(incorporating the International Ex-Fetus Association)

The Treaty of Waitangi has no Principles

Copyright Peter Zohrab 2003-2005

Introduction

The "Lands case" (New Zealand Maori Council v Attorney General [1987] 1 NZLR 641 (HC and CA)) was a historic court case, in that it was the first to attempt to distill some "principles" out of the Treaty of Waitangi (1840), which was the document under which New Zealand became part of the British Empire. These "principles" had previously only been alluded to in legislation, without being spelled out to any degree whatever. The Lands case has since been followed and applied -- indeed its decisions as to the "principles" have been incorporated into the conventional wisdom about "Maori issues" in New Zealand. I will concentrate my remarks on the reasoning of the whole Court, and on the judgement of the then Court of Appeal President Cooke (later Lord Cooke of Thorndon).

 

Judicial Activism

A lot has been written on judicial activism [see, for example D. Heydon: "Judicial Activism and the Death of the Rule of Law" Quadrant (January 2003 - Volume XLVII Number 1-2) http://www.quadrant.org.au/php/article_view.php?article_id=277 -- last accessed 6 November 2005], and I think few would deny that the Lands case is an instance of judges being ultra-confident as to their right and ability to break new ground. This is not the place to enter into a discussion of judicial activism, but I would like to make three rather speculative points here:

• Judicial activism is a form of provider-capture -- i.e. it happens when professionals (here: judges) decide that they know best, and that they should regulate the parameters of the activity which they are paid to perform -- i.e. they should have the right to decide when they need to intervene to supplement the democratic process, as embodied in Acts of the legislature;
• Judicial activism tends to move the Law to the political Left, because judges who are too conservative to be activist tend also to be conservative in their political views -- so judicial activism is politically biased;
• Judicial activism is linked to religion and ideology -- nowadays to the ideology of Political Correctness, which is the dominant ideology at Western universities, where judges received their training as Law students. An ideology -- like a religion -- gives a judge great self-confidence, and a belief that he/she can do no wrong if he/she follows his/her instincts.

Before looking at substantive issues, it is worth looking at issues of tone. The Court uses hyperbolic language (page 642, lines 48-54) to describe the duties of the Crown towards Maoris -- "utmost good faith", "analogous to fiduciary duties", "active protection", "fullest extent practicable", "infinitely more than a formality", and "insist that it be honoured." This is -- taken as a whole -- certainly not judicious language. It is emotive language, indicating that the judges have been swept up in the Politically Correct tide which rewards with media adulation (and peerages, in some cases) white males who make decisions which please Feminists and ethnic lobby groups. The terms "infinitely" and "insist" strike me as particularly indicative of a loss of rationality.

In addition, there is the question of which version of the Treaty was included in the judgements. Instead of citing the two versions (English and Maori) that were signed in 1840, President Cooke's judgement cites only the modern (re-)translation into English by Professor Kawharu of the Maori version. This is symbolic of President Cooke's apparent attitude that entry into secular Heaven depended on riding rough-shod over the rights and interests of Non-Maoris. This attitude permeates the atmosphere of Law Schools, in my experience.

It is obvious that there is a potential for pro-Maori bias in this translation. The fact that the Crown accepted it for the purposes of this case just shows that the Crown was negligent, and that the Crown in fact represents both the Non-Maori and the Maori electorates, and is therefore not a true inheritor or descendant of the British Crown which signed the Treaty in 1840. There is thus no one to represent Non-Maoris in Treaty negotiations, which are to that extent a corrupt and invalid process. I return to the issue of the translation below.

 

The Case Against Principles

The main argument against the Court's attempt to distill some "principles" out of the Treaty of Waitangi is that this was not necessary for the task it had to perform in the Lands Case. The main issue in that case was the relationship between sections 9 and 27 of the State-Owned Enterprises Act 1986, and section 9 crucially refers to the "principles" of the Treaty of Waitangi -- without indicating what these might be.

However, it did not follow from those facts that the Court had to fill in this "gap" left by Parliament, as it were.

Section 5(2) of the Treaty of Waitangi Act 1975 states:

"In exercising any of its functions under this section the Tribunal (i.e the Waitangi Tribunal -- P.Z.) shall have regard to the 2 texts of the Treaty set out in the First Schedule to this Act and, for the purposes of this Act, shall have exclusive authority to determine the meaning and effect of the Treaty as embodied in the 2 texts and to decide issues raised by the differences between them."

