More rights for Māori, says Māori Party co-leader

Q: "To be totally clear do Māori have more rights than non-Māori New Zealanders?"
Debbie Ngarewa-Packer: "Māori have rights as tangata whenua because we're indigenous ..."
Q: "...and so so those are more rights, right?"
Debbie Ngarewa-Packer: "I think those are, um, more also responsibilities and obligations ..."

Q: "So I just want to be really clear here: you're Māori, I'm not Māori, do you have more rights than me in New Zealand?"
Debbie Ngarewa-Packer: "I have more obligations and I think I do also have more rights with those obligations, absolutely afforded under Tiriti. ...

Q: "So so do you think then if if Te Tiriti guarantees a carve-out for Māori-specific rights, do you think that if we are to form modern New Zealand on a constitutional basis around Te Tiriti O Waitangi, that we have different standards of citizenship?"

Debbie Ngarewa-Packer: "We have different expectations and different rights, absolutely. ... Extra rights absolutely are afforded because we are indigenous, but everyone else gets to be consulted in kaupapa [per our principle/our philosophy]." 

~ Te Pāti Māori co-leader Debbie Ngarewa-Packer from her TVNZ interview 24 Nov 2024

 

"Seymour is only doing openly what Māori nationalists and their Pakeha allies have been doing, quietly, for the past 50 years."

"David Seymour is right. His bill might be killed at its Second Reading, but the issues he has raised will not die. ...
    "David Seymour’s great sin has been to offer an alternative to this covert effort to change the constitution of New Zealand by changing the Treaty’s historical meaning. Those who argue that the Treaty Principles Bill is a blatant attempt to re-write the Treaty are quite right. What they omit to say, however, is that Seymour is only doing openly what Māori nationalists and their Pakeha allies have been doing, quietly, in legal chambers, common-rooms, and public service offices for the past 50 years.
    "The critical difference, of course, is that Seymour was proposing to give the rest of us a vote on his version."

~ Chris Trotter from his post 'Beyond Question?'

"Parliament said in 1975 that the Treaty has two texts, when it does not, and justified recourse to 'principles' of the Treaty because of the fiction that the Treaty has two texts."

"[T]he idea that the Treaty has principles first surfaced publicly in Labour’s manifesto for the 1972 general election. It subsequently gained legislative status by its inclusion in the Treaty of Waitangi Act 1975. ... giving the Waitangi Tribunal jurisdiction to make recommendations based on findings that actions were contrary to or inconsistent with the principles of the Treaty, rather than findings that actions which were a breach of the Treaty itself. 

    "[The reason for this, it was argued,] was that the treaty has two texts, one in Māori and the other in English. ... But as I have shown there is only one text, the one that was signed at Waitangi. There are two texts only because the Treaty of Waitangi Act 1975 said that there are. ....

"So, the situation is that Parliament said in 1975 that the Treaty has two texts, when it does not, and justified recourse to 'principles' of the Treaty because of the fiction that the Treaty has two texts. ...
    "The solution to the problem Parliament created must be either to undo what was done in 1975 upon the basis that what was done was based on flawed reasoning, or to accept that what has been done is done and to remedy the 1975 omission, by Parliament’s doing what it could have done in 1975 and defining the principles to be applied by the Waitangi Tribunal, the courts, and those agencies which are required in some way to observe the principles."

~ Gary Judd from his post 'Treaty of Waitangi “principles” — only one text'

"It has only just been revealed that the judiciary invented their own set of Treaty Principles..."

"The Treaty Debate is great. We've just found out, courtesy of our King's Counsels, what has broken the economic back of this nation. It has only just been revealed, thanks to their letter to the PM, that the judiciary invented their own set of Treaty Principles. ...
    "Most of us had heard about the 'principles' before, but until the Treaty Debate was opened recently, we had no idea that they were so embedded [by lawyers and judges] into our Constitutional arrangements.
    "Many countries have affirmative action programs. However I know of no country that has [embedded within it] a constitutional requirement of 'outcomes,' not opportunities, being equalised amongst the citizenry, other than maybe a few Communist States that failed & no longer exist. ...
    "[O]ur Judiciary seem not have the foggiest idea of the practicalities of the problem. Once you put equitable outcomes, not opportunities, in a Constitution, you're requiring governments to raise massive tax revenues to achieve equalisation. You're shifting taxation powers from elected officials to judges. Let's at least be grateful to our King's Counsels for explaining why NZ's standard of living has been falling, harming the livelihoods of all ethnicities."

~ Robert MacCulloch from his post 'Now We Know how NZ's economy became broken: The Judiciary wrote a Communist-style Constitution without Consultation; without People Knowing.'

Kawanatanga katoa > tino rangatiratanga

"'There’s no doubt that both Māori and Pākehā in 1840 understood tino rangatiratanga to be a bigger deal than kāwanatanga” [says an idiot called Hooton]. However whilst this is undoubtedly the modernist position on how we should interpret the Treaty, the historical evidence suggests something very different.
    "Article One of the Treaty states that the chiefs agreed to 'give absolutely to the Queen of England forever, the complete Government (Kāwanatanga katoa) over their land' ...
    "[T]hat little word katoa ... is rarely mentioned. But it means complete, all-encompassing, totally, without exception. It’s no wonder [that in 1840] it focussed the minds of the chiefs on the issue of Crown authority. ...
    "Nowhere in the historical records do we find any indication that either the chiefs or the Pākehā protagonists understood anything other than that Kāwanatanga katoa meant the Crown was being established as the pre-eminent governing authority in the land. ...
    "'Te Kawenata Hou' (the 'Māori New Testament') ... would have had significant influence on how the chiefs understood the Treaty. ... In 'Te Kawenata Hou' the term rangatira is a general term for leadership. In contrast kawana is a very specific term used to denote governors who represent the authority of kings. To use [the] example of Pilate – as the kawana (governor) he represented the sovereignty of the Roman empire in Jerusalem. He had the authority to tax and to execute judgement. The local Jewish leaders who wanted Jesus crucified had to get his permission. Those leaders are described in Te Kawenata Hou as rangatira. From this the chiefs at Waitangi would have quickly understood what was being proposed in the Treaty. And it certainly did not involve them retaining 'absolute sovereignty'."

~ Ewen McQueen from his post 'Kāwanatanga katoa was the fundamental question at Waitangi'

Mush ado about ACT's (revised) Treaty Principles Bill.

