MIchael Cullen: Anzac Day harmony points way to Waitangi's future

Opinion

Michael Cullen
Deputy Prime Minister

Nearly all countries have some kind of national day. In the United States, Independence Day, and across the Tasman, Australia Day, are days where the nation as a whole celebrates its identity and history.

In New Zealand we could say that we have two days which are like national days. One used to be the source, 30 years or so ago, of great bitterness and division. Now, Anzac Day is a day where, despite all our differences of perspective, we remember our past. That is even though in doing so we commemorate our biggest military disaster.

Our other national day, Waitangi Day, remains for many a source of argument and division rather than celebration or commemoration.

This despite all that we have to be grateful for, to celebrate, to commemorate, even to just enjoy. A country of enormous beauty, a country which by any reasonable standards is prosperous, a country with a continuous political tradition unbroken by civil war or revolution for over 150 years, something a bare handful of countries can celebrate.

Yet at the heart of our nation and its history lies a not-yet-finished debate as to the meaning of the document which in one sense begins that unbroken history, the Treaty of Waitangi.

The fact that there is such an ongoing debate is not necessarily a bad thing; it may reflect the vital, vibrant, and changing nature of our society. Debate can be either constructive if it leads to better understanding and agreement or destructive if it destroys the basic fabric of tolerance essential to a democracy.

In an age where the media, especially the electronic media, wish to highlight conflict and drama the danger is always that the bias is towards the destructive end of the spectrum.

That risk is increased by its racial connotations. It is also not helped by the fact that most of us were educated at a time when we learned little of substance about the treaty.

Work by historians from the 1970s onwards has greatly increased our understanding of what happened at the time the treaty was signed. We now appreciate, for example, that there are significant differences between the English and Maori versions of the treaty.

The differences are important because we need to understand the version of the treaty that the Maori chiefs who signed could have been expected to have understood. That is, of course, the one in Maori. The Maori version both seemed to guarantee more to Maori than the English version and was much less clear on the key issue of the transfer of sovereignty to the British Crown.

For example, whereas in the English version Maori were guaranteed the exclusive possession of their lands, forests, and fisheries, what was guaranteed protection in the Maori version were their taonga - the much more extensive concept of treasures.

Increasingly, the New Zealand courts and the Waitangi Tribunal have placed more emphasis on the Maori version where these differences remain of significance.

On the issue of sovereignty I believe that it is pushing things too far to argue that the chiefs willingly transferred what the British at the time, and we today, would understand by the term sovereignty. In a society based on tribal or sub-tribal groups, with no national political, administrative, or legal structures, it is hard to believe that could have been the case.

So, what can we say about what can be reasonably drawn as to the meaning of the treaty?

First, that Maori accepted some form of authority was going to be exercised over New Zealand by the British Queen through her local agent, the Governor. But Maori would continue to have significant authority themselves over those matters that related to them, especially to them alone.

Second, that the authority the British were to exercise was in large part to be used to protect Maori from the negative impacts of colonial settlement.

Finally, that Maori would acquire the same rights and duties as British citizens.

In practice, of course, the first element became the assertion of sovereignty by the British Crown which was proclaimed some three months later. And that sovereignty has been exercised continuously since and has created the political, administrative, and judicial framework within which we now live.

Whatever the understanding or misunderstanding in 1840, in 2005 it is now too late to revisit the issue of sovereignty.

What has dominated treaty issues over the past quarter of a century has not been that. It has been the issues around Article II, the article that deals with the matter of the protection of Maori possessions or taonga.

And that, of course, has been itself dominated by the matter of grievances. It is not my role today to argue that there are not too many lawyers making too fat a living out of Maori grievances. But to concentrate on this effect is to ignore the cause of the problem. That is that, in the 19th century in particular, the treaty was breached with monotonous regularity by New Zealand governments.

Not merely was there a failure to exercise protection, the Crown was at times in the forefront of the process of dispossessing Maori of their language, their lands, their culture, and much else.

