draft translation, made some changes, and Williams produced a “fair copy” which Williams read to the chiefs.
There are not two Treaty texts, just Te Tiriti — read to the chiefs and signed on behalf of the Crown and by the chiefs.
Te Tiriti has a meaning, however difficult it may now be to ascertain it, given the factors Dame Anne describes. It would be wrong to legislate to change that meaning because doing so would defy reality.
The “principles” are different. Absent legislative invention, Te Tiriti does not have principles, only a meaning. The 1972-1975 Labour government got Parliament to pass the Treaty of Waitangi Act 1975. That legislation created two fictions: that it was a treaty with two texts, and that it had principles.
Ther amorphous and open-ended nature of the fictional Treaty principles has allowed claims to be made and actions taken which undermine the principles of equality and democracy which are fundamental to a modern civilised nation.
By contrast, as Dame Anne has previously pointed out, Te Tiriti is in alignment with equality and democracy. The principles, as they have been developed, are in conflict with Te Tiriti’s meaning. For example, Te Tiriti cannot be read to create a partnership between the Crown and Maori. It has the opposite meaning.
While legislation purporting to change the meaning of Te Tiriti would be wrong, there is no reason why Parliament should not now state what it meant when in 1975 it said there were principles of the Treaty. There is no reason why it should not now define them.
Elsewhere, Dame Anne has said there should be “open, inclusive and mutually respectful debate about constitutional matters.” She was quite right.
It would probably be preferable to purge legislation of all reference to the principles, but Parliament has so recklessly sprinkled the legislation with references to them, it would be a massive task The next best thing is to put up a legislative proposal to define them. There would then be debate in parliament, as well as within the community, with public input through the Select Committee process. Whether the principles should be as ACT has suggested or something different, and whether any legislation should be the subject of a referendum before it comes into force are matters to be dealt with as part of that process.
There is nothing disrespectful or arrogant in a proposal to fix a mess Parliament created.
I have two comments on Dame Anne’s article.
First, she says “the text in te reo, Te Tiriti o Waitangi, that is the most authoritative record.” I would go further than that and say that Te Tiriti is *the* Treaty. Apart from a later, isolated case when at Port Waikato a document in English was signed by the local chiefs and Governor Hobson, apparently because Te Tiriti was unavailable, Te Tirii is the only document signed by the 500-600 chiefs and by Hobson for the British Crown.
On 4 February 1840, Hobson gave a document in English to missionary Henry Williams and asked him to translate it. Overnight Henry and his son Edward prepared a document in Te reo. The next morning Williams discussed his document with Hobson and Resident Busby. Some alterations were made. Williams made a “fair copy.” His words, see https://www.enzb.auckland.ac.nz/document/?wid=1048&page=0&action=null#note_ref11. Hobson asked him to read it to the assembly. He did and there was discussion involving Hobson and the chiefs. Williams provided translations. By next day the chiefs had decided to sign. On 6 and 7 February local chiefs, 43 I think, signed.
Then it was taken round the country.
Williams said, “In this translation it was necessary to avoid all expressions of the English for which there was no expressive term in the Maori, preserving entire the spirit and tenor of the treaty,” so what was signed was never intended to be a literal translation, an impossibility.
Looking at the English document given to Henry Williams, I say as a lawyer, that its status was that of a draft used in the preparation of what was to be signed. Only the document signed by the chiefs and on behalf of the Crown has the status of a legal document. Therefore, the idea of there being two texts is a fiction perpetuated by the Treaty of Waitangi Act 1975.
This leads to the second point. The 1975 Act also created the legal fiction that there are principles of the Treaty.
Te Tiriti has meaning. For reasons Dame Anne gives, and other reasons, it is difficult to state in English what that meaning is. With that reservation, it can be said in general terms that the meaning of Te Tiriti is that by Article 1, Maori gave certain things to the Crown, and by Article 3 the Crown gave certain things to Maori. By Article 2 (and perhaps an aspect of Article 3) the Crown assumed certain ongoing obligations.
Te Tiriti did not purport to, nor did it create principles. The idea that it did and that there are principles was an invention of the 1972-1975 Labour government, put into law by the 1975 Act without Parliament bothering to state what were the principles it was legislating. The problem thus created has since been compounded by the enormous number of statutory requirements to take into account, give effect to the principles, and the like.
Parliament can now say what the principles are, or probably better, it should say that there are no principles. Parliament created the fiction and the problem. It can now correct itself.
Parliament cannot change Te Tiriti’s meaning. The meaning is a matter of objective reality, despite the difficulties of interpretation. Parliament could create another legal fiction by decreeing that it has a particular meaning, but if the meaning so decreed does not conform with the actual meaning, the substance of Parliament’s actions would be a declaration that Te Tiriti will not be complied with.
The Crown’s obligations under Te Tiriti must be honoured, but that must be according to the meaning of the words of Te Tiriti, not in accordance “principles” which in reality, as opposed to legislative fiction, do not exist.
Dame Anne has failed to distinguish between the meaning of Te Tiriti derived from the words used in a solemn compact, which cannot be changed, and fictional principles invented by a careless government which may belatedly be defined or deleted.
I agree with much of what Dame Anne says but see some aspects differently. The important point is that Dame Anne fails to differentiate between the Treaty and the principles of the Treaty.
First, the Treaty.
In my view, as a lawyer, there is only one text, the Te reo document signed by the chiefs and by Hobson on behalf of the Crown.
At Waitangi, Governor Hobson signed and presented for signature by the chiefs, a document in Te reo (“Te Tiriti”) prepared by Henry Williams with the help of his son, based on a document in English given to Williams by Hobson. As Dame Anne says, Te Tiriti was the document “debated and signed.” It is the only document signed by Hobson for the Crown and also by the chiefs (apart from an exception which occurred later at Port Waikato where Hobson and a few chiefs signed a document in English, because a copy of Te Tiriti was unavailable).
