Released for publication: Submission by Phil Parkinson to the NZAF Board of Trustees Regarding their Proposed Constitutional Changes. An open letter to all the Members of NZAF By Phil Parkinson PhD At the time of the controversy over the NZAF Board's attempt to persuade the members to support the Board's proposal to amend the NZAF constitution (proposals later withdrawn in the face of opposition by most of the staff, several former Chairs and other senior figures in NZAF's past), I prepared a detailed submission to the Board pointing out that the alleged 'legal' requirement of the Board to include a sort of Māori quota in its membership was a nonsense. I pointed out that I had devised the original wording that appeared to have led the Board to come up with this interpretation of the Constitution, quoting chapter and verse from my own documents from the time when I was Deputy Chair. The submission was circulated to all the members of the Board and also to the NZAF staff, so that the Board's interpretation could be contested, and so that the Board had an opportunity to withdraw from its error before it found itself in an even worse pickle than it already is. Unfortunately, however, the Board did not even have the good grace to acknowledge pro forma that submission, and I understand that this is the case with submissions made by staff also. Instead it has continued to try to silence its staff and ignore its members. It is appropriate, therefore, that its recent conduct be subjected to the critical scrutiny of the members of the NZAF at the Annual General Meeting. As the detailed history of how the so called “Treaty of Waitangi clauses” came to be in the NZAF Constitution is quite long – and the details will be of little interest to most of the membership – the following is a shortened explanation, which I think will be more digestable for most of you. The full version can be obtained from NZAF if required. My involvement in NZAF As I have had a low profile in NZAF over the last decade I should explain at the outset that I was the administrator of the Lesbian and Gay Rights Resource Centre (now LAGANZ: Lesbian and Gay Archives of New Zealand), and a writer for the newspaper / magazine Pink Triangle in 1983, and I edited the early articles on AIDS in that paper. I hosted the meeting at which Bruce Burnett established the AIDS Support Network in 1984, and prepared for him its first constitution. I worked closely with him from 1983 until his death in 1985. At that point I worked to help establish the information programme, and later the NZAF Library and archives, and I was also active in the Wellington Branch of NZAF. I attended most of the ‘consultations' in the early years, through to 1990, with a particular interest in information management, policy development and constitutional matters. I was extensively involved in the 1988-90 restructuring and chaired the October 1990 Consultation in which a new structure was adopted. I was elected to the Board as one of seven members in the election of 24 October 1988, and served three terms, retiring in November 1993, after more than ten years involvement with the epidemic. I was also, in this period a member of the National Council on AIDS and played a large part in the development of the Council's National Strategy on AIDS, published in 1990. I left both the Board and the Council in 1993, to pursue other interests, particularly in New Zealand history and the documentation of early Māori language texts.[1] My expertise on both the NZAF constitutional history and also the interpretation of the Treaty of Waitangi, and associated documents, was placed at the disposal of the Board and the NZAF staff, and is now here given to the membership as well. Democratic process in the NZAF Board The NZAF Board was established in March 1985 – at a time when the health services were unreformed, sexual activity between men was illegal, and the government was anxious about perceived opposition to granting funds to an organisation consisting largely of homosexuals and serving their health interests. In these adverse circumstances it was necessary, to secure funding, that a quite undemocratic process determined the governance of the Foundation. As was the case with the preparation of the Treaty of Waitangi itself, for example, expedient means had to be adopted (with reluctance) to attain a worthy objective. Three years later, after sexual law reform and after a crisis in the governance of the Foundation, the situation had changed. An autocratic Board was replaced with one that was community-based and had popular support. As Bill Logan (one of the first trustees) stated, in a letter of 11 November 1988: “The Board has now ordered its affairs in an appropriate democratic manner, established procedures for electing the core of a Board, and gone through a proper election process. It remains only to transfer formal responsibility to the elected Board members. I share with Bruce Burnett responsibility for the original establishing of the Foundation on an undemocratic and unworkable constitution. It had been intended by both of us, as we promised the Support networks at the time that the original [NZAF] constitution would be very temporary, and that a community based structure would quickly be put in its place. In the event it has required a long struggle to have those promises honoured. But eventually things have been set right. The Foundation is well established. It has considerable authority with wide layers of New Zealand society, and it has the particular confidence of the gay community. And it is in good hands.” As Interim Chair, on 13 February 1991, I was asked to prepare a paper for the NZAF's business committee, on the cooption of non-elected members. The constitution allowed at that time for “not more than eleven members” on the Board, six of whom were to be elected by postal ballot, and were to hold office for two years, with the opportunity to stand for reelection. The Board members were empowered to appoint up to five additional members to make the eleven. One of those positions was reserved for a nominee of Te Roopu Tautoko Trust, a separate (and not a gay community based) organisation with which NZAF sought to establish a bicultural working relationship from 1986 onward.