Audrey Young: New Treaty of Waitangi book links to past and present

A waka tangata at Waitangi on Waitangi Day this year. Photo / Michael Cunningham

In an era in which co-governance and the Treaty of Waitangi are growing in political significance, a new book on the Treaty's interpretation has got to be important.

But the significance of Ned Fletcher's book goes further than its contents, which themselves represent a remarkable piece of research.

His conclusions in The English Text of the Treaty of Waitangi (BWB), which I wrote about at the weekend, are a reminder that it does not pay to be too dogmatic about the Treaty.

Interpretations about the Treaty can change, as can Government responses to it, and the public's view of it.

Fletcher's deep dive into the archives suggests the motives of the British who drafted the Treaty were honourable, that they sought to protect Māori and, importantly, they envisaged British sovereignty co-existing with Māori self-government.

In essence, Fletcher concludes that the English language text of the Treaty, in which Māori cede sovereignty to the British, can be reconciled to the Māori language text which promises that Māori chiefs can retain rangatiratanga - self-government.

If Fletcher's interpretation prevails, the reputation of the English lawmakers and officials who decided to enter a treaty with Māori may in time be rehabilitated.

It would be harder to see them as conniving land-grabbers who misused the Treaty as a device to con Māori out of their land.

That is not to deny that many Māori were later conned by land-grabbers in the New Zealand Company and their ilk, and that major injustices occurred.

But Fletcher disentangles them from the people who drafted the Treaty, in particular James Stephen - the Sir Humphrey Appleby of the Colonial Office but with principles and ethics.

The book cover of The English Text of the Treaty of Waitangi." Photo / BWB

Stephen, a social reformer and slavery abolitionist, has been written about previously by historians but Fletcher dives more deeply into the advice he gave to successive politicians in his role as Permanent Under-Secretary for the Colonies.

It is clear that what transpired in New Zealand - mass immigration and wholesale alienation of Māori from their land - was far from what Stephen and his masters intended.

It would be getting into the realm of fantasy to imagine what New Zealand would have been like if the drafters' intentions had been carried through.

It is more interesting to imagine what might have happened – or not happened - in modern New Zealand if the prevailing view had been that the two texts could co-exist.

The concept of "principles of the Treaty of Waitangi" as inserted in legislation have been a modern response by Governments to "honour the Treaty". The English and the Māori texts could not be reconciled.

The principle of "partnership" was mentioned in the 1975 law, the Treaty of Waitangi Act, which established the Waitangi Tribunal.

The principle of partnership took on a much greater significance in the 1987 Lands case in the Court of Appeal.

It is worth noting that while that judgment talks about the differences in texts and "the spirit" of the Treaty being what mattered, one of its many references to partnership centres on the Colonial Office.

"From the attitude of the Colonial Office and the transactions between its representatives and the Māori Chiefs, and from the terms of the Treaty itself, it is not difficult to infer the start in 1840 of something in the nature of a partnership between the Crown and the Māori people," Lord Robin Cooke said in the judgment.

The treatment of the Treaty by Governments has evolved quickly since then, in terms of Treaty settlements, what partnership means, and in what ministers are required to consider in decision-making.

The options open to various ministers depend on whether Māori have minor interests in their plans, or moderate or significant ones.

The relevant engagement between the Crown and Māori will range from informing the relevant Māori group, to partnering and co-designing a process with joint decision-making.

The political manifestation of the partnership principle in the 21st century is co-governance.

It began with governance arrangements over natural resources in Treaty of Waitangi settlements but has expanded controversially under the current Government.

Greater Māori representation is being reflected in a variety of arrangements for local government wards; the new public health authorities including iwi partnership boards at the local level; water management regional governance boards; intellectual property decisions over indigenous plants; the Children's Commission board; and regional planning committees under the RMA reforms.

The discourse around the Treaty of Waitangi is sometimes grounded in what politicians insist it meant when it was signed. It is sometimes proclaimed with the certainty of a time traveller.

It is usually what the politicians want it to mean rather than reflecting any detailed knowledge.

The book cover of The English Text of the Treaty of Waitangi." Photo / BWB

Emphasis is put on Article Three, the guarantee to Māori of equal rights and duties of citizenship, because it is easier to suggest that different treatment is the same as different rights.

Fletcher's book is not likely to have any discernible impact between now and next year's election, some of which will be fought on the modern interpretation of the Treaty of Waitangi.

But over time, it is bound to inform decision-makers about the intent of the drafters, and to shape public opinion.

Its appeal should go more widely to those who believe the chiefs did not know what they were signing.

That is sometimes the belief of people who think the chiefs couldn't have possibly have known what they signed because it was such a raw deal.

If, however, the drafters had every intention of Māori self-government co-existing with British sovereignty, it is more likely everybody signed in good faith and it is a stronger argument for the ongoing interpretation of partnership.