A Treaty under Seige
Can colonizers be trusted to keep their promises?
1940 - 1840 by Haddon, Oriwa Tahupotiki (Rev), 1898-1958; New Zealand. Department of Māori Affairs
February 6, 1840, the Treaty of Waitangi was signed,1 opening the door to the establishment of New Zealand in a mutual co-existence treaty with the indigenous people of New Zealand, the Maori.
The rights were ignored in the Treaty, and a Tribunal was established by the New Zealand government to interpret and administer the Treaty.
There are two versions: a Maori language version and an English version.
The English version deviates substantially from the Maori language version in important ways. For example the Maori language version of the Treaty guarantees rangatiratang which translates to “self-determination”, a concept in U.S. Federal Indian Law that means sovereignty is recognized and the right to self-governance is implicit in that sovereignty. However, the English translation says the opposite: that the Maori chiefs “cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty”, period. No mention of self-determination in the English translation.
Another term in the Maori language translation of the Treaty is kawanatanga, which is a word that is an invitation to the British to set up their own government for governing themselves, given the Maori observed they were lawless and disorganized. It was not reinterpreting sovereignty for the Maori.
Re-interpreting the Treaty
Some lawmakers have decided to reinterpret the rights of the Maori people guaranteed in the Treaty. This may come on the heels of substantial progress being made to recognize those rights in recent years, including being one of the first Nations on earth to recognize the rights of the Whanganui River in 2014 based on the authority of the Treaty.2 In 2022, a new curriculum was introduced that included teaching the substance and history of the Treaty of Waitangi, a foundation document of New Zealand.3
This recent progress may be a threat to those who do not understand the divestment of land in exchange for autonomy and self-governance agreed between the Maori people and the colonists. I doubt they want to give the land back in their bid to reinterpret the Treaty.
According to reports, there are about 975,000 Maori individuals in New Zealand living throughout the country. They make up about 19 percent of the country’s 5.3 million people. The Maori have their own political party, called the Te Pati Maori, which currently holds six of the 123 seats in the New Zealand Parliament.
A bill was introduced to reinterpret the Treaty to give all New Zealanders the same rights with no distinction from the Maori. This would essentially destroy their self-governance and the sovereignty of the Maori as an independent People who were living there before the British arrived to colonize it.
The Maori rise to the occasion with a haka
In response to this, the junior Maori representative in the Parliament rose and performed a haka which is the unique warrior ritual of the Maori. If you have watched any soccer games in that part of the world, you have likely seen the team perform this ritual before the game. They are honestly scary and that is how it is intended — to strike fear in the heart of the enemy. I had the pleasure of seeing the haka performed in person in the Pacific Islands, in the Fiji Islands some years ago, and I can attest it would strike fear in the heart of the enemy.
This haka “went viral” in social media and drew about 42,000 other Maori to Wellington from the north and the south to protest this bill. They marched in protest in the capital city to show their opposition to this bill.
Political commentators say there is little chance of this bill passing, but the real problem is that in New Zealand, if 300,000 people sign a petition, the issue can go to a referendum public vote. A referendum is not likely to pass, but it is certainly a risk.
Can the colonists be trusted to keep their word?
New Zealand signed the treaty in 1840, and then became independent from Great Britain in 1947. Throughout most of those years, the rights of the Maori were ignored and 90% of their land was taken while the government was complicit. Now they want to reinterpret the treaty when some movement toward recognizing those rights has been underway.
Pres. Andrew Jackson told the Choctaws that they could have their new lands “as long as the grass grows and the water runs/rivers flow,” which has become a symbol of duplicity on the part of the government and its relationship to Native Nations in the U.S..4 Unfortunately, the interpretation of treaties in the U.S. has often led to non-intuitive results and results that are contrary to what the Tribes who signed them, understood as the meaning.
In interpreting American Indian Treaties, a collection of canons of construction have been developed through the cases decided by federal courts.5 One of those canons of construction require that treaties be interpreted in the way that the Tribes would have interpreted them at the time. This is in part due to the likely language barrier and the interpretation of the treaties may be uncertain, and because they are the less powerful party in the agreement.
Ironically, it is a member of Parliament, Daniel Seymour, a Libertarian and a Maori, who has proposed the bill that would stop giving Maori “special treatment”. Right and left-leaning former Prime Ministers oppose it as do many senior lawyers in the country, because it would disrupt Constitutional law decisions and laws passed on the legal authority of the Treaty.6
The media reporting on this conflict is following their assumptions that this is a race-based discriminatory conflict; but that is not the essence of this conflict. The Treaty recognizes a government to government relationship and that is what is at stake. Focusing on race as the conflict allows them to tuck it in their progressive pocket to be dealt with in a civil rights framework. Sure, there are many instances of racial discrimination but that is not this fight. This conflict is about respect and honor by the New Zealand government for a bargain that was struck on an uneven playing field between the Maori and the government of New Zealand. In that Treaty, the Maori agreed to give up vast regions of their territory in exchange for peace and co-existence and particularly, self-governance while retaining their existing sovereignty as the Maori government. If they want to “re-interpret” the Treaty, I suggest they begin by giving back all the land that was exchanged in the text (whether in Maori or English).
https://www.newzealand.com/us/plan/business/waitangi-treaty-grounds/
https://therevelator.org/te-awa-tupua-act
https://www.rnz.co.nz/news/political/463479/aotearoa-new-zealand-history-curriculum-launches
https://inlandiainstitute.org/publication/as-long-as-the-grass-shall-grow-and-rivers-flowa-history-of-native-americans/
https://dc.law.utah.edu/cgi/viewcontent.cgi?article=1292&context=scholarship
https://apnews.com/article/treaty-waitangi-zealand-protest-principles-parliament-623dbb403ca78ad35cd96d9392e12778