[2] Under the then constitution “the Board shall be under a duty to ensure that the views and experience of its primary client groups, people with HIV/AIDS and gay men, are adequately represented.” Under the present constitution, strangely, this provision has been forgotten. At this point the Health Department was set against NZAF having a Māori health programme inside NZAF, and wanted separate funding arrangements for the gay epidemic programme, the Māori one, the IVDU one, women's one, and so forth. Since membership in affected communities overlapped, separate programmes were separately administered, but, in the end NZAF, as the largest funded body, found ways and means to assist coordination through cooperative initiatives. Such practical arrangements and cross-memberships exist to the present time. The specific arrangement involving Te Roopu Tautoko was terminated in 1993/94, but, of course, NZAF does have a specific Māori gay men's (takatāpui) programme. The Board, in its statement of intentions circulated earlier this year, had wished to raise the number of ‘elected' members to eight, and also wished to introduce a wholly new provision to require at least four of the eight members to be of Maori descent, a proposal withdrawn after members opposed it. A previous Board had abandoned the elective positions entirely. The current Board stated that this quota for four Māori board members was “legally” necessary. In my view there is no constitutional or legal necessity for the claim, and I have yet to see any evidence put forward in support of the Board's ‘legal' position. Despite the rejection of this position, however, members of the Board have continued to pursue it. It is now evident that major structural changes, vitiating the founders' intentions, were made after I left the Board in 1993. These have deprived the Foundation as a whole (composed of volunteers, staff, trustees and what are now called ‘members' of the essentially democratic balance of powers appropriate for an organisation which professes itself to be ‘community based'. In fact, the Board now has tyrannical power, without any form of checks on that power by either its staff, volunteers or members. It is not surprising, therefore, that a motion of no confidence in the present Board is being considered, to be put at the forthcoming AGM. This open letter does not attempt a through review of the constitution's text – which I find deficient, confused, inconsistent and unwise in many ways, but focuses, instead, on the ‘Treaty of Waitangi' clauses (clauses 3.0-5.0) and their implications. By outlining the previous course of the Foundation's efforts to ensure a place for Māori within NZAF, I will try to show how the present controversy has developed. The AGM has no powers to amend the constitution, but can “consider and recommend to the Board policies which it wishes to have implemented” – Rule 69 (b) – and can also – Rule 69 (c) – “recommend remits on the Constitution to the Board for their final approval”. The associated remit employs this constitutional process and this Open Letter explains to you all why these remits should be supported. The ‘Treaty of Waitangi Clauses' The long saga of the clauses is almost fully documented in my private papers, as a past member of the Board. According to my files the Constitution of 20 October 1990 had a clause 2.0 which read: PARTNERSHIP WITH THE TANGATA WHENUA The NZAF recognises the Treaty of Waitangi as the primary source for the protection of the human rights and civil liberties and mana of the tangata whenua of Aotearoa / New Zealand, and acknowledges Te Roopu Tautoko as the principal link in the partnership between the NZAF and the tangata whenua of Aotearoa / New Zealand So far as I recall (for I am certain that I came up with this form of words at the insistence of Rex Perenara and Regina Peretini, of the Roopu) this was intended to force NZAF to deal with Māori more-or-less exclusively through Te Roopu. Rex was anxious that well-intentioned but culturally inappropriate practices and ignorant statements might be made which would undermine both the work of both the Roopu and the Foundation. In this he was correct. I think I put in the bit about ‘human rights and civil liberties', and the business about the Treaty as ‘primary source' was a common reflection of the often-uttered references to the Treaty as the ‘Magna Carta of New Zealand' (a phrase invented by Henry Williams, the translator of the Treaty, as early as 1847). Fifteen years later, with the advantage of a great deal of historical study of the Treaty and its origins, translation and meaning, I have to say that, while elements of the statement seem sound, others were not.[3] It was right that NZAF wished to be inclusive of Māori and to help in Māori initiatives (while the Department of Health wanted NZAF and the Roopu separated), but the anointing of the Roopu as a sort of national Māori authority was, in retrospect, a thoroughly unwise move, and was resented by Māori organisations. In 1993, shortly before I retired from the Board, the clause was re-examined, and it was decided that specific references to Te Roopu Tautoko should be deleted. It was clear that the Roopu could not speak for all Māori. The term ‘guarantee' was questionable, but reflected the mood of the time. Discussion of the nature of the relationship ensued, under the aegis of a Working Party on Partnerships with other AIDS Services Organisations (WPPOASO). By this time such groups as the Roopu, ADIO, CIVDURG, NZPC, NPLWAU, BP etc were active, and better coordination between them was needed. CASONZ (Community AIDS Services Organisations Of New Zealand) was the result. Members of the Board attended a Rowan Partnership Workshop on the Treaty of Waitangi on 4-5 September 1993, and according to a memorandum of 7 September “The most urgent decision of the workshop was that the AGM should be postponed in order to allow consultation with Te Roopu Tautoko regarding a revision of clause two of NZAF's constitution, that is, NZAF's relations with tangata whenua and Te Roopu Tautoko Trust.” Legal advice was sought on the wording and proposed amendments to the constitution from the