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Mike Butler

Kawharu’s Re-written Treaty

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Complaints that the Luxon coalition government is about to re-write the Treaty of Waitangi are a bit rich considering that the treaty was quietly re-written under another administration nearly 40 years ago.

In 1986, with the 150th anniversary of the signing of the treaty coming up, the Lange government invited Professor Sir Hugh Kawharu, an Oxford University trained Professor of Maori Studies at the University of Auckland, to check out the various translations that had been made of the Te Tiriti Maori text.

He produced what is often called the Kawharu translation, and that translation was accepted by the government of the day. (1)

But Sir Hugh was not necessarily the neutral academic that high-ranking politicians and jurists apparently took him for, and what he produced was a reinterpretation that serves as a manifesto.

His New Zealand Dictionary of Biography page describes him as “a man of quiet persuasion” noted for “persistent advocacy for the Maori right to exercise rangatiratanga (self-determination)”. (2)

He served on the Waitangi Tribunal for 10 years from 1986 and contributed to 12 reports, including the three volume Ngai Tahu report in 1991.

He was closely involved with his tribe, Ngati Whatua, working on their treaty claims both in Kaipara and Auckland, and was involved in the Bastion Point land claim negotiations.

“Rangatiratanga” was the key point of Kawharu’s reinterpreted treaty that has 11 footnotes that carefully define key words.

In footnote 7, he asserted that the word “rangatiratanga” in Article two of Te Tiriti meant “unqualified exercise’ of the chieftainship” and declared that it “would emphasise to a chief the Queen’s intention to give them complete control according to their customs”.

Kawharu ignored the fact that since the treaty was drafted in English and translated into Maori, “rangatiratanga” translated the word “possession” in Article 2 of the English draft, as in “the possession of their lands, dwellings, and all their property”.

By redefining “rangatiratanga” as self-determination, Kawharu enabled the treaty to be used to justify Maori sovereignty aspirations.

His commentary around the word “kawanatanga” in Article 1 constituted a further change.

Kawharu asserted that “there could be no possibility of the Maori signatories having any understanding of government in the sense of ‘sovereignty’”.

Kawharu failed to acknowledge that eyewitness accounts of the treaty debate on February 5, 1840, at Waitangi, written soon after, which reported a number of chiefs vehemently objecting to having the governor as a chief over them.

In other words, evidence from missionary printer William Colenso’s Authentic and Genuine History of the Signing of the Treaty of Waitangi shows that a number of chiefs understood the implications of ceding sovereignty and didn’t like it. (3)

Kawharu’s assertion, in footnote 6, that chiefs could not comprehend “sovereignty”, opened the way for the demonstrably false argument that chiefs never ceded sovereignty.

The third substantial change was to do with the word “taonga” in Article 2.

In footnote 8, Kawharu asserted that “taonga” included “all dimensions of a tribal group’s estate, material and non-material — heirlooms and wahi tapu (sacred places), ancestral lore and whakapapa (genealogies).

That assertion by Kawharu opened the way for claims for everything, including assets that no one knew anything about in 1840, such as radio frequencies.

Having an Oxford University Bachelor of Literature, Kawharu should have developed skills in evaluating texts, and contextualising literature.

No such academic skills are evident in Kawharu’s treaty reinterpretation.

He made no attempt to present Te Tiriti in its historical context and, without noting that Te Tiriti was originally translated from English, the only treaty text he referred to was the Maori text.

In the absence of any critical analysis that would have exposed these flaws decades ago, Kawharu’s reinterpretation went on to have enormous influence.

This was mainly because Kawharu and fellow activists had the means of getting top politicians and jurists to adopt Kawharu’s manifesto dressed up as a treaty translation as the basis for judgments and policies, which they did.

Kawharu’s reinterpreted treaty became the treaty used by Justice Robin Cooke in New Zealand Maori Council v Attorney General Appeal Court lands case date stamped July 6, 1987. (4)

Kawharu was one of the 20 activists who submitted affidavits for that case along with New Zealand Maori Council chair Sir Graham Latimer, historian Claudia Orange, land march activist Whina Cooper, history lecturer and Ngai Tahu claimant Harry Evison, medical practitioner Mason Durie, and accountancy professor and former Maori Party chair Whatarangi Winiata. (5)

The Kawharu reinterpretation also became the basis of Sir Geoffrey Palmer’s five Principles for Crown Action on the Treaty of Waitangi.

These five principles, kawanatanga, or government; rangatiratanga, or self-management; equality; cooperation; and redress, were published on July 4, 1989. (6)

Outrage triggered over the past few months by the ACT Party’s proposed treaty principles bill shows alarm at a perceived risk to “gains for Maori”.

Such gains came in the form of the emergence of wealthy new tribal entities nourished with treaty settlement money demanding increased political power.

Kawharu’s redefinition of “rangatiratanga” as “unqualified exercise’ of the chieftainship” led to the concept of treaty partnership in New Zealand Maori Council v Attorney General in 1987, which led to the Treaty Partnership Ministry in 2017, which in turn blossomed in the He Puapua roadmap to two governments by 2040, one by Maori for Maori, and other, a fully bicultural version of what we already have, subject to a tribal monitoring committee.

In a nutshell, the treaty partnership ideology behind these developments can be traced to Kawharu’s rewrite of the treaty and the government’s adoption of the principles of Crown action.

Bypassing Kawharu’s reinterpretation, ACT leader David Seymour has based his three brief principles on the words of the Maori text Te Tiriti. The proposed treaty principles bill would say:
1. The government has the right to govern and there is one government.

2. We all have rights to “tino rangatiratanga”, or self-determination, and to property.

3. We all have “nga tikanga katoa rite tahi” or the same rights and duties.
Seymour has posed a substantial problem for the radicals who have benefited from a treaty that seems to justify Maori self-government because for them to argue against his bill means that they are arguing against Te Tiriti that the chiefs agreed to in 1840.

Many are aware that there are two treaties, an 1840 treaty and a 1986 reinvention, and that people on both sides talking past each other when it comes to treaty politics.

But beware of everyone who alleges the coalition government is “rewriting the treaty”. The treaty was quietly rewritten long ago and that rewritten treaty is behind the division that is on display at Waitangi today.

1. The Kawharu translation https://www.waitangitribunal.govt.nz/treaty-of-waitangi/translation-of-te-reo-maori-text/
2. See Kawharu, Ian Hugh – Dictionary of New Zealand Biography – Te Ara
3. Colenso, William, The Authentic and Genuine History of the Signing of the Treaty of Waitangi. See https://www.waitangi.com/colenso/colhis1.html 
4. New Zealand Maori Council v Attorney General 1987, P32
5. New Zealand Maori Council v Attorney General 1987, P31
6. Palmer, Geoffrey. The Treaty of Waitangi – the Principles for Crown Action. 20.pdf (austlii.edu.au)