RESPONSE TO THE REPORT BY THE WAITANGI TRIBUNAL
SUBMISSION IN RESPONSE TO THE REPORT BY THE WAITANGI TRIBUNAL ON STAGE ONE OF THE TE PAPARAHI O TE RAKI INQUIRY
He Whakaputanga me te Tiriti – The Declaration of Independence and the Treaty (November 2014)
Submitted jointly by
The Tamihana Foundation & The Reformational Christian Studies Trust
Summary Statement of the Tribunal Report
The Preamble of the Report, on its second page, states the task of the Tribunal in Stage One of the Te Paparahi o te Raki Inquiry, as being to determine the ‘meaning and effect of: (i) He Whakaputanga o te Rangatiratanga o Nu Tireni, and the Declaration of Independence of New Zealand (1835), and (ii) te Tiriti o Waitangi, and the Treaty of Waitangi at the time of their signings in 1840’.
We respectfully submit that there is at the outset an implicit lack of clarity in the specification of the Tribunal’s task as expressed in 1.1. Is the Tribunal being tasked to fulfil its objective with regard to one Treaty, in accordance with the Statute governing the Tribunal; or is the Tribunal simply being asked to elucidate the ‘meaning and effect’ of the respective Maori and English documents that have historically been claimed (possibly mistakenly) to express one Treaty? The relationship between te Tiriti and the Treaty could have been denoted in the statement quoted in 1.1 by ‘/’, rather than by ‘and’. It is central to our submission that the two documents, despite their acknowledged differences, do express at heart the same ‘treaty idea’. We shall therefore use the expressions ‘te Tiriti’, ’the Treaty,’ and ‘te Tiriti / the Treaty’ interchangeably when we wish it to be clear that we are referring to what in our submission is the one underlying ‘treaty idea’, as this idea will be outlined in our submission. We shall endeavour to otherwise make it clear when we are referring to ‘te Tiriti’ or ‘the Treaty’ as the documents in Maori and English respectively. We do this in full knowledge that the term ‘te Tiriti’ is commonly taken to mean simply the Maori text of what is understood to be ‘the Treaty’. The issues this raises are central to our concerns. We submit that these issues are not dealt with satisfactorily in the Tribunal Report.
The central finding by the Tribunal is summarised in its Report as: ‘We have concluded that in February 1840 the rangatira who signed te Tiriti did not cede their sovereignty. That is, they did not cede their authority to make and enforce law over their people or their territories. Rather, they agreed to share power and authority with the Governor. They agreed to a relationship: one in which they and Hobson were to be equal – equal while having different roles and different spheres of influence. In essence, rangatira retained their authority over their hapu and territories, while Hobson was given authority to control Pakeha.’
This summary statement includes (i) a definition of ‘sovereignty’ as the ‘authority to make and enforce law’; (ii) a claim that the Maori rangatira at Waitangi in 1840 did not cede their sovereignty in the sense defined; (iii) a claim that the Maori rangatira entered into a relationship with the Crown, one of an equality in which Maori retained their authority over their hapu and territories, while the Governor was given authority to control the Pakeha settlers.
In our opinion (with some qualifications) the Tribunal Report has successfully made its case on the following counts:
Maori rangatira did not cede their mana to the Crown in February 1840.
The Crown has not moved substantially from its traditional position that, by gaining ‘sovereignty’ in 1840, its claim to exercise ‘the power to make and enforce law’ can justify the way in which this power was exercised over many Maori in the 1860s and for the next century or more.
In our opinion the Tribunal Report falls short of establishing its case as presented for the following reasons:
We submit that the Tribunal Report’s view of sovereignty as the ‘power to make and enforce law’ expresses at best only a half truth. Our submission is that the right to govern was granted to the Crown in 1840 with the inseparably linked Ius Gentium provision that Maori dominium rights were, in the words of Article 2 of the English text of the Treaty, ‘confirmed and guaranteed’. The sovereignty granted to the Crown certainly entailed the right of the Crown to govern in a way that included ‘the power to make and enforce law’. However, this power as granted in 1840 was qualified, and it could not legitimately be separated from the covenant with rangatira that the Crown’s exercise of power would faithfully uphold all the promises made in te Tiriti / the Treaty to protect and uphold Maori rangatiratanga.
A Ius Gentium form of sovereignty is an exercise of the authority and power of a state which, through its own checks and balances, specifically limits the legitimate ‘power to make and enforce law’ over an indigenous people residing within the territory of the state’s imperium. In the context of these Ius Gentium requirements as understood in 1840, a partnership between Maori and the Crown was envisaged that functioned under one political sovereignty. Under this sovereignty all the promises made to rangatira by the Crown under te Tiriti / the Treaty were protected by common law, and as such required that all the Ius Gentium constraints operated within the exercise of power by the state itself. In our submission the Crown manifestly failed to take the needed steps to do this. This failure is seen for example, in the setting up of a Colonial Parliament without any effective Maori representation, whether the latter were within the same Parliament or within a distinct and parallel body that could advise the Governor regarding Maori concerns. It is also evident in the ineffective support provided for the investigation of the viability of Native Districts, should they have been desired by Maori, as provided for in the 1852 NZ Constitution Act.
In our submission Maori rangatira in 1840 did not cede their mana under te Tiriti / the Treaty. Rather, Maori granted kawanatanga / governorship to the Crown (Article 1). This involved no relinquishment of mana. We submit that the Report fails to explore adequately the meaning of the granting of kawanatanga to the Crown by the Maori rangatira in 1840, as is clearly specified in Article 1 of the text of te Tiriti / the Treaty. We submit that ‘kawanatanga’ would have connoted to Maori at that time, probably more clearly than any alternative terminology available, what the representatives of the Crown in 1840 intended. Central to this was an understanding that the authority to govern New Zealand would be in full compliance with the requirements of the Law of Nations as this was incorporated into English common law. This gave the Crown the right to exercise its imperium over the territory, with the rangatira continuing to exercise all their traditional dominium / rangatira mana under a Ius Gentium form of the Crown’s sovereignty. This kawanatanga / governorship did encompass an ‘authority to make and enforce law,’ but this power was linked inseparably to the commitment in so doing to protect, and not to ignore, undermine or destroy Maori rangatiratanga. By 1860 the Crown perspective had changed radically, and we submit that it is the revolutionary context of this change that has generated the many issues that Ngapuhi and other iwi, together with the Tribunal are now seeking to address. This revisionist view of ‘sovereignty’ that emerged in the 1860s was in no way a part of the Treaty itself. It was not anything that the rangatira or the Crown agreed to in 1840, and it was in fact in contravention of the Treaty, as expressed in both the Maori and English texts.
