Talk:Principles of the Treaty of Waitangi

Contra Proferentum

Kia Ora, my name is Hemopereki Simon and I am a published researcher in this area. I need to edit parts of this article to make it comply with modern academic thinking on the subject.

Article says:

"The Treaty is not regarded as law because "the English and Māori versions are not exactly the same", and "it focuses on the issues relevant at the time it was signed." However, the Treaty of Waitangi is still a pivotal document, and should be used in legislation and health approaches to achieve a more equitable nation, and reverse the effects of colonisation upon the arrival of the European settlers in 1840."

Firstly, the above statement is wrong. The legal concept of contra proferentum applies with the treaty. see: https://scholar.google.co.nz/scholar?hl=en&as_sdt=0%2C5&q=contra+proferentem+and+the+treaty+of+waitangi&oq=contrhttps://scholar.google.co.nz/scholar?hl=en&as_sdt=0%2C5&q=contra+proferentem+and+the+treaty+of+waitangi&oq=contr

Article needs to incorporate the rea;ity of Maori which is more like this:

The consistent redefinition of Te Tiriti by the judiciary questions their role in the suppression and subjugation of iwi and hapu by implementing the law. Although it may seem progressive, The New Zealand Māori Council v Attorney-General case, if seen from a non-signatory hapu and iwi perspective, can only be described as an attempt by a white possessive society to subjugate these groups further. This is made worse by the lack of recognition (for the common law doctrine around treaties and contracts) of contra perferentem. This is acknowledged as being applicable to Te Tiriti but has not been implemented by the government due to its potential ramifications for the white possessive state. Ultimately, the judiciary and its decisions are consistent and desperate attempts by the white possessive state in Aotearoa New Zealand to deny hapu and iwi their history and lived experiences as non-signatory hapu and iwi. In doing this they seek to void tikanga and its key principles surrounding mana being: mana whenua and mana motuhake. Additionally, this continues to ensure that hapū and iwi like Tūwharetoa remain stuck in a vortex, where they must seek legitimacy for their existence in the face of white possessive logic from the entity that legitimised their colonisation.

Hemopereki (posted on 13 October 2018, Roger 8 Roger (talk) 09:58, 28 July 2022 (UTC) )

I'd have thought the treaty isn't regarded as law because it's a treaty, not law. The whole article would benefit from a healthy review with more sources used. Roger 8 Roger (talk) 09:58, 28 July 2022 (UTC)

References

Clarification

Thanks user:Mrfebruary for all the work on this topic to date. In your recent creation of 'Needs for Treaty principles', I notice some sentences that might need clarifying. Regarding the first sentence, it reads as if the Treaty is a Treaty between states, applicable in international law under the jurisdiction of an international body but not applicable to NZ domestic law. The quote used to justify that is IMO also not clear. Despite my comments in the previous section above, I believe the word Treaty means nothing more than its now less often used sense of an loose agreement, not a more formal treaty between sovereign states as the word is now usually used. (Eg Treaty of Versailles.) That is my understanding of why it cannot be enforced in NZ courts, especially also because it was so long ago. It is not a treaty between sovereign states. The quote says 'such a Treaty of cession cannot be enforced by the Courts'. That could equally mean that some people refer to it as a treaty of cession but it isn't - its just a poorly written ambiguous agreement between two parties, one of whom cannot even be viewed as a unified group, hence the need for hundreds of signatures rather than just one. Your citation (5) does not contradict this view, it simply says the treaty isn't enforceable in NZ courts. It also says that despite that, there is nevertheless a strong moral obligation on the Crown to redress any negative consequences resulting from the ambiguous treaty it wrote. As you have done elsewhere in separating the Treaty from the Treaty Principals, should the penultimate sentence also be amended with the insertion of 'principles' after Waitangi? If it isn't clear to some, I think the general consensus by most historians and lawyers is that Maori did not have sovereignty in 1840, hence the attempt at trying to create a unified controlling entity by Busby with his Unified Tribes Declaration idea, and with the attempt to get all chiefs to sign the Treaty in 1840 - it was the closest alternative to a head of state but was still not really good enough. Roger 8 Roger (talk) 07:04, 3 March 2024 (UTC)

Was it really worth making a 361 word comment on a 62 word sentence? I am trying to make some simple improvements to the article. I am not trying to debate my non-existent dissertation via talk pages. So I am sorry if I disappoint you by not engaging in the depth you perhaps would like. I didn't add the sentence in question. On reflection it's seems unneeded. It's reference is hard to check. So I have deleted it. user:Mrfebruary