Kōtuitui
New Zealand Journal of Social Sciences Online
"Relic of 1840" or founding document? The
Treaty, the Tribunal and
concepts of time1
Giselle Byrnes
School of History, Philosophy, Political Science and International
Relations
Victoria University of Wellington
PO Box 600
Wellington, New Zealand
Abstract This paper has two main objectives. First, it
examines the ways in which the Waitangi Tribunal considers the notion
of “time” (and its corollary “timelessness”) in relation to the Treaty
of Waitangi. The Tribunal has increasingly emphasised the timelessness
of the Treaty, its ability to transcend temporal notions of time, and
the implications of this for the relationship between the Treaty
partners, Maori and the Crown. Second, it compares these tendencies
with contemporary Maori ideas of time, as they are presented in the
modern Treaty claims process. It is argued that the Tribunal,
especially in its more recent reports, has signalled a marked shift in
its acknowledgment of Maori concepts of time. Its published reports
from 1999 onwards show more appreciation not for only for Maori
understandings of the Treaty relationship, but for Maori values and
concepts which, by their articulation and inclusion in the hearing
process, test orthodox and dominant assumptions regarding the nature of
change over time. Some broader trends may also be observed. Since the
1980s, there have been numerous references to the Treaty and its
principles in statutory law, Waitangi Tribunal reports, and Deeds of
Settlement ratified by successive New Zealand governments. Furthermore,
there has been increasing (but by no means universal) recognition of
the Treaty as a “developing social contract”, rather than a static
historical document, with much of the impetus for such an
interpretation coming from findings and recommendations of the Waitangi
Tribunal.
In January 2004, Don Brash, the
leader of the National Party, in a
now infamous (and often quoted) speech delivered to the Orewa Rotary
Club (Brash 2004), described the Treaty of Waitangi as an outmoded
historical artefact, a relic of 1840.2 For
Brash and his supporters, the Treaty has served its purpose and ought
to be consigned to the past. The leader of the National Party is not
alone is espousing this view; recent surveys have revealed that many
New Zealanders consider the Treaty to be an oddly quaint, but outdated
historical anomaly (see Human Rights Commission Te Kahui Tika Tangata
2003). Yet this opinion is clearly at odds with interpretations of the
Treaty made by the Waitangi Tribunal over the past two decades.3 This paper has two main objectives. First,
it examines the ways in which the Waitangi Tribunal considers the
notion of “time” (and its corollary “timelessness”) in relation to the
Treaty of Waitangi. The Tribunal has increasingly emphasised the
“timelessness” of the Treaty, its ability to transcend temporal notions
of time, and the implications of this for the relationship between the
Treaty partners, Maori and the Crown. Second, it compares these
tendencies with contemporary Maori ideas of time, as they are presented
in the modern Treaty claims process. It is argued that the Tribunal,
especially in its more recent reports, has signalled a marked shift in
its acknowledgment of Maori concepts of time. Its published reports
from 1999 onwards show more appreciation not only for Maori
understandings of the Treaty relationship, but for Maori values and
concepts which, by their articulation and inclusion in the hearing
process, test orthodox and dominant assumptions regarding the nature of
change over time. Some broader trends may also be observed. Since the
1980s, there have been numerous references to the Treaty and its
principles in statutory law, Waitangi Tribunal reports, and Deeds of
Settlement ratified by successive New Zealand governments. Furthermore,
there has been increasing (but by no means universal) recognition of
the Treaty as a “developing social contract”, rather than a static
historical document, with much of the impetus for such an
interpretation coming from findings and recommendations of the Waitangi
Tribunal. In sum, according to the published reports of the Tribunal,
the Treaty is inextricably part of the present and future as well as
the past (see Belgrave 2005).
Before proceeding with this argument, a brief foray into history is
required. The Treaty of Waitangi was an agreement first signed on 6
February 1840 between Captain William Hobson, on behalf of the British
Crown and representatives of certain Maori tribes. Subsequent Treaty
signings then took place around the country over the following months
(Orange 1987). Prior to 1840, Maori—especially those in the north of
the North Island—had a history of contact and exchange with European
traders and missionaries. In 1835, a group of northern tribes and the
British Crown had signed the Declaration of Independence in 1835, an
accord in which the Crown guaranteed to Maori their rangatiratanga
(chieftainship or sovereignty). The Crown had, therefore, to negotiate
with Maori in order to annex New Zealand and persuade Maori to
surrender their rights to sovereignty and independence. While the
British saw the Treaty of Waitangi as a treaty of cession, those Maori
who signed considered it an affirmation of their continued
rangatiratanga, in exchange for British protection. For the British,
the forging of a single treaty might have seemed an advantage in
securing authority over New Zealand. However, the existence of two
language versions of the Treaty, which promised rights of sovereignty
to both parties, was to make this more difficult. On the one
hand, the English language version stated that the chiefs of New
Zealand had “absolutely and without reservation” ceded their rights of
sovereignty to the Crown. The Maori language version, on the other
hand, split the powers of authority into two: kawanatanga
(governorship), which went to the British, and rangatiratanga, which
was to be retained by Maori.