The Tribunal in its Report refers to the judgment of the Court of Appeal in its landmark decision on the meaning of the Treaty, New Zealand Maori Council v Attorney General (1987) 1 NZLR641 – the so-called ‘Lands case’. In reaching this decision the Court received extensive evidence which is listed at page 662 of the judgment of the President of the Court, then Sir Robin Cooke. The New Zealand Maori Council and the Court together agreed to accept Professor Sir Hugh Kawharu’s translation of the Maori text of te Tiriti. The translation of Article One of te Tiriti applied by the Court in this case is consistent with the understanding put forward in this submission, namely, ‘The Chiefs of the Confederation and all the Chiefs who have not joined that Confederation give absolutely to the Queen of England for ever the complete government over their land.’ This case has had major significance for the law of New Zealand by putting forward an authoritative statement of the principles of the Treaty for the purposes of section 9 of the State Owned Enterprises Act 1986 and other legislation. Sir Robin Cooke in setting out these principles included the following principle based on Article One of te Tiriti, ‘For their part the Maori people have undertaken a duty of loyalty to the Queen, full acceptance of her Government through her responsible ministers, and reasonable cooperation.’ This principle was foundational to the influential statements in that case on the Partnership created by the Treaty between Maori and the Crown. Sir Robin Cooke regarded this principle as deriving from Article One of the Treaty, stating at p 204, ‘The differences between the texts and the shades of meaning do not matter for the purposes of this case. What matters is the spirit. .. In brief the basic terms of the bargain were that the Queen was to govern and the Maoris were to be her subjects; in return their chieftainship and possessions were to be protected, but sales of land to the Crown could be negotiated.’ The Privy Council took essentially the same view in the Broadcasting Assets case, New Zealand Maori Council v Attorney General (1991), where the law lords stated, ‘..that the Crown had duties of protecting Maori property in return for being recognised as the legitimate government of the whole nation by Maori’. The Tribunal has discussed these cases in its Report. We submit, however, that in the first part of its conclusions (1.3), the Tribunal has attributed a meaning to the Treaty that is fundamentally at variance with the important ‘Principles of the Treaty’. The arguments put forward by the Tribunal rest upon claims that the comments of the Judges in the case (Cooke and Somers JJ) either noted the differences in the two Treaty texts, acknowledging that these were not of sufficient import to affect its findings, or else simply referred to the statutory powers given to the Tribunal for the purpose of determining the meaning of te Tiriti / the Treaty. At the same time another Judge (Bisson J), with regard to the process at Waitangi on 5 and 6 February 1840, is cited as conceding that there were problems as to whether Maori signing the Treaty had a full understanding of the English text, and therefore the Maori viewpoint would be best understood in terms of Colenso’s account of the proceedings of those two days, in which he refers to Tamati Waka Nene’s request that, from that point on, Hobson be ‘a father, judge and peacemaker’, and going on to make what might be called fair and traditional claims regarding the Treaty, that do not mention the word ‘sovereignty’. In a similar vein, the Tribunal in its Report then goes on to mention other cases in which there is no overt discussion regarding the meaning of ‘sovereignty’ – the Tainui Maori Trust Board, (1989), the Fisheries case of the Court of Appeal (1989), and the Sealord case of the Court of Appeal (1991). Two further cases are quoted, the Broadcasting Assets case (1991, 1993) and the Whales case (1995). The main point made by the Tribunal in its Report with regard to these cases is that ‘the Courts have preferred to leave the analysis (of the meaning of the Treaty) to the Tribunal’. (He Whakapununga me te Tiriti Report, Chapter 8, pp28-29). Nonetheless, the Tribunal does acknowledge that Justice Somers, in the important Lands case referred to above, states that a finding of the Court of Appeal concerning the meaning of the Treaty that is material to its own work, should be followed by the Waitangi Tribunal. We respectfully submit that the Tribunal has departed too readily from the approach taken by the Court of Appeal (and Privy Council) to the meaning of Article One of te Tiriti / the Treaty, a meaning which the courts have regarded as foundational to the “bargain” between Maori and the Crown in the Treaty. On the other hand the approach which is put forward in this submission, not only gives proper weight to both Maori and English texts of the Treaty, but also provides support to the ‘Principles of the Treaty’ which now form a significant part of New Zealand law. The view taken by the Tribunal in its Report removes what the courts have regarded as a vital part of the “bargain” between Maori and the Crown, and so has the very real danger of undermining those principles.
This brings us to another important case involving the Court of Appeal. The Report fails to acknowledge the finding of the Court of Appeal in its decision in Ngati Apa v The Attorney General (2002), Section 139. The Court found that the first two articles of both the Maori and English texts of the Treaty reflect the critical distinction between imperium and dominium that determined and shaped the common law meaning of a declaration of sovereignty over a territory inhabited by indigenous peoples. Despite some failures on the part of the Crown and settlers, this common law view of the imperium / dominium distinction did function effectively in New Zealand during the early years following the Treaty signing in 1840. However, after the revolutionary events of the 1860s, this distinction ceased to be taken into account. This change was predicated on a view of the sovereignty of the Crown over Maori that considered them full British subjects, with Maori obligated to keep the common law as it applied to British settlers and those living in England, under the same kind of sovereignty that was exercised in England, and not under the Ius Gentium sovereignty that in 1840 was understood under English common law to apply to New Zealand as a colonial territory. The events of the 1860s inaugurated a regime of Crown (in NZ) / settler sovereignty that held until the 1960s and 1970s. The landmark decision taken in these matters by the Court of Appeal, in the Ngati Apa case referred to above, is an important move in restoring our constitutional arrangements to the kind of Ius Gentium sovereignty that existed between 1840 and 1860, especially as this finding is coupled to the adoption of Professor Sir Hugh Kawharu’s translation of te Tiriti by the Courts (section 139 of Ngati Apa). It is significant that the Court of Appeal in the earlier Lands case also used the Kawharu translation, although in that case with the agreement of the parties. Moreover, it raises constitutional questions with regard to the respective powers of the Waitangi Tribunal, the Court of Appeal and Parliament. We respectfully submit that these are issues that should be considered by the Tribunal.
The Report fails to acknowledge that it was this common law Ius Gentium view of the relationship between the first two articles of both the Maori and English Treaty texts that informed the perspective of the first Chief Justice of New Zealand (1841 – 1857), Sir William Martin. His recommended criterion by which Maori, in 1846, should assess the meaning of the Treaty was: ‘That whatever they (the Maori) amongst themselves, called and considered their own, should be as much their own after our coming as it was before.’ England and the New Zealanders (1846), p16. Furthermore, in The Taranaki Question, (1860), pp 9-10, Martin implies a parity of meaning between ‘kawanatanga’ and ‘sovereignty’, in this common law Ius Gentium sense as the latter applies to indigenous peoples under colonial settlement.
The Tribunal Report fails to acknowledge that the published research on which it largely depends - particularly that of Ruth Ross and Claudia Orange - has ignored this common law Ius Gentium view of the imperium / dominium distinction as expressed in the first two Articles of the Treaty documents. This omission has, among many other things, profoundly shaped Ross’s and Orange’s (in our opinion erroneous) allegations of a mistranslation on the part of Henry Williams, and the resultant sea-change in Treaty scholarship inaugurated by Ross’s article, Te Tiriti o Waitangi: Texts and Translations, New Zealand Journal of History, 1972.
Te Tiriti and Ius Gentium
We submit that the scholarship of Ross, Orange and the many others who have followed them, has failed to enquire adequately into the meaning of the English term ‘sovereignty’ in 1840, specifically as a treaty with a Ius Gentium form of sovereignty between an indigenous people and the British Crown as a colonising power. Such a treaty entered into by the British Crown in 1840, in fact, had all the connotations of the common law as it applied to colonial territories, including all the requirements of the Law of Nations. This included the necessary implication that the Crown fully acknowledged the common law dominium / rangatiratanga rights of Maori.