 

Cartoon by Nick Kim

We now have our first look at the wording to be used in ACT's proposed Treaty Principles Bill. 

You'll recall that the aim of the Bill is not for Parliament to redefine Te Tiriti, which lacks too much to ever become a fully-founding document in any case, but to define —for the first time — the Principles that Geoffrey Palmer and followers began inserting into law without definition, and without any guidance to the courts. Which left the courts (and the self-serving Waitangi Tribunal) to simply make them up. And has transformed Te Tiriti into a welfare cheque for tribal leaders.

The Bill's proposed wording is grouped under three headings, to match the three Treaty/Tiriti articles: 

1. Civil Government; 
2. Rights of Hapu and Iwi Māori; and
3. Rights to Equality.

David Farrar has helpfully laid out the proposed wording against both ACT's initial proposal and the official "Kawharu" translation of Te Tiriti. It's quickly apparent that the weasel words of "partnership" and "participation" haven't been slipped in. And that "protection" only occurs in association with the word "rights," as it did in the original document. But also that a whole lot of precision has been lost. Much has been added to dilute the impact of the previously clear exposition of principle. Politically-necessary mush perhaps, but mush is mush, gumming up the finely-grinding machinery of law.

And what's been lost, I think, is the clear Lockean principle of the Treaty: i.e., that tribal sovereignty was being ceded in return for protection of natural rights, including the right to private property. In which case, is anything to be gained by the Bill?

Let's have a look article by article ...

The First Article is the sovereignty article. About who governs. Which this says, in so many words. But in bending over backwards to avoid the 's' word, a whole lot of mush has been added. Remember that good, objective law should be rights-based, and allow you to know in advance what you can and can't do by law — and since law is, or can be, a matter of life and death, one needs to know with precision. So what the hell does "in the best interests of everyone" mean precisely? How will the courts decide (since it is they, and the Waitangi Tribunal who will interpret this in their own best interests) what should be done for "the maintenance of a free and democratic society."

The Second Article used to be known as the Property Article. The recognition of the property held by tribes and tribal leaders,  and the insistence that government agents would have a coercive monopoly in buying it from them. So, about property rights, and how they're transferred. The Bill however now suggests the principle to be drawn from this clause is one about rights in general. Which is a different thing (especially since bogus "rights," requiring the labour of others, are being constantly added and expanded).

"The Crown recognises the rights that hapū and iwi had when they signed the Treaty." What were those rights? More mush. The Bill would again require the courts and Waitangi Tribunal to decide — oh, and they will! And remember that these are phoney collective rights, not individual rights. (And to thrive here as equals, as I've said before, we need to take off our collectivist lenses.)

And what's this? "Those rights differ from the rights everyone has a reasonable expectation to enjoy ..." Really? Oh: " ... only when they are specified in legislation, Treaty settlements, or other agreement with the Crown."  Ah: meaning that any explicitly race-based legislation etc. has to be explicit in its racial favouritism. Which is probably about as much as one can now expect, but much less than one would have hoped for. 

And, as everywhere else in New Zealand law, property rights have disappeared.

This Article has suffered the least damage in the re-write. And as an added bonus, the concept of "duties" has been lost, and "protection" clarified to be about protection by law, an equal protection, not about unspecified welfare claims for "ordinary New Zealanders," i.e., Māori (which is how this clause has begun to be interpreted by activists and the Tribunal). So maybe an improvement through the added mush — though a clear contradiction with the second article: how, for example does one enjoy "the same fundamental human rights without discrimination" if government can legislate for collective 'rights' for hapū and iwi that "differ from the rights everyone [else] has a reasonable expectation to enjoy"?

The answer, of course, is at the back of the next Tribunal report. Just under the money-amount awarded to claimants.

Remember that the words "the principles of the Treaty of Waitangi" have been inserted at the heart of every second bill that's passed through Parliament, so any mush injected here would infect every second law everywhere.

And it's now full of mush.

That's not an improvement.

The Bill may not be successful by the standard of "will it be passed into law." But it's already wildly successful by the standard of "let's talk about these made-up principles, and about what they should be."

But I'm not sure these re-writes should be part of law.

"It has sometimes been mentioned that the Chiefs did not have sovereignty to cede ... "

"A debate has recently begun between the Government and the Maoris regarding sovereignty ... That debate is incoherent and unnecessary and I will explain why. ...
    "Cede means 'give up (power or territory)' ('Oxford Concise Dictionary'), which entails that they must first have it. The Treaty itself says, the chiefs 'give absolutely to the Queen of England for ever the complete government [kawanatanga] over their land' (trans. I.H. Kawharu). That does not require that they give up their chiefly power or territory. The problem with the debate is that it does not allow for an arrangement whereby both the Queen's power of sovereignty and the chiefs’ power of rangatiratanga could exist together.

    "It has sometimes been mentioned that the Chiefs did not have sovereignty to cede. ... '[N]ational sovereignty ... was absent from the Maori communities in the country,' [explains Paul Moon in his 2002 book The Path to the Treaty of Waitangi] 'so the British were essentially asking for permission to acquire a type of sovereign rule which Maori would not have to sacrifice, as they did not possess it. This is distinct from the superficial interpretation ... in which Maori arbitrarily surrendered all their sovereign rights and powers to the Crown.'

    "So, by Article 1 of the Treaty, the chiefs did not cede sovereignty but instead accepted sovereignty; that is, they agreed that they would be subject to the Crown. That does not necessarily mean that they relinquished their chieftainship (tino rangatiratanga). That suggests an arrangement similar to the Magna Carta in which the Barons are subject to King John. The Barons were still barons with the dignity and estate of a barony, but as such they are subject to the Crown. ...

"Maori chieftainship was not like British sovereignty. The sovereignty (kawanatanga) referred to in Article 1 is with respect of all of New Zealand whereas chieftainship is with respect of an individual tribe. There were about 100,000 Maori at the time of the Treaty which about 500 chiefs signed and others did not, so the tribes were quite small and on average each comprised around only 200 people at most. Chieftainship therefore entailed much less authority over a much simpler social structure than the government (kawanatanga) of the entire country that was proposed and subsequently implemented by the British. It is not just a matter of degree; they are categorically different and provide very different outcomes of evolutionary significance."

~ Barrie Davis from his article 'Seeding Sovereignty in the Spring'

"...in exchange for such protection, Māori agreed to being governed by an authority - maybe not necessarily 'sovereign' - but at least one promoting a common law and order? Isn't that identical to John Locke's idea...?"

