Race: The way ahead: Final chapter yet to be written

Just what the Treaty of Waitangi means in the 21st century depends on who you talk to, says CATHERINE MASTERS

The Treaty Of Waitangi has as many interpretations as people care to give it. To some it is a con by the British to impose colonial law on the Maori. Others say Maori in 1840 viewed it as giving them some control over the ever-increasing flood of unruly British into their country.

Some Maori welcomed it, thinking it gave them chieftainship and protection over their lands and possessions, but many others did not.

The treaty, some say, is the legal document that allowed the British to settle here. It did not give Maori rights, they say, because as the original settlers of the land they already had rights for hundreds of years.

Instead, what the treaty granted was certain rights to Pakeha.

Some historians interpret the intentions of those who drew up the treaty kindly, given the climate of the 1830s.

Claudia Orange, director of history at Te Papa, says it occurred at a time when England was waking up to humanitarian ideals, coinciding with the abolition of slavery, and was created to protect Maori from the settlers.

The British did not want Maori, whom they admired, to end up like the Aborigines in neighbouring Australia.

Orange says it was also created for another simple reason. The British had already declared New Zealand independent. United States and French whalers were here and the French had an eye on controlling the country.

If the British had simply annexed New Zealand there would have been an international outcry.

Whether the Treaty of Waitangi provides, or ever meant to provide, for the kind of special treatment Don Brash refers to today is difficult to answer - if indeed Maori do get special treatment, which the Weekend Herald has found is a moot point.

The articles of the treaty, of course, do not spell out that Maori should get into medical school on lower grades and get extra funding.

And there are alternative versions of it - the English and Maori translations mean different things.

Article Two of the English version clearly states that the Queen of England confirms and guarantees to the chiefs and tribes of New Zealand and their families the full exclusive and undisturbed possession of their lands and estates, forests, fisheries and other properties.

In Article One of this version they cede to the Queen absolutely and without reservation the rights and powers of sovereignty and in Article Three the Queen gives her "royal protection" and gives them all the rights and privileges of British subjects.

In the Maori translation the key difference in the first article is that the chiefs give to the Queen forever "government" over their land, not sovereignty.

In the second she agrees to protect Maori in the chieftainship over the lands, villages and all their treasures and in the third agrees to protect all the ordinary people of New Zealand, giving them the same rights and duties of citizenship as the people of England.

The treaty has long been accepted as a founding document of New Zealand.

It is often described as a "living document", and courts have described the relationship between Maori and the Crown as a partnership.

Because of this and the differences in translation, "principles" of the treaty have been developing since the establishment of the Waitangi Tribunal in 1975. Treaty principles are now referred to in more than 30 pieces of legislation.

One of the principles is active protection, that the Crown has a duty to actively protect Maori interests. Another is co-operation, that the treaty requires the Crown to consult Maori on matters of significance.

But does this mean special rights are enshrined in the treaty?

The answer seems to be yes - and no.

Dr Paul Moon, senior lecturer in Maori Studies at Auckland University of Technology, says a lot of the issues Pakeha have been riled over since Don Brash's speech, such as the perception that Maori get special grants and places into universities, are not treaty issues.

Instead, they are equity issues and are matters for social policy.

However, when it comes to issues such as who owns the airwaves and oil reserves, Maori may have as much claim to ownership as Pakeha.

To Pakeha who say they cannot conceive how the treaty gives Maori ownership of these things, Dr Moon says the counter-argument is: "How come the Crown's entitled to it? So, with radio frequencies how is it that the Crown automatically assumes property rights over it and gets money from it?"

The treaty is so poorly worded people can pick and choose what they like from it, he says. "It's a smorgasbord of rights in a way."

Replace the concept of special treatment with affirmative action, as used by some scholars, and protection as used in the treaty, and we may be getting somewhere.

Orange says the third clause giving Maori the rights and privileges of British subjects means the treaty acknowledges they will be treated as if they were non-Maori "in other words, they'd be entitled to all that help".

Constitutional lawyer Mai Chen says article three, particularly, has an affirmative action interpretation. You could not have the same effect of equal citizenship for Maori without special treatment, she says.

But Maori do not even need the treaty for this, because New Zealand law already has statutory provision for affirmative action for all disadvantaged people in both the Human Rights Act and the Bill of Rights Act.

Chen says that as far as the treaty goes, the final chapter has yet to be written.

This is because no matter what the Government does in terms of the law, whether it is Labour or National, the new Supreme Court will interpret and apply the law, including treaty principles.

Whether the Supreme Court will be friendly to treaty principles remains to be seen, but it is worth noting that part of the reason for the Supreme Court replacing the British Privy Council as the final appeal court is to "enable important legal matters, including legal matters relating to the Treaty of Waitangi, to be resolved with an understanding of New Zealand conditions, history and traditions".

The experts seem to agree the treaty is extremely relevant today. If it did not exist then the right for our present system of Government would not exist, says Moon.

He likens the treaty to marriage vows, which create a general set of terms and conditions for the relationship.

Except in the case of Maori and Pakeha, there can be no divorce.

"We can't because we live in the same house, this is the problem. We've got to sort of sleep in the same bed so divorce is out of the question so you've got to make the best you can out of the marriage."