{"id":1479386,"date":"2024-02-03T05:47:44","date_gmt":"2024-02-03T05:47:44","guid":{"rendered":"https:\/\/asiapacificreport.nz\/?p=96616"},"modified":"2024-02-03T05:47:44","modified_gmt":"2024-02-03T05:47:44","slug":"waitangi-day-2024-5-myths-and-misconceptions-that-confuse-nzs-1840-treaty-debate","status":"publish","type":"post","link":"https:\/\/radiofree.asia\/2024\/02\/03\/waitangi-day-2024-5-myths-and-misconceptions-that-confuse-nzs-1840-treaty-debate\/","title":{"rendered":"Waitangi Day 2024: 5 myths and misconceptions that confuse NZ\u2019s 1840 Treaty\u00a0debate"},"content":{"rendered":"<p><strong>ANALYSIS:<\/strong> <em>By <a href=\"https:\/\/theconversation.com\/profiles\/paul-moon-1505420\">Paul Moon<\/a>, <a href=\"https:\/\/theconversation.com\/institutions\/auckland-university-of-technology-1137\">Auckland University of Technology<\/a><\/em><\/p>\n<p>When it comes to grappling with the <a href=\"https:\/\/nzhistory.govt.nz\/politics\/treaty-of-waitangi\">Treaty of Waitangi<\/a>\/Te Tiriti o Waitangi, one of the commonest responses is that it is a matter of interpretation. It seems to be a perfectly fair reaction, except that historical interpretation generally requires adherence to rules of evidence.<\/p>\n<p>It is not a licence to make any claims whatsoever about the Treaty, and then to assert their truth by appealing to the authority of personal interpretation.<\/p>\n<p>Yet since the 1970s New Zealanders have been faced with the paradoxical situation of a growing body of Treaty scholarship that has led to less consensus about its meaning and purpose.<\/p>\n<ul>\n<li><strong><a href=\"https:\/\/theconversation.com\/history-and-myth-why-the-treaty-of-waitangi-remains-such-a-bloody-difficult-subject-202038\">READ MORE: <\/a><\/strong><a href=\"https:\/\/theconversation.com\/history-and-myth-why-the-treaty-of-waitangi-remains-such-a-bloody-difficult-subject-202038\">History and myth: why the Treaty of Waitangi remains such a \u2018bloody difficult subject\u2019<\/a><\/li>\n<li><a href=\"https:\/\/theconversation.com\/learning-to-live-with-the-messy-complicated-history-of-how-aotearoa-new-zealand-was-colonised-172219\">Learning to live with the &#8216;messy, complicated history&#8217; of how Aotearoa New Zealand was colonised<\/a><\/li>\n<li><a href=\"https:\/\/theconversation.com\/waitangi-day-2024-5-myths-and-misconceptions-that-confuse-the-treaty-debate-221973\">Explainer: the significance of the Treaty of Waitangi<\/a><\/li>\n<\/ul>\n<p>It is therefore worthwhile to investigate some of the more common misconceptions about the Treaty that have accrued over recent decades.<\/p>\n<p>This will not lead to a definitive interpretation of the Treaty. But it might remove a few obstacles currently in the way of understanding it better.<\/p>\n<blockquote class=\"twitter-tweet\">\n<p dir=\"ltr\" lang=\"en\">The government has been warned to &#8220;be careful&#8221; with its policies affecting M\u0101ori at the National Iwi Chairs Forum (NICF) on Friday.<a href=\"https:\/\/t.co\/8SskRWTxGo\">https:\/\/t.co\/8SskRWTxGo<\/a><\/p>\n<p>\u2014 RNZ Te Ao M\u0101ori (@RNZTeAoMaori) <a href=\"https:\/\/twitter.com\/RNZTeAoMaori\/status\/1753326197549977905?ref_src=twsrc%5Etfw\">February 2, 2024<\/a><\/p><\/blockquote>\n<p><script async src=\"https:\/\/platform.twitter.com\/widgets.js\" charset=\"utf-8\"><\/script><\/p>\n<p><strong>1. The Treaty or Te Tiriti?<br \/>\n<\/strong>A common view persists that the English and M\u0101ori versions of the Treaty are fundamentally at odds with each other, especially over the central issue of sovereignty.<\/p>\n<p>But research over the past two decades on <a href=\"https:\/\/waitangitribunal.govt.nz\/assets\/WT-Part-2-Report-on-stage-1-of-the-Te-Paparahi-o-Te-Raki-inquiry.pdf\">British colonial policy prior to 1840<\/a> has revealed that Britain wanted a treaty to enable it to extend its jurisdiction to its subjects living in New Zealand.<\/p>\n<p>It had no intention to govern M\u0101ori or usurp M\u0101ori sovereignty. On this critical point, the two versions are essentially in agreement.<\/p>\n<p><strong>2. The Treaty is not a contract<br \/>\n<\/strong>The principle of <em>contra proferentem<\/em> &#8212; appropriated from contract law &#8212; refers to ambiguous provisions that can be interpreted in a way that works against the drafter of the contract.