"On the Treaty, isn't the argument, even of Te Pāti Māori and its supporters, that it was framed to protect and guarantee the private property rights of Māori? That, in exchange for such protection, Māori agreed to being governed by an authority - maybe not necessarily 'sovereign' - but at least one promoting a common law and order? Isn't that identical to John Locke's idea that 'humans, though free, equal, and independent, are obliged under the law of nature to respect each other’s rights to life, liberty, and property.' That we should 'agree to form a government in order to institute an impartial power capable of arbitrating disputes and redressing injuries.' Locke held that the obligation to obey civil government under the social contract was conditional upon the protection of our natural rights, including the right to private property. Whether it was John Locke and the US Constitution, or the Treaty of Waitangi, aren't we all talking similar ideas with similar aims in mind?"

~ Robert MacCulloch. from his post 'Why does Professor Anne Salmond Defend the Treaty by Attacking Liberty? Don't we all, Māori and non-Māori, want to be free & our property rights protected?'

Lange: "The treaty itself contains no principles which can usefully guide government or courts.”

 

“It is with no disrespect for Maori feeling for the treaty that I have to say it means nothing to me. It can mean nothing to me because it has nothing to say to me. When I was in office I understood that the government had succeeded to certain legal and moral obligations of the government which signed the treaty, and that in so far as those obligations had not been met it was our responsibility to honour them. But that is the extent of it.
    "The treaty cannot be any kind of founding document, as it is sometimes said to be. It does not resolve the question of sovereignty, if only because one version of it claims one form of sovereignty and the other version claims the opposite. The court of appeal once, absurdly, described it as a partnership between races, but it obviously is not. The signatories are, on one side, a distinctive group of people, and on the other, a government which established itself in New Zealand and whose successors represent all of us, whether we are descendants of the signatories or not. The treaty cannot even resolve the argument among Maori themselves in which one side maintains that you’re a Maori if you identify as such, and the other claims that it’s your links to traditional forms of association which define you as Maori.
    "As our increasingly dismal national day continues to show, the treaty is no basis for nationhood. It doesn’t express the fundamental rights and responsibilities of citizenship, and it doesn’t have any unifying concept. The importance it has for Maori people is a constant reminder that governments in a democracy should meet their legal and moral obligations, but for the country taken as a whole, that is, and must be, the limit of its significance.
    "Here I come to the dangers posed by the increasing entrenchment of the treaty in statute.
    "The treaty itself contains no principles which can usefully guide government or courts. It is a bald agreement, anchored in its time and place, and the public interest in it is the same as the public interest in enforcing any properly-made agreement. To go further than that is to acknowledge the existence of undemocratic forms of rights, entitlements, or sovereignty.
    "The treaty is a wonderful stick for activists to beat the rest of us with, but it could never have assumed the importance it has without the complicity of others. It came to prominence in liberal thought in the seventies, when many who were concerned about the abuse of the democratic process by the government of the day began to see the treaty as a potential source of alternative authority. It’s been the basis of a self-perpetuating industry in academic and legal circles. Many on the left of politics who sympathise with Maori aspiration have identified with the cause of the treaty, either not knowing or not caring that its implications are profoundly undemocratic." 

~ former Labour Prime Minister David Lange from his year 2000 Bruce Jesson Memorial Lecture. Quoted by Gary Judd in his post 'Treaty is a bald agreement, anchored in its time and place,' in which he concludes by reciting Lange's accurate observation that "The treaty itself contains no principles which can usefully guide government or courts.” 

"In the real world," Gary points out, "there are no principles of the Treaty. They exist only in a fantasy world created by the 1972-1975 Labour government’s Treaty of Waitangi Act. The magical possibilities of this fantasy world have expanded since then to the point where ordinary New Zealanders feel threatened by those who would claim on the basis solely of their identity, or who they identify with, that they have a superior place, and that democracy must be relegated to a subordinate position."

"New Zealand lacks a national unifying myth"

"New Zealand lacks a national unifying myth that embodies the shared views of the country’s history and future. The loss of a common national story is central to many of News Zealand’s problems. Myths explain our history, chart a path to the future and help bind the country together.
    "Richard Slotkin, who has written extensively about the various mythologies underpinning the United States experience, suggests that ‘myths are the stories – true, untrue, half-true – that ... provide an otherwise loosely affiliated people with models of patriotic action.’ A more formal dictionary definition suggests that myths may be popular traditions embodying core social values* ...
    "There have been a number of what may be described as archetypal experiences in New Zealand history that could approach a 'mythological' status that reflect the embodiment of some of the values that underpin the national identity. ANZAC immediately comes to mind. Wartime activity and service brings a people together often because national survival is at stake.
    "Then there is the 'man alone' myth that underpins much of Jock Phillips writing, along with the Kiwi do-it-yourself 'number 8 wire' approach to problem solving. Sport tends to be a unifier but primarily a hysterical support for the All Blacks which rapidly diminishes if the team does anything but win. Sport is meant to demonstrate resilience in the fact of adversity but not, it would seem, on the part of the fans.
    "Historians are well positioned to invent and develop new national stories. ... But historians have not taken on the task of devising a coherent national mythology that can bring unity to a fractured nation. Instead, students are being taught radically different versions of the nation’s past. All this reflects not simply divergent opinions on specific issues, but disagreements about the fundamental character of our institutions and the purposes of our nation.
    "One myth which did possess a unifying feature but which has been badly eroded is the position of the Treaty of Waitangi. The treaty established a foundation for equal citizenship, one people with equal recognition under the law.
    "Hobson at the signing of the Treaty is reputed to have said 'He iwi tahi tatou – 'we are now one people.' ... The problem is that in many respects myths [like this one] contain a great deal of invention and not a lot of evidence. But Hobson’s Pledge, whether it was said or not, provides a solid background for a national identity and the foundation for a common purpose. We should be one people. We should acknowledge our differences but our shared objective should be a unity of purpose. And with that unity of purpose we can become ... a country with well-educated people, who enjoy the lifestyle their unique setting offers and the good health that goes with that ..." 