Board's legal advisors, as suggested by David James of the Rowan Partnership. This resulted in the expression: NZAF is a community based, non-governmental organisation and acknowledges Te Tiriti o Waitangi as the basis upon which relationships between Maori and Tauiwi (non-Maori) must be based. NZAF shall respect and affirm the te tino rangatiratanga (the unqualified exercise of chieftainship) of the hapu (local tribes) and of all bodies which may act on their behalf and with their explicit authority. NZAF shall promote equity for Maori in the furtherance of the objectives and statement of purpose of the trust, in so far as those affect the health status of Maori. In order to achieve full equality of all citizens of Aotearoa / New Zealand in relation to the reason for which the trust exists, NZAF shall seek negotiated relationships with hapu/iwi based taurahere, pan-tribal or statutory bodies. You might see that we had gone overboard and were straying from our core functions. While elements of Project Waitangi thinking are there, I believe that much of this language was adopted in response to the Rowan Partnership's advocacy. The specific reference to ‘te tino rangatiratanga' and the so-called translation of that phase ‘the unqualified exercise of chieftainship' certainly came from them and they in turn had taken it from Sir Hugh Kawharu.[4] The unfortunate fact is that Kawharu's English phrase is a gross misrepresentation of the context-bound expression ‘tino rangatira'. As most people will be aware, there are several texts of the Treaty of Waitangi. Some are simply copies of others, some are drafts of an English text and there is one Māori text (which also exists in multiple copies). There are also translations back into English, made from the Māori text. This is one of my fields of personal expertise. Only two of these texts are of primary significance. The Treaty was originally prepared in English only, but underwent several revisions in several hands – with Hobson, his secretary (Freeman), the ex–British Resident James Busby, Henry Williams (and possibly his son Edward) making various contributions. The so-called ‘official text' (that text in English which begins ‘Her Majesty Victoria, Queen of the United Kingdom of Great Britain and Ireland' – the words echoing what is formally called ‘the Royal Style') is the final draft of the Treaty, immediately prior to its translation into Māori by Henry Williams. The translation into Māori – which was signed by most of the chiefs on 6 February and subsequently, then printed for wider circulation on 17 February – begins “Ko Wikitora, te Kuini o Ingarani” (i.e. ‘Victoria the Queen of England') and is the definitive text in international law. But as scholars have long observed, it is not a literal translation of the preceding English text. The initial words of the preamble, quoted above, demonstrate that. NZAF, like most organisations, has recognised the Māori text as definitive, following a convention on the legitimation of treaties between sovereign states, although – legally and historically – there was no Māori sovereign state in existence at the start of 1840. It is true that Henry Williams and Hobson both endorsed a copy of the ‘official text' (in English) as a ‘translation' (Henry wrote: “I certify that the above is as literal a translation of the Treaty of Waitangi as the idiom of the language will admit of, [signed] Henry Williams” but this statement is false.[5] To better express the draft ‘official' text's intentions, Henry Williams was obliged to simplify the draft. Henry did not provide a literal translation, back into English, of the legal Māori text, although he did make one for Bishop Selwyn in 1847. Kawharu has provided such a back translation, but it is deeply flawed, despite the fact that it has been widely adopted as authoritative. This false authority is reflected in the second part of the ‘Treaty clauses' in the NZAF constitution, because it was asserted in the Rowan Partnership interpretation, taken up by the NZAF Board in 1993. To return to the Board's own constitutional processes, we should note that an election of Trustees took place in 1993, at the time I retired from the Board. Personally, my concern had been with the retention of the words “NZAF is a community based, non-governmental organisation” and the alterations to the last sentence, affecting the particular status of the Roopu. The Rowan Partnership's formulae such as ‘tino rangatiratanga' were of little concern to me at the time, so far as I recall. As already noted, the Board had decided to recommend to the next Annual General Meeting that the specific references to Te Roopu Tautoko be dropped, and so the third of the clauses had been simplified and shortened to: “In furtherance of the objectives for which the Trust exists, NZAF shall seek negotiated relationships with Maori organisations” such as the Roopu. It had been expected that the representative of the Roopu would attend the meeting and support the amendment but they were absent. In these circumstances we had to withdraw the amendments for further discussion, as we did not want to proceed without their agreement. The Te Roopu Tautoko ‘representative' on the Board (Rose Wellington) had not attended any meeting, nor sent any apology for non-attendance since September 1993, and accordingly, in November 1994, her membership of the Board was terminated. I did not attend the AGM on 18 November 1994, but effectively the motions from the previous year (after a minor amendment) were carried. Accordingly the text became: TREATY OF WAITANGI 3.0 NZAF is a community based, non-governmental organisation which acknowledges the Maori text of the Treaty of Waitangi, signed on the sixth day of February 1840 as the basis upon which relationships between Maori and Tauiwi (non-Maori) must rest. 4.0 NZAF will respect and affirm te tino rangatiratanga (“the unqualified exercise of chieftainship”) and the authority of all other bodies which act with the explicit warrant of whanau, hapu, iwi, or te ao Maori.