<\/p>\n<p>However, there are several problems in applying this principle to the Treaty. Firstly, treaties are <a href=\"https:\/\/heinonline.org\/HOL\/LandingPage?handle=hein.journals\/byrint11&amp;div=8&amp;id=&amp;page=\">different legal instruments from contracts<\/a>. This explains why there are correspondingly few examples of this principle being used in international law for interpreting treaties.<\/p>\n<p>Secondly, as there are no major material differences between the English and M\u0101ori versions of the Treaty when it comes to M\u0101ori retaining sovereignty, there is no need to apply such a principle.<\/p>\n<p>And thirdly, under international law, treaties are not to be interpreted in an adversarial manner, but in good faith (the principle of <a href=\"https:\/\/www.jstor.org\/stable\/2203309\"><em>pacta sunt servanda<\/em><\/a>). Thus, rather than the parties fighting over the Treaty\u2019s meaning, the requirement is for them to work <em>with<\/em> rather than against each other.<\/p>\n<blockquote class=\"twitter-tweet\">\n<p dir=\"ltr\" lang=\"en\">Nearly 400 people have marched down the main street of Kait\u0101ia in a show of support for Te Tiriti o Waitangi.<a href=\"https:\/\/t.co\/3BGtm8BMbw\">https:\/\/t.co\/3BGtm8BMbw<\/a><\/p>\n<p>\u2014 RNZ Te Ao M\u0101ori (@RNZTeAoMaori) <a href=\"https:\/\/twitter.com\/RNZTeAoMaori\/status\/1753269390525780401?ref_src=twsrc%5Etfw\">February 2, 2024<\/a><\/p><\/blockquote>\n<p><script async src=\"https:\/\/platform.twitter.com\/widgets.js\" charset=\"utf-8\"><\/script><\/p>\n<p><strong>3. Relationships evolve over time<br \/>\n<\/strong>No rangatira (chief) ceded sovereignty over their own people through the Treaty. Nor was that Britain\u2019s intention &#8212; hence Britain\u2019s recognition in August 1839 of hap\u016b (kinship group) sovereignty and the guarantee in the Treaty that rangatiratanga (the powers of the chiefs) would be protected.<\/p>\n<p>Britain simply wanted jurisdiction over its own subjects in the colony. This is what is known as an \u201coriginalist\u201d interpretation &#8212; one that follows the Treaty\u2019s meaning as it was understood in 1840.<\/p>\n<p>This has several limitations: it precludes the emergence of Treaty principles; it wrongly presumes that all involved at the time of the Treaty\u2019s signing had an identical view on its meaning; and, crucially, it ignores all subsequent historical developments.<\/p>\n<p>Treaty relationships evolve over time in numerous ways. Originalist interpretations fail to take that into account.<\/p>\n<p><strong>4. Questions of motive<br \/>\n<\/strong>British motives for the Treaty were made explicit in 1839, yet in the following 185 years false motives have entered into the historical bloodstream, where they have continued circulating.<\/p>\n<p>What Britain wanted was the right to apply its laws to its people living in New Zealand. It also intended to \u201ccivilise\u201d M\u0101ori (through creating the short-lived Office of Protector of Aborigines) and protect M\u0101ori land from unethical purchases (the pre-emption provision in Article Two of the Treaty).<\/p>\n<p>And Britain wanted to afford M\u0101ori the same rights as British subjects in cases where one group\u2019s actions impinged on the other\u2019s (as in the 1842 <a href=\"https:\/\/ojs.aut.ac.nz\/te-kaharoa\/index.php\/tekaharoa\/article\/view\/61\/58\">Maket\u016b case<\/a>, involving the conviction for murder and execution of a young M\u0101ori man).<\/p>\n<p>The Treaty was not a response to a <a href=\"https:\/\/h-france.net\/rude\/wp-content\/uploads\/2017\/08\/vol5_11_Jennings_Marists_Colonial_Policy_final.pdf\">French threat to New Zealand<\/a>. And it was not an attempt to conquer M\u0101ori, nor to deceive them through subterfuge.<\/p>\n<p><strong>5. Myths of a \u2018real\u2019 Treaty and 4th article<br \/>\n<\/strong>Over the past two decades, some have alleged there is a \u201creal\u201d Treaty &#8212; the so-called \u201c<a href=\"https:\/\/www.wgtn.ac.nz\/stout-centre\/research-and-publications2\/research-units\/towru\/publications\/The-Littlewood-Treaty.pdf\">Littlewood Treaty<\/a>\u201d \u2013 that has been concealed because it contains a different set of provisions. Such conspiratorial claims are easily dispelled.