~ Thomas Cranmer from his post 'A Common Purpose and a National Mythology'

* Myths are not a lie, explains mythologist Joseph Campbell, and to call them that is a misunderstanding — 

"a very strong and narrow opinion of what a myth 'is.' Someone who, perhaps, has only been exposed to the negative use of the term as a phrase for something that is seen as a 'mistruth.' Something told with the intent to deceive, or from the vantage point of a naive or uneducated mind. For many, calling something a 'myth' is to associate it with a profound deception: a feeble or unsophisticated attempt to explain material reality before the advent of the scientific age. Some see the term as an equivalent to the more modern 'fake news.' 

"The contemporary conception of myth as falsehood has led people to think of myths as fairytales (another complex story structure that is often dismissed as containing much less essential truth than they actually do).
"But for Campbell, myth presents a version of the truth that is far more essential than that which can be gleaned from almanacs, censuses, and encyclopaedias, whose 'facts' are dependent on the experience of the field of time and are often outdated as soon as they are published."

Writer Robert A. Johnson sums it up, saying "Myths are a special kind of literature not written or created by a single individual, but produced by the imagination and experience of an entire age and culture, and can be seen as the distillation of the dreams and experiences of a whole culture." 

So neither unimportant nor trivial. And certainly not a lie.

 

"There will not be any more generic open-ended Treaty clauses."

Cartoon by Nick Kim 

"The growth of Treaty of Waitangi clauses in legislation caused so much worry that a special oversight group was set up by the last government in a bid to get greater coherence in the public service on Treaty matters.
When ministers first considered the need for tighter oversight in 2021, there were at least 50 known Treaty clauses in legislation with about 14 variations in their description of the Crown’s obligations as a Treaty partner.
    "With a growing number of references to the Treaty in legislation and a growing variety of references, it was clearly becoming a legal quagmire for the constitutional relationship between the Crown and Māori. ...
    "[These will be looked at in] the New Zealand First-driven review of existing Treaty principles in legislation later this term.
But what will be left of any new Treaty clauses to monitor is an open question because of a radical direction the coalition Government is taking already, ahead of the review.
    "It is no longer putting general Treaty clauses in legislation. ...
    "The [new] Fast-Track Approvals Bill ... did not have a general clause. 'But leaving out a general Treaty clause is not a one-off,' says New Zealand First’s Regional Development Minister Shane Jones ... 'There will be no more general Treaty clauses in any new legislation,' he said.
    “'If you look at the sentiment in the coalition agreement, it should come as no surprise to anyone that there is not and will not be any more generic open-ended Treaty clauses.'
    "'That would apply to all [new] legislation'."

~ Audrey Young from her column 'No more Treaty clause 'mission creep''

"This is logically why confirmation of tino rangatiratanga is paired with advice on how to go about selling the land."

"[T]he Maori language of the Treaty is now routinely referenced to a world in which it did not exist. [For example] what [translator Henry] Williams might have meant in Article 2, which confirmed Maori in the tino rangatiratanga of everything they possessed. 

    "The aim of the Treaty was not to protect Maori culture; on the contrary, Williams believed that the processes of modernisation were active and sufficient agents of its transformation. It strains belief that, having transferred sovereignty to the Crown in the first article, Williams would posit a principle of omni-applicable Maori authority in the second, yet recent analysis is dependent on this being the case. The British did, of course, care about securing the colony’s land base. This is logically why confirmation of tino rangatiratanga is paired with advice on how to go about selling the land. The logic, and the crudeness of the pairing, point to tino rangatiratanga’s referring not to culture in the sense of Māoriness itself, but specifically to land and resource ownership.

    "Linguistic evidence offers support for this view. As we have seen, translators bent rangatiratanga to the expression of a variety of aspects of western ideas of authority, for which there were no existing Maori terms. Authority over land therefore fits easily in this category. As for evidence offered by context, one example must suffice here. It cannot be overstressed that anxiety about their future authority over the land was the most common theme of chiefs’ speeches at the Treaty hui. There was, therefore, good reason for the Pakeha to make a strong affirming statement not only of Maori ownership of the land, but of their continuing power of decision over its alienation.
    "It needs to be said that confining rangatiratanga to land ownership does not diminish the contemporary importance of Article 2. Land was the Maori stake in the colony. First, it was the commodity with which modernity was purchased. Second, by owning the land, Maori also controlled the most important bound­ary to state power. Nothing, therefore, was of greater importance than the confirmation of ownership. However, a crucial difference between current and historical meanings remains. In 1840 tino rangatiratanga did not distance Maori from the state, but fulfilled the logic of the Treaty’s concern with land.
    "In sum, Henry Williams translated the Treaty of Waitangi for his day, not for posterity. If the task was too lightly and amateurishly approached, this does not seem to require a paranoiac analysis. Within the narrow confines of the trans­lators’ perceptions, word choices in the Maori texts of both the ‘Declaration’ and the Treaty suggest only a striving for precision."

~ Lyndsay Head, from her article 'The Pursuit of Modernity in Māori Society', pp. 107-108

Again, why did chiefs sign?

 

p. 62, Michael Belgrave's Historical Frictions

"[Historian Michael] Belgrave argued* that a study of the debates that took place at the Treaty meetings revealed that they were mostly about land and religion, rather than sovereignty, indeed that these matters overshadowed everything else. ...
     "[O]ne of the most important messages the chiefs would have taken away from what the British or Pākehā advocates of the Treaty had declared was that Māori would be protected in their lands, and that this was a vital consideration for those who agreed to sign ...
    "Belgrave argued that while the Treaty was made in a world in which Māori remained dominant, the chiefs were acutely aware that times were changing and they felt vulnerable, and that in these circumstances they believed it made sense to sign the Treaty and hoped that the British Crown would uphold the promises it had given ...
    "He held that a properly historical account revealed ... [that] by the time the Treaty was made, Māori had adopted, adapted and adjusted [to] the European ideas they had encountered ...
    "[T]he ‘modern’ interpretation of the Treaty [however] — which he attributed to those he called ‘non-historians’, thereby obscuring the role that academic historians, most of all Claudia Orange, had played in its creation — ... had become so preoccupied with the texts that it had become blind to matters of context. ...
    "[T]he worldview that informed [chiefs'] understanding of it in 1840 had become opaque to contemporary readers because of an undue focus on the written texts. In and of themselves, he held, the texts were extremely limited sources on which to base any historical interpretation ... [and so] the story the Tribunal had been telling was more or less a fiction or an invented history ..."

~ Bain Attwood, from his 2023 book A Bloody Difficult Subject

* In his 2005 book Historical Frictions: Maori Claims & Reinvented Histories, esp. pp. 46-66

"Why, when they were so strong, did Maori invite the British in?"