[6] 5.0 NZAF will also seek negotiated relationships with Maori organisations, in order to further the objectives for which the Trust exists. So the object of Clause 5 was to provide for negotiated relationships with various Māori organisations, without privileging one. Such a relationship had been formed with Takatāpui Tautoko in 1994 and a Māori advisor to the Board (Bill Tapuke) was appointed in the same year. These clauses appear not to have been further altered (save for addition of numbering) at the AGMs of 1996 or 1998, and were retained in the major constitutional review of 2001. The present Board's idea that partnership ideas are new, when in fact they have been present since 1986, is indicative of the regrettable lack of institutional knowledge of the current Board, and goes some way to explaining the mess they have landed themselves in. It is only the current Board's radical interpretation which is new. According to a memorandum of 10 August 2001 from the Executive Director, there were eleven elected trustees and up to five who were appointed, two of the latter places being reserved “by the Board itself for takatapui representatives nominated by the Hui-a-tau and two places reserved by constitutional requirement for people living with HIV.”[7] This is clarified, however, on page 6 of the memorandum. It was explained that the takatapui positions had been created as a “goodwill gesture towards the takatapui community and would in some way contribute towards NZAF's Treaty responsibilities”. But it had later been recognised that the well-intentioned provisions had proved unsound in practice. Accordingly “Changes were recommended to reduce the size of the Board to seven (from 11) and “that HIV positive and takatapui perspectives be instead ensured through constitutionally binding decision-making criteria” (whatever that means). It was recommended that specific HIV positive and takatāpui representation be eliminated. Finally “in the case of the takatapui positions their existence may actually have added to the Foundation's confusion about its Treaty responsibilities.” This seems to be a case where the road to hell had been paved with good intentions. I have not discovered what came of these proposed constitutional changes, but it would appear that they were eventually adopted, in some form or other. The proposals of the present Board, as others have remarked, seem intended to resurrect a failed governance strategy, based upon a thoroughly mistaken reliance upon so-called ‘treaty responsibilities' which in fact it does not have. If the Board had taken the trouble to consult properly, it would have avoided error. Enough, perhaps far more than enough, has been said of the NZAF's long, tortured struggle to find a form of words which adequately expresses the organisation's commitment to a form of cultural partnership. But what does the group of three clauses actually mean and does it actually have anything to do with the Treaty of Waitangi at all? A little bit of deconstruction will be helpful. So next let us consider, in the light of the above, what it is that “NZAF will respect and affirm” and which the current Board so erroneously seems to think is some form of legal directive. The texts of the Treaty Clause 3 of the NZAF constitution acknowledges ‘the Māori text of the Treaty', but it is only clause 4 that actually employs a phrase from the Treaty. That signal phrase is “te tino rangatiratanga” – which occurs once only in the Māori text of the Treaty.[8] The phrase “te tino rangatiratanga” and the phrase “tino rangatira” are not authentic Māori expressions. In fact “tino rangatira” is a piece of missionary Māori, coined by William Williams in 1833, when he was asked to translate into Māori a letter announcing the appointment of James Busby as British Resident: Letter of the Right Honourable Lord Viscount Goderich and address of James Busby . . . (translated as Ko te pukapuka o te tino rangatira o Waikauta Koreriha me te korero o Te Puhipi ki nga rangatira o Nu Tirani).[9] (Note that I am using authentic spelling and macronisation in quotations, but that macrons were not used in the period 1833-1870). The ‘tino' as employed here means ‘high' in the sense of ‘eminent' and was employed in the same sense in 1836, when another Secretary of State for the Colonies (Lord Aberdeen) wrote to “his highness Titore”, thanking that ‘high chief' of Ngāpuhi for a gift of spars and a valuable mere pounamu which Titore had sent as a gift to King William IV. King William sent, as utu, a suit of armour for “his highness Titore” and Busby oversaw the presentation of the gift, which still survives, along with the covering letter. The phrase was also used in the first sentence of Busby's ‘declaration of independence' of October 1835 (as translated from the original English by Henry Williams: “Ko matou ko nga tino rangatira o nga iwi o Nu Tireni . . .”. The intended meaning is “high chief” and the expression is naturally modified to become “tino rangatiratanga” i.e. high chieftainship. And that is how the phrase ended up in the Treaty of Waitangi, also prepared by Henry Williams, with input from Busby. No Māori had anything to do with the formulation of either the English or Māori texts of the document, and the same is true of the Treaty five years later. Māori in general and Ngāpuhi in particular were averse to the idea that any chief was ‘higher' in rank than any other – such matters being matters of whakapapa – and even the suggestions that Hongi Hika (Ngāpuhi) or Murupaenga (Ngāti Whatua) were of exceptional status was rejected when Marsden had made that suggestion in the 1820s. The high Tory elitist Busby, in his English text of the Declaration referred to “We the hereditary chiefs . . . and heads of tribes” and Henry Williams (knowing that ‘hereditary' was not quite correct) altered ‘hereditary' to ‘tino' (high) in his translation, to conform with the precedent. The phrase ‘tino rangatira' rarely occurred in other contexts, but was later appropriated by the government (‘kawanatanga' another neologism = governorship) emphasising the distinction between governor- and chief- during the governorships of Hobson, FitzRoy and Grey. Hobson, and FitzRoy, from 1841 were styled ‘Governor and Commander in Chief in and over the colony of New Zealand' and ‘te tino rangatira o tenei Koroni o Nui Tireni' in their proclamations in Māori. Grey called himself ‘te tino rangatira, Kawana Kerei' or ‘Governor-in-chief of the New Zealand islands' in proclamations and books. The title also appears in 1860, in the titles of Grey's successor (e.g. “He Panuitanga. | Na Te Kawana Colonel Thomas Gore Brown, Tino Rangatira, aha, aha, na te Kawana o tenei Koroni”).