OPINION
Far too much has been written and said about the Treaty of Waitangi. I say this because the great Maori leader, Sir Apirana Ngata published the definitive work on it in 1922. There really is no need for anything else.
A copy of his book, The Treaty of Waitangi – an Explanation was sent to every Maori household in the country. Dr Muriel Newman has made it available to all New Zealanders here https://www.nzcpr.com/treaty-of-waitangi-by-sir-apirana-ngata/ . It is a short and easy read that cannot be misinterpreted. Ngata, a native Te Reo speaker who had actually met chiefs that signed the Treaty, provides clear translations between Maori and English versions and analyses the differences between the two.
He is unequivocal – there is no co-governance.
A hundred years later, I, sadly, have to add to the excess of verbiage to address a misleading claim by those who want to sow division by redefining the differences.
The oft-quoted claim is that the Maori version of te Tiriti, takes precedence over the English version, thus giving them control over the meaning of the Treaty.
This is a legal and logical fallacy.
The claim stems from the principle of Contra Proferentem, (Latin: against the offeror) also known as Protection of the weaker party.
The principle stipulates that if a clause in a contract is ambiguous, it should be read in a way that disfavours the party who originally drafted, introduced, or demanded the inclusion of that specific clause.
The first point is that Contra Proferentem originates from the case of Canada Steamship Lines Ltd v The King in 1952. Another older and more fundamental legal principle is the Presumption against retrospectivity. New laws cannot be applied to old events. Contra Proferentem applied to the Treaty is a legal fallacy.
Perhaps an argument could be made that Contra Proferentem takes precedence over Presumption against retrospectivity. Relegating the Presumption would simultaneously mean a new law can simply overturn the Treaty. In fact, this already happened in 1877 when Chief Justice James Prendergast described the Treaty as ‘worthless’ and a ‘legal nullity’. The Treaty was reinstated precisely because of the Presumption. Such an argument is a logical fallacy – without the precedence of Presumption, there is no Treaty.
To further labour the point, it must also be noted that Contra Proferentem is a principle for contract law. The Treaty is not a contract; otherwise it would be known as the Contract of Waitangi. It is a treaty because neither side had legal jurisdiction over the other. There are no rules or principles of contracts that can be applied to it. Nor do treaties have a higher authority to appeal to.
The legal fraternity has overstepped its boundaries in applying a modern New Zealand legal system to a treaty between parties that existed outside New Zealand law. The Waitangi Tribunal is another legal fallacy – the Treaty does not give the Tribunal authority over the Treaty because the Tribunal and New Zealand law only exists under the Treaty.
Even if we consider it as a matter of principle and in good faith, the argument still fails. Protection of the weaker party (an interpretation of Contra Proferentem) is another fallacy. At the time, Maori were far stronger than the settlers. It is condescending to take this approach. Maori signed, not because they were weak, but because they saw a benefit to themselves.
Disfavouring the drafters is likewise a fallacy. The issue is not the drafting, it is the translation, which is an entirely separate matter. Ngata’s book answers this. The drafting itself was undoubtedly favourable to Maori, which is why they signed. I am not denying the many Treaty breaches that happened later, I am limiting my discussion to the precedence argument.
To conclude, I will quote Ngata’s own words:
“the Maori version clearly explained the main provisions of the Treaty” and “It was the chiefs who bespoke the land and gave it away. They had the power even for life or death. These were the powers they surrendered to the Queen. This was the understanding of each tribe.”