The Treaty of Waitangi has since been described as “the Maori Magna
Carta”, “the great charter of Maori rights”, and in 1877, as “a simple
nullity”.4 More recently, Pakeha and Maori
political activists have vilified the Treaty as a “fraud” and a “sham”.
Since the signing of the Treaty, there have been two separate but
concurrent histories of the Treaty—a history of remembering, and a
history of forgetting—and these narrative traditions are defined
principally by political, rather than cultural, differences. The
“history of remembering” tends to coalesce around Maori views of the
Treaty. For Maori, the Treaty (Te Tiriti) has been and remains a
binding and sacred covenant between Maori and the Crown. In the years
since it was signed, however, Maori have consistently claimed that the
Crown has failed to honour its Treaty obligations. These allegations of
Crown “Treaty breaches” have been the cause of petitions made to
parliament and the Queen, and have been the subject of numerous pleas
before the courts both in New Zealand and Britain. In the twentieth
century, Maori land marches, the occupation of significant and
contested sites, and the existence of the Treaty claims process itself
have reminded Pakeha New Zealanders that the country did not have, as
was often claimed, “the best race relations in the world”.
The “history of forgetting” aptly sums up dominant (though not
exclusive) Pakeha attitudes towards the Treaty of Waitangi.
Historically, Pakeha society has tended to downplay the significance of
the Treaty, and instead celebrate it as a remnant of beneficence on
behalf of the humanitarian colonisers. There has, too, tended to be a
collective historical amnesia towards the Treaty in general, and in
particular, the existence of a Maori version of the Treaty. Until
recently, references to the Treaty were virtually absent from school
curricula; and when the Treaty was mentioned in history texts, it
tended to be overshadowed by tales of the pioneering efforts of the
European settlers. This has been remedied in recent years, with a
number of publications on the Treaty, and more recently, on the
Waitangi Tribunal. Some of the most significant include: Colenso 1890;
Buick 1936; Ross 1972; McKenzie 1985; Kawharu 1989; McHugh 1991;
Renwick 1991; Durie 1998; Ward 1999; Havemann 2001; Oliver 2001; Moon
2002; Byrnes 2004; Belgrave et al. 2005. Nonetheless, the existence of
these dominant traditions of “remembering” and “forgetting” should not
preclude or eclipse the existence of other histories of the Treaty of
Waitangi, especially tribal and oral traditions. In fact, there might
be said to be a multiplicity of histories which broadly fall under
these two categories. Although some recent studies have revealed a
history of Pakeha “activism” in support of the Treaty (see Consedine
& Consedine 2001; Johnson 2002; Snedden 2005).
The Waitangi Tribunal was established under the Treaty of Waitangi
Act 1975 as an independent Commission of Inquiry, to investigate claims
from Maori that they had been prejudicially affected by an action or
policy of the Crown inconsistent with the principles of the Treaty.
While this temporarily placated Maori concerns, the Tribunal operated
within very limited parameters: most notably its remit to only consider
contemporary claims, or those claims which post-dated 1975. A decade
later, the Treaty of Waitangi Amendment Act 1985 extended the
jurisdiction of the Tribunal to investigate historical claims
concerning the actions of the Crown from 1840 to the present. The
result was to open a veritable “Pandora’s box” of grievances: claims
against the Crown poured into the Tribunal. This heralded the beginning
of a long-term examination of New Zealand colonial history. Since its
inception, the Waitangi Tribunal has, along with the courts, become an
important voice of the Treaty. Over the past quarter-century, it has
been reinterpreting and articulating the Treaty and Treaty principles
in the light of present concerns. The Tribunal especially has increased
public and political awareness of the Treaty, and more significantly,
of Crown breaches of the Treaty: injustices against Maori, which have
marginalised them in the past and continue to do so. It is worth
noting, however, that the Tribunal’s investigations into Maori
grievances under the Treaty of Waitangi are neither singular nor
unique. For many tribes, their appearance before the Waitangi Tribunal,
and their participation in the modern claims process, is a revisitation
of the actions of their tupuna (ancestors). For tribes such as those in
Taranaki, the western Bay of Plenty, South Island Ngai Tahu, and the
people of the Whanganui region, virtually every generation has been
involved in presenting some form of grievance regarding alleged Treaty
breaches to the government of the day (Belgrave 2001; Keenan 2001). In
this respect, the Waitangi Tribunal and the Treaty claims process is
continuing a pattern of Crown-Maori relations.