Sources here.

"The view that the Treaty has become the straitjacket of Maori history is the starting point for the present study. ...
    "When Europeans stepped into the southern dawn, the people who had thought of themselves as constituting the whole human world found that they were one of its fringes. ... Assertive and risk-taking in cultural personality, Māori fought to eradicate their fringe status by pursuing modernisation, including the political modernisation that would create a path to the Treaty ground. .... The question then becomes why, when they were so strong, did Māori invite the British in? ...
    "Because Māori society [had been] organised around the chance of war, the initial effect of the introduction of muskets was indeed the expansion of tradition. Serial wars followed from the idea of their possibilities. Soon enough, however, war became an agent for its own collapse. Nga Puhi’s raids were predatory larks, fought for neither territory nor strategic advantage. ...
    "[T]he terror of the gun [had] caused social disruption analogous in principle to that of current world ethnic strife. From Auckland to Whangarei was empty. The Hauraki tribes fled inland, and Ngati Kahungunu to the tiny edge of their vast territory. Modern Taranaki was deserted, and some of its displaced people virtually exterminated the Chatham Island Moriori. Ngati Toa, forced into pre-emptive migration, ravaged the south — the list is representative but not exhaustive. Similar things had occurred in the history of most tribes, but there is no previous evidence of near-total war. A detached modern historiography lists battles, but makes the musket wars events without real effects. Yet the wars were a modern catastrophe for Māori, not a traditional one. ...
    "In the 1830s northern Māori sought meaning in their post-contact experience through understanding how the foreigners ordered their world. This was a period of rational and intellectual response to European culture in which Christian teaching became a political primer for change. Consciously replaying the conversion of the barbarians, the missionaries taught that peace was the condition of political and social modernity — that is, of a European-style society.
    "This impacted heavily on culture, because tribal histories were almost exclusively histories of war. Fighting was central to the social identity of Māori. [It set] up peace as the condition of modernity ...
    "Their attention to the missionaries, and subsequent support for a treaty with the British, was not without history, but a response to lived change. By this reading, then, a possible basis of Māori citizenship was rational choice.
    "The rationality of the chiefs has been obscured by the rationality of the British side of the Treaty, which entirely dominates the literature."

~ Lyndsay Head, from her article 'The Pursuit of Modernity in Māori Society'

The Coming of the "Principles"

Matiu Rata: "... the most effective NZ
politician of the last half-century?"

As 1975 began, neither Treaty nor Tiriti were part of New Zealand law. By years end, the Treaty's legal status was transformed, and "it's place in the new Zealand polity and the country's history and culture were assured." [1]

This is when the "Treaty Principles" were born. "Treaty" was the English text (and was only ever a draft). "Tiriti" was in missionary Māori, and was the document that was signed. Arguably the actual treaty. Something called the "Treaty Principles" was supposed to moderate between these two allegedly irreconcilable documents, with the priesthood of the Waitangi Tribunal empowered to "interpret" the space between. Under Eddie Durie's stewardship, that space was gently but firmly prised open to reveal an ever-flowing vein of political privilege and alluring economic wealth.

It all began with a Labour Party manifesto. Historian Bain Attwood explains:

What transpired amounts to a case of unintended — and thus unforeseen — consequences.... The Labour Party, led by Norman Kirk, had been returned to power just two months earlier for only the second time in twenty-two years; [Matiu] Rata had become both the Minister of Maori Affairs and the Minister of Lands; ...

The Labour Party had been elected on the basis of a manifesto (in both English and Māori) that included a promise to examine a ‘practical means acknowledging legally what it called ‘the principles set out in the Treaty’. After introducing legislation about Waitangi Day shortly after winning office, it belatedly turned its attention to this commitment, directing its caucus committee on Māori affairs to provide a report on the matter. In undertaking this work the committee largely conceived of its task in terms of this question: whether any legislative action could be legally taken regarding the Treaty? Answering in the affirmative required it to demonstrate that the Treaty was a valid legal agreement and a binding one....

The committee was struck by [a recent academic] argument that whereas the English version had long been regarded as the authoritative version, the Māori version should have primacy because it had been widely circulated and signed by most of the 540 Māori chiefs and it was the one that was first signed (at Waitangi). ... Moreover, it held that ‘the question of versions’ was primarily important only in respect of the first part of the Treaty’s second article, and this was because Ross had noted that the English version was more specific about the kinds of Māori property the Queen had guaranteed to protect than was the Māori text.

[T]he committee was determined to demonstrate that Parliament could give some legal effect to the Treaty. Consequently, it asserted that the central issue was not whether the Treaty was in Māori or English but that it was a binding agreement that had been made by the Crown and the Māori chiefs. This was in keeping with its insistence that the Treaty could become ‘an instrument of mutuality.’... that, as far as Māori were concerned, ‘no amount of legalistic argument’ could detract from the fact that their forebears had entered into a binding agreement with the British in good faith and that the Crown had a responsibility to uphold the Treaty’s principles. Clearly, the committee regarded the Treaty in the same way that Māori and some Pākehā ... had long conceived of it — as a moral agreement rather than a legal contract — and so it emphasised the spirit it believed the Treaty symbolised rather than any strict rights it might be said to contain.

In short, the actual words of the Treaty/Tiriti became less important than the spiritual importance of this binding agreement, this "instrument of mutuality," this beginning of a "relationship" —or of something said to be "akin" to it. 

Observe here that Parliament itself never bothered to define the principles, leaving it open to the Waitangi Tribunal and later the courts to do so. And nor does the Treaty, in either language, state principles. As Gary Judd KC explains, 

It is an agreement recording an exchange of values, including future obligations. Parliament created the fiction that there are principles, which produced the opportunity for creativity in their formulation. The Ministry of Māori Development’s 2001 summary shows how this can be done. If one is able to search for, “underlying meanings, intention and spirit,” the scope becomes very wide, and open to adoption of subjective viewpoint.

So as the words lost importance in a legalistic sense, at this very same time a new organisation was established, a tribunal, that was empowered to fill that vacuum themselves. Their pronouncements became known as the Treaty Principles, which would encompass some of those more "mystical" interpretations of meaning. This is how it happened:

The committee ... recommended the establishment of a tribunal ‘for the purpose of maintaining, upholding, advising and hearing of any matters related to the treaty to which existing laws offer no redress’. However, once the Cabinet agreed to endorse this proposal, an unexpected question arose, and the way it was answered would, inadvertently, enable the Waitangi Tribunal to do the transformative work that it eventually undertook.... 

