Chris Trotter on the Treaty
The Dominion Post has an article by Chris Trotter ostensibly about "Margaret Mutu's threat of war" but, in fact mostly about rubbishing the Treaty of Waitangi. His tactic is to accept the most extreme interpretation of the Treaty and then use that to suggest that the treaty cannot and should not have any legitimacy.
I would be the first to concede that the plain text of the treaty (in either language) is not suitable for a constitutional document. The same, of course, is true of the ten commandments, the sermon on the mount, the Gettysburg address and the American declaration of independence but that does not diminish their value or relevance.
The claim that lies at the heart of Trotter's (and maybe Mutu's) case is that the reference to Tino Rangatiratanga in article 2 of the Maori version of the treaty means that Maori (chiefs) retain "Sovereignty" regardless of article 1. In Trotter's words -
In the minds of the chiefs who signed the document, New Zealand was nothing more than a geographic expression. Their tribal territories, like the territories of the princes, bishops and margraves of the Roman empire, remained sovereign and inviolate.The "Roman" model Trotter alludes to was also used in the British empire (particularly in India) but is specifically excluded by Article 3 of the Treaty which (in either language) grants the "rights and privileges of British subjects" to "nga tangata maori katoa o Nu Tirani" (all the Maori people of New Zealand). The common people in the Roman (Indian) models remained subject to their local prince, bishop or margrave (or rajah) and certainly did not enjoy the rights of Roman citizens.
The exact meaning of "Rangatiratanga" and "Kawanatanga" to the Treaty signatories must remain matter of conjecture - not least because both words were, at the time, recently coined but it seems reasonable to suppose that their meaning would approximate -
Rangatiratanga - The traditional powers and rights of a "tribal chief"
Kawanatanga - The powers exercised by a "Kawana" such as the Governor of New South Wales.
Maori are promised tino rangatiratanga in article 2 with respect to lands etc but it is not mentioned in article 1. Any tenable interpretation of the whole treaty must recognize that kawanatanga is subtracted from rangatiratanga (in the fullest sense of the term) and tbat which is promised to Maori is what is left. Trotter's demonizing assertion that
Tino rangitiratanga - the sovereign powers of the tribal chieftains - was in no way diminished by their recogniton of kawanatanga
implies that kawanatanga is a nullity. It is an interpretation that the vast majority of Maori do not demand, is not accepted by any judicial authority in New Zealand and has no chance of ever being accepted as any part of NZ law or constitution. The Waitangi Tribunals report on the Foreshore and Seabed Policy specifically states that -
It is clear that kawanatanga gives the Crown the authority to make the present policy and enact it as legislation.
Of course the Government has a duty to respect rangitiratanga (and justice, fairness, etc) but these duties do not deny their authority.
It seems clear to me that the Maori concept of "rangitiratanga" (after ceding "kawanatanga") means something more than the English concept of "ownership" but somewhat less than the English concept of "sovereignty". If we are to embody the Treaty principles in a New Zealand constitution then perhaps the first step must be to define that difference (Mana whenua? Ancestral Rights?). But we must define them in terms which are clear and acceptable to a broad concensus.
That a minority of Maori have been driven to reject concensus and make aggressive (or even taiha-rattling) demands for extreme interpretations of sovereignty is unfortunate but understandable given the raw deal they have historically received. Chris Trotter's "Bring it on" response is no less unfortunate and a great deal less forgivable.