The Treaty, therefore, has had a particularly chequered history,
laying to rest once and for all the myth that New Zealand can boast
“the best race relations in the world” (Sinclair 1971). Historically
speaking, the Waitangi Tribunal, through its published reports, has
increasingly placed emphasis on the principles of the Treaty and the
application of those principles, rather than narrowly focusing on the
relatively brief text of the Treaty and the discrepancies between the
English and Maori language texts. In the Muriwhenua Fishing Report,
for instance, the Tribunal described its mandate as follows: “The
essential task is not to apply the Treaty’s literal words but locate
the correct principle” (Waitangi Tribunal 1988a). Accordingly, it has
not been confined to a verbatim interpretation of the written text, but
has attempted to read the Treaty in the light of present changes and
challenges. Indeed, the Treaty of Waitangi Act 1975 obliges the
Tribunal to focus on Treaty principles. From the 1980s, there has been
a steady reiteration of Treaty principles in statutory law. Numerous
statutes have an added provision that nothing in them is to be taken as
conflicting with Treaty principles.5 Since
1987 when the Court of Appeal handed down its decision in New
Zealand Maori Council v Attorney General, the Treaty has
been increasingly visible in public policy-making too. In that case,
Sir Robin Cooke referred to the Treaty partnership, the Crown’s
fiduciary duty, and the need to adhere to the principles of the
Treaty―rather than a literal reading of the text. While it cannot be
said that there is general agreement as to what these principles are,
the Tribunal has emphasised the principles of partnership, good faith,
active protection, the need for compromise, and the duty to consult.
The Tribunal has interpreted these principles fairly liberally. For
instance, it has considered that the principle of “protection” includes
all sorts of material and cultural taonga (treasures), such as haka and
cultural products, and intellectual property. The Tribunal has thus
adopted the position that the Treaty is a living document which should
be interpreted in a contemporary context. Because of this, new
principles are always emerging and existing ones will need to be
modified. Nonetheless, it ought to be pointed out that the Treaty has
no independent standing in domestic law (see Ward 1997; Hayward 2004).
In addition to the greater visibility of Treaty principles in the
published reports of the Waitangi Tribunal, there is increasing
acceptance of the idea of the Treaty as a “developing social contract”.
This was most clearly articulated by the Tribunal in the
Motunui-Waitara Report (Waitangi Tribunal 1983), where it
declared:
The spirit of the Treaty transcends the sum
total of its component written words and puts narrow or literal
interpretations out of place. The Treaty was an acknowledgement of
Maori existence, of their prior occupation of the land and of an intent
that the Maori presence would remain and be respected. ... The Treaty
was also more than an affirmation of existing rights. It was not
intended to merely fossilise a status quo but to provide a direction
for future growth and development. The broad and general nature of its
words indicates that it was not intended as a finite contract but as
the foundation for a developing social contract. We consider then that
the Treaty is capable of a measure of adaptation to meet new and
changing circumstances provided there is a measure of consent and an
adherence to the broad principles. (Waitangi Tribunal 1983)
Other reports have elaborated on this theme. In the Te Roroa
inquiry, for instance, the Tribunal interpreted the Treaty as
above worldly concerns, as a quasi-religious compact. It described the
Treaty not only as “a contract or reciprocal arrangement between two
parties”, but as “a sacred covenant entered into by the Crown and
Maori” where “both parties have a common moral duty to abide by the
Christian and traditional Maori values it embodies” (Waitangi Tribunal
1992c). The Treaty was thus elevated into the realm of the spiritual,
beyond the forces of earthly change and human intervention.