[10] It occurs occasionally on other titles as in the title “te tino rangatira o nga meera” (Chief Postmaster) in 1862, and in 1864 Wi Tako Ngatata is addressed as “ko te tino rangatira o te mahi Kingi ki Kapiti” (the chief of the Maori King's works at Kapiti) at the time Ngatata renounced his support for the Kingitanga.[11] By this time, however, the ‘high' chiefs, and rangatira generally had lost most of their political influence, except over tribal matters. The expression ‘tino rangatira' had practically disappeared by 1870, and was only used by pākehā for the whole of that period. The plain fact is that ‘tino rangatiratanga' or ‘high chieftainship' is synonymous with governorship after 1840. The traditional authority of tribal chiefs, their ‘mana motuhake', to use the expression adopted by the Kīngitanga, was firmly distinguished from the ‘tino rangatiratanga' of the governor. Faced with this established usage, Kawharu's mistranslation of ‘tino rangatiratanga' as “the unqualified exercise of chieftainship” is not merely erroneous, but preposterous. It was made explicit from the start of the Governorship that chieftainship – or ‘the power of chiefs' – was qualified, to prohibit certain traditional usages (slavery, cannibalism etc) which were deemed intolerable by the Crown.[12] There is a single late and remarkable exception to the avoidance of the phrase ‘tino rangatira'. This is contained in the English text of the petition of “a number of the Maoris resident in what is known as the Hot Lakes District to Queen Victoria.”[13] The Māori text, headed ‘Ki tona mana haika ariki tapairu tauanui' (‘to the most permanently exalted in place as in rank, to Her Most Royal Majesty Victoria, Queen of the United Kingdom of Great Britain and Ireland, and of her colonies of Australia and New Zealand, and all her dependencies, and Empress of India' using the later form of the Royal Style) still calls the Queen “Te tino rangatira, kia kuini Wikitoria, kuini o Kereiti Piritona me Airana” (The high chief, Queen Victoria, Queen of Great Britain and Ireland). The Queen is also addressed as “the bright and shining Kahurangi, the noble shelter-affording rata and the bond of union with your Maori subjects”. The rare expression ariki tapairu is a title of honour for the most senior woman in a lineage.[14] As Mason Durie has pointed out, however, the term ‘tino rangatiratanga' was revived with a very different meaning in the 1890's as a result of the Kotahitanga movement: “There is then, no single definition of tino rangatiratanga and little comfort can be derived from linguistic origins or simplistic notions about an 1840 understanding of sovereignty.”[15] In its simplified form the Māori text of the Treaty conveys three things. The first article gives up the right to govern to the Queen – in fact her Governor. The second is an assurance about retention of chiefly property – but with the qualification that land can only be sold through the governor. The third article says not that all Māori are given British citizenship, but rather that they will be treated as if they were British – a subtle difference, and one which government violated immediately and persistently e.g. when a few Māori attempted to exercise their right to vote in 1856. This was no ‘Magna Carta of New Zealand'. The contemporary translations of the Treaty from Māori into English (of which there are versions by Richard Davis, Busby, Gordon Brown, Samuel Martin, Jerningham Wakefield and an unidentified translator) tend to avoid the expression ‘high chieftainship' as a representation of ‘tino rangatiratanga'. All were fluent in Māori, as was Walter Mantell, who in 1869 referred to Henry William's translation into Maori as “execrable”. Tino? “entire / head / full”? Probably ‘principal chiefs' would have been the most logical phrase to use. But Henry Williams had to use ‘tino rangatira' because that was the expression he had used in translating the ‘declaration' in 1835. Young, in his 1869 translation of the expression used ‘full chieftainship' without realising why Williams had chosen the word ‘tino'.[16] But the word ‘tino' turns out to be rather unimportant. What the second clause of the Treaty (in Māori, as well as in English) is concerned about is “all their property” (nga taonga katoa). The second article is there to assure the chiefs that they will retain all their property – unless they sell it to the government – in exchange for abandoning any claim to ‘sovereignty', whatever that might be. It cannot be too strongly emphasised that the whole purpose of the Treaty of Waitangi is to explicitly revoke the ‘sovereignty' asserted in the ‘declaration of independence' of five years earlier. This was clearly recognised by McLintock in Crown Colony Government in New Zealand (1958). In 1840 Governor Gipps, of New South Wales, (who was Lieutenant Governor Hobson's superior) is also explicit on this point: The declaration of independence was made, moreover, only by a few tribes, in the Bay of Islands, not extending even so far south as the Thames. Mr Busby has told you, that it was entirely a matter of his own concoction, and that he acted in it without any authority from either the Secretary of State, or the Governor of this Colony, who was his immediate superior: [. . .] But even supposing the declaration to have been a genuine and a valid one, the only effect of it would have been to prevent Captain Hobson from taking possession of the Island in which it was made, by virtue of the right derived from the discovery of it by Captain Cook, and to make him have recourse to negotiation with the natives. And as this is the very course which Captain Hobson did pursue, and as Her Majesty's Sovereignty has now been acknowledged by the very chiefs who signed the declaration of independence, it follows that all things are now returned to the state in which they would have been, if no declaration of independence had ever been made. The utmost effect of it has been to render a negotiation with the chiefs necessary in the Northern Island, whereas the Middle and Southern Islands [i.e. the South Island and Stewart's Island] have been taken possession of without negotiation, by virtue of the right of discovery.