Last weekend Judith Collins spoke to the Northern Regional Conference of the National Party. The whole weekend was spent blowing hard on the good old fashioned racist whistle. But in particular she presented an interesting take on te Tiriti o Waitangi the likes of which I have not seen before.
From her speech:
Article 1, Kāwanatanga, establishes the Queen as our sovereign and head of state.
This speaks directly to our first National Party value of loyalty to our country and sovereign.
Article 2, Tino Rangatiratanga, confirms the property rights of all people. It establishes that all iwi, families and individuals have rights over their own land and property. Property rights are again a key democratic principle and core to National party values.
Article 3, Ōritetanga, most importantly, states all people have the same rights. Those three simple concepts – nationhood, property rights and equal rights – are a powerful foundation for a country, and a powerful foundation to consider our National Party values.
The preamble to the Treaty provides the context in which it was signed and should be read. The preamble states that the intention of the Treaty was to promote peace and avoid lawlessness. Again, directly in line with National Party values of national security and strong communities.
Now, it’s important to state upfront that the Treaty was breached, and those breaches – the New Zealand Land wars – have left Māori in a different position today, to where they would be had those breaches not occurred. The inequities we see today trace back to the actions of the past.
It’s right that we look to address these wrongs and it’s right that we undertake settlements with Iwi and Hapu impacted by Treaty breaches. We are proud of our track record in settling treaty claims, and our members can be proud of the support you gave us to do that.
But this is not the debate we find ourselves in today. The debate today has moved to: what is the role of the Treaty in our democracy going forward? Did the Treaty bring us together as one people, or split us apart as two?
It is as if Judith sought expert advice from Donald Trump about what the treaty involves so bad is her take.
I should not be surprised but her comments trample on the last 179 years of academic analysis of what the treaty actually said as well as an important recent Waitangi Tribunal decision. And remember there is an English version and a te reo version and international law dictates that the version the local chiefs signed should be the one that actually matters.
Here is a quick abridged response to Judith’s claims.
Article one ceded Kawanatanga to the Crown. This is akin to governance. The queen had to deal with all the day to day issues that the immigrants were causing. If they had wanted to cede sovereignty they (or the Queen’s representatives who wrote the treaty) would have ceded Tino Rangatiratanga. This has been one of the most critical issues for Treaty Analysis for a long time. For Judith to ignore this and go with the redneck interpretation of article 1 speaks volumes.
Article two preserves to Maori their interests in all things of importance to them. The English version said:
Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession; but the Chiefs of the United Tribes and the individual Chiefs yield to Her Majesty the exclusive right of Preemption over such lands as the proprietors thereof may be disposed to alienate at such prices as may be agreed upon between the respective Proprietors and persons appointed by Her Majesty to treat with them in that behalf.
The te reo version says:
Ko te Kuini o Ingarani ka wakarite ka wakaae ki nga Rangatira ki nga hapu-ki nga tangata katoa o Nu Tirani te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa. Otiia ko nga Rangatira o te Wakaminenga me nga Rangatira katoa atu ka tuku ki te Kuini te hokonga o era wahi wenua e pai ai te tangata nona te Wenua-ki te ritenga o te utu e wakaritea ai e ratou ko te kai hoko e meatia nei e te Kuini hei kai hoko mona.
The use of “taonga” in the te reo version has been interpreted as covering a wide variety of things, from te reo itself to broadcasting rights. Basically way more than just lands and estates and forestries and fisheries.
But whoever on Judith’s staff came up with the idea that article 2 was some sort of wet dream for Act party supporters need to get a new job. Historical understanding is not one of their strengths. Article 2 was to preserve for Iwi what they already owned, not to say that whatever you own now is yours.
Article three said basically thank you to Iwi for articles one and two and because you did so you are now English citizens.
Even her comments about the preamble are misleading. The most important part of the preamble was the expression of the desire to protect Māori interests from the encroaching British settlement.
Her analysis was embarrassing. If I was her history teacher I would give it an F for fail and tell her she has to try better.
She then went on a conspiracy fuelled rant. Like claiming the proposed Māori Health Authority would be able to veto decisions made by the Government on general health.
Sub standard takes on the meaning of te Tiriti and thinly veiled racist dogma.
Aotearoa New Zealand deserves better than this from the current leader of the National Party.