Given the Waitangi Tribunal’s emphasis on Treaty principles and of
the Treaty as a “developing social contract”, how then does the
Tribunal consider time more generally in relation to the Treaty? First,
it takes the view that while the Treaty was a historical
document, its principles are timeless. The space between past and
present is eliminated as they are compressed into a single entity. In
the Manukau Report (1985), the Tribunal concluded: “The act of
omission began last century with policies that led to war and the
confiscation of tribal territories. It was continued in this century by
a failure to give adequate protection to or recognition of Maori
rights” (Waitangi Tribunal 1985). It has taken the view that the Treaty
and its principles are timeless, literally “out of time”. In the Allocation
of Radio Frequencies Report (1990), the issue of time (and its
antithesis, timelessness) was very important. At the heart of this
claim was the issue of whether or not the claimants could prove their
Treaty rights to taonga and possessions that had clearly changed over
time. In its findings, the Tribunal concluded that “in its widest sense
the Treaty promotes a partnership in the development of the country and
a sharing of all resources so that it is consistent with the principles
of the Treaty that the language and matters of Maori interest should
have a secure place in broadcasting” (Waitangi Tribunal 1990). The
Tribunal was in no doubt that Treaty principles and obligations were,
in this claim, above and beyond historical time. In 1988, the Muriwhenua
Fishing Tribunal wrote how “the Treaty speaks across all ages”
(Waitangi Tribunal 1988a). The same year, the Ngai Tahu Sea Fisheries
Tribunal echoed this: “It does not follow that Ngai Tahu Treaty fishing
rights were frozen for all time within the range of 12 miles or
so. Implicit in the recognition of the Treaty right to make use of a
new sea fishing technology is a right to take full advantage of it”
(Waitangi Tribunal 1988c).6 In the Ngai
Tahu Report (1991), the Tribunal developed the view that Treaty
principles were timeless: “The Treaty itself is a remarkably brief,
almost spare, document. It was not intended merely to regulate
relations at the time of its signing by the Crown and the Maori, but
rather to operate in the indefinite future...” (Waitangi Tribunal
1991). Similarly, in the Te Whanganui-a-Orutu Report (1995),
the Tribunal described the Treaty as “a charter, or a covenant in Maori
eyes, for a continuing relationship between Crown and Maori, based upon
their pledges to one another. It is this that lays the foundation of
the concept of partnership” (Waitangi Tribunal 1995). Later, in the Whanganui
River Report (1999), the Tribunal affirmed that “New Zealand
society has changed since 1840, but the Treaty principles do not
change” (Waitangi Tribunal 1999).
The emphasis on the timelessness of Treaty principles means that
the Tribunal often merges the past into the present and vice versa.
This is most evident when the Tribunal describes the continuity of the
Maori struggle for redress. It stated this in the Taranaki Report
(1996) in the most explicit manner, arguing that the deprivations of
the nineteenth century can be evidenced as continuing into the present:
“For Maori, their struggle for autonomy … is not past history. It is
part of a continuum that has endured to this day. The desire for
autonomy has continued to the present day in policies of the
Kingitanga, Ringatu, the Repudiation movement, Te Whiti, Tohu, the
Kotahitanga, Rua, Ratana, Maori parliamentarians, the New Zealand Maori
Council, Te Hahi Mihingare, iwi runanga, the Maori Congress, and
others” (Waitangi Tribunal 1996).7
Similarly, in the Muriwhenua Land Report (1997), the Tribunal
declared: “The Government’s policies and practices should be seen in
the light of the standards of the day. … In terms of the Treaty of
Waitangi Act 1975, however, they must also be assessed by the
principles and standards for settlement established in the Treaty of
Waitangi. … The canons of justice and protection apply to all ages”
(Waitangi Tribunal 1997).
The Tribunal also projects Treaty principles forward into the
future. The Tribunal looks for solutions not as they are, but as they
might be. The political philosopher Andrew Sharp has argued that the
Tribunal has operated in terms of what he calls a “reparatory
jurisprudence” (Sharp 1997). With the realisation that effecting full
restitution would be impossible, the Tribunal, Sharp suggests, has
developed a “forward-looking jurisprudence” that concentrates not on
past “wrongs” but on future “goods” (Sharp 1997). At the same time, it
has created a jurisprudence addressed to detailing the histories of
past injustices: one devoted to finding in the Treaty strict rules of
right necessary to be discovered if their breach was to trigger the
right of reparation. In the Manukau Report (1985), the Tribunal
made this clear when it commented: “We consider it timely that
Government consider affirmative action to fund and assist tribal
authorities to establish a new economic base for their people”
(Waitangi Tribunal 1985). In the Orakei Report (1987), the
Tribunal built on this premise, arguing that: “The broad and general
nature of its [the Treaty of Waitangi’s] words indicates that it was
not intended as a final contract. It follows that there is room for
movement and scope for agreement between the Crown and the Maori people
which involves a measure of compromise and change” (Waitangi Tribunal
1987). The Tribunal qualified this position by describing its own role
in relation to the Treaty, writing that its “function is to determine
whether persons are prejudiced through Crown actions contrary to the
Treaty and if so, the action that might be taken to compensate for or
remove that prejudice” (Waitangi Tribunal 1987).