As a first-generation Kiwi who immigrated as a 10-year-old 50 years ago I refuse to bathe in the self-righteous glow of guilt over this - my ancestors were being oppressed in different ways at the same time. Nor can collective guilt be visited on present generations. But, as a New Zealander, I recognise that putting right these grievances, acknowledging wrongs and providing redress is a necessary phase of our history.

We do not yet know the final cost of all this. But so far with some big settlements already made it is a tiny, tiny fraction of our national income.

People worry that the process will go on forever. It will not, but it will take some years yet.

And the Government believes the process itself should be able to be completed within 10 to 15 years.

I suspect that more concern arises from fears about what the so-called principles of the treaty are.

There is no definitive statement of what exactly they are. There is a statement of the principles the Government adopted in 2000 to guide it in negotiating the settlement of historical claims. But those are only marginally relevant to the broader principles.

The courts and the Waitangi Tribunal have nevertheless elaborated on the term.

The first, the most difficult, is what has been called the principle of partnership. By that the courts in particular have meant the duty, on both parties, to act reasonably, honourably, and in good faith. Unlike the tribunal, the courts have made it clear that this is not necessarily a partnership of equals but it is a genuine partnership.

What is sometimes very slippery about the concept of partnership is who the partners are. Again in my view it is abundantly clear they are the Government (or the Crown) and Maori, whether whanau, hapu, or iwi. That is who signed the treaty.

It is not a partnership between two races as has sometimes been argued. That might have made some sense in the context of 1840. But in the context of 2005, when the term Pakeha is an umbrella one covering all non-Maori, it cannot be so. New Zealanders of British, Irish, Samoan, Tongan, Chinese, Indian and whatever ancestry cannot be blancmanged into one race.

In any case, races do not have legal or other duties. That burden falls upon the Government, and in this case properly so since it was the Crown which was the other party to the treaty.

What can be argued is that the treaty provided some kind of legal basis for post-1840 migration to New Zealand. But let us be in no doubt that if the chiefs in 1840 had known that within 40 years the newcomers would outnumber Maori by more than 10 to one it is very doubtful they would have signed up to such a prospect. Moreover, with or without the treaty it is likely much migration would have occurred, forcing the British government to an assertion of sovereignty sooner or later.

The principle of partnership does impose upon the Government the duty to make informed decisions on matters affecting the interests of Maori. This also leads to a strong bias, at least, in favour of consultation.

The clearest principle of the treaty is that of the Crown's duty to engage in active protection with respect to Maori interests. That is the core of Article II. The Privy Council, for example, in 1994 made it clear that that duty extended to the protection and preservation of the Maori language and, therefore, the duty to ensure that there was support for broadcasting in Maori.

The third principle which is commonly recognised is that of redress. In other words, past wrongs give rise to a right of redress. This has been consistently affirmed and reaffirmed by the courts and governments.

The notion of redress is also to be found in the recent Foreshore and Seabed Act. In that act the possibility of gaining customary title was removed. But any group which would have been able to demonstrate such a claim is entitled to redress and the Government has a duty to negotiate that in good faith.

Looked at calmly these principles present no threat to our vitality or stability as a nation. The resources involved have by no means been burdensome. Progressively, the wrongs of the past have been righted, though there is still a long way to go.

So if I am asked to say what is the place of the treaty in New Zealand today, in one sense my answer is a simple one. It is that it is a living document which provides an orderly framework for the settlement of historical grievances and the resolution of ongoing debates about the rights of the original inhabitants and owners of the land. Perhaps, despite all the noise, in our understated No 1 Bridge and No 2 Bridge way, this really is a day for quiet celebration after all.

That does not mean drawing a veil over the past and inventing a version which resembles a Disney family film. To go back to where I began today, we do not do that on Anzac Day.

But that day is now one where we come together again. The trials of the past become a beacon for the future. I believe that some day that will be true too of Waitangi Day.

* An edited version of Dr Michael Cullen's address yesterday in the Cathedral of St John, Napier.