We submit that by the late 1850s and 1860s, the perspective of the Crown was undergoing profound and what can fairly be described as revolutionary changes, so that the common law requirements of the Law of Nations as they applied to a colonising power and the rights of the indigenous inhabitants were no longer seen as determinative. (It is not appropriate for us here to explore the reasons and developments giving rise to this change, but we shall be pleased to document and elaborate these in detail to the Tribunal on request.) Instead of the proper application of the Ius Gentium provisions of the Law of Nations, the common law came to be viewed as operating in New Zealand in exactly the same way that it applied in England, thereby undermining its Ius Gentium character. As such the Treaty was reinterpreted so as to carry the meaning that Maori were full British subjects, obliging them to submit to the sovereignty of the Crown in exactly the same way as the settlers. This fundamental change was implemented via the dubious use of the majority power of the settler-only Parliament. Without consultation with Maori rangatira, the Colonial Parliament used its statutory powers to over-ride the common law requirements of the Law of Nations as it applied to colonial territories.
The historical background to the common law principles shaping the negotiations at Waitangi in 1840 between the Colonial Office in London (as represented at Waitangi by Hobson and Busby, assisted by Williams) and Maori rangatira begins with Roman law and the twofold Roman legal system of Ius Civile and Ius Gentium. The former was the system of law applying to Roman citizens, while the latter applied to the various nations domiciled within the territory administered by Rome. Imperium denoted the power of Rome to govern this whole territory. Dominium denoted the rights of the various nations to maintain their own traditions, language and property as well as, in some cases, their own legal system (for example the Jews in 1st century Israel). The basics of this Roman system were renovated and developed in the 16th century in response to the new situation of colonizing European powers, beginning with Spain and the devastating initial impact of the Spanish conquistadors and clerics in Central America. The result was the progressive emergence of the Law of Nations, as a then contemporary expression of Ius Gentium rights. This provided a system of law that legitimised European colonial activity on the basis of an imperium claim to sovereignty, but at the same time specifically upheld the full dominium rights of indigenous peoples, including the existing rights regarding land and other property, together with the traditional social structures and their authority. With the expansion of European colonization during the seventeenth century, English judges increasingly turned to this emerging system of ‘international law’ - the Law of Nations - in deciding disputes in its American colonies. The Law of Nations was eventually formally incorporated into English common law, as it applied to colonial territories, in the case Buvot v Barbuit (1737).
We submit that, contrary to what the Tribunal seems to imply, in 1840 the British Crown was granted ‘sovereignty’ over New Zealand, and this sovereignty was granted in the Ius Gentium sense, as expressed under the terms of te Tiriti / the Treaty. As stated in Article 1 the Crown was granted authority by the rangatira to set up a civil government in which English common law, as understood by the Crown representatives (Busby and Hobson) in 1840 would necessarily require the Ius Gentium provisions of the Law of Nations to be adopted in full. The British Crown thereby gained the authority / imperium to govern the whole territory, including the responsibility to maintain law and order, to oversee the settlers and restrain adverse behaviour by them, to protect all the traditional dominium rights of Maori, and to ensure justice for all.
We submit that Maori granted the Crown the power to govern New Zealand, to make laws, to enforce these laws and maintain order, and to do so by working together with Maori, always recognising that power over lands and tribal rights of the rangatira legally should not and factually would not be removed without their consent. Article 2 in both the Maori and English texts guaranteed Maori the continuation of their Ius Gentium rights to exercise their dominium unless they voluntarily formally relinquished this. The Maori text of te Tiriti in this regard is in close parallel with the English text. The kawanatanga / governorship granted in Article 1 to the Crown provided the overall framework within which the rangatiratanga, specified in Article 2, could and would continue to be exercised by rangatira who retained all their mana in accordance with their traditional law in this new partnership under Ius Gentium sovereignty between the British Crown and Maori.
It is important to note that Maori dominium rights, which we submit are to be identified with rangatiratanga rights, were recognised by English common law. Thus, when the British team in 1840 debated with the Maori rangatira the wisdom of agreeing to te Tiriti, they did so under the legitimate expectation that Maori indigenous rights would indeed be fully upheld under the protection of English common law, and would not simply rest on the words of the Treaty.
As cited in 3.5, the format of the two Treaty documents, as conforming to a Ius Gentium sovereignty, has been confirmed by the Court of Appeal, Ngati Apa v The Attorney General (2002). Namely, the Treaty distinguishes, in Articles 1 and 2, between imperium (Article 1) and dominium (Article 2). This carries the important implication that the kawanatanga / governorship granted in 1840 to the Crown in Article 1 of the Treaty assumed, and was conditioned by, the continuing liberty on the part of Maori to exercise their full rangatiratanga rights as specified in Article 2. These conditions were clearly breached in the actions of the Government and settler Parliament in the 1860s and in the following years.
Governor Gore Browne (1855-1861) was instrumental in initiating this process with his program to undermine the authority of rangatira as it affected Maori rights of land title, occasioning the then former Chief Justice, Sir William Martin in 1860 to write The Taranaki Question.
We submit that it was the view of an unqualified or unconstrained ‘sovereignty’ that ignored the restraints of the Law of Nations (the common law applied to colonial territories, confirmed by the Treaty itself), that was adopted by both the Executive and Legislative branches of the New Zealand state in the 1860s. With the decision of the Wi Parata case in 1877, the Judiciary effectively followed suit, implying that full British sovereignty, without any Ius Gentium qualifications, had been gained by ‘right of discovery’, and that for this purpose the significance of te Tiriti / the Treaty was minimal. Even those who continued to consider that British sovereignty had been gained by means of the Treaty generally imposed a view of sovereignty upon the Treaty that required Maori to be full British subjects in exactly the same way as settlers. This false assumption was applied to the so-called ‘Maori rebels’ of the 1860s, occasioning war and the confiscation of lands.
We submit that this view of the sovereignty of the Crown was imposed retrospectively upon the 1840 meaning of the Treaty, in an historical revisionist fashion, solidly cementing the Crown and general Pakeha view of ‘sovereignty’ that reigned largely unchallenged from the 1860s until the 1970s, and remains powerfully operative today.
Taking account of all the above we again submit that the meaning of the Treaty in both its Maori and English texts is that the Maori rangatira who signed it in 1840, granted the Crown the right to govern the whole territory of New Zealand, on the basis that the ongoing powers and rights of rangatiratanga were to be upheld and respected. This was entirely consistent with the Ius Gentium provisions of English common law as it applied to indigenous peoples in the context of colonial settlement. The Crown knowingly and willingly agreed to this. The events of the late 1850s and the 1860s were a breach of this Treaty, and were not the legitimate implementation of the agreements and requirements expressed in either the Treaty’s Maori or English texts of 1840.
