Efforts by some politicians to prevent a reasoned and civilised public discussion on the principles of the Treaty of Waitangi are understandable if we accept that some politicians do not have the courage to put democracy ahead of keeping their seats in Parliament or local government.
Efforts to prevent that discussion by church leaders have a much more sinister undertone and continues a centuries old tradition of clergymen telling people how to think about matters outside the bounds of religion. They claim such a discussion would be divisive and damaging. That is rubbish and they know it.
Earlier church leaders were wrong about Galileo, Christopher Columbus. Magellan and Darwin. They are equally wrong about treaty issues and perhaps their energies would be better spent rooting out the paedophiles from within their ranks instead stifling public discussion on secular issues they apparently know little about.
At the outset of that public discussion it is essential to understand what a principle is and what it is not;
In Western democracy common law a principle explains how something happens or works such as the principles of our criminal justice system. These are fundamentally about clarity, accuracy, objectivity and equality in the application of law.
There exists no single definitive list of constitutional principles, but their fundamental content is widely agreed. These can be grouped as follows: institutional checks and balances, representative government, the rule of law, protection of fundamental rights and integrity and standards in public life.
Put simply the principles of a law, contract, agreement or treaty explain in broad detail what the document was designed to achieve. A principle then is not a legally enforceable rule, and cannot be applied as such, as are regulations which are created by government agencies that have more details on what some statutes mean and most importantly how those statutes will be enforced.
It is self-evident therefore that, if there are to be Treaty of Waitangi principles which bind central government, local government and the wider community, those principles must be accurately defined and easily understood. Currently we have about 40 of our laws which require Treaty of Waitangi principles to be observed but, without clear definition, that is an impossibility.
It follows then that, if we leave the principles of the treaty as vague and fluid as they are now, they will continue to be subject to expedient-invention and political manipulation. In the absence of a formal New Zealand constitution, it has been left to the courts to define them on an ad-hoc basis if and when the principles are cited in litigation. These decisions then became part of the body of common law precedents. Judges are appointed from the ranks of knowledgeable lawyers to apply the laws enacted by the Parliament. It is not, and must never be, their role to make those laws. That is the exclusive role of the Parliament.
If on the other hand the principles are not to be legally defined, and currently they do not exist in law, we are faced with a very different argument which says there are no principles to the Treaty of Waitangi but there are principles of the laws which the treaty established. If that is the case then all reference to treaty principles must be deleted from our laws as the status quo is simply untenable.
In either case we are left with the vexed question; What was the Treaty of Waitangi designed to achieve? And, conversely, what was it not designed to achieve?
The Treaty of Waitangi was designed by those who wrote it to cede “all rights and powers of sovereignty” to the British Crown. The Maori text however, translated by James Busby and others, and which has legal priority, grants “governance rights to the Crown.” The difference is more than pedantic.
Article two of the Māori text establishes that Maori will retain full chieftainship over their lands, villages and all their treasures while the English text establishes the continued ownership of the Maori over their lands. Again the difference is more than pedantic and established the exclusive right of pre-emption of the Crown to purchase Maori land .
Article three gives Māori people full rights and protections as British subjects.
The treaty was not designed, by those who wrote it, to establish two classes of citizenship or create a permanent partnership in the governance of the new colony. The parties to any agreement are only partners thereafter if the agreement says so. The Treaty of Waitangi has no such instruction.
The proposed principles in the bill;
1.Civil Government – the Government of New Zealand has full power to govern, and Parliament has full power to make laws. They do so in the best interests of everyone, and in accordance with the rule of law and the maintenance of a free and democratic society.
Comment; This proposed principle is supported as written
2.Rights of Hapu and Iwi Maori – The Crown recognises the rights that hapū and iwi had when they signed the Treaty/te Tiriti. The Crown will respect and protect those rights. Those rights differ from the rights everyone has a reasonable expectation to enjoy only when they are specified in legislation, Treaty settlements, or other agreement with the Crown.
Comment; This principle is supported but needs to be rewritten for clarity. It should read:
2. Rights of Hapu and Iwi Maori – The Crown recognises and will protect the rights hapu and iwi had when the Treaty of Waitangi was signed in 1840. Those rights differ from the rights of all other residents of New Zealand only when they are included legislation to authorise treaty settlements.