The Waitangi Tribunal has no statutory role in the interpretation of other Acts of Parliament, but the Treaty of Waitangi Act 1975 is the only Act in which Parliament democratically instructs the courts as to how the Treaty of Waitangi should be interpreted. So, if the Court of Appeal had seen itself as a servant of democracy, it should have interpreted the one single word "principles" in the State-Owned Enterprises Act 1986 in the context of the method of interpretation set out in the Treaty of Waitangi Act. -- i.e. it should have had regard to both of the original language-versions of the Treaty, as well as obtaining the meaning and effect of the Treaty from the texts themselves, rather than from any "principles" invented ad hoc by the Court. It was not a reasonable interpretation of the single word "principles" -- without explicit words to this effect -- that this was meant to overthrow the clear wording of the Treaty of Waitangi Act as to the way the Treaty should be interpreted. It would have been a reasonable interpretation to assume that Parliament meant by the shorthand "principles" no more than to refer back to the method of interpretation that it had previously laid down.

 

 

The Case For Principles

On page 662, line 28 of the judgement, President Cooke states:

"The principles of the Treaty are to be applied, not the literal words. As is well-known, the English and Maori texts in the first schedule to the Treaty of Waitangi Act 1975 are not translations the one of the other and do not necessarily convey precisely the same meaning."

We have to assume that the second sentence quoted above is meant to state the reason for the conclusion stated in the first sentence. However, that second statement is not precisely correct, and -- to the extent that it is correct -- it does not justify the conclusion that the texts should be ignored in favour of "principles".

• It is well-known that the Treaty was first drafted in English and then translated into Maori. What Cooke was referring to above was the fact that the particular English draft that was signed in 1840 was not that which was translated into the Maori version that was signed in that year, but it is an exaggeration to say that the Maori version is not a translation of the English version;
• Cooke does not attempt to show that the differences between the English and Maori versions are significant enough to support his conclusion that the Court should apply the principles instead of the texts -- for the simple reason that he would have failed to demonstrate that, if he had tried (see discussion below);
• Translations routinely and necessarily do not "convey precisely the same meaning" -- and I say that as a former professional translator.
• The theory and practice of bilingual treaties takes this problem for granted, and does not support giving up the text in favour of "principles", as far as I am aware. See, for example, Article 33 of the Vienna Convention on the Law of Treaties, which is reproduced below:

  "Article 33
  Interpretation of treaties authenticated in two or more languages

  1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.

  2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree.

  3. The terms of the treaty are presumed to have the same meaning in each authentic text.

  4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted":

  Cooke (page 655, lines 32-34) decides not to address the questions of whether the Treaty of Waitangi has a status in international law, and of what this would entail for the Treaty's interpretation. This leaves a foul taste in the mouth, as it prevents the judgement from being transparent. There is no evading the facts that the Treaty of Waitangi was called a "treaty", and that it is a bilingual document, so it would be natural to base its interpretation on the theory and practice of interpreting treaties -- although (as has been kindly pointed out to me) the Vienna Convention on the Law of Treaties post-dates the Treaty of Waitangi and was not retroactive -- unless there was a more persuasive authority. Cooke does not cite any authority for his recourse to "principles", so he is to all intents and purposes building a castle in the air.

  This may be what led Professor Matthew Palmer to be moved to remark:

  "I have faced various queries from foreign and domestic commentators as to whether the reference to 'principles' is a 'plot'."("The Treaty ofWaitangi in Legislation" [2001] NZLJ 207.)

• Logically, one would have to derive one's "principles" from the texts of the treaty anyway, so it is hard to see how the adoption of "principles" could be seen as a solution to divergences in meaning between two treaty texts (!);

 

 

Differences between the English and Maori texts of the Treaty of Waitangi

I list the significant differences between the English and Maori versions of the Treaty signed in 1840 in the table below. I have incorporated the bulk of the the differences discussed in the article: "He Tirohanga o Kawa ki te Tiriti o Waitangi" (Te Puni Kokiri, Wellington, 2001) -- which is in English, despite the Maori title.