Sovereignty issues in He Whakaputanga o te Rangatiratanga o Nu Tireni
Historically, Maori social order of the 19th century lacked the major features of a modern state with the latter’s legal and political ‘sovereignty’. To position this point clearly on a wider stage, we emphasize that the same was also true, for example, of the German social order before the unification of 1871. Important developments in the idea of ‘sovereignty’ emerged as a result of the Peace Treaty of Westphalia (1648), eventually resulting in a widely shared understanding amongst European and other states that a claim to ‘sovereignty’ required that the following three features should hold together: (i) A sense of final social authority - for Maori the mana of the rangatira; (ii) A unified application of law over the territory of a state, implying a unifying sovereignty. This did not exist in Germany before 1871. This parallels the lack of this component of sovereignty in the way in which Maori mana was exercised by rangatira in New Zealand prior to 1840; (iii) The exercise of civil governmental power, involving, as for example in Britain since the 18th century, the Monarch, the civil service, the courts, the Ministers of the Crown, the parliament and the armed forces. This aspect of sovereignty also did not exist in New Zealand prior to 1840.
Te Whakaminenga (specified in the English texts of both the Declaration of Independence and the Treaty as ‘The Confederation of United Tribes’) is recognised by its descendants as having a history that goes back at least to the early years of the nineteenth century. As such it was a gathering of tribes that met for consultation and decision-making on various particular issues of common concern. The decisions made, however, were not, as we understand them, acted out by any office-bearers appointed to act on behalf of te Whakaminenga as a corporate organisation. The consequences of decisions taken were enacted only by the exercise of the mana of each rangatira with respect to his iwi and hapu.
The terms ‘mana’ and ‘kingitanga’ were both used by Henry Williams in 1835 to translate ‘sovereignty’ in He Whakaputanga. The ‘sovereignty’ set out there refers to Te Whakaminenga / The Confederation of United Tribes, and not to individual rangatira. While we readily acknowledge the many ways in which Maori culture in 1835 was already rapidly developing, including an evolving sense of shared identity, we submit that the powers ascribed to Te Whakaminenga remained aspirational, and were never actually implemented. Furthermore, even though the vision shaping the King Movement in the 1860s went much further in the actual realisation of such a vision, this too failed to be completed, though for different reasons. In the late 1830s, Te Whakaminenga continued to exist as a significant body of influence. It did not however carry any of the more formal powers that would have been necessary were it actually to carry out the aspirations expressed in He Whakaputanga. The tribal chiefs therefore retained their mana over their hapu and their traditional territories, but none of them yielded any part of their mana or power to a federation of tribes so as to form a unity of law, together with an effective civil Government over New Zealand. Thus in 1840, Maori social order did not corporately meet the criteria for ‘sovereignty’ in all the three senses specified in 5.1. Allowing for some exceptions, it was also generally the case that, before the late 1850s, ‘what belonged to Maori before 1840, belonged to them afterwards’ (Sir William Martin, England and the New Zealanders, Part I, p16). The mana of rangatira continued to be exercised in traditional ways.
The fact that Maori rangatira cannot rightly be said to have held ‘sovereignty’, in the full and proper sense of that term, over New Zealand in 1840, is one important reason why the Maori rangatira in 1840 did not ‘cede’ sovereignty in a strict sense – they could not ‘cede’ something they did not already fully possess. We acknowledge that the English text of the Treaty in Article One uses the term ‘cede’, and submit that it is used there in a wider and more general sense, taking account of the aspiration expressed in He Whakaputanga. We also submit that the still evolving journey of the wider Maori community in 1840 to actualise fully the aspiration to ‘sovereignty’ is alluded to in the words in Article One, ‘ .. or may be supposed to exercise or to possess ..’. This Article reads in full: ‘The Chiefs of the Confederation of the United Tribes of New Zealand and the separate and independent Chiefs who have not become members of the Confederation cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty which the said Confederation or Individual Chiefs respectively exercise or possess, or may be supposed to exercise or to possess over their respective Territories as the sole sovereigns thereof’. We submit that the rangatira could and did exercise, but not in any way relinquish, their mana to ‘grant sovereignty’ to the British Crown, and that this is what is expressed in Article 1 of the Treaty in both Maori and English texts, meaning, in each case, ‘the right to govern’ under the conditions of a Ius Gentium sovereignty.
Taking account of what is asserted in 5.1, 5.3 and 5.4, we submit that the Tribunal’s claim in the Report that Maori did not cede their ‘power to make and enforce law’ expresses less than the full truth of the matter. The rangatira of Te Whakaminenga certainly retained their mana with respect to their tribes and territories, but they cannot legitimately be said to have secured the other necessary features to support a claim to ‘sovereignty’ except in so far as this was expressed as an aspiration put forward in He Whakaputanga, an aspiration.that was never actually carried through into historical actualisation. We submit that the rangatira did not exercise ‘sovereignty’ in 1840, but rather exercised their mana to grant the Crown the right to govern. As already noted, this granting of the right of the Crown to govern was made under the legitimate expectation that it was in the context of a Ius Gentium sovereignty that ‘confirmed and guaranteed’ Maori dominium rights. Many of these rights were subverted by the de facto exercise by the Crown of the ‘power to make and enforce law’ in the 1860s under a different form of sovereignty, never envisaged in 1840 by either the Crown representatives or the rangatira signing the Treaty. This new form of ‘sovereignty’ did not conform to the Ius Gentium sovereignty implicit in the Treaty documents of 1840.
The meaning of ‘sovereignty’ in the Treaty
We submit that it is legitimate to view the meeting of rangatira at Waitangi in February 1840 (and subsequently elsewhere), as in part a gathering of Te Whakaminenga / The Confederation of United Tribes. The claims and hopes regarding sovereignty that had been set out in He Whakaputanga remained at that date aspirational and the objectives had not been actualised. The rangatira had not established and appointed formal offices or powers to carry out the vision of a state of New Zealand, as understood either in the emerging European political context, or as set out in Article 2 of He Whakaputanga itself. Nevertheless, many of the Maori rangatira gathered in February 1840 at Waitangi and later elsewhere did act in corporate fashion, exercising their mana to grant the Crown the right to govern New Zealand, including the power to make and enforce law, but understanding that the latter would always be done under the conditions agreed to by the Crown - that all dominium / rangatiratanga rights as specified in Article 2 of both Maori and English texts would continue to be upheld.