3.Right to Equality – Everyone is equal before the law and is entitled to the equal protection and equal benefit of the law without discrimination. Everyone is entitled to the equal enjoyment of the same fundamental human rights without discrimination.
Comment; This proposed principle is supported as written.
I suggest there should be two additional principles;
- Both the Government and the Iwi are obliged to accord each other reasonable cooperation on major issues of common concern.
2. The government is responsible for providing effective processes and resources for the resolution of grievances in the expectation that reconciliation can occur.
4. Substantive submission
The Treaty of Waitangi was drawn up at the invitation of some Maori tribal leaders in the far north so that British authorities could control British subjects living there. The alternative was for Maori to control them which would have been terminal for offenders and also terminal to the valuable access to European agricultural technology as well literacy and numeracy.
After the failed attempt to establish the United Tribes of New Zealand with a Maori declaration of independence in 1835 and more than two years of discussion Nga Puhi leaders agreed for British law to be applied here, initially to control British subjects and other Europeans living here, leaving Maori to continue to live their lives according to their own rules and standards, even though they were, at least nominally, British subjects by virtue of the treaty. Initially about 35 leaders signed the treaty which was then taken around the country for the next year to get more signatures, in all about 500 tribal leaders signed it but most did not understand the full implications of the document much less the concept of ceded sovereignty. This is clearly explained by missionary printer William Colenso, a fluent speaker of Maori, who interviewed most of the senior tribal leaders prior to them signing the treaty. (William Colenso, His Life and Journeys A.G.Bagnall & G.C. Peterson 2012)
The British government of the time initially had no intention of establishing a colony in New Zealand but their hand was forced by the activities of private enterprise in the form of the New Zealand Company, as had happened in India many decades earlier with the East Inda Company.
New Zealand became a British Crown colony in 1841 more than a year after the signing of the treaty, and was granted self-government with the passage of the New Zealand Constitution Act 1852 and ceased to be a British Crown colony in 1907.(The Penguin History of New Zealand-Michael King)
The treaty was not, and is not, a formal contract between two people with the usual reciprocal obligations and penalties for non-performance. Nor is it law. A treaty is a very different arrangement usually designed to establish a relationship or understanding which will evolve over time. (Prof Paul Moon pers com)
Within two or three years however a number of Maori leaders were asking for the protection of British law, aqs it suited their needs from time to time, against traditional enemies in the final stages of the so-called Musket Wars and, in doing so eventually agreed to be bound by British law as the Europeans were. That evolved into the commonly agreed arrangement that all people in New Zealand, including Maori, were British subjects and all subject to British law.
More important was the Kohimarama Conference twenty years later of July 10, 1860. At that conference of about 200 tribal leaders from throughout the North Island the Governor, Thomas Gore Browne, asked them to consider a number of serious matters which included the Taranaki Land War, which had erupted in March that year, and the Maori King, set up two years earlier in 1858. (The first Maori King, Potatau Te Whero Whero had died a month earlier to be succeeded by his son Tawhiao.) and the Treaty of Waitangi signed by some of them 20 years earlier.
The governor then left the conference leaving the leaders to their deliberations. It was a pivotal moment for New Zealand as there were suggestions in Britain that the colony should be abandoned.
After long and detailed debate over several days, recorded by bilingual journalists and published in the Maori newspaper Te Karere (issues 13 to 18), the tribal leaders declined to condemn the tribes of Taranaki in their fight against the British or speak against the Maori King. They did however unanimously agree to the continuation of British presence and law in New Zealand. Most interestingly they saw the Treaty of Waitangi as an exclusively Nga Puhi matter and of little interest to them. They simply wanted one law for all and the freedom to manage their own tribal affairs according to that law.
The treaty is in three parts with the second part having two clauses.
Part One cedes sovereignty from Maori to the British Crown but there was in fact no national sovereignty to cede to anyone. Tribes were then, and still are today, fiercely independent of each other in the same manner as early Irish and Scottish clans were. There was no umbrella pan Maori authority and still isn’t today.
