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Analysis: Don Brash’s approach to Treaty issues

Gordon F Copeland
List MP

United Future Party

Opinion Piece

Friday, January 30, 2004

Don Brash’s approach to Treaty issues – an analysis

The Treaty of Waitangi is exactly that, i.e. a treaty, a word defined in the dictionary as ''a formal agreement between two or more states''. It is not a partnership and the use of that word is therefore, in my opinion, unhelpful.

The treaty has three fundamental provisions.

Firstly it transfers sovereignty and government over New Zealand to the Queen of England (the Crown) “for ever”.

Secondly the Queen commits herself to the protection of all the people of New Zealand, including protection of property rights in relation to their lands, villages, and all other treasures.

Thirdly it provides that all of the people of New Zealand will enjoy the same rights and duties of citizenship as the people of England.

Both parties to the Treaty, that is the Crown and Maori, have a solemn legal and moral duty to uphold its terms. That reality should be beyond question and beyond argument. It is simply a matter of allowing our “yes” to mean “yes” and our “no” to mean “no”.

Our focus as a nation should be to uphold the terms of the Treaty. It is abundantly clear that on numerous occasions the government of New Zealand, acting as “agents” of the Crown, has breached the terms of the Treaty, particularly in relation to property and other rights properly belonging to Maori. Equally government attempted to suppress Maori language and culture.

Since the early 1980s we have collectively been putting right those breaches through settlements involving full and unqualified apologies and compensation and Maori language and culture has been both officially recognised and encouraged. To the best of my knowledge Maori on the other hand have never breached the terms of the Treaty (although they would be doing exactly that were they to attempt now to argue that they did not transfer sovereignty over New Zealand to the Crown!)

I find it useful to evaluate Don Brash’s recent speech against this background. I agree with him that we should settle these historical grievances once and for all and as quickly as possible. Until that task is completed we cannot with any degree of integrity move forward as a nation.

I also agree with him that both parties are adhering to the terms of the Treaty when they insist on the same rights and duties of citizenship for all the people of New Zealand.

I disagree however with his commitment to revoke any customary titles issued to Maori under the Government’s foreshore and seabed proposals because, simply stated, that would be a breach of both the Treaty and common law private property rights.

I also disagree with Don Brash’s commitment to the unilateral abolition of the Maori electorates. The plain fact is that Maori have been given the option of separate electorate seats for many years. Therefore their unilateral abolition by a majority non-Maori representation in the NZ Parliament is not only contrary to commonsense but an extremely insensitive, provocative and highhanded way of going about things.

Lastly let me say that I agree with Don Brash that reference to “the principles of the Treaty” of Waitangi in so much of our legislation, is unhelpful. The Treaty is equivalent to any other form of contract between two parties. I think it would come as an enormous surprise to New Zealanders to discover that, say a contract in relation to their home, was to be interpreted according to “the principles of the contract”. As with such simple everyday contracts the Treaty itself should, in my view, be interpreted according to its terms.

The reference to “principles” introduces an unnecessary ambiguity and uncertainty which we could all do without.

These comments are based on the English translation of the Maori text of the Treaty as interpreted by Professor Sir Hugh Kawharu. This translation has been accepted by the Court of Appeal, the Crown and the NZ Maori Council. It is also given precedence over the English version in international law.


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