A Fourth Article for the Treaty?

lindsaymitchell.blogspot.com

Massey University issued a draft Tiriti o Waitangi Policy in May 2022 to staff, students and stakeholders which expresses its “commitment to uphold Te Tiriti o Waitangi and its associated principles”. It was prepared by the Office of the DVC Maori (Deputy Vice Chancellor Maori) to update an existing document and remains under consultation.

In 2012 the policy was a relatively brief, comprehensible statement:

The overall aim is that Massey University should be: 

•      a Maori-relevant university 

•      a place where Maori language and culture can flourish. 

•      a place where Maori students are likely to graduate. 

•      a university where Maori will obtain relevant higher degrees. 

•      a university which has the teaching and research capacity to make a substantial contribution to Maori development. 

•      a university that provides academic leadership for Maori to make a substantial contribution to the growth and development of Aotearoa New Zealand.

•      a university that provides academic leadership for Maori development.

The proposed replacement is six pages as opposed to two. It is long-winded and repetitive in describing how it will give effect to the Treaty and steps well outside of specific University relevance. For instance, it commits the university to “realisation of tino rangatiratanga nationwide” and “working towards achieving equal outcomes for Maori in society” with “ongoing investment in practices and activities known to improve outcomes for Maori”.

But the stand-out feature of the policy is the discovery of a fourth article in the Treaty: 

The University acknowledges the following Te Tiriti o Waitangi provisions and associated principles – From Article Four: the provision of Te ritenga Maori (Maori customs) and the principle of Honouring Maori cultural-spiritual values and practices.

Definitionally, the policy purports to use “the Te Reo Maori (Maori Language) text of the treaty between hapu and the British Crown first signed at Waitangi in 1840”.

But historian and former Waitangi Tribunal member Michael Bassett says, “The Treaty appears in the Treaty of Waitangi Act 1975, both English and Maori versions, and in 1986 Sir Hugh Kawharu re-translated the Maori version which was accepted by the government and became the version used by the 1990 Commission that celebrated 150 years since the Treaty was signed. I know of no further version of the Treaty that has had official recognition. The Kawharu translation and indeed the 1975 version have only three short clauses.”

And on page three of the policy the relevant legislation is indeed cited as “Treaty of Waitangi Act 1975”. The discrepancy is unexplained.

Where then does the idea of “Article Four” come from?

Dr Alistair Reese, a historian and public theologian, describes the treaty as a “living taonga” and has lodged a claim with the Waitangi Tribunal and petition to parliament arguing a fourth article exists. According to Reese a belated request prior to the signing of the treaty saw missioner Henry Williams (under instruction from Hobson) write the following addition to the Treaty: “The Governor says the several faiths of England, of the Wesleyans, of Rome, and also the Maori custom, shall alike be protected by him.” This statement apparently represents the fourth article.

It seems his argument is not a new one. The concept has previously found its way into public service documents.  In 2003 Hon Bill English, then Leader of the Opposition, asked the Associate Minister of Justice, Margaret Wilson: “Does the Government accept that there is an Article Four to the Treaty of Waitangi; if so, how will it be recognised in the Government’s partnership with Maoridom?” Her reply was “No.” In parliamentary discussions at that time it was agreed that religious freedom and belief were protected by Article 3 of the Treaty and the modern Bill of Rights.

Writing in the NZ Herald, journalist Tim Watkin explained that English was concerned about a claim before the Waitangi Tribunal by Archdeacon Harvey Ruru arguing “the Crown had not kept Hobson’s promise and it should fund Maori priests to continue their faith traditions”. Hobson’s promise was interchangeable with the fourth article. Michael Bassett, then a member of the tribunal, worried Ruru was attempting to expand the Treaty. As Health Minister in 1985 he had been criticised by Titewhai Harawira who asserted an obligation to improve Maori healthcare under ‘article four’. The link being made between religious freedom and health care was unclear.

Canvassed more recently on the topic Bassett says: “There have been efforts over the years to talk up the idea of an Article Four with various Maori trying to insert something favouring their current fanaticism, but they won’t ever get off the ground because there were only three articles that the Crown and Maori signed on 6 February 1840, and no law has ever been passed recognising more than what appears in the Treaty of Waitangi Act 1975. Just imagine if internationally treaties between parties could be unilaterally added to by one party over subsequent years and treated as though they had always been part of the original document. Absolute chaos.”

He adds: “… no government worth its keep is ever going to agree to a widening of the original document”. Unfortunately, these words might not reassure given the possibility of a radical Labour/Green/Maori party government forming later this year.

Establishing a fourth article clearly brings new grounds for resource demands. Perhaps this is the reason Massey University has included it in their proposed updated treaty policy. Why else when religious freedom is already protected?

Regardless of the answer, Massey University management is practising activism (which was once the realm of students). Its Deputy Vice Chancellor Maori is asserting the existence of a fourth article in the Treaty. Who are impressionable students to believe? Are universities bastions of truth or fantasy?