<\/p>\n<p>The text of the Littlewood Treaty is known and it is merely a handwritten copy of the actual Treaty. And, most obviously, it cannot be regarded as a treaty on the basis that no one signed it.<\/p>\n<p>Another popular myth is that there is a fourth article of the Treaty, which purportedly guarantees religious freedom. This article <a href=\"https:\/\/www.waitangitribunal.govt.nz\/treaty-of-waitangi\/meaning-of-the-treaty\/\">does not appear<\/a> in either the M\u0101ori or English texts of the Treaty, and there is no evidence the signatories regarded it as a provision of the agreement.<\/p>\n<p>It is a suggestion that emerged in the 1990s, but lacks any evidential or legal basis.<\/p>\n<p>Finally, there is the argument that the Treaty <a href=\"https:\/\/theconversation.com\/waitangi-2024-how-the-treaty-strengthens-democracy-and-provides-a-check-on-unbridled-power-221723\">supports the democratic process<\/a>. In fact, the Treaty ushered in a non-representative regime in the colony. It was the <a href=\"https:\/\/nzhistory.govt.nz\/proclamation-of-1852-constitution-act\">1852 New Zealand Constitution Act<\/a> that gave the country a democratic government \u2013 a statute that incidentally made no reference to the Treaty\u2019s provisions.<\/p>\n<p>This list is not exhaustive. But in dispensing with areas of poor interpretation, we can improve the chances of a more informed and productive discussion about the Treaty.<!-- Below is The Conversation's page counter tag. Please DO NOT REMOVE. --><img decoding=\"async\" style=\"border: none !important; box-shadow: none !important; margin: 0 !important; max-height: 1px !important; max-width: 1px !important; min-height: 1px !important; min-width: 1px !important; opacity: 0 !important; outline: none !important; padding: 0 !important;\" src=\"https:\/\/counter.theconversation.com\/content\/221973\/count.gif?distributor=republish-lightbox-basic\" alt=\"The Conversation\" width=\"1\" height=\"1\" \/><!-- End of code. If you don't see any code above, please get new code from the Advanced tab after you click the republish button. The page counter does not collect any personal data. More info: https:\/\/theconversation.com\/republishing-guidelines --><\/p>\n<p><a href=\"https:\/\/theconversation.com\/profiles\/paul-moon-1505420\"><em>Dr Paul Moon<\/em><\/a><em> is professor of history, <a href=\"https:\/\/theconversation.com\/institutions\/auckland-university-of-technology-1137\">Auckland University of Technology.<\/a>\u00a0This article is republished from <a href=\"https:\/\/theconversation.com\/\">The Conversation<\/a> under a Creative Commons licence. Read the <a href=\"https:\/\/theconversation.com\/waitangi-day-2024-5-myths-and-misconceptions-that-confuse-the-treaty-debate-221973\">original article<\/a>.<\/em><\/p>\n\n<p class=\"syndicated-attribution\">This post was originally published on <a href=\"https:\/\/asiapacificreport.nz\/2024\/02\/03\/waitangi-day-2024-5-myths-and-misconceptions-that-confuse-nzs-1840-treaty-debate\/\">Asia Pacific Report<\/a>. <\/p>","protected":false},"excerpt":{"rendered":"<p>ANALYSIS: By Paul Moon, Auckland University of Technology When it comes to grappling with the Treaty of Waitangi\/Te Tiriti o Waitangi, one of the commonest responses is that it is a matter of interpretation. It seems to be a perfectly fair reaction, except that historical interpretation generally requires adherence to rules of evidence. It is<\/p>\n","protected":false},"author":400,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[441,73616,28097,250,20115,432,363,5,365,73617,6,7,388,377,118,254,255,12,73618,417,8174,2295,1743,6532,23081,6600,5863,72810,73619],"tags":[],"_links":{"self":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/1479386"}],"collection":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/users\/400"}],"replies":[{"embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/comments?post=1479386"}],"version-history":[{"count":3,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/1479386\/revisions"}],"predecessor-version":[{"id":1480656,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/1479386\/revisions\/1480656"}],"wp:attachment":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/media?parent=1479386"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/categories?post=1479386"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/tags?post=1479386"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}