One of the questions raised by Ruth Ross in her 1972 paper was why Henry Williams, in te Tiriti, chose to translate the English term ‘sovereignty’ by ‘kawanatanga’, when he had previously used the Maori ‘mana’ and ‘kingitanga’ in his translation of The Declaration of Independence into He Whakaputanga in 1835. The word ‘kawanatanga’ is in fact also used in He Whakaputanga and denotes ‘government’ in Article 2 of that document. In spite of Ruth Ross’s negative comments regarding the Protestant missionary usage of this term, Maori of Ngapuhi had in fact a long acquaintance with what ‘governorship’ was all about, as a result of their experience with the Governors of New South Wales. ‘Kawanatanga’ or ‘civil government’ as in 5.1 (iii) above was not a feature of Maori social order on the ground in New Zealand between 1835 and 1840. Kawanatanga was however an integral part of the proposed ‘sovereignty’ granted to the Crown, namely ‘the authority to govern New Zealand’. The term ‘mana’ on its own was rightly deemed by Williams in He Whakaputanga insufficient to denote the ‘sovereignty’ to be assumed by Te Whakaminenga; hence the added use of ‘kingitanga’ in an endeavour to express the much wider connotations of this mana compared to that of a rangatira with respect to his own tribe and territory. However, ‘kingitanga’ would also carry problems if it were used in te Tiriti to describe the ‘sovereignty’ of the Crown in New Zealand. In addition to their experience with Governors in New South Wales, the Ngapuhi had also had a culturally significant connection with the Kings of England, dating back to the 1820 visit to England of Hongi Hika during which he met King George IV. ‘Sovereignty’ in the Britain of 1820 - 1840 had, however, moved a long way from that of Charles I, when the term might simply have been synonymous with ‘kingship’. The complex diversity-within-unity of the ‘sovereignty’ functioning in the British social order of 1840 was not at all adequately expressed by ‘kingship’. As a result ‘kingitanga’ had serious problems for an adequate Maori understanding of the kind of ‘sovereignty’ that would be established by the British Crown in New Zealand. These problems resulted partly from the lack of meaningful experience by most Maori of the requirements specified in 5.1 (ii) and (iii). Furthermore, things were also culturally complicated by the fact that the Monarch on the throne in 1840, as distinct from 1820, was now one with her own ‘queenitanga’. Taking account of all the above, we submit that Sir William Martin was correct in asserting that the central issue with the granting in 1840 of British sovereignty was that of the right to govern. We also submit, along with the expert witnesses Carpenter and Ward mentioned in the Tribunal Report (He Whakaputanga e te Tiriti. Report Chapter 10, p16) that this makes ‘kawanatanga’ a wise and accurate choice in conveying as clearly as was possible at the time what the exercise of ‘sovereignty’, as conceived in the terms of the Ius Gentium tradition of common law, entailed.
The conclusions in the Tribunal’s Report seem to offer us an understanding that each party was satisfied they had an agreement, but only mistakenly presumed the other party shared a meaningful understanding of what was agreed to. We submit that the evidence, especially that of the two texts in question, when read in the terms of a common Ius Gentium understanding of sovereignty, does not support this conclusion. According to the record much discussion by Maori at Waitangi in February 1840 concerned what was entailed by the appointment of the Governor or, perhaps more correctly, whether or not to appoint him or send him back home. We submit that it was clearly appreciated by rangatira at Waitangi that the proposal before them concerned a significant step beyond that of the British Residency of James Busby. It is very difficult to see how the putative division of sovereignty (rangatira with regard to Maori; the kawana with regard to the settlers), as proposed by the Tribunal in its Report, can be distinguished meaningfully from the arrangement already in place in 1840 between the British Resident and the rangatira. In support of the view that te Tiriti / the Treaty involved much more than this kind of understanding we also note the recorded discussion regarding the treaty proposal at Hokianga between Frederick Maning and Captain Hobson. Hobson made it clear that British law could hold only on British territory. It was not a matter that applied simply between a subject and the Governor as ‘a Great Chief’. British law did not apply on an interpersonal basis between the ruler and the subject. It applied territorially. (L. B. Chamerovzow, The New Zealand Question and the Rights of Aborigines, p112). We again submit that what Hobson had in view was the exercise of Ius Gentium sovereignty over an indigenous people under the Law of Nations as adopted into English common law.
We submit that the evidence presented to the Tribunal by both the claimants representing the various rangatira of Te Whakaminenga on the one hand, and the Crown Representatives on the other, reflects to a major degree a lack of appreciation of the special Ius Gentium character of the sovereignty involved when te Tiriti / the Treaty was signed. The vast bulk of the evidence presented assumes the radically different Crown perspective on sovereignty developed in the 1860s, read back in revisionist fashion with regard to the events in 1840.
Both Ruth Ross and Claudia Orange express a negative view of what the first Chief Justice of New Zealand, Sir William Martin, wrote concerning the parity of the meaning of ‘kawanatanga’ and ‘sovereignty’ in the two texts of the Treaty, as ‘the rights recognised by the Maori belonging to the Crown necessary for the governing of New Zealand.’ (The Taranaki Question, (1860), pp9-10) Significantly, neither of these scholars do what they accuse Martin of not doing: spelling out precisely what ‘sovereignty’ meant in English in the 1840 context of British colonial settlement. Rather, they simply assume that ‘sovereignty’ meant, in English in 1840, what the Crown and most Pakeha since the 1860s erroneously assumed it to mean; namely an unqualified right of the Crown (in New Zealand) to put in place a social order that fully assimilated the indigenous people into ‘one people, one nation, one law’ under the Crown. Ruth Ross proceeds directly to the task of trying to say what this (in our submission mistaken conception of ‘sovereignty’ as it was actually understood in English in 1840) did and did not mean in Maori in 1840. This merely confuses the issue. Orange did later criticise the view of Ross, to the effect that, in Orange’s view, ‘sovereignty’ should not be translated as the Maori ‘mana’, but Orange does not offer any alternative.
Late in 1860, Governor Browne and his ministers made a public reply to Martin’s criticisms of the government in The Taranaki Question. Orange indicates her qualified approval of Browne’s response, which claimed that Martin had treated the issues concerning the war in Taranaki in terms of a ‘narrow view’ focussed on the question of (land) title, whereas it was in Browne’s view ‘a question of sovereignty’. Orange then goes on to allege that Martin avoided discussing the meaning of ‘sovereignty’ by simply translating the English term ‘sovereignty’ into its Maori equivalent ‘kawanatanga’, as in te Tiriti. (The Treaty of Waitangi, p155) To the contrary, and as noted in section 6.5, Martin did in fact express his view of ‘kawanatanga’ / ‘sovereignty’ as ‘the rights recognised by the Maori belonging to the Crown necessary for the governing of New Zealand’. (The Taranaki Question, (1860), pp9-10). We submit that this perspective is entirely consistent with the understanding of Article One adopted by the Court of Appeal in New Zealand Maori Council v Attorney General (1987) – ‘For their part the Maori people have undertaken a duty of loyalty to the Queen, full acceptance of her Government through her responsible ministers, and reasonable cooperation.’ (refer 3.4).
Thus, while we agree that ‘sovereignty’ at a very basic level does entail ‘the power / authority to make and enforce law’, and while we also acknowledge that this power was probably granted by some of the signatories in 1840 with less than a full understanding of all the implications, we also submit that what this had come to mean in the 1860s was very different indeed from what was understood in 1840. It is exactly this radical and indeed revolutionary change that is being criticised by Martin in The Taranaki Question. Martin’s central point is that the agreed terms by which Maori would legally be permitted to complete a sale of land were now being reinterpreted and overturned by the actions of the Governor, and in a way that denied Maori their right to have their case heard by a Tribunal, prior to calling out the militia to enforce the Governor’s decision. Maori Ius Gentium common law rights under the Treaty - to continue to exercise their dominium - were being undermined and set aside via the imposition, by executive decree, of what was in fact a very different kind of law. The previously legally acknowledged Maori ownership of land as an aspect of their Ius Gentium rights under the Law of Nations, as it applied to colonised indigenous peoples under English common law, was being set aside in violation of the Treaty. Some members of the settler community by 1860 clearly did not understand either the relevant legalities or ethics, specifically that customary law practices as they applied in the traditional system of Maori culture did not simply follow the individualistic dictates of English law regarding property with which the settlers were familiar. The historical record is that Maori Ius Gentium rights under common law were ruthlessly set aside as an integral part of a program to treat Maori as ‘fully British subjects’, in exactly the same way as the settlers, and to do so without any consultation with Maori themselves.
