Arguments about the meaning of words is causing the message of the Treaty to be lost
Dame Anne Salmond says that anyone who does not speak te reo who opines on the Treaty of Waitangi should be regarded as “a lunatic or a fool”.
Professor Sir Hugh Kawhāru has translated the te reo version of the Treaty back into English.
Article Three translates as:
“For this agreed arrangement therefore concerning the Government of the Queen, the Queen of England will protect all the ordinary people of New Zealand and will give them the same rights and duties of citizenship as the people of England.”
You do not need to speak te reo to know that the same rights and duties as citizens is not a promise of equality of outcomes.
If Salmond is correct, then only Chinese speakers can make a contract with the Chinese.
I have negotiated contracts in China.
When out of Parliament I negotiated a US$350 million contract. None of our engineers spoke Chinese. None of the provincial officials spoke English.
Like at Waitangi in 1840, there are English terms for which there are no Chinese equivalents.
I wanted to be sure the terms were understood. My translator conveyed the Chinese officials’ discussion of the terms to me.
They understood. I realised that because written Chinese characters are not exact, the Chinese officials were relying on the English text to express the agreement.
We know that similar discussions of words for which there is no equivalent in Māori occurred at Waitangi. Salmond disparages Henry Williams, who translated the Treaty, but we have his letter to Bishop Selwyn written on April 3, 1847.
“I can, however, confidently state that at the three several meetings held at Waitangi, on the 5th, 6th, and 7th of February, I gave the fullest explanation of the Treaty, and that no one chief signed the same through misapprehension, for I took the utmost pains to make them understand perfectly the character of the proposed engagement.”
Then there is another authority – Salmond herself.
“Far from being naïve or ignorant, the rangatira at Waitangi engaged in a sophisticated debate about sovereignty, power, and authority, drawing on their own ancestral precedents and political philosophies.” (Tears of Rangi: Experiments Across Worlds).
Arguments about the meaning of words in scripture have caused churches to split and the message of the gospels to be lost.
Arguments about the meaning of words is causing the message of the Treaty to be lost.
Anne Salmond is not a lawyer. I am.
If the tribunal is right and the chiefs and the governor misunderstood each other so there are two completely different treaties, then there was no agreement at Waitangi.
There is a legal principle of “misunderstanding”. If two parties completely misunderstand each other, then there is no “meeting of the minds” (consensus ad idem), which is essential for a valid contract.
This concept applies in treaties. The principle is found in the Vienna Convention on the Law of Treaties (VCLT) 1969.
Article 48 of the VCLT – Error:
“A treaty may be invalidated if a party entered into it based on an essential mistake concerning a fact or situation …”
Either the chiefs and the governor reached an agreement, and we have one Treaty, or there was no consensus ad idem and there is no Treaty.
The tribunal is convinced that two parties speaking different languages could not have agreed when some concepts were foreign.
I have negotiated when the parties do not share a common language and there are concepts that have no direct language equivalence. I know agreement can be reached, because we reached agreement.
I have been accused by Government and opposition leaders of not doing my due diligence before joining the tribunal. The trigger for my resignation was the tribunal’s draft strategic plan. It was three months after my appointment when I was given a copy and given a few days to comment.
The tribunal is forecasting an increased workload. Reinterpreting Article Three to be a promise of equality of outcome is a promise no government can ever meet.
When I sent my comment on the draft plan my email bounced back. The message said I was not on the list of members entitled to email. I think my exclusion was a cock-up and not deliberate but a tribunal keen to hear my views would have ensured I was on the list.
I discovered the tribunal had consulted non-members, some of whom hold very radical views.
I was wasting my time, and at 77 I may not have a lot left. The tribunal needs to be reformed. We need to honour the agreement that was made at Waitangi.
The Honourable Richard Prebble CBE is a former member of the New Zealand Parliament. Initially a member of the Labour Party, he joined the newly formed ACT New Zealand party under Roger Douglas in 1996, becoming its leader from 1996 to 2004.
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This article was first published at Newsroom.