The Tribunal’s focus on the future further underscores its
interpretation of the Treaty as timeless. It has, for example, pointed
out the importance of land transactions as agreements that were
designed with the future in mind. In this respect, the Tribunal
followed what it assumes to be a Maori perspective of land sale and
acquisition. In the Mangonui Sewerage Report (1988), for
example, the Tribunal wrote that: “Land transactions were seen in the
Maori view as the first step in a long-term personal relationship
between the tribe and the purchaser, where both would have continuing
obligations toward each other through subsequent generations” (Waitangi
Tribunal 1988b). In the Fisheries Settlement Report (1992), the
Tribunal clearly saw its role in future-oriented terms. “Most
especially”, wrote this Tribunal, “it needs to be appreciated that any
settlement of this nature has two essential goals, not just to pay off
for the past, but also to buy into the future. The Treaty, it must be
understood, is primarily concerned with the latter. It is not the
extinguishment of rights that is essential but the affirmation of them”
(Waitangi Tribunal 1992b). In 1996, the Tribunal went further, arguing
that “the Maori parties cannot be presumed to have understood the
transaction in terms of the deed. … It is well known now that not only
was the sale of land unknown to Maori but it invoked concepts
antithetical to their worldview. On the other hand, the incorporation
of migrants into local communities was well known, being practised
throughout the Pacific. … Maori, like others, sought arrangements to
secure Pakeha, but these arrangements were to strengthen the tribe, not
to sell the land” (Waitangi Tribunal 1996). Again, in the Muriwhenua
Land Report (1997), where the process and understandings of the
land sales were at the centre of the claimants’ case, the Tribunal
stated clearly at the beginning of its report that “very early private
and official land transactions between Maori and European: the
pre-Treaty transactions from 1834, and the Government transactions from
1840 to 1865 … show how transactions posited as land sales by one race
were contracts for long-term social relationships for the other”
(Waitangi Tribunal 1997; see also pp. 12–13, 54, 56, 64, 66–67, 68–69,
73, 74, 76, 77, 87, 89, 106–08, 392).
In its report on the Ngai Tahu claim, the Tribunal focused on the
broader picture of Crown-Maori relations, and most especially, the
process of colonisation. The entire colonising project, it argued,
ought to be seen in terms of its future impact and outcomes. Here, the
Tribunal invoked a strongly retrospective view of the past, and
moreover, a view that was infused with hindsight and present-minded
concerns. “Crown historians”, it admitted, “often stressed to us that
things must be seen according to their own times, and little long-range
planning would have been going on then. We do not accept that, however.
The whole business of colonisation was about providing for the future.
… The entire scheme was future-driven” (Waitangi Tribunal 1991). The
Tribunal justified its future focus by virtue of the brevity of the
Treaty itself: the economy of the Treaty’s text and its words allowed
it to be read and applied across time. In other words, the Treaty was
outside chronological time. The Tribunal’s emphasis on development
rights further appeals to the notion of timelessness with regard to
Treaty principles, rights, and obligations. The Ngai Tahu Sea
Fisheries Report (1992) also discussed this at some length
(Waitangi Tribunal 1992a: 256–257; see also Waitangi
Tribunal 1993: 22, 33, 34). In the Muriwhenua Land Report
(1997), the Tribunal was particularly interested in the question of the
future, both in terms of understanding the nature of land transactions
and in terms of compensation for the claimants’ loss and sufferings
(Waitangi Tribunal 1997: 386).