[17] The Treaty, which technically is not a ‘treaty' at all, since the ‘whakaminenga' said to be responsible for the cession was fictitious, exists only to retract the declaration.[18] It is not “the basis upon which relationships between Maori and tauiwi must rest” despite what the NZAF constitution says. The actual basis for those relationships is a tradition of British statute and common law, which those far-sighted chiefs of Ngapuhi had been asking for ever since 1831. There can be little doubt that the basis for an ongoing and collaborative relationship between Māori and Pākehā was being laid down at Waitangi, and in fact before that. But the practical details for the arrangement were far from clear to anybody, and would only develop gradually. In practical terms, it was not the words of the Treaty, so soon and so persistently violated by a settler government from which Māori were systematically excluded, but rather a developing sense, largely missionary inspired, of a covenant relationship between Māori and tauiwi which was important. And it is that sense of ‘The Covenant of Waitangi' reflected in te Ao Māori, rather than legalistic pettifogging, which is more helpful to us all today. From that point of view it makes far more sense to emphasise the so-called “principles of the treaty”, so derided by certain politicians, than to emphasise a transitional document, the ‘Tiriti o Waitangi' (a text devised by Pākehā in English, translated by Pākehā – rather ambiguously) of which the purpose was simply to remove a barricade to the assertion of British Sovereignty. The ‘principles of the Treaty of Waitangi' The question then arises, if the text of the 'Treaty' (or the 'non-treaty', as it has also been called[19]) is not particularly helpful as a foundation for collaborative relationships between Māori and tauiwi, then what can serve as a basis for such relationships? This problem has attracted two different sorts of approaches. The 'covenant' approach, probably first popularised by the missionaries and then taken up by the Attorney General William Swainson in the late 1840s, took up the idea of a sacred bond or covenant between the Crown and the Māori people, and drew its ethos from Old Testament concepts of the Covenants of Abraham and David. This somewhat mystical bond, quite alien to most present-day and post-Christian thinking, is still alive within the Anglican Church, for example, in the writings of Professor Whatarangi Winiata. More common today, however, is the idea expressed in the so-called 'principles of the treaty of Waitangi', as expressed in a tentative-sounding judgement of Justice Richardson in 1987: Much of the contemporary focus is on the spirit rather than the letter of the treaty, on adherence to the principles rather than the terms of the Treaty. Regrettably, but reflecting the limited dialogue there has been on the Treaty, it cannot yet be said that there is broad general agreement as to what those principles are.[20] The issues were explored in depth in Janine Hayward's Appendix to Chapter 20 of Alan Ward's National overview, published by the Waitangi Tribunal in 1997, and can only briefly be summarised here.[21] It is unfortunate that Ward takes at face value the mistranslations of Kawharu, writing "the term used in the Maori version of the Treaty to equate with 'full possession' was 'tino rangatiratanga' the 'entire chieftainship' of their lands and treasured things" but that is again Kawharu's error, sedulously repeated by too many commentators. The 1987 case invited the Court of Appeal to determine the nature of the 'principles of the treaty of Waitangi', with which a particular decision of the Crown had been allegedly inconsistent. The Court, considering the 'spirit' (rather than the strict 'text') and regarding the treaty as a "solemn compact" (the covenant idea), found seven principles to which the Crown should have had regard: The acquisition of sovereignty in exchange for the protection of rangatiratanga The Treaty established a partnership and imposed on the partners the duty to act reasonably and in good faith The Crown had the freedom to govern The Crown had the duty of active protection. The Crown had a duty to remedy past breaches. Maori (hapu, primarily) retained ‘rangatiratanga' (chieftainship) and 'taonga' (property), and were to have all the rights an privileges of citizenship[22] The duty to consult. These 'treaty principles' were subsequently taken up and expanded by the courts. They were expressed in reports of the Waitangi Tribunal (see discussion in Hayward, op. cit. pp. 484-486). In the Manukau report (1989) 'te tino rangatiratanga' was given a new and anti-historical meaning, as 'full authority status and prestige' with regard to ‘Maori possessions and interests'. In the Motonui –Waitara report, and others, another new and anti-historical meaning was attributed to the term ‘taonga' (formerly construed as 'property' but now said to mean ‘all things highly prized' – and including intangibles, such as the Maori language, and spiritual concepts such as mauri (life-force), as well as fishing grounds, harbours and foreshores, and, perhaps most notoriously, 'airwaves'. All of these had been mentioned in reports prior to 1987, but after that year the Tribunal found further ‘Treaty principles'. In 1992 the Te Roroa report again took up the old idea of the Treaty as a "sacred covenant" and asserted that the crown and Maori had "a common moral duty to abide by the Christian and traditional Maori values it embodies".[23] By this time, however, judicial activism had overreached public toleration and there was growing suspicion that the 'legal principles' were a lawyers game. Governments (of both hues) were becoming uncomfortable with these new obligations, which many people began to see as opportunistic fabrications. Government could be advised by the Waitangi Tribunal to act in certain ways, but it was not obliged to implement tribunal recommendations. Already, in 1989, the Labour government had drawn a line in the sand, by announcing five principles upon which it would act (rather than the seven of the Court of Appeal). These were, in brief (for fuller explanations see Ward op. cit. pp. 493-494): The principle of government or the kawanatanga principle.