This is a background to my column ‘Te Tiriti as a Social Contract’. (February 2024)

In 1956, historian Ruth Ross presented her investigations of the treaty signed at Waitangi on 6 February 1840 to a seminar concluding, ‘The [Māori and Pakeha] signatories of 1840 were uncertain and divided in their understanding of [Te Tiriti’s] meaning; who can say now what its intentions were? … However good the intentions may have been, a close study of events shows that [Te Tiriti] was hastily and inexpertly drawn up, ambiguous and contradictory in content, chaotic in its execution.’ The reaction to her paper was scornful. Those at the seminar ‘regarded her approach to the treaty as idiosyncratic and dismissed it.’ Ross said that another historian, a close friend, ‘told me my approach was a waste of time’ and ‘dismiss[ed] my preoccupation with the text as “historically worthless”’.

In 1972 Ross published virtually the same paper in the New Zealand Journal of History. It has since become the foundation paper for historical studies of the signing at Waitangi, fundamentally changing the way that historians (and informed persons) thought about Te Tiriti. One age’s eccentric becomes the sage of a later one.

That story is written in detail in Bain Attwood’s ‘A Bloody Difficult Subject’: Ruth Ross, Te Tiriti o Waitangi, and the Making of History, the most important scholarly book on the subject in over a decade. The book observes that in the early 1980s, much influenced by Ross’s work, the common sentiment that ‘the Treaty is a fraud’ was replaced by ‘Honour Te Tiriti’.

This was the biggest but not the only major development of thinking that has occurred in the last half century. In 1975 Te Tiriti was embedded in New Zealand law in the Treaty of Waitangi Act, whose appendices also included what we call the ‘English version of the Treaty’. It was one of the drafts when the treaty was being developed in preparation for negotiation. Ross does not think it was the last draft – neither do I – but that the last draft in English has been lost in private papers and probably destroyed. We know that after the last English version was translated into Māori there were some changes made to get to the final Māori version (Te Tiriti), but we do not know what they were.

We do know that there was no English text on the Treaty grounds on the day of the signing. We know that shortly after the signing, the US consul, James Clendon, hunted around for an official English text but could find one. In fact, William Hobson, who signed Te Tiriti, forwarded five different English language versions to his superiors in Sydney and London, which surely suggests he did not have an authoritative text. Those translations of Te Tiriti, made for land dealing purposes in Auckland in the following decade, would have been quite unnecessary if there had been an official English language version of Te Tiriti. The claim that ‘the treaty is a fraud’ could be applied to the ‘English version’.

A later major development was the 1987 Court of Appeal decision on the meaning of Te Tiriti. (New Zealand Maori Council v Attorney-General 1987). ACT is both wrong and right when it says Te Tiriti is not a partnership. The Court – all five judges – said that the signatories had to act in good faith akin to a partnership. Earlier courts had talked about the ‘honour of the Crown’, which is an analogous sentiment. But the judges did not say that Crown and Māori were partners like a couple of lawyers in a business. Perhaps the people who jumped to this conclusion have not read the decision.

There are other critical events such as decisions made by the Waitangi Tribunal and the courts, and the Treaty Settlements. But I have said enough to illustrate how our understanding of Te Tiriti has evolved over the last half century, as it did earlier.

To many, the evolution has been a bit frightening; I sympathise with them. We are no longer talking about the treaty we were taught about at school; we can now be more informed. There are two main efforts to stop the evolution of our understanding.

One is ‘originalism’ – that we should go back to the original intention of Te Tiriti. The difficulty is that, as Ruth Ross showed and subsequent scholarship has confirmed, there was no agreed meaning on the day. Hobson had an understanding, but I doubt that either James Busby or Henry Williams, who helped develop the agreement with him, fully shared his view. Māori certainly had a different understanding. It would be totally anachronistic to think that they had an understanding of sovereignty similar to Hobson’s. Moreover, it is most unlikely that the different Māori signatories had a common view about what the agreement meant.

In any case, any original notion about governance was based on the minimalist state. (Look at Colonial Secretary Normanby’s instructions to Hobson.) The modern state, with facets like a large taxation base, considerable government spending, the development state and the welfare state, which we take for granted really got underway later. (Te Tiritihas had to adapt from the conception of the minimalist state when it was written to the current highly centralised one; I’d have said ‘with difficulty’.)

Originalism is undermined by social change. The third article says that Māori would be entitled to English rights. In 1840 neither all women nor most men were entitled to vote in England. Is Te Tiriti irrelevant to our universal suffrage? (In 1840 colonial subject’s access to England was unrestricted. I doubt a New Zealander would get very far if they tried to use Te Tiriti as grounds for a British entry permit today.)

There is a quasi-originalism which goes back to an earlier treaty interpretation. An example is drawing attention to a pamphlet by Āpirana Ngata published 100 years ago. (It is historically inaccurate.) In fairness to Ngata, he was a man of his times but he kept up with developments. There can be no doubt that had he read the Ross article and followed the subsequent informed discussion, he would have rewritten his pamphlet.

If originalism does not work then, there is what may be called the ‘new originalism’, which is to set down an interpretation of Te Tiriti which will be a foundation for the future. ACT’s proposed Treaty Bill is an example. If it were passed by a huge majority in a referendum with little public dissent – I do not expect that it would be – it would be a basis for the future, setting in concrete the meaning of Te Tiriti. (Of course there would have to be a version in te reo, and we would have to agree that the two versions meant the same thing.)

ACT is slipping into the bill its own political theories when it reinterprets the second article as being confined only to property rights in a minimalist state, a very New Right approach. I doubt that is how the Māori signatories interpreted the notions of ‘rangatiratanga’ or of ‘taonga’.