On 5 February 1840, at Hobson’s request, Henry Williams read Te Tiriti to the gathering of chiefs. It was then discussed and debated on the day and apparently overnight. On 6 February and 7 February some 43 northern chiefs signed Te Tiriti at Waitangi , and it was then taken around the country and signed by about 500 more.
The translation into Te reo was not intended to be a literal translation. According to Henry Williams, “In this translation it was necessary to avoid all expressions of the English for which there was no expressive term in the Maori, preserving entire the spirit and tenor of the treaty” (https://www.enzb.auckland.ac.nz/document/?wid=1048&page=0&action=null#note_ref11, 1877 – Carleton, H. The Life of Henry Williams [Vol. II.], p 12.) The translation was discussed with Hobson and Busby on 5 February, and some alterations made before a “fair copy” was prepared for Williams to read to the assembled chiefs (ibid.).
The English text document was not assented to by the chiefs – it was part of the background, the source of what was signed, but not what was signed. That being so, there was no treaty with an English text. To say there was, is like saying that a draft of a contract prepared by one side and used as a basis for the actual contract has the force and effect of the signed contract. That’s a ridiculous idea. The correct description of Te Tiriti is, therefore, that it is *the* Treaty, not that it is “the most authoritative record” of the Treaty.
Now, the principles.
The 1972-1975 Labour government’s Treaty of Waitangi Act 1975 legislated the myth that there were two texts. This seems to have been the reason for introducing an invented idea: Treaty “principles”. The preamble to the 1975 Act stated:
“WHEREAS on the 6th day of February 1840 a Treaty was entered into at Waitangi between Her late Majesty Queen Victoria and the Maori people of New Zealand: And whereas the text of the Treaty in the English language differs from the text of the Treaty in the Maori language: And whereas it is desirable that a Tribunal be established to make recommendations on claims relating to the practical application of the principles of the Treaty and, for that purpose, to determine its meaning and effect and whether certain matters are inconsistent with those principles.”
Te Tiriti had and has meaning and effect (although some effects are now spent), but it does not have principles. Parliament created a legal fiction and made it worse by starting to refer to the “principles” of the Treaty in subsequent legislation.
The amorphous and open-ended nature of the fictional Treaty principles has allowed claims to be made and actions taken which undermine the principles of equality and democracy which are fundamental to a modern civilised nation. By contrast, as Dame Anne has previously pointed out, Te Tiriti (its meaning and effect) is in alignment with equality and democracy.
It is important to note that the meaning and effect of Te Tiriti cannot be changed. Te Tiriti is an historical fact, and its meaning and effect are what they are. I agree with Dame Anne that it would be wrong to legislate a meaning different to the actual meaning and effect. Te Tiriti has a meaning, however difficult it may be to ascertain. Imposing a meaning different to its meaning would compound the “principles” problem – as it is said, two wrongs don’t make a right.
The principles are in a different category. As a statutory creation introduced without defining them, Parliament may remedy its omission by defining them. There is nothing disrespectful or arrogant about that. It is the way we do things in a democracy. And, as Dame Anne noted last year,
“If there is now a concerted effort to honour Te Tiriti in governance structures, it would be timely to revisit the original Ture 3 promise of “nga tikanga rite tahi” (exactly equal tikanga) for “nga tangata maori” and the incoming settlers, to explore arrangements that make leaders more truly accountable, and that empower rather than disenfranchise ordinary people in New Zealand.
At present, with the creation of ever more centralised, top-down bureaucracies and corporations, the Government is establishing ever more powerful and distanced elites. This generates dangerous disaffection, and a mistrust in democratic institutions.
As Kingi Potatau once said, “Kotahi te kohao o te ngira e kuhuna ai te miro mā, te miro pango, te miro whero” (There is only one eye in the needle, through which the white thread, the black thread and the red thread must pass). Questions of governance affect all strands in our society, and it would be timely for an open, inclusive and mutually respectful debate about constitutional matters.
A new look at more egalitarian, participatory approaches that honour the tino rangatiratanga of “nga tangata katoa o Nu Tirani” (all the people of New Zealand) might be a useful corrective to rising inequality, at a time when many Western democracies are in danger of decline and failure.”
I couldn’t agree more. And there should indeed be an “open, inclusive and mutually respectful debate about constitutional matters.” As Parliament created the “principles” problem, parliamentary procedure is the way to try to solve it, and Parliament is the place to have the debate (together with debate within the wider community, to feed into the Parliamentary process).
Parliamentary processes involve debate in the House and the Committee of the Whole, and public participation through a Select Committee. Whether the principles so established should be as ACT has suggested or something different, and whether any legislation should be the subject of a referendum before it comes into force are matters which ought to be considered as part of that process.
The coalition agreement between ACT and National signed today (24 November) committed the parties to “Introduce a Treaty Principles Bill based on existing ACT policy and support it to a Select Committee as soon as practicable.” That suggests that National and New Zealand First reserve judgment pending public input through the Select Committee process.
Ideally, all references to the “principles” should be expunged from legislation, and indeed that may be the better way which seems to be NZ First’s view as the agreement between NZ First and National committed the parties to: “Conduct a comprehensive review of all legislation (except when it is related to, or substantive to, existing full and final Treaty settlements) that includes “The Principles of the Treaty of Waitangi” and replace all such references with specific words relating to the relevance and application of the Treaty, or repeal the references.” If this agreement with NZ First is implemented, it may make ACT’s proposal redundant.
If the references remain it is perfectly appropriate, for Parliament to say what the principles are.