".. And remember there is an English version and a te reo version and international law dictates that the version the local chiefs signed should be the one that actually matters."
Please stop with the fiction that International law dictates that a particular version of a Treaty takes precedence. There is no hard and fast rule around this at all but the 1969 Vienna Convention on the Law of Treaties states the following in Article 33:
"Interpretation of treaties authenticated in two or more languages
1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.
2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree.
3. The terms of the treaty are presumed to have the same meaning in each authentic text.
4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted."
https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf
You have been advised of this before so you cannot claim this is new information.
It's the Treaty itself that gives precedence to the Te Reo version. There's no conflict here with the VCLT at all. As you've pointed out, the VCLT provides for one version to have greater relevance if the Treaty itelf so provides. Even if there's doubt about whether the Treaty does this (which there isn’t), you've helpfully set out the next part of the test, which is the version that best reconciles a difference of meaning in the two texts, having regard to the object and purpose of the Treaty, prevails.
Ummm… no. The Treaty itself is in two languages and gives no precedence to either version
But the chiefs signed the one in te reo Māori so it is their understanding of what they signed that we need to have regard to.
There is no international law that supports that view.
Please, don’t comment under this post until you’ve done your homework. Today’s task is reading Article 10 of the VCLT document that you linked in to in your first comment @ 1. Subsequently, you can answer the questions you were asked yesterday about what this means with regard to ToW.
The very fact SOME Iwi signed the English version (and not the Te Reo one) means BOTH versions are authenticated. Unless you are trying to argue there are two versions that are active and the Iwi that signed the English version did sign away sovereignty whereas the other Iwi did not. Is that your position?
You didn’t read Article 10, did you? I’ve asked you to answer questions about authentication of ToW, not ask them. Your wasting our time here. Next, I will moderate you.
No I did read Article 10 and it makes not a blind bit of difference. BOTH versions of the Treat were signed and BOTH are authenticated. There is NOTHING under international law stating that a majority of people in an area have to sign both versions of a Treaty.
[Using capitals does not make an argument stronger. There are many issues about the so-called English translation of the Māori document and it has been argued extensively by scholars and historians, as well as Māori, what they actually signed. Thus, it is not and cannot be definitive. Thus, ToW has not been authenticated; it is still open to interpretation. to complicate matters, there are several copies too. Instead of acknowledging these issues and associated open questions about and around ToW, you take a firm position, based on your prejudice. This could lead to you being moderated and further consequences for you – Incognito]
See my Moderation note @ 8:17 am.
By the way if you decide to moderate me because I followed YOUR request and addressed the question around Article 10 of the Vienna Convention on the Law of Treatiesin relation to the ToW and that I disagree with your interpretation of what it means in regard to an authenticated Treaty that is not moderation it is censorship of views differing from yours.
We’re going around in circles and will have to agree to disagree on ToW. Yours is as much an opinion as mine. Others here have different opinions too. This is the crux of robust debate.
The problem here is that you do not engage with those who've attempted to engage with you. This is just one example.
https://thestandard.org.nz/collins-really-bad-take-on-te-tiriti/#comment-1790972
but in what way can the treaty be said to be 'authenticated in both languages' when the signatures are on the Maori language version? Surely that makes that version the authenticated one?
Do you have any evidence supporting the view that international law places more credence on a version of a Treaty in a particular language if that version receives more signatures than another version in a different language?
As for the authentic version I have already shown you that according to one international law around Treaties BOTH versions are deemed to be authetic. Any disagreement over meaning has to be resolved by looking at the object and purpose of the Treaty. What was that purpose in regard to the ToW?
If you don’t know the difference between authentic and authenticated in the context of Treaty Law then you should perhaps not comment here. You have already sucked up much of the ‘oxygen’ here and it is becoming bothersome no matter what some other ignorami here say about you.