Neither do the modern courts.  A really important evolution was when the courts confirmed te reo was a taonga. I would have been a very odd discussion if anybody in 1840 had raised the issue. ACT’s second proposed article overturns the possibility that te reo is taonga.

ACT are not the only new originalists. Many of those who set down what they think Te Tiriti means do so in as equally ahistoric certainty that what they are saying now is (or should be) eternal.

It aint. Given the change in the last fifty years, it is inconceivable that our understanding will be the same in 2074. Whatever the originalists and new originalists try, it will be different. Hopefully, it will come about through the organic evolution like the last 183 years. And true, we may end up with something that I am, or you are, not entirely happy with. But we should try to prepare ourselves. Understanding Te Tiriti’s actual historical evolution rather making up pseudo-history to suit our prejudices would be a good start.

I assume that Williams was not just a translator of the treaty, but being in the room with Hobson, Busby and Freeman contributed to the discussion. I do not know what he contributed because I do not know enough about his thinking or about Christian thinking on these and related issues. I observe that while he was no doubt active in his church as a youth and that Methodists were notorious for vigorous discussion in the ‘after-meeting’, he does not seem to have had a lot of theological training. He, like Hobson, may not have had a lot of philosophical depth on these matters. The nuances that trouble us today may have been passed over lightly — such pass overs are common into today’s discussions unless there is a lawyer involved in the drafting.

I take it that Williams and son faithfully translated the last English draft of the treaty (which is why I think, like RR, that there was a subsequent version to what we call ‘the English version’ because Te Tiriti could not possibly be faithfully translated from what we have.) It seems to me likely that the word sovereignty was translated into ‘Kīngitanga’ (although I don’t totally rule out ‘mana’).

We know little about the debate on the treaty grounds of 5 February except it was vigorous. I am inclined to the view that there was great Māori objection to the notion of Kīngitanga (or mana). We know there was a change between the document in Māori of Feb 5 and the signed document on Feb 6. It was said to be ‘minor’ (in which case why was it necessary?). In my view the change from Kīngitanga to Kawanatanga (king to governor)would have been deemed minor by the English contingent but was a huge change for Māori enabling them to sign Te Tiriti on Feb 6. (I do not rule out that there was a bit of massaging of Māori by missionaries overnight, but I there is no mention of this, and such discussions may not have fitted well in with Māori evening/night habits.) Something reasonably significant must have happened overnight to get Māori to so quickly change their mind.

That still leaves for us the troubling conflict between ‘Kawanatanga’ and ‘Rangatiratanga’. One possibility is that the English contingent was not greatly troubled — they have got a deal and no one was pushing them to resolve the conceptual conflict.

My convoluted solution, which I do not trust but which makes sense today, is there are two notions of sovereignty here: ‘national’ sovereignty which is a matter of the authority to make and police laws and be given international recognition and ‘individual’ sovereignty which is the matter of living one’s own life. The distinction is problematic at the boundaries; I’ll try to resolve it below.

The distinction is an important one in protestant thinking. You could argue that it was much of what the seventeenth century turmoil was about. (I’ll come to Hobbes.) The King or Church were no to impose their views on one. The individual was entitled to come to their own conclusions based on their understanding and conscience. I expect Williams would have broadly agreed.

Māori thinking was a little different. Rangatiratanga was more about the rights of chieftainship which included chiefs consulting their hapu (not Iwi as we use it today — the entities were too large) and while those with greater mana — they were very hierarchical societies — had greater weight in the final decisions they had not the total authority of King or Pope (although both are today increasingly constrained). Williams may have had some understanding of this, but it may have been tenuous — like mine.

From either interpretation the two articles can be reconciled I think  (especially if the priority is getting a deal). I’d have thought Williams would not have been uncomfortable.

Even so there are boundary problems about this resolution. [Here I am extracting something I have in the next book; hence the change in voice.] 

            ‘According to a famous social choice theorem by (Nobel economic laureate) Kenneth Arrow, the only sure way of getting consistent decisions is for them to be made by a dictator – much as Thomas Hobbes had already concluded without Arrow’s mathematics. So a state decision making is not robust unless it has an absolute sovereign.

            ‘To reconcile the dictator’s duty to protect their subjects, the argument, very evident in the US constitution but also in the unwritten British constitution, is that the substantial powers of the Hobbes-Arrow dictator have to be limited by checks and balances, including the ability of the governed to dismiss a dictator.

            ‘Today that ruling dictator is no longer the monarch but president or prime minister in cabinet. Technically the New Zealand people elect a parliament which choses a prime minister who advises the sovereign on what actions need to be taken, the sovereign (or their representative) being bound to take this advice.

            ‘This system of ‘elected dictatorship’ faces a paradox: a country needs a dictator but the dictator must protect the interests of the subjects. One answer goes back to the notion that the dictator rules with the consent of the governed. However, it is difficult to know what the national consent is when a nation is deeply divided. Parliaments evolved to control the ruling dictator. The extent to which a particular parliament really represents the will of the people – Arrow shows it is a nebulous concept – can be debated.’ [End of extract.]

A resolution is to base one’s theory of the state on a social contract. Unexpectedly Te Tiriti is in a form of a social contract. I have argued this in the column I expect to post Friday-week (you saw a version of this Friday’s but it has been altered to deal with the issues you raised.) It takes the above argument on, so I have attached the draft. [Again a change of voice; comments welcome.]

In summary then, I can offer a reconciliation of William’s two use of the terms ‘sovereignty’ in Te Tiriti but I am not sure that he would accept it.