 

I don't think the above differences justify abandoning the texts in favour of "principles". To do this, the differences would have to be major and intractable. Moreover, as stated earlier, if the texts did differ substantially, it would be even more questionable to try to extract "principles" from them !

As regards items nos. 2 and 3, the English version is wordier, but that is typical of English Legalese. Maori society did not have a written language or a legal system of that degree of formality, so the Maori translations would necessarily be brief and less precise.

In item 4, the English "Forests Fisheries" is replaced by the word for "villages" (kainga). If I could be sarcastic for a moment, I have seen no evidence that Maoris have refused to rely on the English version to assert their claims to forests and fisheries -- although, where it suits them, they have been quick to claim that the Maori text's use of "tino rangatiratanga" and "taonga" guarantees them more than do the English equivalents ("full exclusive and undisturbed possession" and "properties", respectively). There is a need in Equity to make sure that the Maoris do not "get their cake and eat it too" -- they should not be allowed to squeeze the maximum benefit out of the English version, and then turn, later, to the Maori version, insist that that is the authoritative version, and try to squeeze the maximum benefit out of that, in turn ! Abandoning the text for "principles" makes it harder to keep track of this sort of sleight-of-hand.

For Professor Kawharu to re-translate "taonga" back into English as "treasures" amounts to fraud -- compounded by President Cooke's reckless inclusion of Professor Kawharu's non-authentic version as the only version of the Treaty which he cites in his judgement. . The Treaty was written first in English and then translated into Maori. So much is certain and undisputed. The word "taonga' was correctly chosen to translate the English word "properties" -- I don't think anyone disputes that, either. Indeed, if you look up "property" in the Concise Maori Dictionary (1973, Wellington: AH & AW Reed), you find "taonga" as the only Maori equivalent listed.

According to Article 33 of the Vienna Convention on the Law of Treaties, the proper approach to such issues is to adopt the meaning which best reconciles the texts, having regard to the object and purpose of the treaty. If you look up "taonga" in the above-mentioned dictionary, you find that it lists the two English equivalents: "possessions" and "valuables". The word "possessions" is very similar to "property", and the word "valuables" is very similar to Professor Kawharu's word "treasures". The concept "possessions/property" is wider than the word "valuables/treasures", in that all valuables/treasures are also possessions/property, but not all possessions/property are valuables/treasures. That would be one reason for preferring the word "property". However, the most telling argument in favour of the word "property" is that that word is a valid meaning of the word "taonga", and it is the word that is present in the English version.

The article "He Tirohanga o Kawa ki te Tiriti o Waitangi" states that the word "taonga" is "a more abstract and wide-ranging term" than "properties", and is likely to have included intangible valued possessions such as genealogical knowledge and important customs. Assuming it is true that "taonga" could include items which would not normally be included in the word "properties", that is not, in itself, very significant in this context -- unless it was shown that the Maori signatories at the time actually believed that genealogical knowledge and important customs were included.

Every word in every language has various shades of meaning, and different shades are highlighted by the context on different occasions. For example, the English word "saw", as a noun, can designate a range of cutting tools from hacksaws to chainsaws. If the context is a discussion about cutting metal, the word "saw" would be interpreted as referring to a hacksaw -- not to a chainsaw. The issue at hand is which of the shades of meaning of "taonga" are relevant here. When the Treaty was signed, were the Maori chiefs told, or were they thinking, that the word "taonga" referred to abstract entities such as genealogical knowledge, customs, and the Maori language ? I think that is very unlikely. And even if that was the case, that would be overridden by Article 33 of the Vienna Convention on the Law of Treaties.

There does seem to be a problem with item 5 -- the exclusivity of the Government's right of preemption -- but I don't think that is an important issue nowadays in terms of Maori-Non-Maori relations. As far as item 6 is concerned, my elementary knowledge of Maori is insufficient to understand the relevant part of the Maori version, so I have to rely (paradoxically) on Professor Kawharu's version. He says that the Maori translation of "Rights and Privileges" means "rights and duties". That counts against any claim that "te tino rangatiratanga" means "autonomy", because it might seem contradictory for the Treaty to intend that the Maoris should have "duties" towards the Crown and yet be autonomous. Even the phrase "Rights and Privileges of British Subjects" in the English version implies duties, since British subjects (the menfolk, at least) did have duties to the Crown -- especially in time of war.

