Don Brash
Hobson’s Pledge
If you read one opinion piece this week, make it this one: It is Richard Prebble’s response to Dame Anne Salmond’s earlier attack piece on him in which she called him “illiterate,” “irresponsible,” and accused him of “inciting racist ill will.”
Prebble gets some absolute zingers into his piece in response to the disrespect demonstrated by the dame, but it is his very, very, good points about contracts and treaties that should be paid attention to.
He takes apart the argument that only te reo speakers are entitled and qualified to speak about the Treaty of Waitangi. While we know this to be true, the simple terms Prebble puts it in bring it into stark relief. He says:
If Salmond is correct, then only Chinese speakers can make a contract with the Chinese.
I have negotiated contracts in China.
When out of parliament I negotiated a US$350 million contract. None of our engineers spoke Chinese. None of the provincial officials spoke English.
Like at Waitangi in 1840, there are English terms for which there are no Chinese equivalents.
He is right! To play by Dame Salmond’s rules would see international trade grind to a halt. No business among speakers of different languages and no modern treaties agreed between countries without a common language.
How ridiculous!
We know that translators work diligently for governments, companies, and organisations to ensure contracts and treaties are understood by all signatories. Historic documents show that this was true back when the Treaty of Waitangi was signed.
The translator of the Treaty, Henry Williams, wrote to Bishop Selwyn on April 3, 1847:
I can, however, confidently state that at the three several meetings held at Waitangi, on the 5th, 6th, and 7th of February, I gave the fullest explanation of the Treaty, and that no one chief signed the same through misapprehension, for I took the utmost pains to make them understand perfectly the character of the proposed engagement.
Indeed, Prebble points out that Dame Anne Salmond herself has written about the sophistication of the chiefs at Waitangi:
Far from being naïve or ignorant, the rangatira at Waitangi engaged in a sophisticated debate about sovereignty, power, and authority, drawing on their own ancestral precedents and political philosophies.
These two excerpts beg the question of how the narrative of chiefs being so bamboozled by the Treaty that they could not possibly comprehend what it meant, ever gained traction. That brings me to Prebble’s most important – in my view – point. If the chiefs were bamboozled and there was such mistranslation that we now have “two treaties”, as was alleged by many opponents of the Treaty Principles Bill, there are serious implications to consider.
Richard Prebble reminds Dame Salmond that he is qualified to speak on these implications:
“Anne Salmond is not a lawyer. I am.”
And using his legal expertise, he points out that the “two treaty” narrative could well be destructive for our understanding of and the status of the Treaty:
If the tribunal is right and the chiefs and the governor misunderstood each other so there are two completely different treaties, then there was no agreement at Waitangi.
There is a legal principle of “misunderstanding”. If two parties completely misunderstand each other, then there is no “meeting of the minds” (consensus ad idem), which is essential for a valid contract.
This concept applies in treaties. The principle is found in the Vienna Convention on the Law of Treaties (VCLT) 1969.
Article 48 of the VCLT – Error:
A treaty may be invalidated if a party entered into it based on an essential mistake concerning a fact or situation …
Either the chiefs and the governor reached an agreement, and we have one Treaty, or there was no consensus ad idem and there is no Treaty.
The Treaty of Waitangi is too important for activists to undermine it with their changing narratives and reinterpretations. New Zealand is unique in that we even have a Treaty to establish our nationhood.
The Waitangi Tribunal is on a path of destruction. It is so hellbent on expanding its remit to some kind of socialist equaliser of outcomes, that it does not care if it undermines and nullifies the Treaty in the process.
37,000 people have already signed our petition to END THE WAITANGI TRIBUNAL. Have you?
Richard Prebble’s final words are almost correct. I only disagree in that the tribunal must be ended not reformed:
The tribunal needs to be reformed. We need to honour the agreement that was made at Waitangi.
The government needs to get brave very quickly and wrap up the Waitangi Tribunal. Any remaining or future claims can be dealt with either by direct negotiation with the Crown or in the courts.
It is a great shame to have lost Richard Prebble’s wise and learned head on the Waitangi Tribunal. We could really have done with his expertise at this crucial time. We must not let his resignation be in vain. He has shone a light on the wildly out of control and socialist tribunal and now we must make the government see sense.
PS. Just a note to clarify – We have heard that some supporters have emailed Minister McKee regarding Janet’s case after our last email and the minister is responding that the Te Kākano course “is no longer a mandatory topic that licensees are required to complete”. That is all very well, but it does Janet no good as she did not complete it when it WAS compulsory and so still will lose her licence if we don’t keep fighting for her. It also doesn’t mean the REA won’t make it compulsory again next year or bring in any number of new compulsory Māori education modules, or follow the Treaty indoctrination path that we are seeing for nurses, midwives, pharmacists, and others.
This article was originally published by Hobson’s Pledge.