The word sovereignty has no equivalent in Maori so kawanatanga was invented by missionaries which translates loosely as governance; a very different concept. Tinorangatiratanga translates as both chieftainship and individual self-determination which applies, within the constraints of law, to everyone today.
Part Two of the treaty was included at the insistence of the British Resident Busby to explain the effect of British law. This assured Maori that British law would protect their rights to keep all that they own and they would not be forced to part unwillingly with anything. It was, in effect, simply an explanation of the protections for common people inherent in British law and was not separate to that.
The second clause of Part Two prohibited the sale of land to anyone other than the Crown. Maori had no concept of exclusive individual land ownership in the European sense so this was to stop land sharking which was already well underway in and around Wellington and Nelson by the Wakefield family’s New Zealand Company. The Crown would buy land at a fair price and on-sell to approved settlers as the British Government initially had no intention of owning land here or even encouraging or allowing large scale British settlement. That was undertaken by private enterprise with tragic results for Maori. Any profits from the resale of Maori land to settlers was to be used to fund the administration of British law in New Zealand.
Part Three made everyone in New Zealand a British subject with all the rights, obligations and protection that goes with it.
The Treaty of Waitangi was not some form of latter day Magna Carta. It was simply the envelope by which British law arrived in New Zealand. British law eventually evolved into New Zealand law which, at least in theory, applies to all citizens and residents equally. Most importantly it was not the foundation of the country as many assume.
The islands which became known as New Zealand were first colonised and inhabited by Polynesians out of the eastern Pacific between 800 and 1000 years ago. They lived in isolation from the rest of the world until the arrival of Able Tasman in 1642 and Captain Cook in 1769 Soon afterwards New Zealand, the name bestowed by Tasman, was internationally recognised as a trading country and as early as 1788 Maori were trading with the colonial settlements of New South Wales . The country had no formal government or laws but, prior to 1840, there were Europeans, predominantly British, settlers in many parts of the country. These early Europeans were seal hunters, whalers and fugitives from British justice most of whom became part of Maori society.
By the 1830s several hundreds acres were under cultivation by Maori farmers and missionaries in central Waikato, based at Otawhao (Te Awamatu) and Maungatautari (Cambridge) providing essential food supplies to the towns of Onehunga and the Kohimarama Mission station. (Frontier Town, a history of Te Awamutu- Laurie Barber)
The Treaty of Waitangi of 1840 therefore did not establish New Zealand as a recognised nation. That evolved over about 50 years of gradual and unregulated settlement by people mostly but not exclusively, from Britain. The treaty also did not immediately establish New Zealand as Crown colony. That was done at the request of British settlers a year later in 1841 as noted above.
There remains however a body of Maori opinion that says the treaty was only ever intended to bring the rule of British law to New Zealand to control British subjects living here, leaving Maori to take care of their own people under their own rules. Although that argument has some basis in historical fact, it ignores the Maori initiated development and acceptance that all people in New Zealand became British subjects, and subject therefore to British law, whether they wanted to be or not, understood it or even cared one way or the other.
The treaty signed at Waitangi in 1840 was not unique or even an original document. It was almost identical to a standard format treaty used throughout the British colonies and was almost identical to the British-Sherbo agreement of 1825, one of several negotiated with tribal rulers of the Gambia region around this time. (Dr M.P.K. Sorrenson; Ko Te Whenua Te Utu/ Land is the Price. Auckland University Press 2014, Pg 42.)
Similar treaties were also agreed between Britain and several North American native peoples prior the American War of Independence (1775-1783) which the new nation of The United States of America adopted. The results of separatism, or self-determination, to use the most recent interpretation, were native Americans living in poverty on reservations and native South Africans subjected to apartheid.
In New Zealand, also without question, was the systematic, deliberate and cynical dishonesty with which Maori people were denied their rights as British subjects by officials and authorities for most of the century and half which followed. Unimaginably huge tracts of land were simply stolen under a range of official but illegal and morally wrong instruments including armed invasion. As various governments attempted to address these very real issues over the years a number of flawed concepts have been generated.
The first was that the treaty was a mere nullity which was of course simply incorrect. The most recent, and incidentally one of the few without any basis in logic or history are the so-called Principles of the Treaty of Waitangi.