[But] the Secretary of the Department of Maori Affairs, J. McEwen, realised that an important question had to be addressed because the committee had recommended that both the English and Māori texts of the Treaty be considered in any legislative enactment. ‘As the two versions differ, it will be necessary to state clearly which version is to be authoritative’, McEwen pointed out to Rata. ‘It can be either the English version or the Maori version, or both, but if the latter alternative is chosen, there will have to be a specific provision which empowers somebody to decide the true meaning of the words. I would suggest that the way around the difficulty would be to make both versions authoritative and expressly empower the Tribunal to decide any issues arising from the differences in wording.’ Consequently, he drafted a clause that stated: ‘In exercising any of its functions under this section the Tribunal shall have regard to the two texts of the Treaty set out in the First Schedule to this Act and, for the purposes of this Act, shall have exclusive authority to determine the meaning and effect of the Treaty as embodied in the two texts and to decide issues raised by the differences between them.’  

In time, this clause would see the matter of the two texts become central to the Tribunal’s work and allow it to bestow a degree of authority on the Māori text that McEwen could never have imagined and which he had actually tried to prevent in his drafting. Nor did anyone in government anticipate that McEwen’s adoption of the Labour Party manifesto’s mention of ‘the principles’ of the Treaty would prove similarly vital to the work the Tribunal did.

And lo, 'the principles' were to take on a life of their own.

He might have only read comics, but there's a strong case to be made that the most effective political reformer of the last half century isn't Roger Douglas; it's Mat Rata.

* * * * 

1. Bain Attwood, A Bloody Difficult Subject: Ruth Ross, te Tiriti o Waitangi and the Making of History. 101 

2. ibid, pp 101-3

3. ibid, p. 103

When was sovereignty established here?

 

So here's a quiz question for you: When did Britain legally acquire sovereignty over the New Zealand isles? (Supplementary questions: What IS sovereignty? And was it EVER ceded by the locals?)

• Was it when Cook first planted his flag in 1760 and 1770?
• Or in 1787, when Captain Phillips was installed as governor of NSW "and adjacent isles"?
• Perhaps in 1813, when NSW Governor Macquarie issued his General Order "purporting to bring the natives of certain Pacific islands, including New Zealand, under the protection of His Majesty" — followed by the appointment here of magistrates in 1814 and 1819?
• Maybe in 1823, when the jurisdiction of Australian courts was extended here to deal with miscreant British subjects?

All this activity reveals there was already a great deal of legalistic British engagement with the place loooong before Hobson landed here for the first time in 1837. (No, not a typo.) But none really convey sovereignty as we understand it, i..e, the exercise of legitimate power by a recognised state. 

In that respect, some argue that 14 January 1840 is the important date, marking the day when NSW Governor Gipps proclaimed the extension of NSW's boundaries to NZ,  English laws applying here for the first time. Or 30 January of that year when Hobson landed and proclaimed himself Lieutenant-Governor.

Even after Hobson re-landed here in January 1840, he and his ship's captain reckoned on the one hand that sovereignty was acquired peacemeal -- the northern parts after the northern signings (Hobson issued a proclamation on 17 Feb 1840 on that basis), and thence from Auckland north after a signing there on 4 March, 1840 ("thus confirming to Her Majesty the Sovereignty of this Island to this Parallel," wrote his ship's captain.)

On the other hand, Hobson also reckoned that "the Treaty which forms the base of all my proceedings was signed at Waitangi on the 6th February 1840 ... This instrument I consider to be de facto the Treaty, and all  the signatures that are subsequently obtained are merely testimonials of adherence to the terms of the original document." 

This looks contradictory. Yet the two views can be easily reconciled: in Hobson's mind, it was not the Treaty that confirmed sovereignty, but his proclamations largely on the basis of those signatures-- the most important being on 21 May 1840 when he proclaimed sovereignty over the whole place (and clumsily claimed the Treaty's signing date to be 5 February).

It's all a bit of a mess.

Many years ago, Auckland University's senior history professor James Rutherford had a crack at answering that question: When exactly did Britain acquire sovereignty over the New Zealand isles?

Turns out there's not exactly a straightforward answer.

Rutherford dismisses all those early dates with ease.

• Cook's flag-planting was never ratified by the British Parliament, and not followed up by occupation.
• Both Phillip and Macquarie probably overstepped themselves here, and once again their declarations were not followed up by immediate occupation.
• The 1823 ordnances only applied to British subjects (and only if caught)
• Gipps himself said his 1840 Proclamation was "only intended to give warning" that Hobson and pens and parchment were on their way to New Zealand, not to suggest he was already ruling here. It was "anticipatory" of sovereignty; it did not establish it.

So when Hobson arrived here in January 1840 to "treat with the Aborigines of New Zealand for the recognition of Her Majesty's Sovereign authority" he arrived only as Consul, no matter what he read out when he landed. 

He would only legally become Lieutenant-Governor when or if sovereignty could be properly established.

And when was that?

Well, it's complicated because of the confused legal status of the Treaty/Tiriti. As of 1949, when Rutherford was giving his opinion, even the date of 6 February 1840 could not be admitted:

Thus we come to Hobson's proclamations of 21 May 1840. He issued two:

Rutherford:

The first proclamation (a) recites that Hobson was authorised to proclaim sovereignty over the South Island on the grounds of Discovery [although Hobson did not know, on 21 May, that a number of South Island chiefs had signed the Treaty. Their signatures imply that the Treaty applies to the South Island as well as the North Island], and that the North Island had been ceded in sovereignty to Her Majesty. The second (b) recites more fully that by the Treaty of Waitangi the chiefs have ceded all rights and powers of sovereignty to the Queen absolutely and without reservation.
    Hobson's action in issuing these proclamations is clearly one of the important definitive acts of State for which we are looking. For the first time during the period of transactions under review, an accredited government agent, acting, it may be said, reasonably in accordance with instructions received, proclaims British sovereignty over the whole of New Zealand.
    His action is still subject to the approval of the Crown.
    In event of such approval being given, it will be reasonable and, I think, correct to date back the acquisition of British sovereignty over the whole of New Zealand to this date. ...
    Whereas the first proclamation clearly implies that sovereignty is asserted over the South Island on and as from 21 May 1840, sovereignty over the North Island is specifically asserted 'from and after the Date of the above-mentioned Treaty.' ... 