One purpose of Te Tiriti o Waitangi was to protect the right(s) of Māori tribes to control their land(s). Trying to put myself in the position(s) of senior Māori at the time, when the number of colonists/settlers was increasing, the evident erosion of land rights would have been a logical concern – as it proved to be.
https://waitangitribunal.govt.nz/publications-and-resources/school-resources/treaty-past-and-present/section-3/
Here you go Gosman, from the Waitangi Tribunal decision in the Te Reo Maori claim:
"4.3.7 As to taking surrounding circumstances into account when interpreting treaties, the legal principles are well-settled especially in North America where the Courts have frequently been required to interpret treaties, many of them similar to our own and made long before it. The Ontario Court of Appeal interpreted an Indian Treaty made in 1818 in the case of The Queen v Taylor and Williams (1981) 62 CCC (2nd) 227. The terms of the treaty in question did not provide for the reservation of hunting and fishing rights but there was written evidence of the circumstances that existed when the treaty was signed. The Court declared : “. . . The principles to be applied to the interpretation of Indian treaties have been much canvassed over the years. In approaching the terms of a treaty quite apart from the other considerations already noted, the honour of the Crown is always involved and no appearance of ‘sharp dealing’ should be sanctioned. Further if there is any ambiguity in the words or phrases used not only should the words be interpreted as against the framers and drafters of such treaties, but such language should not be interpreted or construed to the prejudice of the Indians if another construction is reasonably possible. . . . Finally if there is evidence by conduct or otherwise as to how the parties understood the terms of the treaty, then such understanding and practice is of assistance in giving content to the term of terms . . .” (p 235)"
Just of interest what is this "International law" which you believe exists that "dictates" the Te Reo version takes precedence?
I think you may mistakenly believe SCOTUS rulings around some treaty interpretations involving the US Federal government and Native American groups is International law. It is not.
Gosman, you wrote "Please stop with the fiction that International law dictates that a particular version of a Treaty takes precedence."
In which language was the version of the Treaty written that most signatories signed? What is the importance of that?
What was the first language of most of the signatories?
Who wrote the Treaty, and who translated it?Māori or agents of the Crown?
Remember that within a generation the two versions had such disparity that the NZ Land Wars resulted.
All your points are irrelevant to the claim that I am disputing which is that International law dictates that the version the local chiefs signed should be the one that actually matters.
If you have actual evidence that there is a hard and fast rule under International law which DOES mean the Te Reo version takes precedence then please present it here?
I suspect you won't do that though mainly because I believe you did not bother to read my original comment on this post which actually specified what one International law in relation to the interpretation of treaties in multiple languages states on the topic.
Please address my original comment including the reference to actual International law on this subject.
Gosman, what does the term 'authenticated' mean? (1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.)
I'm not answering your question until you address mine in relation to what International law dictates the Te Reo version is the one that applies.
Does the VCLT apply to the Treaty of Waitangi?
Why would the VCLT not apply to the ToW?
You assert it does. That's for you to justify.
Because it is the accepted international standard for international treaties?
[gets popcorn, waits to see how Gossie slides around article 4]
Although 33(4) is interesting, from a layperson's perspective.
Your first comment is based on the meaning of the word 'authenticated'. I think I have the right to have your understanding of a word you use first, before I am able to answer.
How about you tell me what "authenticated" means then and why it somehow means that international law dictates that the Te Reo version is the one that should be used?
No, mate, you used it. Define it and then apply it to the particular case of the ToW.
https://dictionary.cambridge.org/dictionary/english/authenticated
“to prove that something is real, true, or what people say it is:”
It annoys me no end when people try to claim that interpeting the treaty is a black and white issue. A nice summary is found here:
https://www.justice.govt.nz/about/learn-about-the-justice-system/how-the-justice-system-works/the-basis-for-all-law/treaty-of-waitangi/
lol maybe you should look in the direction of NZ and English legal arguments. Even in 2003 your position was quaintly colonialist.
First off the Privy council is not "International law"
Secondly all you have done is provide a link to a report on a debate in Parliament where Michael Cullen CLAIMS that the Privy Council has stated something. Where is this ruling?
I'll take Cullen's word over yours any day.
Just out of interest, what language was the Treaty written in when signed by both parties? Did they all sign both the English and Māori versions?
I'll answer for Gosman. He wouldn't answer that question from me.
The Māori version was signed by most.
Wikipedia says, "Around 530 to 540 Māori, at least 13 of them women, signed the Māori language version of the Treaty of Waitangi, despite some Māori leaders cautioning against it. Only 39 signed the English version."
On the other hand, Hobson or another English representative signed the Māori copies as well as the English one.
I'd love to have gossie as an employer or landlord. The conditions at the time would be terrible, but the damages when it gets to a tribunal would be exemplary lol: "The ruling is that the applicable version of the contract is the one both parties signed, not the version that only G signed".
There is no international law or convention that states that if a treaty is in two languages it is the one that has the most signatures that takes precedence.