They were proposed in 1989 by the Government, under Labour Prime Minister David Lange, in collaboration with the Waitangi Tribunal and the New Zealand Maori Council.
They were;
1.The government has the right to govern and to make laws
2. Iwi have the right to organise as iwi and, under the law, to control the resources they own.
3. All New Zealanders are equal under the law
4. Both the government and the Iwi are obliged to accord each other reasonable cooperation on major issues of common concern.
5.The government is responsible for providing effective processes for the resolution of grievances in the expectation that reconciliation can occur.
Principles 1 to 3 are matters of common law, which is the body of legal precedence created by the courts in the interpretation and application of Acts of Parliament.
Principles 4 and 5 are matters of civil law which sets out procedures that govern legal rights and responsibilities and processes to resolve disputes.
The proposed principles of the Treaty of Waitangi have never been written into law. Although more than 40 of our laws now require them be observed, no government has attempted to define them in any law or give clear instructions on how they will be applied in practical terms.
In reality there are no principles of the Treaty of Waitangi. The treaty is not law and therefore cannot have attached “legally enforceable” rules as laws do. The treaty was, in reality, merely the vehicle by which British law was established in New Zealand. If there are to be treaty principles, they can only ever be identical to the principles of common and civil law. Democracy and New Zealand law does not allow any other interpretation.
While they are an honest attempt to interpret the treaty for modern day New Zealand, unless well understood or correctly applied they will introduce a whole range of new concepts, rights and obligations never envisaged or intended by the original parties to the treaty. There is a very real danger also that attempts to apply these unwritten principles without honest context and analysis will create a whole new set of injustices for non-Maori New Zealanders.
Two of the most important proposed principles by Treaty of Waitangi of 1989 are, number two, the right to own property either collectively or privately free from interference of the State, with exceptions in national emergency or war and, number three, the right for all people to be treated equally under the law. Those principles were established by the Magna Carter in 1215, encapsulated in British law in 1582, and simply repeated in Article Two of the Treaty of Waitangi of 1840; they should apply to all New Zealanders equally.
The right of Maori to own land and resources and seek recompense for the dispossession of the colonial era are in fact common law rights, established in New Zealand by the Treaty of Waitangi when British law was introduced, as well as a nebulous “treaty right” which was simply the vehicle by which British law was established. A right they have been denied many times. Many traditions were outlawed and many unjust restrictions were placed on a free-living people. Some of these are still applied to Maori tribal land and activities today. It is important for law makers to understand that Pakeha native New Zealanders have not inherited culpability for those atrocities.
Treaty Partnership
In 1840 the Treaty of Waitangi was not a contract between two peoples Maori and Pakeha or even a true treaty. (Cox, Noel (2002). “The Treaty of Waitangi and the Relationship Between the Crown and Maori in New Zealand”. and Brooklyn Journal of International Law. 28 (1): 132. Archived from the original on 4 October 2022. Retrieved 4 October 2022.)
It was an agreement between some Maori and the Government of Britain (the Crown). In fact non-Maori native born New Zealanders were specifically excluded from involvement although Europeans (Pakeha) had been established in New Zealand for almost 50 years prior to 1840. “ (“Pakeha residents [who] were not allowed either to debate the text or to sign the document, except as witnesses, because it concerned only Maori relations with the British Crown”…Michael King; The Penguin History of New Zealand P158 2012.)
In recent times much has been said of treaty partnership between Maori and the Crown which is claimed to have been included in the treaty. However, there is in fact nothing in the English or Maori versions of the treaty, and I can read both, to substantiate the concept that an ongoing permanent partnership in the sovereign governing of the country centrally or locally was ever contemplated by either side.
By the early 2020s there had emerged a pattern of attempting to imbed, by negotiated agreement rather than government direction, co-governance and treaty partnerships in all legislation governing statutory bodies. This imbedding approach has been encouraged by government in some cases and simply picked up as the “correct thing to do” by biased consultants in others. That in itself is not a dishonest approach but it is an unwarranted sycophantic approach and without doubt ill-advised and an inaccurate portrayal of history and the status of the Treaty of Waitangi.