Orange never refers to William Martin’s public reply to his Government critics, where he expands on the travesty of Crown ‘sovereignty’ that was being perpetrated: ‘We often hear strong language used about what is called a defiance of the Queen’s Sovereignty. It were better for both races if we set ourselves dispassionately to consider what we have done towards commending that Sovereignty, towards showing the value and benefit of it. In what light must the case appear to them? The Queen’s power has not saved their lives or property, but takes possession of their land. It appears to them not as a protector but as an invader; not as a stayer of blood, but itself a shedder of blood. We have taken the course which tends, not to advance, but to hinder, our great project. We have begun at the wrong end.’ (Remarks on Notes Published for the New Zealand Government, January 1861, p31)
As Chief Justice, Sir William Martin had, from the outset of the Crown administration in 1841, the responsibility to enforce criminal law against both Pakeha and Maori. In 1842, and in his first trial, he determined that the law against murder did apply to Maori, resulting in the trial, conviction and execution of Maketu. Although Attorney General William Swainson wrote to the Colonial Office expressing his personal view that this went beyond the provisions of the Treaty, the Preamble of the Treaty makes clear that restraining violence on the part of both Pakeha and Maori was central to the Treaty’s objectives. Maori, however, clearly and rightly expected to be consulted and to participate meaningfully in this process, as required by Article 2 in both Maori and English texts.
Orange does note that there is a major difference between the way in which the Government exercised its powers from 1841 to around 1855 and the way its powers were exercised from the late 1850s and throughout the 1860s (The Treaty of Waitangi, pp2-3; pp136-158). She also acknowledges that the 1860s were ‘a crucial decade when the official decisions determined both the understanding of the treaty that would prevail and the means by which the treaty could be given effect.’ (p160). Nonetheless, she does not acknowledge that this was all symptomatic of the very different and revisionist way in which the settlers, under the tutelage of Governor Grey, now read the English text of the Treaty. The closest she gets to doing so is: ‘The treaty had given Britain a nominal sovereignty only; it was to the assertion of substantive sovereignty, or absolute supremacy, that the colonial government bent its energies in the 1860s.’ (p3) We submit that this statement does note the significant change, but fails to take account of the special character of Ius Gentium sovereignty which had been applied from 1840, but by 1860 was being jettisoned by Gore Browne to placate settler ambitions, and then by Grey himself in the interests of Grey’s 1860s assimilation program.
In our reading of its Report the Tribunal accepts Orange’s view, and concurs that, already in 1840, the Crown was claiming ‘the power to make and enforce law’ in an irresponsible and potentially dishonest fashion. This perspective views the Crown as having, possibly intentionally, failed to make clear to the gathering of rangatira at Waitangi in 1840 the real character of ‘the unqualified sovereignty’ it actually had in mind. It sees the exercise of the kind of ‘substantial sovereignty’ implemented in the 1860s, simply as a full realization of what the Crown, via its representatives, already had in mind from the outset in 1840. We submit that this perspective does not reflect a fair and accurate reading of the historical record, and does not do justice to the real nature and rich potential, still today, of te Tiriti / the Treaty.
Sir Keith Sinclair summarises the early proposals of George Grey to civilize indigenous peoples in the following words: ‘In 1840 he (Grey) wrote a report for Lord John Russell, the new Secretary of State for the Colonies, showing how the amalgamation of two races could speedily be effected. The aborigines were to be converted (to Christianity), brought under British law, and employed by white settlers, while the children were to be educated in boarding schools. This theory of compulsive assimilation so impressed the Secretary that he sent Grey’s report to the Governors of the Australian and New Zealand colonies.” (Dictionary of New Zealand Biography, Volume I, p160). The adoption of these kinds of policies by the Australian (federal and state) Government at the beginning of the twentieth century, resulted in the late twentieth century exposure of the trauma suffered as a consequence of the forced estrangement of aboriginal children from their families – a tragic community now known as ‘the Stolen Generation.’ While the implementation of such policies never reached this level in New Zealand, the same perspective was nonetheless very seminal upon the events of the 1860s and after. In his opening address to the Kohimarama Conference of 1860, Governor Gore Browne spoke at length regarding both the Treaty of Waitangi and ‘the new British policy toward indigenous people.’ This policy simply reiterated the implementation of ‘the civilising policies’ already proposed by George Grey in his first term as Governor. From the Governor’s perspective this was a generous offer from the British Government to share its advanced culture and civilization with indigenous peoples. Claudia Orange writes of Browne’s understanding of the link between the Treaty and these new British policies in the following terms: ‘The Governor opened (the Kohimarama Conference) by dwelling at length on the treaty’s clauses, repeating the pledges made in 1840 by the Crown and by the chiefs, and stressing that the treaty was the first fruit of a new British policy towards indigenous races, one which invited them to unite with the colonists and ‘become one people under one law’.’ (Treaty of Waitangi, p145, emphasis added). This was indeed what Browne had in mind in 1860, but we again submit that it was in fact very different from what had been envisaged by both parties when te tiriti / the Treaty was signed in 1840.
Samuel Carpenter’s work is one of the sources cited by the Tribunal. In his MA thesis, History, Law and Land, Carpenter makes a significant reference to a speech to the Colonial Parliament in 1858, in which the then Native Minister, C.W. Richmond, introduced his Bills concerning the future of Native Districts. The continuation of such Native Districts had already been provided as an option in the 1852 Constitution Act. Carpenter writes that Richmond ‘considered three options for governing Native matters: the first to recognise Native customs, advocated by Lord Stanley (as Colonial Secretary) and former Aborigines Protector, George Clarke; the second to enforce British law advocated by the younger Sir George Grey’s early paper on the civilizing of Australian Aborigines; and the third to insinuate or induce the acceptance of British law, the latter being Sir George Grey’s revised notions with respect to New Zealand sourced from his first Governorship. Richmond reviewed the three options and argued that the third was best.’ (pp23-24) In this speech to the colonial Parliament in 1858, it is clear that the future social order of Maori in New Zealand is viewed as lying entirely within the will and power of the settler Parliament. Richmond makes no reference to any obligation on the part of the Government, under the Ius Gentium sovereignty to which the Crown had agreed in the Treaty, to consider the rights or desires of Maori as the indigenous inhabitants of the territory. It is also clear that the theories of Governor Grey regarding the ‘civilising’ of indigenous peoples, and the influence of these ideas amongst the settlers, were of great significance in shaping Crown policy in New Zealand concerning ‘civilising the Maori’ and, by implication, the way in which the Treaty would henceforth be understood so that it fell into line with Grey’s ‘civilising policy’.