 

The Principles themselves

Assuming, for the sake of argument, that the Treaty could or should be interpreted in terms of "principles", let us look at the actual principles that the Court in the Lands case chose. As mentioned earlier, there is a paradox here, in that it is hard to derive convincing principles from two texts which, ex hypothesi, are deemed to be incapable of being interpreted without the help of such principles. What, then, is the source of the principles ?

Astoundingly or unsurprisingly (depending on your level of cynicism), the judgements give few clues as to how the learned Justices arrived at their principles -- other than a reference to whatever a Court might assume to be the current (and changeable) spirit of the times, as to the relationship between Maoris and non-Maoris (page 664, lines 1-22) ! Since no overt mechanism has been explained for arriving at principles, it is not clear what does and what does not constitute a "principle". Nevertheless, I discuss below what appear to have been described as principles by a majority of the learned Justices in the Lands case.

There appear to be two types of principle -- the type which emerges in some way from the two texts of the Treaty, and the type which would presumably apply to all agreements, contracts and treaties (which we could call "Metaprinciples").

a) Text-Based Principles

• Protection of Maori Land -- this is noncontroversial, and would surely emerge from any direct interpretation of the texts themselves;
• Active Protection of the Maoris -- it is hard to see any textual grounds for either accepting or rejecting this principle;
• Redress of Grievances -- there is not the slightest mention in the Treaty of the issue of grievances. As far as I am aware, legal documents are not taken as implying any mechanism for the redress of grievances that is not explicitly provided for. There is of course a moral duty to redress grievances, and other documents (such as the Treaty of Waitangi Act 1975) may well provide mechanisms, but there is no textual basis for importing such an obligation into the Treaty itself.

 

b) Metaprinciples

• Good Faith -- that goes without saying, but is there any reason for it to be "utmost" good faith (page 642, line 49) ? I am not aware that a Government is conventionally expected to have a fiduciary relationship of "utmost good faith" with any of its citizens;
• Reasonableness -- that also goes without saying;
• Partnership -- this is the most "creative" and unfounded of the principles. The Treaty-Partners in 1840 were the British Crown's representative and certain Maori chiefs. There is no reading of the texts, nor any principle of treaty-formation (or of contract-formation) whereby the partners who sign the document in question remain partners under it -- unless the document itself creates or maintains that relationship of partnership. The Treaty of Waitangi neither mentions nor implies the term "Partnership" -- indeed, Article 3 implies the extinction of the Partnership relation, by stating that the Maoris would henceforth be Subjects (under Article 3 of the English version) of the British Crown.

When I was a student of the course "Legal System" at Victoria University of Wellington, my tutor, who was also the tutor for the special tutorials for Maori and Polynesian Law students, never got as far as discussing Article 3 of the Treaty, in her tutorial on The Treaty. I do not believe that was an accident, since Article 3 is an obstacle for those people (who are the only ones allowed to teach Public Law at New Zealand universities, as far as I can see) who want to pretend that the Treaty of Waitangi was about the Crown giving rights to Maoris and expecting nothing (or nearly nothing) from the Maoris in return.

On page 664, line 1, Cooke states that the Treaty signified a "partnership between races," and it has become common to refer to "Biculturalism" as between Maoris and Europeans -- but neither the word "race" nor the word "culture" is mentioned or implied in the Treaty. The British Empire was already multicultural (at least, it included many races and cultures) in 1840, and there is absolutely no evidence that the Treaty was intended to exclude races or cultures other than Europeans and Maoris. This is a crucial issue in contemporary New Zealand, where Maori racism towards Asians has become prominent, in addition to other forms of racism.

 

Conclusion

The adoption of a "principles"-based decision in the Lands case was politically driven, based on an unscientific and subjective impression of what the consensus and the trends in New Zealand society were as regards Treaty issues (page 664, line 22), and on an assumed consensus in the Legal fraternity (page 655 line 44), which -- to the extent that it existed -- was itself the product of indoctrination by the unrepresentative Media-University Complex (MUC) in general, and by the Law schools, in particular. The principles-based solution was not transparent, and was only made possible by a deliberate refusal, on the part of the Court, to examine powerful arguments that would have led to a different approach (page 655, line 31).

See also: "Principles of the Treaty of Waitangi" Deletion Bill

and

Orewa Speech - Nationhood

 

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