In sum, therefore, the pre-1999
Tribunal reports deal with time on two different levels. First, there
is historical time, which maps out the linear development of a
chronological narrative. Here, time is both a useful measuring device
as well as a chronological “stopwatch”: certain moments, such as
“1840”, can be seen as pivotal turning points influencing the outcome
of subsequent events. This insistence on linear time tends to create a
“grand narrative”: a broad and sweeping chronicle that, while focusing
on a limited number of specific issues raised by the claimants, also
paints a much wider picture of Maori-Crown relations. After all, the
Tribunal at least must explain and justify to government how it reaches
its conclusions by providing this larger context. On another level, the
Tribunal has adhered closely to the idea of time as “timeless” or “out
of time”, as the Tribunal projects back and forward for present-minded
purposes. For the Tribunal, this latter point can be explained by its
jurisdiction: most importantly, that it can only make findings against
the Crown for past Treaty breaches if these have been sustained into
contemporary prejudice. Hence, the Tribunal’s constant shifting between
past and present results from this statutory obligation. Statutory
references to Treaty principles have been similarly driven by this
present-focused approach: most notably, to reduce the possibility of
new legislation creating further Treaty breaches and the need to
protect “the honour” of the Crown.
The published Tribunal reports which have appeared from 1999
onwards have continued the trends described above, but demonstrate an
even more flexible attitude towards the idea of time. While these later
reports recognise time as a linear and progressive universal
chronology—a view which defines the present as a step removed from the
past, where “then” and “now” appear in direct sequential
succession—they also acknowledge that the claimants who appear before
them have rather different culturally determined understandings of
time, which sees past and present as one. In the Whanganui River
Report (1999), for instance, the Tribunal hinted at this when it
wrote that the claimants had long held a steadfast position, and that
“at no stage during this long history have Atihaunui departed from the
position taken at the time of the first European settlement” (Waitangi
Tribunal 1999). The Tribunal admitted: “We were dealing not with a dry
record of past habitations but with evidence that is lived” (Waitangi
Tribunal 1999). Here, the past and present are not seen as distanced or
separate, but as existing in parallel. Some Tribunal reports have also
acknowledged culturally specific values, such as a river as a tupuna
awa (or a living ancestor) as in the Whanganui River Report
(1999). Here, the Tribunal considered practical and pragmatic remedies
to satisfy both claimants and the wider public over access to and use
of the Whanganui River, and proposed that Maori have a role in river
management (Waitangi Tribunal 1999: xx–xxi). The recognition of Maori
cultural and spiritual values was mediated by the need for compromise
and to maintain law, order, and peace in the Whanganui community. This
claim, the Tribunal concluded, was not just about law, but also about
order. “Order requires that Maori must respect the law and property
rights of others. … But by the same token, the property rights of Maori
must be respected as well.” (Waitangi Tribunal 1999: 340, 341).
While the Tribunal’s emphasis on compressing past and present into
a singular past may be problematical in historical terms, it is in
keeping with its quasi-judicial role as adjudicator. According to its
statutory obligations, the Tribunal must find evidence of ongoing
prejudice if it is to find in favour of the claimants: it must deny
that other events would have or could have intervened. In this way, the
Tribunal can and does behave as if other historical experiences over a
very long period of time can be simply neglected or swept aside. In Rekohu
Report (2001), the Tribunal was unequivocal about the continuity
between past and present in its concluding remarks on this claim: “The
Treaty was breached, the breach was serious, the impact continues, and
compensation should be provided to assist Moriori rehabilitation”
(Waitangi Tribunal 2001: 171). The Tauranga tribunal also noted the
“continuing struggle” which had characterised “the protest by Tauranga
Maori over the raupatu” from 1886 through to 2003 (Waitangi Tribunal
2003: 367). The Mohaka tribunal observed the connection between past
and present. “We have been asked by the various claimants”, it noted,
“to find that, by one means or another, the Crown acquired or
facilitated the acquisition by Europeans of an excessive area of Maori
land in our inquiry district. As a result, the claimants argued that
they and their forebears suffered poverty, social dislocation, and ill
health” (Waitangi Tribunal 2004: 677). Even more recently, the Kaipara
Report (Waitangi Tribunal 2006) depicted the Treaty relationship
in future-oriented terms which collapsed past and present.
