Paul Moon: Time for more head-scratching over Treaty's role

New Zealand historian Paul Moon. Photo / Richard Robinson

Lack of reference to international law in the Waitangi Tribunal reports is a cause for unease, writes Dr Paul Moon, professor of history at AUT University and a fellow of the Royal Historical Society.

It is frequently trumpeted - as though repetition bestows rectitude - that New Zealand leads the world in the treatment of its indigenous people, and that the Treaty of Waitangi is the mainstay of this proud accomplishment. It is a consoling piece of propaganda, but it is propaganda nonetheless.

Our intermittently chafing race relations is a topic for another time, but as Waitangi Day nears we could do with all the help we can get to throw some light on the Treaty and how we perceive it.

But which Treaty? What is currently and loosely understood as the Treaty of Waitangi differs vastly from the document of the same name signed during the first half of 1840 (and that is without considering Henry Williams' suspiciously inept translation of the agreement into Maori). Since 1975, the courts, the legislature, and the Waitangi Tribunal have applied thick layers of meaning to the text of the Treaty, causing its original aims to become progressively more opaque.

So how should we view the agreement? Should its meaning and status be locked in perpetuity in the ideologically frozen poles promoted by extremists of various persuasions, or should its interpretation and application be a matter of individual preference, floating freely in the politically languid equatorial zones?

The latter location is where the policies of successive governments for nearly four decades have navigated the Treaty - surrendering it to the tidal ebbs and flows of various interest groups, and rendering it increasingly untidy but unthreatening. In its present form, the Treaty - and the long list of principles that follow its wake - has evolved into a vague statement of rights little resembling the intent of the 1840 agreement.

If an anchorage is sought - somewhere that offers an objective set of rules for understanding and giving effect to such agreements - the Vienna Convention on Treaties is as good a place as any to start.

After 20 years of deliberations, debates, and drafts, the International Law Commission released its final version of the convention in May 1969. The document's 85 articles serve as the jurisprudential bedrock of international treaty law, and although the convention is not retrospective, even a brief dip into its principles shows it provides a non-partisan and dispassionate way of looking at how treaties should be applied and managed. The convention points out that treaties are agreements between sovereign states, and that signing a treaty is itself evidence of statehood. This is in accordance with the British Government's acknowledgement in 1839 (albeit with some qualifications) that New Zealand at that time was a "sovereign and independent state".

The convention also requires that parties to a treaty refrain from any acts which might defeat its purpose and that they act in good faith towards each other. This is also in keeping with the tenor of Hobson's comments at the signing of the Treaty of Waitangi in 1840.

So far so good, but midway through the convention are some provisions that might be uncomfortable for those who take a purist view of the Treaty. It allows, for example, for the text of treaties to be amended if the parties agree; for parties to withdraw from their consent to be bound by a treaty; and for a violation of a treaty or an error in its text being the grounds for its termination.

In the case of the Treaty of Waitangi, where there are obvious errors in the translation, Article 79 of the Vienna Convention would require that corrections be made - a suggestion inconceivable to those who revere the Treaty as some sort of sacred document. The cost of New Zealand having failed to do this in 172 years, though, is evident both in the continued confusion surrounding how the Treaty is understood by some groups, and in the sometimes idiosyncratic decisions made by the Waitangi Tribunal on the basis of the Treaty's conflicting texts.

The Vienna Convention serves - at the very least - as a neutral set of guidelines for how the Treaty could be interpreted, amended, and even terminated if the parties so desired. Yet, it is telling that the convention is hardly mentioned in any of the Waitangi Tribunal reports (and on the rare occasions when it has appeared, such as in the 1983 Motunui-Waitara report, it was deftly misinterpreted).

Evidently, the tribunal prefers the ad hoc approach to settling claims, turning its back on international conventions in the mistaken belief that the Treaty is a sui generis agreement. It is nothing of the sort, and the lack of reference to international law principles in tribunal reports ought to be cause for unease. At the very least, it is a sign of jurisprudential hubris, and at worst, it potentially results in settlements that are out of kilter with how the rest of the world understands treaties.

As the end of historical Treaty claims nears, and as the Treaty's role in our constitution is under review, perhaps it is time for a little less back-patting and a little more head-scratching.

paul.moon@aut.ac.nz