Hobson regarded the treaty proper as that which was signed at Waitangi on 6 February, the later signatures being merely supplementary. It is doubtful how far such a view can be taken as correct. If accepted, however, it has the effect of dating back the assertion of British sovereignty over the North Island to 6 February 1840.

Alternatively, it is possibly correct to consider that, as the chiefs signed the Treaty, they were recognising the sovereignty of the Queen over their tribal lands and were thereby fulfilling that political condition which H.M. Government had laid down to their consul, Hobson, as a prerequisite to his assertion of British sovereignty, which he could then proclaim at his convenience.

Which he did.

However, we're still not there yet. (Did I say it was complicated?)

By 21 May around 400 chiefly signatures had been acquired on Hobson's various sheets of parchment, although not all had signed, and not all those signatures were yet in his kitbag. (The mail was awfully slow back then.) He acted quickly, before he was truly ready, because Wakefield's settlers at Port Nicholson were starting to make noises about republicanism.

So two things must at once be admitted, says Rutherford, about Hobson's assertion of sovereignty over the North Island in May 1840: 

(1) that it was premature, in the sense that the process of treaty-making was still incomplete; and (2) that in extending sovereignty over the whole of the North Island, as well as the South, Hobson was probably exceeding both what the strict letter of his instructions authorised, and what the Treaty, even in its finished state in October, warranted.

And then on June 5 Hobson’s assistant Bunbury, having successfully acquired several chiefly signatures in the South Island, but spying many foreign vessels sunning themselves in Port Underwood, claimed the South Island on the basis of cession, and Stewart Island (being empty) on the basis of discovery. (Adding nothing to what Hobson had already claimed on 21 May but at least bolstering it, even if Hobson didn’t know that at the time.)

But as Rutherford points out, "Sovereignty could, in the last resort, be established only by the sanction of the Crown, and the form that Crown sanction took was approval of the terms of Hobson's May proclamations. ... The essential political condition of the assertion of British sovereignty was the 'free and intelligent' consent thereto of the Maori chiefs of the North Island. This was obtained in a considerable measure by means of the Treaty of Waitangi (February-October 1840)."

And thus by October 1840 the British Government could be sufficiently satisfied that its instructions to Hobson had been successfully carried out, and was able to give official approval. And so, Rutherford concludes, 

Not until they were satisfied that there was a general measure of native consent to British sovereignty did the British Government take any definitive legal step to assert or confirm sovereignty. Prior to the formal approval of 2 October of Hobson's May proclamations, all their actions were of a  preparatory sort.
    The decision to assert sovereignty was based (i) upon the political facts that Hobson had secured a considerable measure of native consent by the Treaty; (il) in respect of the South Island and Stewart Island, partly upon native consent, partly upon rights of discovery, and partly on the fact of settlement; and (iii) in the North Island, in so far as native consent was withheld, upon rights of settlement or occupation.
.   The Treaty of Waitangi is not recognisable as a treaty in international law, and is not part of municipal law; therefore the legal position is that New Zealand was acquired by an act of State, and falls in the category of colonies acquired by occupation. The definitive acts of State are Hobson's proclamations of 21 May 1840, and H.M. Government's approval of 2 October 1840.

Maybe we should make 2 October the National Day?

My Waitangi piece is # 2 at Newsroom.

 

I'm happy to say that Part One of my abridged review of Ned Fletcher's book became the second-most popular piece yesterday at the Newsroom site.

Check that out here: Ned's 'Slippery' Treaty. Some snippets:

**"Fletcher’s will quickly become the favoured mainstream interpretation of the Treaty. But this doesn’t mean it’s correct."

**" It was in Chapter 19 that I began making notations under the heading “Slippery.” 

**" Pumuka, chief of the Roroa Tribe, says: 'I wish to have two fathers – thou and Busby, and the missionaries.' From the latter two he and his colleagues have already learned 'Christianity and the Law'…It’s this that these smart fellows, eager for modern learning, are asking for more of. For the protection of law, not for a bag of sweets and a paternalistic pat on the head. 

**"Fletcher has his work cut out for him in making words seem what they’re not. He admits himself on page 526, as he nears his work’s end, that '[t]he English draft of the Treaty contains no explicit recognition of Maori self-government and custom.' Which is true, but it’s the opposite of the conclusion he has been labouring for the previous 525 pages to prove."

And now, on Waitangi Day, Newsroom has just posted Part Two of the abridged review: Ned's 'Puzzling' Treaty. Let's see if we can get this one to Number One! Some snippets from Part 2:

** "Ned argues the Treaty, the English version, promises eternal self-government to Maori... The entire scaffolding of Fletcher’s argument for separate Māori jurisdiction or law as a permanent thing falls to the ground however when one realises that Stephen, and the Colonial Office, did not intend such a state of affairs to be permanent. They expected continual progress towards their end goal of full equality."

** "In the Treaty’s only written references to protection, it never appears without the word 'rights.'... So what does the written word tell us then about the nature of the protection being offered in the Treaty?"

** "If the Treaty is about 'protection' of Māori, as Fletcher concludes, then as the Preamble makes very plain that was to manifest as 'Protect[ion of] their just Rights and Property.' Which seems vastly different to Fletcher’s conclusion that it must lead to inter-tribal self-government."

** That said, if there is a right to permanent self-government in the Treaty, then it is that of which John Locke spoke: which is the individual right to govern oneself free of let or hindrance by others – this self-governance being the source of all freedom. In libertarian terms, all one requires from a legal authority for this self-governance to function is to be protected in one’s genuine rights, for coercion to be outlawed and to be otherwise left alone by that authority. Thereafter, all human interaction becomes voluntary.
    "Would that this were the meaning one could draw from either Treaty, or Tiriti. Or from today’s lawmakers."

PS: If you'd like the full review of Ned Fletcher's book, The English Text of the Treaty of Waitangi, you can download it here.

'The English Text of the Treaty of Waitangi' - BOOK REVIEW [PDF]

>> Click to download the full PDF version <<

Here, for your reading pleasure, is the full book review of Ned Fletcher's 'English Text of the Treaty of Waitangi' — the complete 17,000-word "epic libertarian response to Ned Fletcher's interpretation of the Treaty," along with footnotes, more history, and an extended discussion of rights and rangitiratanga. I invite you to download the full PDF version here.