During his second term as Governor of New Zealand (1861 – 1868), Grey resumed his leadership of the ‘great civilising project’ he had begun in his first term as Governor in New Zealand (1845 – 1853). Grey’s leadership in the 1860s led quickly to war with the King Movement, with disastrous consequences that, in our submission, impacted on the future of Maori (and Pakeha) in New Zealand over the next century and beyond.
We submit that the Tribunal’s interpretation, based in part on the scholarship of Ruth Ross and Claudia Orange, regarding the nature of the ‘sovereignty’ acquired by the Crown via the Treaty in 1840, is inadequate and requires further definition and qualification. As indicated by Sir William Martin in 1860, whether denoted by the English term ‘sovereignty’ or the Maori term ‘kawanatanga’, in its 1840 context this ‘sovereignty’ denoted ‘the authority, acknowledged and accepted by Maori, belonging henceforth to the Crown to provide overall government to the country.’ (The Taranaki Question, pp9-10) This authority to govern was necessarily qualified by the conditions of Ius Gentium sovereignty clearly set out in Article 2 of te Tiriti / the Treaty. A few pages later in The Taranaki Question (and not referred to by either Ross or Orange) Martin alludes to the change that had occurred in Government policy affecting Maori ‘land tenure’. Martin quotes from a memorial of the Provincial Government and Settlers of Taranaki, to Governor Browne, stating: ‘The opposition of Wiremu Kingi to the sale of Teira’s land has been uniformly based by him, not on any unsatisfied claim on the said land of his own, or any other member of the tribe, but on those pretensions, as Chief, to control the sale of all lands belonging to his tribe. The exercise of such authority, with the consequences necessarily flowing from it, is incompatible with Her Majesty’s Sovereignty in this colony, and most fatal to the interests of both races.’ (pp25-26) The policy to set aside the authority of the rangatira as being incompatible with Crown ‘sovereignty’ was implemented by Governor Browne, not only in Taranaki but throughout New Zealand. In our submission, and as Martin clearly implies, while Wiremu Kingi’s opposition was indeed incompatible with the revisionist understanding of ‘sovereignty’ that had been adopted by the Crown (in New Zealand) in the 1860s, it was fully compatible with the Ius Gentium sovereignty of 1840 as enshrined in te Tiriti / the Treaty. The issue had by 1860 become, as affirmed by Governor Browne, that as Governor he thought that he had the right to exercise the Queen’s ‘sovereignty’ to over-ride the power of Maori rangatira in this, as well as in many other matters. We submit that this revisionist understanding was in breach of the commitment to Ius Gentium sovereignty for Maori, guaranteed by the Treaty, whereby Maori would continue to exercise their dominium rights.
Crown ‘sovereignty’ was thenceforth exercised in New Zealand with a decidedly revolutionary twist to it, and one that made the previously legitimate equation (affirmed by Martin) between ‘sovereignty’ and ‘kawanatanga’ inaccurate and misleading. This disjunction was correctly picked up by Ruth Ross in 1972, but in our submission she made a significant error that has been taken up uncritically by virtually all who have followed her, including Claudia Orange. This error was to read the revisionist understanding of the English term ‘sovereignty’ that was adopted by the Crown and most Pakeha in the 1860s, back into the original English text of the Treaty, and then to allege that the word ‘sovereignty’ had been mistranslated (some claim intentionally mistranslated) in the Maori text of te Tiriti by Henry Williams in 1840 as ‘kawanatanga’. Sir William Martin was a contemporary expert witness to the deeper meaning of the events of his time, and he was also a person with a warm respect and appreciation for Maori and their culture, and with recognised facility in the Maori language. In our submission, the failure of the scholarship of Ross, Orange and others to take proper account of the meaning and implications of the Ius Gentium sovereignty central to the Treaty, and the consequential failure to treat Sir William Martin’s views with the seriousness they deserve, has resulted in the unjust tarnishing of both Henry Williams’ and Sir William Martin’s reputations. They have both become casualties of historical and legal revisionism, providing an opportunity for future historians to re-explore and re-evaluate their respective contributions to New Zealand history.
In our opinion the alleged mistranslation into Maori of the text of the Treaty by Henry Williams has no credible basis in fact, and is a consequence of failing to take account of the nature of Ius Gentium sovereignty as it applies to both texts of the Treaty. As a related matter we are concerned that, as we read them, the Tribunal’s own conclusions in the Report appear to reflect a prior commitment to the view that the Maori and English texts of the Treaty are so at variance with one another that serious doubt is cast upon the viability of their referring to one Treaty as specified in the Statute governing the activities of the Tribunal itself. We respectfully submit that this idea does not stand up to critical scrutiny, and that it derives to a significant degree from the mythology of Williams’s mistranslation inherited from Ruth Ross’s 1972 article.
We submit that from around 1860 through to the present this revisionist understanding of ‘sovereignty’ has been powerfully operative in New Zealand society. We also submit that Crown sovereignty, if not viewed as Ius Gentium sovereignty but instead viewed without qualification as ‘the (unrestrained) authority to make and enforce law’, actually enables an interpretation that considers the forced implementation of the ‘civilizing’ policies of Governor Grey perfectly legal and legitimate - linked as they were to the mistaken belief that Maori had been made (whether they liked it or not) full British subjects, with exactly the same rights and obligations with regard to English common law as the settlers. In our submission this policy was in fact clearly in breach of the Treaty. In the 1860s this policy was being implemented via the statutory exercise of parliamentary power to override the common law principles of the Law of Nations, as well as via various executive policies such as those of Governor Gore Browne, the implementation of which led to the 1860 war in the Taranaki. If the sovereignty claimed by the Crown in 1840 was, as we submit, a form of Ius Gentium sovereignty that obliged the Crown to respect its commitment to confirm and guarantee the dominium or chieftainship rights as specified in Article 2 of the English text of the Treaty, then there were limitations on ‘the power to make and enforce law’ applying in the 1860s, and many of the actions taken historically were clearly contrary to the Treaty of 1840. Moreover, the ‘legality’ of these actions was secured only via the constitutional powers of ‘the legislative sovereignty’ of Parliament to overturn common law, despite this Parliament having no representation from Maori – the persons most affected by the measures adopted.
We also submit that a definition and interpretation of ‘sovereignty’ that does not take full account of the Ius Gentium character of te Tiriti / the Treaty undermines the rich potential of the Treaty, with its remarkable expression in the two language documents, to represent a vision for a united New Zealand, that at the same time welcomes and affirms a significant degree of self-determination for the tangata whenua.
A vision for the future that builds on the past
We note that the Waitangi Tribunal itself gains its authority from the statute of Parliament governing it. We understand that the vision that led to this statute and the establishment of the Tribunal was one that desired social justice issues impacting on Maori to be addressed much more effectively than had historically been the case, with proposed solutions taking proper account of commitments made in te Tiriti / the Treaty, and with the hope that this process would aid the building of a future New Zealand society that acknowledged and dealt fairly with the realities of the past – the very real faults as well as the many positive achievements.