If these later Tribunal reports have indeed been more amenable to
alternative definitions of time, then we need to examine what these
perceptions of time are—but do so without “essentialising” Maori ideas
of time, or reducing them to a single static entity. In recent years,
scholars from social science disciplines, especially anthropology and
history, have convincingly argued that time is not an absolute concept,
but a relative one. In other words, time is a construct that is
culturally conditioned (Fabian 1983). The historian Dipesh Chakrabarty
has also argued how western-defined notions of historical time have
typically dominated the way we think about the past. He argues that
“history” has been constructed according to a progressive schema, where
historicism is a transition narrative: in Chakrabarty’s terms, “the
idea that to understand anything it has to be seen both as a unity and
in its historical development” (Chakrabarty 2000). Hence, western
notions of time (as linear and progressive) have become hegemonic even
within the discipline of history. Non-western concepts of historical
time have their own internal structure and logic and are not
necessarily determined by ideas of linearity and progression. For
instance, “traditional” Maori notions of time are highly localised, in
that they are defined in and by this place, that is, Aotearoa New
Zealand. They are also fragmented and regionalised. It is not possible
to define one composite singular “Maori perspective” of time, just as
it is impossible to isolate and identify absolute agreement on any
universal truth from any culture. Time is not fixed either, but like
other cultural constructs, is subject to constant amendment and
modification. Historian Judith Binney has explained how, within Maori
oral tradition, there is “a continuous dialectic between past and
present”, where the past is reordered and the present reinterpreted.
The cycle of traditions about the people, land, and events is dynamic
and fluid, not static and fixed (Binney 1987). Here, the past is not
necessarily the precursor to the present, but a part of it.
It is worth pointing out that law and history—the primary
discourses of the modern Treaty claims process—and their approaches
towards the past are distinctly different, both to each other and to
the explanation of time outlined above. Legal methodology tends to
interpret time as immortal and immutable, where the common law
especially exists outside time (McHugh 1997). Time in this context is
described in absolute terms, as an omniscient or over-arching framework
of reference that is more rigid and less susceptible to human
interference. Time is assumed to exist because it always has done.
Historical time is, however, fundamentally different. Western
historiography has long seen “time” as linear, progressive and
sequential: that is, events occur in chronological succession, where
every event (B) is preceded by a cause (A) and followed by a
consequence (C). Put simply, the task of the historian is to reveal and
explain these events in their historical context. Historical time is
therefore a human construct. To summarise then: while legal time is
beyond human and temporal modification, historical time is nonetheless
a human invention. For Maori claimants entering this process, time also
has another meaning, as a cultural construct.
For modern Maori claimants pursuing a claim through the Tribunal
hearing process, the validity of their case rests on the basis that
they are still affected by past Crown actions; hence, they must
present the Treaty and its principles as timeless and therefore
emphasise the continuity between past and present. Here, claimants can
adopt the “continuous dialectic” Binney points to—that is, a “cyclical”
view of history where the past actually exists in the present—and
include this in a more pragmatic approach towards time. Not only is
this pragmatism determined almost entirely by the legal procedure
dominating the claims and hearing processes, but in this context,
claimants may see history as a way of linking the past with the
present. The past and the present are part of the same continuous
narrative, yet they occupy different temporal and historical spaces.
This continuity is necessary if claimants are to prove they, and their
ancestors, have been wronged. Claimants in the present—those who live
in the late twentieth and early twenty-first centuries—must present
themselves as wronged before the Tribunal, just as their tupuna were.
Historical Maori characters therefore appear as being duped, tricked,
or forced into selling land, or losing land (and other resources) by
other means.8 After all, the onus is on
modern claimants and their counsel, under the Treaty of Waitangi Act
1975, to prove that they and their people have been prejudicially
affected by Crown action or inaction.9
So what are the implications of this? At one level, claimants must
conform to dominant ways of understanding time as linear and
progressive. The modern Treaty claims process is still dominated by
legal discourse and legal procedures. However, there is some evidence
that alternative definitions of time have been heard and recognised by
the Tribunal, as evidenced in its recent reports. Having said this,
there has been more generally a growing appreciation for Maori ways of
understanding the Treaty, which conform closely to the
“relationship-based” approach outlined above. This shift has witnessed
an acknowledgment of what treaties meant to indigenous peoples more
broadly: almost without exception, the evidence suggests that in very
few cases was there mutuality of understanding between both parties. In
New Zealand, Canada, the United States and elsewhere, indigenous
peoples seem to have had profoundly different expectations of treaties
and treaty-like agreements. More often than not they saw these
agreements confirming, rather than extinguishing, existing rights,
albeit in a new and modified environment. In New Zealand, the Tribunal
has taken the view that on the one hand, the Crown undertook the
protection of Maori society and interests, not least the mana of the
chiefs and tribal property rights, while on the other, Maori agreed to
the colonisation of New Zealand under royal protection. The Tribunal
has not suggested that Maori relinquished all power to the colonisers
in 1840; rather, it has emphasised the Treaty as initiating a new and
ongoing relationship, where some power was ceded to the Crown, but
conditional on the Crown fulfilling its Treaty obligations towards
Maori. This interpretation of the Treaty (not as a treaty of cession
but as the beginning of a treaty-based relationship) prioritises
historical Maori perspectives of the Treaty and is consistent with
international law.