[24] The principle of self-management (the rangatiratanga principle).[25] The principle of equality.[26] The principle of reasonable cooperation.[27] The principle of redress.[28] These five principles appear to have achieved wide acceptance as a way forward, although, some people are in doubt as to which version of the 'principles' is definitive, and some people reject the very concept of a set of principles, preferring instead the original articles or one of the alleged 'translations'. In 2005 the New Zealand First Party tried to introduce a Bill in Parliament to remove all the references to the ‘principles of the treaty of Waitangi' from legislation, but this effort was defeated.[29] Conclusion So what, if anything, should the present Treaty of Waitangi clauses in the New Zealand AIDS Foundation's Constitution say, you may ask? How should it be improved or amended, and do we actually need such clauses at all, after all this? After all, the clauses start off with an explicit and true assertion that "NZAF is a community based, non-governmental organisation"? Since that is so, and the Treaty of Waitangi specifically concerns the partnership between Government and Māori (not a partnership between Government and the Foundation, or a partnership between the Foundation and Māori), what need then for any reference to either the Treaty (in any version) or the debatable ‘principles of the Treaty', whatever they may be? Errors of translation and interpretation should certainly be corrected, and passages which are irrelevant to the Foundation's purpose and function should be removed. I recommended to the NZAF Board, therefore, that all those words which are struck out in the text below, be removed: 3.0 NZAF is a community based, non-governmental organisation. whichacknowledges the Maori text of the Treaty of Waitangi, signed on the sixth day of February 1840 as the basis upon which relationships between Maori and Tauiwi (non-Maori) must rest. 4.0 NZAF will respect and affirm te tino rangatiratanga ("the unqualified exercise of chieftainship") and the authority of all other bodies which act with the explicit warrant of whanau, hapu, iwi, or te ao Maori. 5.0 NZAF will also seek negotiated relationships with Maori organisations, in order to further the objectives for which the Trust exists. As noted above, however, the Board has totally ignored this suggestion, and has abandoned its attempt to 'consult' with the members. I also suggested to the Board that "It may be more useful to emphasise, instead, a specific cultural commitment to the promotion of the health of Māori gay men's (takatāpui) health within the Foundation's kaupapa, as there is nothing presently there to acknowledge that commitment, although it has been present since the 1980s.” An explicit acknowledgement of the takatāpui stake in NZAF, as a subset of men who have sex with men, still seems appropriate, and that issue should be addressed. In the remit to the AGM, therefore, I am suggesting to the meeting that it might like to guide the Board (and consequently the working party it wants to set up) by recommending to the Board (1) that the Board formally resile from the position on the Treaty of Waitangi which it has hitherto sponsored (a Board policy which the majority of NZAF members, clearly, does NOT want to see implemented) and, (2) that it recommends to the Board the removal from the constitution the words struck through in the indented passage above, and that it further recommend this remit for the consideration of the Working Party on the Governance of the NZ AIDS Foundation. The Working Party should also be empowered to consider, and, if thought fit to recommend, the deletion of two other specific related clauses in the NZAF constitution (here struck through): 20.0 (e) understanding of the application of the principles and articles of the Treaty of Waitangi 41.0 (b) the treaty of Waitangi, in particular te tino rangatiratanga ("the unqualified exercise of chieftainship") and kawanatanga (sovereignty) As already observed above, both of these mistranslated expressions in Māori should not be referred to at all. These matters, however, would be more appropriately addressed in a wider constitutional review, which can be attempted under the incoming Board and the Working Party. As regards what has been called the 'Māori quota', it was ill-conceived and insupportable. That any member of the current Board should support it, let alone, according to the statement of the current Chair, that all seven members of the Board should have done so, beggars my imagination. It was an extraordinary error of judgement and a dereliction of governance responsibilities that it was ever suggested in the first place. The present Board has shown itself to be incompetent to govern the Foundation and should be replaced. 14 October 2005, based in a submission sent to the Board on 30 June 2005 FOOTNOTES [1] See my monographs The Māori language and its expression in New Zealand Law: two essays on the use of te reo Māori in government and in Parliament (Wellington: Victoria University of Wellington Law Review, 2001), and P. Parkinson ori 1815-1900, ngā tanga reo Māori an annotated bibliography ngā kohikohinga me ōna whakamārama (Auckland: Reed, 2004), and P. Parkinson, Preserved in the archives of the colony, the English drafts of the Treaty of Waitangi (in press) etc. [2] See Warren Lindberg's account of this example of partnership in action in ‘The New Zealand experience' an invited papers in proceedings of the 1st International Indigenous People of the Land Coming together HIV/AIDS conference, 16-20 March 1992. (not published, held at LAGANZ MS 0522) [3] The outcome of this work is currently in press and will be out by the end of the year, as Preserved in the archives of the Colony: the English drafts of the Treaty of Waitangi (2005) published by the New Zealand Association for Comparative Law, in