It is important to note that, in law, the Government cannot simply legislate for those inclusions. The reasons for that are complex but, in simple terms, as the Treaty of Waitangi of 1840 was an exclusive agreement between Maori and the Government of Britain (the Crown), other parties cannot be retrospectively included without re-negotiating the treaty. In that context the Department of Internal Affairs has confirmed that the treaty is not law and only the Crown and Maori are bound by it. The Crown in this case means the executive arm of government only and does not even include the parliamentary opposition, local authorities or any other body.
The rights of British subjects however, although established by the Magna Carter of 1215, were by 1840, nothing like the individual rights of New Zealand citizenship we know today. There was a strict class system in England, from the sovereign down through the nobility, landed gentry, artisans and tradespeople to the lower classes who, although the vast majority, were little better than unpaid or poorly paid landless peasants. Britain had also only outlawed slavery in the British Empire four years earlier and these people were also British subjects, albeit without their consent of even knowledge of what that meant.
Crown agents in 1840 saw Maori as an available labour force, not landowners, farmers or employers of Pakeha. That system had been applied in Ireland for almost 700 years before it was applied here and it was simply inconceivable that such people would have anything more than a servile relationship with the British sovereign much less a partnership of equals.
The British of the time had never agreed to share sovereignty with anyone over more than seven centuries of world-wide colonisation. That was clearly demonstrated with the American War of Independence (1775-1783) in which Britain lost her American colonies, and the brutal suppression of the so-called Indian Mutiny (1857)
Maori on the other hand simply wanted to manage their own affairs in their own way under their own rules leaving Pakeha to do the same but with one law for both. They never asked for, nor was Lieutenant Hobson authorised to offer, shared sovereignty.
It is also essential to understand that the parties to a treaty or contract are not automatically partners thereafter unless such a partnership is specifically included in the treaty or contract and there is no such inclusion in the Treaty of Waitangi in the English or Maori versions and I can read both.
There is however an apparent and interesting contradiction in the treaty; While the First Article cedes sovereignty to the Crown the Second Article guarantees to Maori the right to manage their own affairs which some commentators have claimed is a form of sovereignty. They overlook the fact that managing their own affairs under the law that binds all people, is very different to a privileged position in the managed of the whole country.
The concept of a permanent partnership between Maori and the Crown came from a misused comment by Justice Robin Cooke who said the 1987 “Lands Case against the Crown” signified a partnership between Pakeha and Maori requiring each other to act towards the other reasonably and with the utmost good faith.’ He clearly meant a partnership between the Crown and Maori in the litigation before him and not a treaty partnership as there is and was no partnership with Pakeha who are not the Crown.
This flawed concept of a permanent partnership however has flowed on to local government where demands for co-management of natural resources and prior rights of consultation by some activists are accepted by ill-informed non-Maori who find it easier to appease such demands rather than challenge them for fear of being labelled racist.
Even the New Zealand news media has been captured by the myth to the point where professional objectivity has been compromised and the publication of contrary opinions to the treaty partnership have all but been stifled.
In 2021 the Government established a contestable fund of $55million for “public interest journalism” and tasked New Zealand On Air (the New Zealand Broadcasting Corporation) to administer the fund over three years.
A memorandum of Understanding between NZ On Air and Te Mangai Paho (a State Agency to promote Maori language and culture) includes a requirement to “Actively promote the principles of Partnership, Participation and Active Protection under Te Tiriti o Waitangi.”
Most senior journalists saw that as a serious intrusion into the objectivity and editorial independence of professional news media who should never be obliged to promote or support any political philosophy.
In effect all Maori people originally asked for was to be treated the same as all other New Zealanders; to have their pre-1840 individual and tribal property rights recognised and protected as common law rights and to have the same freedom to manage their own affairs without interference as all other people.
Until three decades ago Maori have never asked to be treated as special or different; only that those things which properly belonged to them prior to 1840 should still be safe in their ownership after 1840. That reasonable and lawful expectation has been and still is denied them in many instances today. No other sector of New Zealand society would tolerate that imposition.
