New Zealand will this week mark its national day, commemorating the 181st anniversary of the signing of the Treaty of Waitangi.
Dominic O'Sullivan from Charles Sturt University says the document explains why contemporary relationships between Indigenous peoples and the state look very different in New Zealand and Australia.
On the 6th of February, 1840, representatives of the British crown and 540 Māori rangatira signed the treaty, in a bid to align the Māori people and the new British colonists.
The agreement is seen by many as New Zealand's founding document.
The Treaty of Waitangi, or Tiriti o Waitangi, was signed in 1840 by representatives of the British Crown and Maori chiefs from the North Island of New Zealand. Source: Universal Images Group Editorial
Associate Professor O'Sullivan, an expert in Indigenous policy, said that around the time of its signing, violence between British settlers and First Nations' peoples was at its peak in Australia.
"Colonisation was well established in Australia by 1840," he told SBS News.
"There'd been a long history of massacre of Aboriginal people and really no attempt to include Indigenous people in the establishment of government or to seek any kind of accommodation."
What is in the agreement?
Written in both Māori and English, the Treaty of Waitangi contains three articles, considered a set of broad principles in which the Māori and British agreed to build a government.
It does not form part of domestic law in New Zealand, except when it's inserted into specific legislation.
Associate Professor O'Sullivan said the agreement was formed under different understandings, and there has been significant debate about its meaning.
“The English version and the Māori version use quite different language,” he said.
“So although the Māori text was presented to the people who signed it as a translation of the English text, in fact it wasn't a translation, it was a different version using very different language.”
The waka arrive outside Te Tiriti o Waitangi marae on Waitangi Day - 6 February 2020 - in Waitangi, New Zealand. Source: Getty Images
In the English version of the treaty, which only 30 people signed, the Māori people cede sovereignty to the British Crown.
The treaty gave the Crown rights to buy land that Māori people wished to sell. In return, it guaranteed Māori people full rights of ownership of their traditional lands, forests, fisheries and possessions and granted them rights and privileges as British subjects.
In the Māori version, which around 500 people signed, the concept of sovereignty was not mentioned.
"There wasn't necessarily an exact translation from the Māori language but the concept certainly could have been explained - and it wasn't," Associate Professor O'Sullivan said.
"And probably one of the main reasons it wasn't was because Māori would have never agreed to it."
A matter of ongoing and evolving debate
It's been argued that Māori believed they remained sovereign people, free to handle their own affairs but not governing the lands.
Historian Professor Michael Belgrave was the research manager of the Waitangi Tribunal, a permanent commission established in 1975 to consider claims made by Māori relating to Crown actions that breach the Treaty of Waitangi.
Since establishment, there have been more than 2,000 claims registered, giving an indication of the level of dispute between the Māori people and the New Zealand government.
Professor Belgrave said there was no evidence that Māori were asked to give up their tribal rights or authority, or that they understood this would happen.
He said that whatever the British may have intended in the treaty was eroded over time.
"In 1840, I'd argue that the British government clearly was prepared to recognise that it had, in gaining sovereignty as it believed, major obligations to ensure that Māori did not suffer as a consequence of the big plans to colonise New Zealand,” Professor Belgrave said.
“Before the end of the decade, that had been significantly compromised. By then it was, well, Māori rights will be guaranteed as long as they don't get in the way of the needs of British settlers.”
Associate Professor O'Sullivan said the British gradually overrode Māori rights through legislation, military means and control of policy systems.
Waka prepare to leave at the lower marae on Waitangi Day 2020 in Waitangi, New Zealand. Source: Getty Images
"From the very early days, the British Crown decided that it would be convenient if Māori were assimilated into white culture and effectively ceased to exist as a distinct ethnic group," he said.
This led to the outbreak of the New Zealand Wars which lasted from 1845 to 1874 as Māori fought and died defending their land, and in the late 1960s the Māori protest movements emerged, increasing a push to enforce the treaty.
It wasn't until 2014 that the Waitangi Tribunal found it was very clear the treaty was not a secession of Māori sovereignty.
"What that means in terms of practical day to day politics is a matter of evolving debate and is being worked out," Associate Professor O'Sullivan said.
"But it certainly lends authority to the Māori claim that the rights of government that were conferred on the British Crown don't extend to things like control over Māori children and the ability to simply go into people’s homes and take kids away."
Parallel arguments are made in Australia with respect to the Stolen Generations, and preventing any repeat of it.
'It's not like Australia Day'
While Waitangi Day offers a moment to reflect on the extent of Māori authority over their own affairs, Associate Professor O'Sullivan says there's a difference in how Indigenous sovereignty is considered in Australia.
"It's not like Australia Day, where the circumstances of colonisation receive quite significant public attention in the week or so leading up to Australia Day and then the debate goes away," Associate Professor O'Sullivan said.
"It doesn't go away in quite the same way in New Zealand."
Associate Professor O'Sullivan said Waitangi Day often reminds Māori that the treaty hasn't come as far as they'd hoped.
"Waitangi Day is, among other things, a day for reflection on progress towards honouring the treaty, rectifying its breaches, and having an influence on contemporary policy and contemporary political relationships in the ways that people think it should,” he said.
“But that question of how it should influence modern politics is the point of debate and point of contest."
Prime Minister Jacinda Ardern this week defended her government's record on Māori affairs in a ceremony ahead of Waitangi Day.
She also used her address to come good on an election promise to introduce a new public holiday for Matariki, the Māori New Year, which will be held for the first time on 24 June 2022.
NZ Labour MP Duncan Webb, PM Jacinda Ardern and Climate Change Minister James Shaw serve up a barbecue after a dawn ceremony on Waitangi Day in 2020. Source: AAP
Treaty not an Australian reality
Unlike New Zealand and Canada, Australia has never signed a treaty or treaties with its Indigenous people.
Co-chair of the First Peoples’ Assembly of Victoria, Marcus Stewart, said he was hopeful that could change soon.
Victoria is leading the journey towards treaty from a jurisdictional point of view. We've seen other states start picking up that process which is fantastic,” he said.
“Unfortunately, the South Australian Government pulled the pin on it which is devastating to traditional owners in South Australia. But we haven't seen anything yet at a national level."
The First Peoples’ Assembly of Victoria is a body set up to help Aboriginal and Torres Strait Islander people work towards a treaty.
Mr Stewart says there can't be a treaty without the truth.
“For the first time in this country's history, we anticipate seeing a truth-telling process in Victoria, we hope to see that in the next six to 12 months, which will be phenomenal. It will be fantastic,” he said.
Associate Professor O'Sullivan says Australia can learn a lot from the Waitangi Treaty in the process of creating a treaty or treaties of our own.
"In the negotiating process, people have to be very clear about what they want and be very certain that the words they choose actually reflect what it is that they want,” he said.
Correction: A previous version of this article said Australia was the only Commonwealth country not to have signed a treaty with its Indigenous people. This is incorrect and has been amended.