conjunction with the Révue Juridique Polynésienne and the Victoria University of Wellington Law Review. [4] The expression appears in the so called “translation of Maori text [of the Tiriti] by I. H. Kawharu” in his Waitangi – Maori and Pakeha perspectives on the Treaty of Waitangi (1989) pp. 319-320. [5] The manuscript is in the Public Record Office, London, CO 209/7, 13-15. There is no 1840 official translation, from the Māori text back into English, among the official archival documents, but only the ‘official' English draft and the translation from that into Māori. [6] The wording “bodies which act with the explicit warrant of whanau,hapu, iwi, or te ao Maori” was Te Aoterangi McGarvie's, but was substantially the text which I had prepared, with Kris Bennett, in the middle of 1993, as discussed above. [7] This was slightly erroneous, as the then constitution said that the two positions reserved for people living with HIV could be held by either elected or appointed members, and the two places for takatapui representatives (compare the single former place allocated to the Roopu, above) do not appear to be provided for in the constitution, but, rather had become customary appointments. [8] Note that the NZAF's constitution's “the explicit warrant of whanau, hapu, iwi, or te ao Maori” forms no part of the Treaty text, in either Māori or English, but may have been suggested as a result on Te Aoterangi McGarvie's consultation with Te Puni Kokiri. [9] See Parkinson ori Queen, Te Arikinui Tapairu Dame Queen Te Ata-i Rangi-Kahu Koroki Te Rata Mahuta Tawhiao Potatau Te Wherowhero [Piki Mahuta], the 6th Māori ruler. [15] See Mason Durie, ‘Tino rangatiratanga' in M. Belgrave and others, Waitangi revisited (2005) pp. 3-19 quote on page 6. [16]See AJLC 1869 pp. 70-71. [17] G. Gipps, Speech of His Excellency . . . on the second reading of the bill for appointing commissioners to enquire into claims to grants of land in New Zealand. (1840) pp. 23-34. [18] And see the comments of Du Petit-Thouars: “everything was dictated by Mr Busby to a small number of chiefs living in dependence on him or on the missionaries and around whom were grouped as many natives living in proximity to the whites as could be brought together and who were called for this purpose the ‘principals'. No confederation of all the chiefs of the island has ever existed, and the reason for this is simple: it is that the social state of New Zealand made it impossible. The fact is that this affair has been very ably orchestrated by Mr Busby who, by his deed of 10 October 1835, sets out to blaze a trail for the line of conduct [against Thierry] which he has continued; he announces by this deed that he will unite the chiefs, but in effect he is gathering to himself at his dwelling at Waitangi, the chiefs of the Bay and of the nearest surrounding pahs, as well as those living among the whites, but not (as has been alleged), all the chiefs of the North Island, of which this meeting was in fact a non-representative sample. With this simulated National Assembly, fraudulently representing a meeting of the notable chiefs of the island, he is drawing up a Declaration of Independence which they are supposed to have to deliberated upon, a deed which he dictated and published in their names on 28 October 1835.” (my translation, from the French, in A. Du Petit-Thouars, Voyage autour du monde sur la frégate la Vénus pendant les années 1836-1839 [. . .]. (1840-43) v. 3 pp. 53-54). [19] A. P. Molloy, ‘The non-treaty of Waitangi' New Zealand Law Journal (1971) no. 9: pp. 193-196. [20]NZ Maori Council v Attorney-general [1987] I NZLR 641, pp. 672-673. The principles were also articulated in the State Services Commission's Towards responsiveness (July 1989). [21] A. Ward, National overview (Wellington: Waitangi Tribunal / GP Publications, 1997), 3 v. Vol II, Chapter 20 ‘Tino rangatiraranga ori terms from the Māori text, noting that ‘tino' is not used; the words ‘rights and privileges' from the English ‘official text'. [23] A. Ward, National overview v. 2 p. 486 citing Motonui-Waitara report p. 50; Kaituna River report p. 13; Manukau report p. 67; Te Roroa report (1992) p. 30. [24] Article 1 of the Treaty, by ceding ‘sovereignty', establishes the right of the Crown to make law for all people, including Māori and tauiwi. There is no separate government for Māori. [25] Article 2 had agreed that hapū retain their property, as long as they wished to. The modern equivalent concept is preservation of a resource base, self-management by Māori of such resources, and the active protection of such property, which all imply the right of hapū / iwi to control the resources they own. [26] Article 3 at least implied equal treatment under law, although poorly expressed. In the modern context, this means that all citizens are equal before the law, whether Māori or tauiwi, using the common law system, together with the statute law (Article 1) and international law, where applicable. [27] The Crown regards the Treaty as a basis for the coexistence of two peoples, Māori and tauiwi, in one country. “Duality implies distinctive cultural development and unity implies common purpose and community.” The outcome of reasonable cooperation will be partnership. [28] The Crown accepts that there must be a process for the resolution of grievances, involving the Courts, the Waitangi Tribunal and direct negotiation, according to circumstances. The provision of redress should result in reconciliation.< [29] See the “Principles of the Treaty of Waitangi” Deletion Bill, at the Party's website http://www.nzfirst.org.nz/treaty/where it is alleged that “the vague term” has harmed race relations since it was introduced in 1986. Because the parliament had not defined these principles in legislation, the task of definition had fallen to judges, and “despite nearly two decades of existence, these principles remain largely undefined and ambiguous.” It is also observed that the ongoing litigation is expensive, and, although the expression is not used in the Bill, the fostering of a ‘treaty industry' and a perpetuation of the ‘grievance mode'. Commentary on the Bill can be found at http://www.chenpalmer.com/article_541.asp Phil Parkinson - 17th November 2005