CONCLUSION
This paper has examined the ways in which the Waitangi Tribunal has
considered the notion of “time” in relation to the Treaty of Waitangi
through its published reports. It has compared these interpretations
with contemporary Maori ideas of time. The paper has argued that in its
more recent, post-1999 reports, the Tribunal has publicly acknowledged
and increasingly taken account of Maori cultural ideals and values, of
which the understanding of time as cyclical rather than strictly linear
is one. The Tribunal’s findings and recommendations have been in accord
with international jurisprudence on treaties, and in many respects its
findings and recommendations have led the way in terms of encouraging
the Treaty partners to move beyond conflict and talk reparation and
settlement. Yet, here in New Zealand, we must still grapple with the
challenge of translating the findings and recommendations of the
Tribunal reports into policy and governance in ways that are practical,
fair, and necessary. In order to achieve this, governments and citizens
alike need to acknowledge that the Treaty is not an outdated document
that simply facilitated colonisation, a view that is still widely held
by many New Zealanders. The Treaty of Waitangi is a part of New
Zealand’s colonial history, but it need not remain in the past as a
relic of 1840. Rather, it offers guidance for a positive bicultural
future. The Tribunal’s reinterpretation of the Treaty in recent
years—most notably the entrenchment of Treaty principles in Tribunal
findings and recommendations, its articulation of the Treaty as a
developing social contract, and the prioritisation of its “out of time”
status—goes some way towards this. It is also worth noting that those
Treaty principles that have been most clearly expressed by the
Tribunal—the principles of active protection, partnership, and
participation—are future-oriented and supersede conventional notions of
time. Furthermore, these perspectives of the Treaty are closer to how
Maori have, and still do, remember the relationship. Questions
regarding the end date of the modern Treaty claims and settlement
process therefore miss the point, as do political calls for the “full
and final” settlement of Treaty claims.10
For if, in fact, the Treaty is an ongoing social contract—as the
Tribunal, along with the courts and statutory law have insisted for the
past two decades—then it stands to reason that just as the Treaty will
always be with us, so too the Waitangi Tribunal ought to remain as a
permanent institution, as a “check” on ensuring that the Treaty is
honoured. For how can either Treaty partner, Maori or the Crown,
guarantee that they will not breach the Treaty in the future?
ACKNOWLEDGMENTS
I thank Professor Stephen Levine, Victoria University of Wellington,
for his encouragement in developing a conference paper into this
article.
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1This article is derived from a paper
presented by the author at the British World Conference IV. Broadening
the British World. Auckland, 14–16 July 2005.
2For a useful political analysis of this
speech, see Johansson (2004).
3While the Tribunal’s reports reflect the
deliberations of particular Tribunals (and now professionally written
on their behalf), “the Tribunal” is considered here as a single author.
4Chief Justice Prendergast’s narrow and
highly contestable reference to the Treaty of Waitangi was made in Wi
Parata v. the Bishop of Wellington, 1877.
5There are now 35 public acts and 4
private acts containing specific references to Treaty principles.
6This is reiterated in the Te Arawa
Geothermal Report (Waitangi Tribunal 1993: 22).
7Despite championing of the idea of Maori
autonomy, the Taranaki Report still maintained that Maori had
ceded sovereignty to the Crown in 1840.
8For the Crown, the most “effective”
methods of acquiring large tracts of Maori land from the 1860s were
through the operations of Native Land Court and the implementation of
the raupatu (confiscation) policy outlined in the New Zealand
Settlements Act 1863.
9Section 6 of the 1975 Act describes the
jurisdiction of the Tribunal to consider claims where “any Maori (or
group of Maoris)” is likely to have been prejudicially affected by “any
Act, regulations, or Order in Council, for the time being in force”, or
any policy or practice of the Crown “proposed to be adopted by or on
behalf of the Crown”, or by any act which is “done or omitted, or is
proposed to be done or omitted, by or on behalf of the Crown.” Treaty
of Waitangi Act 1975, section 5 (a) (b) (c).
10With the exception of the Maori Party
and the Greens, all the major political parties in New Zealand have
projected “end dates” for the full and final settlement of “historical”
Treaty claims.
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