There generally seems to be a tradition amongst national and international law that if you didn't sign a document but signed some other document, the only document that applies to you is the one you signed.
That would be an interesting can of worms.
John Keyesian. "I can find you another Treaty version."
lol Imagine interpreting it the way yanks look at their second amendment: "There's an errant comma in the 4th Māori copy of the Treaty signed by 5 people, that means Queen Victoria ceded the sovereignty of the UK to Ngāti Pou"
Wouldn't it be truly justice if it were an Oxford comma!
International law includes instruments such as treaties and conventions, so the VCLT you refer to itself falls under what is accepted as 'international law'. Decisions of the PC were issued from what was the highest court in our domestic jurisdiction, which generally has greater force than international instruments NZ as a country may have signed up to. Any quibbling, therefore, over whether decisions of the PC represent 'international law' or not is pointless because what ever the PC says (as part of the NZ jurisdiction) is absolutely binding on the NZ government, and generally trumps any view of what international law may indicate, if indeed it says something contrary to it, which one would hope doesn't happen too often.
Discuss this matter with Mickeysavage. It was he who claimed international law dictates the Te Reo version takes precedence.
Gosman the privy council had jurisdiction the UN can only make recommendations.
The NZ supreme court now has the final say as it has superseded the Privy council.
Maori were denied proper legal representation until the 1880's .
Early settlers took advantage of insider trading,today's ruling against dodgy land dealings if applied to sales and stolen lands would see the return of the land plus compensation for the losses incurred and legal fees.
This would put Maori as the wealthiest NZers as $100's of billions would have to go to those who had been defrauded.
People like you Gosman know this and are happy to keep Maori poor and disenfranchised by belittling Maori.
The Nats of the sunburnt neck Party have always been a disgrace to the idea of having a decent society. The very worst aspect of the Capitalist systems. So why would anyone be surprised by her inherited drivel.
I'd be more surprised, if someone in her own party took her to task over it.
Because this is 2021. Even kids in schools are taught a more truthful history than what she's so desperately trying to hold on to.
True, they are our future hope.
To be fair, the National party was formed to stand against principles of a growing labour movement.
Nowadays they stand against addressing gross inequalities in health.
Yeah – the first purpose of all conservative parties is to assert that the status quo was justly arrived at, and can be justly maintained. The second purpose is to disguise that this is a mere assertion, and instead to make it seem like 'common sense'.
I am not going to get into the ins and outs above re which language version of the TOW takes precedence other than to point people to the UN Declaration of the Rights of Indigeneous Peoples in relation to this issue. Below is a link to a Q & A on the TOW which gives the background to the language/precedent issue which covers this aspect from about section 51 (page 41) onwards. IMO this link is a fair summation on a quick read, so suggest this as a starting point. Plenty of other links available via Google etc.
https://trc.org.nz/sites/trc.org.nz/files/publications/files/Q%26A%202015%20online.pdf
That is a laughable document you have provided there.
Can I have authentication of that?
Very clear summary, including that contra proferentem applies: https://waitangitribunal.govt.nz/treaty-of-waitangi/meaning-of-the-treaty/
Let's not get derailed into relitigating settled case law; Brash, Collins and their ilk would love that.
Contra proferentem is used in cases of contracts and commercial treaties. There is no rule that it applies to international treaties such as the ToW. The SCOTUS rulings referred to in the link are not intenational law and neither do they involve matters of sovereignty.
The Tribunal is responsible for establishing relevant law. They have. Get a new hobbyhorse.
The Tribunal have ZERO law making powers.
Not sure who you are trying to convince but you can stop with me.
Methinks Gosman protests too much!
He’s a stirrer but occassionally makes a good point or two.
"or two" is generous, as is “occasionally” imho.
What was the last one?
0at the next GE I am not sure whether to vote Green o Labour. Sigh.
National trying to reheat Brash's Orewa speech .Collins desperately stirring .Saying Maori will have an upper house in parliament by 2050 vetoing everything does that mean the National Party won't win any elections in the next 30 years.
Even John Key denounced Don Brash's anti Maori rhetoric Key won elections and demoted Collins.After the weekend conference you would think National saying it was going to stand in the Maori electorates they would be reaching out to Maori. But instead they are bashing Maori again.
Collins should demote herself and National may stand a chance at getting its support back.