Sunday, February 6, 2011

Waitangi Day

What do you know about Waitangi Day or more importantly the Treaty of Waitangi? Up until the early 90s I didn't know very much either. I knew it affected me as a Maori but I didn't know how or what happened. At law school I learnt that the legislature was flawed in terms of its failure to consider Maori in its legislation, but it wasn't until I had to teach it that my eyes were opened. I am amazed today at the misconceptions that people have about this day and the actual treaty - so here are my top five must knows.

1) Protection
The people were seeking protection from the British because of the unrest and lawlessness of the settlors, mistreatment of the people and the fear of an invasion by the French. Maori also saw a relationship with the British would help them protect the encroachment of the settlers onto their land. Remembering, Maori were 40:1 in terms of population, and the land ownership reflected this. Prime real estate was owned and treasured by Maori and protection from the crown would help them keep themselves and their land safe.

2) The Treaty vs the Treaty
There are two versions of the Treaty of Waitangi - the first is in english, a language that many of the people charged with signing, did not understand and did not read. The other version was in Maori which many of them signed. They were exactly the same weren't they? No. Firstly, it is widely regarded that the man responsible for the translation of the English version into Maori, had the weakest command of Maori and chosen for this reason. I am confident that had his choice of  Maori words of the english text, been correctly translated and represented in the Maori version of the treaty - many, if not all, would have seen the things they would have had to relinquish untenable.

3) Tino rangatiratanga vs Kawanatanga
One of the words most discussed are the use of the word kawanatanga (governship) in the maori version and the word that should have been used -  tino rangtiratanga (Chieftainship). Basically, if the word tino rangtiratanga was used it would have highlighted to the people the intention of the Queen to own and rule the land  - as it refers to control of all things - and people would have been less likely to sign. Instead the word kawanatanga was used which basically talked about governship would be handed over (the protection of the people), and Maori chieftainships would remain in control. The rest as they say - is history.

4) Treatment of the treaty
Seven years after the treaty was signed, dissatisfied that their land was still being encroached on, and the protection they believed they were going to be afforded was not realised, one of the first cases landed in court. The judge held that the treaty was 'not binding'. This was followed in 1877 with the words of Judge James Prendergast who called the Treaty ‘a simple nullity’ and claimed that it was neither a valid treaty nor binding on the Crown. In 1938 in Te Heuheu Tukino v Aotea District Maori Land Board, the Treaty was seen as valid in terms of the transfer of sovereignty, but the judge ruled that as it was not part of New Zealand law it was not binding on the Crown. In 2005, Doug Woolerton introduced the Principles of the Treaty of Waitangi Deletion Bill which would see the elimination of all references to the expressions "the principles of the Treaty" and other versions of this from all New Zealand Statutes.

5) Contract law
My favourite activity when teaching the Treaty is to treat it like a contract which is basically an agreement between two parties. The attitude changes after this exercise were always promising..... From a contract point of law (and I see the Treaty as a contract of sorts between two parties) - there are six essential elements to a contract which are: 1) All parties must have capacity to enter the contract, 2) An offer must be made - protection for letting the british st, 3) Consideration must be exchanged, 4) The parties must be in mutual agreement, and 5) The contract's object and purpose must be legal. What do you think? Did Maori get a good contract? Has there been multiple breaches of what was signed up?

Next Waitangi Day - take the time to learn something more about the Treaty of Waitangi. Yes, it is a public holiday which is great - but really, make the effort to learn something new because this country is already full of the uneducated who base the little they know on misconceptions that are portrayed negatively through the media, and worse - other uneducated people....Definitely something to think about over the next 364 days.

Yours in friendship,

Mxox

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