Or if you like you can read it online in its original five parts, and comment, beginning here.

Or the abridged two-part version that featured at Newsrooom over Waitangi weekend:

• Ned's 'slippery' Treaty
• Ned's 'puzzling' Treaty

And of course, feel free to just stay and look around. You could start down there on the left, with the 'Popular Posts' of the recent (and not-so-recent) past ...

PS: The review draws on research I've been doing for a book, to be a general history of New Zealand — working title A Politically Incorrect History of New Zealand: The Truth, the Whole Truth, and Something More Like the Truth. A well-reasoned, well-documented, vigorous pushback against some of the more mouthy myths that divide this place.

Or maybe: A Positive History of Aotearoa: The First Five Million. A clear-eyed sort of celebration of the prosperous little place we five-million-or-so get to enjoy, despite our divisions, and how it got to be that way.

Anyway, my history blog A Politically Incorrect History of New Zealand is slowly filling up with snippets of the writing I've been doing for that book, whatever it's finally called. So feel free to check that out as well. (The draft Preface for the book is here. And 'An Entire History of NZ in One Chart' is here.)

Enjoy!

How altruism helped (re)create an aristocracy

The humanitarian impulse of the Aborigines' Protection Society helped embed privilege
across Britain's colonies, says the book's author, "whatever the colour of its skin"

"From 1836 to 1909 the Aborigines' Protection Society lobbied the British Colonial Office to defend the rights of aboriginal people. ... The background of the Aborigines' Protection Society's work was the growth of the British Empire in the nineteenth century. ... [Their generosity, though, fell short of respect, seeing native peoples as something like children, in need of protection rather than rights.]
    "The Aborigines' Protection Society was tied up in the New Zealand colony from the outset. ... Wakefield's early interesting in controlling emigration gave him common outlook with the Aborigines' Protection Society ... To get a clearer idea of what Wakefield was thinking, following his talks with [Aborigines' Protection Society head Thomas] Hodgkin, we can read his evidence to the [UK] parliamentary Select Committee around the same time (1840): 'if the inferior race of New Zealand can be preserved at all in contact with civilised men it can only be by creating ... a Native aristocracy, a Native gentry ...'
    "The Society's ... Reverend Montague Hawtrey ... persuaded the Colonial Undersecretary James Stephen that the Māori people ought to be 'looked after' in the new colony and 'saved from the impact of commerce.' ... Hawtrey, like Hodgkin, tried to get Wakefield to work the protection of the native Māori into his scheme of Systematic Colonisation. ...
    "Hawtrey thought New Zealanders ought to pay homage to the native chiefs. 'Even if there were no chiefs in New Zealand it would be,' he wrote, 'judicious to select certain personages from among them and place them in a position of honour.' The reason was that there had to to be 'a class of persons in the island who, by common consent and prescriptive right hold a position onf eminence above the others.' That was true of the Europeans too ... Hawtrey thought ...
    "In the end, Hawtrey's loyalty was to privilege, whatever the colour of its skin. ...
    "As David Cannadine explains, 'It was these people--the chiefs, landowners, sultans or sheikhs--on whom the British felt they could rely, and with whom ... they were most comfortable'. ...
    "The Aborigines' Protection Society helped make the case for the Treaty, and for the colonisation that it licensed."

~ James Heartfield, from his book The Aborigines' Protection Society: Humanitarian Imperialism in Australia, New Zealand, Fiji, Canada, South Africa, and the Congo, 1836-1909 [pp. vii, 67, 126-9]. As we've said before about the Treaty, it's the "chieftainship" that's the problem...

"Arguing against the views of Edward Said and others, Cannadine suggests that the
British were motivated not only by race, but also by class. The British wanted to
domesticate the exotic world of their colonies and to reorder the societies they

ruled according to an idealised image of their own class hierarchies."

Treaty Principles: Still much the same after all these years?

"New Zealanders are involved at the moment in a somewhat introspective examination of what their heritage means to them," said Geoffrey Palmer. "To outsiders the process must seem somewhat curious. Yet it is not inappropriate in the 150th year after the signing of the Treaty of Waitangi."

What's that? ... 150 years?  ...when did he say that?

He said it in 1989, thirty-five years ago, as Attorney-General -- explaining to an audience of legal academics what he reckoned to be the government's five Treaty Principles. 

Thirty-five years ago! And we're still engaged in that same introspective examination.

It's instructive to compare Geoffrey's five principles -- as well as his argument for them and why they were thought necessary -- which is worth reading -- with those contained in this week's leaked Treaty Principles Bill.

The 3 principles in what's said to be the proposed Treaty Principles Bill are:

1. A Governance principle: "the New Zealand Government has the right to govern all New Zealanders"
2. A Rangatiratanga principle: ""the New Zealand Government will honour all New Zealanders in the chieftainship of their land and all their property"
3. An Equality Principle: "all New Zealanders are equal under the law, with the same rights and duties"

Curiously, despite all the tedious scholarship since and the fumarole of huffing and puffing this week, those principles aren't a million miles from those espoused by Geoffrey Palmer's Government back in 1989, in response to recent decisions from the Court of Appeal and the Waitangi Tribunal:

In summary .... the Crown has identified five principles which will guide its activity in dealing with issues which arise out of the Treaty of Waitangi:

The Kawanatanga Principle [which] recognises the right of the Government to govern and to make laws.

The Rangatiratanga Principle[which]  recognises the right of iwi to organise as iwi and, under law, to control the resources they own.

The Principle of Equality [which] recognises that all New Zealanders are equal before the law.

The Principle of Reasonable Co-operation [which] recognises that both government and iwi are obliged to accord each other reasonable co-operation on major issues of common concern.

The Principle of Redress [which] acknowledges that the Government is responsible for providing effective processes for the resolution of grievances in the expectation that reconciliation can occur. This principle makes it clear to New Zealanders that the system of grievance resolution will be orderly, fair, and effective. We will take the steps necessary to ensure that justice is done and seen to be done.

I know that as the whole picture of this complex matter becomes clear to New Zealand the country will see that this is an issue that can be dealt with calmly and rationally. Moreover they will see that there are no hidden traps. That this is a process from which we can all emerge winners.

I make no judgement here on the value or otherwise of Palmer's Principles. 

I simply observe that while history doesn't always repeat, it does sometimes rhyme.