The Treaty of Waitangi, the Statute of Westminster, and the New Zealand Coat of Arms gave One Sovereignty, One Law to all the people/citizens of New Zealand, irrespective of race, colour or creed, therefore, there was never a partnership between Maori and the Crown.
Kia ora Tom.
Some excellent points here for discussion. This is the kind of discussion we need to have, open, honest and informed.
Thanks for sending the Kawhia series- a brutal and honest purview of the intertribal wars which, with the introduction of muskets, reached a crescendo in the 1820s of displacement and depopulation. Muskets were the ultimate weapon in a prolonged struggle, much as the nuclear bomb ultimately decided the struggle with Japan. Perhaps calling these conflicts the ‘Musket Wars’ misdirects a sense of cause: it was the “utu wars” already in progress that ended with a volley of muskets, depopulation, despair, and diaspora.
Incidentally much is trumpeted today about the atrocities of Parihaka in November 5 1881. However this pales against Rauparaha’s raid on Takapuneke, aka the “Elizabeth Affair” fifty years earlier November 5-6 1831. The four part series on Youtube by ” Kiwi codger” is a compelling visual narrative of the events and the slaughter, and well worth viewing.
In the North, Busbys attempt to introduce the British concept of confederated government in 1835 (not a Ngapuhi initiative, despite claims to the contrary) had proved a failure, because the concept of chiefly submission to a majority vote or to a decision in tribal disfavour was completely contrary to the defence of tribal mana. Pakeha traders played one hapu off against another in trade, which resulted in negotiations between two signatory tribes becoming an armed rout in front of Busby’s house- , only months after the Confederation was signed. (the Whananaki affair). In1838 two hapu of that Confederation were engaged in bitter fighting over who had control of Kororareka. The confederation existed in name, but not in practice. “Te Whakaminenga” was in fact a chimera, contrary to present day myth.
And so to the Treaty. Because Britain had diplomatically recognised the “Confederation” it diplomatically had to dispose of it, and did so by inviting each chief to transfer their allegiance, alongside independent chiefs, by signing the Treaty. Under the Queen’s governor (“te Rangatiratanga o te KUINI” administered through her “Kawana”- see Hobson’s letter to hapu of 27 April 1840) the tribes would have protection, prosperity and peace. While the Governor would directly govern British settlers, his authority would be extended among hapu through a subordinate Protector of Aborigines, George Clarke, tasked with arbitrating and negotiating between hapu and hapu, and hapu and the Governor.
The Protectorate years of 1840-45 are a fascinating study in philanthopic government, though rarely mentioined in grievance narratives. It was largely eclipsed by the political changes of 1846, when the NZ Company lobby got the upper hand in the British parliament. Governor Grey took over from Fitzroy, and the emphasis thereafter change to British settlement. Not the fault of the treaty: indeed Clarkewas dismissed as Protector, and he and Henry Williams were persecuted and prosecuted by Grey over their landholdings- less because of the land and more because Grey wanted to discredit their mana and enhance his own . That is another story, unknown to many.
As to the Treaty- the meaning and intent of that document as signed in the contexts of 1840; what tino rangatiratanga meant then in the context of that arrangement, versus what is is understood to mean now: the contexts and expectations of that time versus the contexts and political contests of today- these are 184 years- contextual light years- apart. Then, Maori sought modernity and prosperity and close alliance with Pakeha; today the talk is polarised politicised and divisive, and the Waitangi Tribunal continues to widen the rift. Divisiveness and racist have become epithets, mud hurled out of context as ‘ad hominem’ slurs.
Hostile refusal to discuss a topic, coupled with ad hominem attack, usually means that there is an embedded agenda to be protected from uncomfortable questions. But we shall see.
The underlying issue here is a combination of total ignorance of our history, misrepresentation and distortion of our past in a juridical Tribunal setting, and the persistent indoctrination by the media and by Treaty education courses;, that have in the last fifty years resulted in a totally misconstrued view of our national history. Show me a “Treaty Education Course” that doesnt sell the Waitangi Tribunal mantra and i will show you a flying pig.
Enough.
Kia ora.
Toitu te Tiriti- ehara i te tiriti teka o 2022, engari ko te tiriti pono o 1840.
Kia kaha, kia manawanui.
Arohanui.