Contextualising the Treaty, Bernard Cadogan

The Treaty of Waitangi Companion: Maori and Pakeha from Tasman to Today
Vincent O’Malley, Bruce Stirling and Wally Penetito (eds)
Auckland University Press, $45.00,
ISBN 9781869404673


The German philosopher Hans-Georg Gadamer (1900-2002) rehabilitated the term “prejudice” to mean our anticipation of knowledge. When we participate in a debate we are all coming from somewhere. That somewhere need not be understood pejoratively; rather, it should be regarded as a negative category. A long-term debate over a common text constitutes an ongoing conversation, what he called a “dialogical relationship”, and the modification of such prejudices.

The Treaty of Waitangi Companionhas a prejudice: it is a collection that represents the claimants’ and claimants’ advocates’ history of the Treaty process. That is a simple fact. Its collection of documents and images will contribute significantly to developing and sustaining informed Treaty debate. What is lacking, however, is awareness of the need for a hermeneutics of the Treaty: how does something written 171 years ago get interpreted in 2011?

Hermeneutics shows there is a better way of doing this than that proposed by American jurist Benjamin Cardozo in his classic statement that we imagine what the drafter of a document, law or Treaty or a past jurist would say if they had to make a decision in our own time based on the same text. Chief Justice William Prendergast would surely still be Chief Justice Prendergast and come up with a negative view of the Treaty. Hobson and others might well reveal themselves as segregationists. Grey would be all for Maori civil rights but at the price of the abandonment of what makes them Maori. Hermeneutics explains how we make the judgement calls, with reference to the text.

Vincent O’Malley, Bruce Stirling and Wally Penetito have compiled a rich and diverse text of sources, ranging from first contacts between Maori and European mariners to our own time. The visual resources are superb, embodying the voices that might otherwise be trapped in the text, and making evident the caricatures and distortions that hate-speech, or plain anxiety, gave rise to. The textual resources are presented clearly, almost philatelically, in chronological order. Fortunately these little postage stamps of utterance are prefixed by able factual essays at the start of sections. The book provides a perfect class- or lecture-room tool for commentary and discussion. It has been compiled with care and respect.

Penetito et al’s insistence on a history outside the state’s own story is to be welcomed.

How different peoples live before they come into a polity with one another, how they continue to live apart from the state, works both ways, for Maori and Pakeha. Maori doubt, Maori resistance and renaissance stories are here, yet so is the tale of Pakeha arrogance and pride in the 19th century, and the more modern story of Treaty denial and of mundane reluctance to accept the law and politics of Treaty rights, along with the progressive story of growing Pakeha acceptance.

Commendably, the book includes responsible contemporary Pakeha contributions of doubt or respectful challenge towards trends and aspects of indigenous rights. Poems from Brian Turner and Trevor Mallard’s address of 24 July 2004 are here as examples of statements that Pakeha too may become indigenous to New Zealand. The Companion makes it clear that Pakeha must hold their own debate on this.

Mallard was within his rights to do what he thought fit to restore the sustainability of the Treaty debate and break the hold of “Orewa”. With respect to Turner’s poems, one might suggest that many Pakeha will be more comfortable with the exclusive attribution of indigeneity to Maori when it is clear that the antonym, or rather correlative, of “indigene” is not “settler”, or to use the French from which this post-colonial discourse has come from, “colon”. Few Pakeha regard themselves as Frantz Fanon’s lost Odyssean “colons” in white shorts and long white socks. The inclusion of this debate demonstrates the inherent fair-mindedness of the text.

The book’s faults are those of omission. New Zealand was once part of something called the British Empire. Great Britain did not exclusively govern New Zealand, nor exclusively provide it with a jurisdiction or government of review, nor were we all governed in New Zealand as an exception from a wider imperial jurisdiction. Far from being “special” then, New Zealand was the testing ground, bomb-site and killing-zone for theories and policies that all had a global application.

We must not let ourselves get caught up in a New Zealand “exceptionalism”. The British Empire had just three systems of racial administration:
first, that of native protection and segregation of settlers and indigenes from one another; second, that of legal integration and assimilation supposedly towards full economic and civic integration (usually some dumping-ground way-station in between); finally, the practice of “indirect rule”, whereby indigenous labour was made available for plantations, mines and public works, while labour pools remained under indigenous authorities.

The Treaty is a result of the first system, from the age of native protection and segregation that began properly with the Appalachian Protectorate of Sir William Johnson after the Appalachian Proclamation of 1763. This has become a classic text, in Gadamer’s sense: such a text cannot be reduced to single historical concepts and contexts; it insists on itself to each generation, proving itself through its explanatory power. This, however, results in mediated understanding: “We understand differently, if we understand at all.”

The Treaty is a covenant for Maori, the expression of their rights from age to age in relation to legitimate New Zealand government. Pakeha may recognise in it a remedy from an age of classical Enlightenment language, law and political concepts. Signed in 1840, it hails from the Anglo-American world of the late 18th century.

That policy was compromised and altered by Sir George Grey, who, as he imposed assimilation on Maori and did his best to close off their autonomous futures, regarded the Treaty as the expression of a temporary policy. The Treaty had arguably been used, abused, strained and filtered for all three policies, before the Hunn Report trumpeted that the apparent consummation of New Zealand time was nigh, and that Maori were going to vanish into suburbia, a policy mindset that provoked the Maori renaissance of the 1970s.

My chief concern with the book’s philatelic pre-sentation of statements and facts is that they can look like isolates. Treaty facts are referrable to concepts, to systems of thought, to theory and to policy. Surely we have learned to be suspicious of a positivism of facts, and of the belief that we can get far without the structures and systems of thought of which they were products, and in which they are now deposits. It would not pay to pander to the Princess and the Pea of fundamentalist dissent that persists in some quarters, surviving into a secular age.

On a final note, it is regrettable that the book represents the National Party in terms of its darker moments. The conscience of Pakeha runs through the National Party, and is argued in it. It is unwise to ignore that reality if Treaty-based reconciliation is to proceed. Party liberals do often succeed. As a public record, the book should have escaped the ungenerosity of the academy towards National governments. Further, it is downright strange that the rise of the Maori Party, as the party that represents the Maori claim to sovereignty, is undocumented. The emergence of the Maori Party is the most significant political event in New Zealand since proportional representation was introduced.

However, the editors are to be congratulated on producing such a substantial collection. All readers should find in it precious material and appreciate the editors’ selection.


Bernard Cadogan has been a Parliamentary politicaladvisor to National and Labour, and has completed a DPhil on Sir George Grey.