Kerry Howe: Treaty texts leave readers poles apart

COMMENT

A commission of inquiry into the role of the Treaty of Waitangi in our society is probably doomed to failure. It would be forced to say what the treaty means - and, unfortunately, the treaty now means all things to all people.

The reason is that most Maori signatories signed the Maori translation.

This was not a direct translation of any of the five English versions (which differed only minimally among themselves), nor were any of the English versions a direct translation of the Maori text.

The existence of both English versions and a Maori version has in more recent decades led to disagreements about what the treaty means. Certain key words, it is now argued, were differently understood, or misunderstood, depending on how the English and Maori versions were and are read.

The international law convention of contra preferentum argues that the understandings of the indigenous parties must take precedence. But the Waitangi Tribunal is charged with giving weight to both Maori and English versions.

The extent to which the treaty can be differently interpreted is summarised by the chart, but at one end of the spectrum the treaty can be read as a document that enhances Maori sovereignty, while at the other it is read as extinguishing that sovereignty.

The differing poles of opinion are not necessarily split along ethnic lines. Views among Pakeha are perhaps more deeply divided than among Maori.

So how can we as a society reach a consensus on what the treaty literally means? We cannot. It is akin to seeking the correct interpretation of the Bible, or the Koran.

Different groups will vehemently claim that their interpretation is the correct one.

Current temperature levels surrounding race issues in New Zealand are rather high. Conflict and controversy seem to be deepening, rather than dissipating.

If some commission report, or the tribunal, or a government, or any other institution, proclaims the truth about the treaty, what difference will that make? None. The differing parties will still disagree.

To skirt this difficulty, it has been argued that what matters are the principles of the treaty. This notion was embedded in the 1986 State-Owned Enterprises Act.

But what are the principles? They are as elusive as the correct meaning of the treaty itself. The Crown identified five very limited ones: the right of the Government to govern; the right of iwi to control their own resources; all New Zealanders are equal before the law; the Government and iwi are obliged to work in reasonable co-operation; the Government has the duty to provide processes to resolve grievances.

But the Maori Council, for example, identified 10 principles, which also included: the duty to make good past breaches of the treaty; the duty to return land for land; that the Maori way of life would be protected; the duty to consult Maori; that the parties would be of equal status; that priority is to be given to Maori values with regard to taonga (treasure).

Other interest groups also have their own lists of principles. The Court of Appeal argued that a key principle was that of partnership. But what exactly does that mean - some sort of 50-50 arrangement, or perhaps 80-20, or some other arrangement.

Claims that the treaty is a living document that continually speaks to us simply fudge all these issues further. Vagueness in public policy breeds suspicion.

Societies operate successfully when there is consensus about big issues. Courts and governments can lead, but ultimately the people themselves have to be in broad agreement.

Civil society operates best on the basis of consensus and generally shared collective values and goals.

This does not mean that we all have to be the same. But we all know what happens when governments try to decree and impose a particular view of the world on their citizens, and/or when citizens take their conflicting views to extremes.

I have no easy answers. But perhaps one small step might be to rethink the language we all use.

I have always been troubled by our constant division of New Zealanders into simplistic binary categories, such as Maori and Pakeha. It is intriguing to consider the extent to which we are trapped by our public language. If we stopped using the terms Maori and Pakeha, for example, could we continue to hold current conversations about ourselves? I think not.

We might actually be forced to align our language with social complexities and perhaps start to think differently.

* Kerry Howe is a professor of history at Massey University, Albany.