Wednesday, 4 February 2015

Whakamanatia te Tiriti

Imagine with me that you’ve got new neighbours, and they’ve offered you some kind of contract to let them use part of your property. Let’s say, just for the sake of the example, that your house has a garage and theirs doesn’t, but they have a car and you get by with a motorbike. So when they move in they knock on the door and ask if they can use your garage. You’re a bit dubious at first, but they come back the next day with a contract all drawn up that says they’ll give you regular payments for maintenance, they’ll always leave you room to store your motorbike in there, and if you need the garage for anything bigger all you need to do is ask and they’ll park on the street that day. You check and double-check the small print and it’s all legit, so you sign.

The following morning you awake to the sound of your neighbours converting your garage to a sleep-out for their teenage son. You run out, waving your copy of the contract and shouting angrily. They smile indulgently and produce their original version of the contract, with your signature impressed on it through carbon-paper. It’s written in their native language, and in translation (they explain) it gives them complete right of ownership over your garage in exchange for a small weekly payment. They apologize for having badly translated it when they gave it to you. But you signed, and they’ve started the weekly payments, they say, so the garage is theirs now.

Morally, you’ve been swindled. How about legally? If you took them to court, what would you argue? Supposing – at this point the analogy gets a little frayed, but we’re approaching the real thing a bit closer – supposing it turned out they belonged to a completely separate jurisdiction, so that you had to recourse to international law. What then?

As a matter of fact, international law has a well-recognised principle devised for this exact situation. After all, when two nations sign a treaty it’s quite likely that the signatories will be seeing it in two different languages. The principle that has been adopted in all such disputes is called contra proferentem, which is Latin for “against the one bringing it forth”. What this means in our analogy is that since you didn’t have any input into formulating the terms of the contract, the version you signed in your language is the only official version. The other one is null and void; you never signed that one! The fact that it was older, and contained the drafters’ true intention, is legally irrelevant.

175 years ago this Friday, at Waitangi north of Auckland, forty Māori chiefs signed a document which allowed the British Crown to exercise kāwanatanga over them in order to keep the peace in New Zealand, while promising that they would retain their rangatiratanga. Kāwanatanga is a coinage from kāwana, which is simply the Māori form of the English word “Governor”; the chiefs took it to mean that the Governor would continue to fulfill his existing duties. Rangatiratanga is the sovereignty of a rangatira, a chief. In the following weeks the Treaty of Waitangi was taken all over the country for the other chiefs to sign. Waitangi Day has been commemorated since 1860, though it only became an official public holiday in 1974.

Unfortunately the English draft had said something rather different. Where the Māori document granted the Crown kāwanatanga, the English asked the chiefs to cede “sovereignty”. The word rangatiratanga in Māori stood for “possession” in the English. The Treaty writers’ good intentions were moot, because the general opinion in 1840s Britain was that “savages” were barely capable of mastering personal hygiene, let alone holding property rights. Men of ambition saw the Treaty as a useful means of allaying Māori suspicions while they staked out huge plots of prime agricultural land.

Even a brief account of the injustices Māori have endured under colonization would make dismal reading, and I won’t attempt it. Presently, Māori make up half of New Zealand’s prison population, compared to one-sixth of its total population; they are employed at 87% the rate of Pākehā; and on multiple health indicators, from oral health to child mortality, their population profile looks like that of a Third World country. Racists argue “It’s not our fault if the Mowreys are all too lazy to make any money.” But Māori are descended from Pacific Islanders, the greatest explorers the world has ever seen, and their traditional lore is full of sayings (whakataukī) praising the value of hard work. What’s letting them down? Neither their genes nor their culture. That only leaves their environment – their colonized, Pākehā-dominated environment.

Since the 1980s there’s been a gradual renaissance of Māori culture. As with any social justice movement, those who look back on the days when Māori voices were routinely silenced as a golden age have said at every step “Look, that’s enough change now, don’t you think?” The Treaty has been a rallying-post all the way through. There have been occasional calls to abolish it, apparently on the supposition that Māori will then quiet down and let bygones be bygones; just as, in our analogy above, if your neighbours were to tear up the contract they’d offered you, you would of course immediately drop all complaints about their occupation of your garage. Right? More often, the suggestion is that we place a time limit on Treaty settlements – so let’s say after a year has passed your neighbour wins any remaining points of dispute over the garage contract by default. And if they break the contract again you’re not allowed to complain. Fair?

Of course, if the analogy were strictly accurate, it wouldn’t just be a garage. It would be the whole house.

There is an ethical wrinkle: the original offenders and their victims are all dead. Today’s Pākehā can’t just give the land back and leave, which would have been the most just course of action in, say, 1850. We have no other homes to go to. We can’t all go back to the British Isles and kick the people there off their land. After any reparation deal we’re still going to have to live together somehow. One major concept in Māori culture may perhaps offer a way forward. A caution: I am not Māori. The following is merely an educated foreigner’s perspective. If you want a deeper analysis you need to ask a Māori person.

Everyone in New Zealand has heard the phrase tangata whenua. Everyone knows it translates to “people of the land”. But most Pākehā hear it only in the context of Treaty debates, in which it is nearly synonymous with “Māori”. Many mistakenly take it to imply “We were here first, sod off.” In fact the concept of tangata whenua is fundamental to Māori social organization. When a tribal group enjoys the hospitality of another tribal group, the host group are called tangata whenua and the guests manuhiri. It is a term of welcome, not exclusion. What’s especially pertinent is that if a third group arrives while the manuhiri are still there, the manuhiri effectively become tangata whenua themselves with regard to the new group. Nothing about the concept of tangata whenua excludes Pākehā from any rightful habitation or economic gains in this country, if only they were willing to behave as honourable Treaty partners.

Although the Treaty has never become the law of the land, various Acts of Parliament over my lifetime have referred to something called “the principles of the Treaty”. As of 1989 the legal guidelines have been:

  • The government has the right to govern and make laws.
  • Iwi (Māori chiefdom-nations) have the right to organize as iwi, and, under the law, to control their resources as their own.
  • All New Zealanders are equal before the law.
  • Both the government and iwi are obliged to accord each other reasonable cooperation on major issues of common concern.
  • The government is responsible for providing effective processes for the resolution of grievances in the expectation that reconciliation can occur.

I hope that iwi are awarded authority over land use in this country, according to the Treaty. Firstly, of course, because that would be simple justice, the proper reparation for theft. Secondly, iwi have shown themselves over the years to be much more responsible guardians of New Zealand’s natural environment than any government body. “Noble Savage” stereotypes of indigenous people as mystical nature-dwellers aside, that’s the fact of it. Iwi are after all more invested in the health of the land and water than the Government is.

And thirdly, as a Pākehā, I take a small degree of national pride in the fact that my country was founded on an agreement, not on bloodshed like so many others. Only a small degree, because the agreement was then trampled on and bloodshed followed anyway. I owe my identity as a New Zealander, my right to live in this country at all, to the Treaty of Waitangi. When the Treaty is dishonoured, I am dishonoured with it.

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