In light of this we are concerned that the Report could be understood, at least by implication, as bringing the legitimacy of the State of New Zealand itself into serious doubt. That could lead to further injustice on all sides. A major reason for making this submission is because in our view there is strong evidence that the Crown was granted the authority / imperium, by rangatira meeting at Waitangi in February 1840 (and elsewhere over subsequent months), to govern the whole territory of New Zealand, on the basis that the Crown would do this honouring the Crown’s commitment to maintain Maori rangatiratanga / dominium rights. We submit that there are no legitimate grounds to abandon the perspective that te Tiriti / the Treaty is one treaty expressed in two language texts. In sustaining the view that, by the rangatira signing te Tiriti, the Crown was granted the right to govern New Zealand, all New Zealanders today are provided with the constitutional basis for the legitimacy of our joint citizenship as Maori, Pakeha and others who have settled here. This presently allows us the opportunity to express this citizenship in ways that publically acknowledge the two languages, Maori and English, in all deliberations.
As noted in 1.3, the central finding by the Tribunal, as summarised in its Report, makes the following claims (division into two added by us for clarity of discussion): ‘(i) The rangatira who signed te Tiriti did not cede their sovereignty. That is, they did not cede their authority to make and enforce law over their people or their territories, and (ii) They agreed to share power and authority with the Governor. They agreed to a relationship: one in which they and Hobson were to be equal – equal while having different roles and different spheres of influence. In essence, rangatira retained their authority over their hapu and territories, while Hobson was given authority to control Pakeha.’ We note that the first finding is couched primarily in terms of the language used in the English text of the Treaty. At the same time the body of the Report endorses the claim of the 1972 paper by Ruth Ross, to the effect that the Maori and English texts are seriously at variance with one another, particularly with regard to the question of ‘sovereignty’, and that priority should be given to the Maori text. We understand Ross to claim that the Maori text of te Tiriti does not refer at all to the meaning denoted by the English term ‘sovereignty.’ While we have already submitted that this reading of te Tiriti / the Treaty reflects a misunderstanding of the reasons why we have inherited a belief concerning a strong difference between the meanings of ‘kawanatanga’ and ‘sovereignty’, we are also conscious of the fact that the Tribunal, in its Report, considers the scholarly contributions of Bill Oliver, Michael Belgrave, Lyndsay Head, Paul McHugh, Andrew Sharp, Alan Ward and Samuel Carpenter to ‘have not so much returned to the arguments in vogue before the Maori text was considered, but rather employed the Maori text in their argument for sovereignty being ceded.’ (He Whakapununga me te Tiriti Report, Chapter 8, p4). We appreciate that the Tribunal’s first finding in its Report is stating a negative, but we are puzzled as to why, when the Tribunal wishes to give priority to the Maori text of te Tiriti, this finding is expressed exclusively in terms of the English text of the Treaty?
The question to which the first finding in the Tribunal’s Report proposes an answer is, ‘Did the rangatira signing in 1840 cede their sovereignty?’ Any answer given must depend on the definition given to ‘sovereignty’ in this context, and we have already submitted that the covenant entered into by rangatira and the Crown was one that assumed and was couched in terms of Ius Gentium sovereignty, and not the meaning given to ‘sovereignty’ in the 1860s. We respectfully submit that the parallel question that should be asked by the Tribunal of the te Tiriti text, and that is not addressed in the Tribunal’s Report is, ‘Would it be correct to say that the rangatira who signed te Tiriti granted the Crown the authority to govern New Zealand?’ It is our submission that this assertion is correct, and that the rangatira at Waitangi (and elsewhere) in 1840 did grant this authority, the agreement being entered into in good faith on both sides. This issue comes to the heart of the ‘meaning and effect’ of te Tiriti / the Treaty for all New Zealand in 2015.
We submit that a further question that should be considered, related to the Tribunal’s second key finding, is ‘What would constitute - whether in 1840 or 2015 - an adequate unitary basis for political power to be exercised in New Zealand by Maori, Pakeha and the Crown?’ We submit that (after the interim period when these islands came under the temporary jurisdiction of New South Wales) an accurate reading of the unfolding of the young New Zealand State from 1841 sees the Crown as providing an overall framework within which both the indigenous Maori and the Pakeha settlers had an initial degree of independence as well as a degree of commonality in the way they were governed. When representative governmental institutions were granted to the settlers in the 1852 Constitution Act however, no effective provision was made for Maori to advise the Crown regarding their own affairs. This was a major failing of Treaty obligations within the agreed partnership between Maori and the Crown under Ius Gentium sovereignty. Although this lack of representation changed somewhat in the 1860s in that Maori seats were established in Parliament, it was still expected that these Maori seats would work entirely within the amalgamated social order of the settlers. We submit that what occurred here was again seriously at variance with the Ius Gentium obligations agreed to in te Titriti / the Treaty. More recent times have seen the emergence of political parties dedicated to represent Maori interests, including a perspective that takes very seriously a view of Maori as a people or national grouping. This has opened new (though actually old) discussions that go far beyond politicians’ traditional arguments questioning the ongoing validity of Maori seats in Parliament. We submit that a major inadequacy in the second finding in the summary of the Tribunal’s Report, is that it again expresses only a half truth. Specifically it fails to deal adequately with the very central modern question, ‘What is the extent to which Maori may, politically, be deemed to express a distinct nationality?’ This inevitably raises many political and legal questions regarding ‘sovereignty’. It is however a question that is very pertinent to the ‘meaning and effect’ of te Tiriti / the Treaty, and the answer to this question is necessarily linked to the answers to the questions posed of te Tiriti in 7.3 and 7.4.
We submit that the vision of an assimilated social order as proposed and implemented by Governor Grey in the 1860s, whereby Maori were compulsorily made ‘brown Pakeha’, should not be understood as in any way the product of the 1840 Treaty - in either its Maori or its English texts.
In the 21st century, we live within a world powerfully shaped by a British Empire that over the past seventy years has been transformed into a Commonwealth of Nations. Most of these once colonised nations have gained their political independence. Many former British colonies were not settler colonies such as New Zealand. In settler colonies the descendants of colonial settlers now outnumber descendants of the indigenous inhabitants. Most of the former colonies that were not settler colonies, having gained their political independence, are now forging their own way in the contemporary world as independent nation states. This has posed serious issues for both Maori and wider New Zealand society as many modern Maori too have become increasingly aware of their own need to recover a more adequate sense of their identity as Maori, and the need to do so in the distinctly different and in some respects much more challenging cultural and political / legal setting of a former settler colony. In fully supporting this aspiration by the tangata whenua, we submit that the Ius Gentium sovereignty granted by rangatira to the Crown and enshrined in te Tiriti / the Treaty provides a strong foundation and powerful impetus for the realisation of this aspiration in the twenty-first century.
We submit that modifications in New Zealand to the historic Treaty provisions, taking account of the issues raised in this submission, should entail both Maori and Pakeha having a common citizenship within a modern state that still needs to be run effectively by representatives from both these societal groups, while also taking account of the ethnic and cultural traditions of other contemporary New Zealand citizens. Prominent in the sharing of this future should be the continued public celebration of a living and evolving Maori culture, reflected in various ways in the lives of all contemporary New Zealanders, and expressing something of the foundational wisdom that resulted in the rights that are guaranteed to both the Crown and Maori in te Tiriti / the Treaty. Pakeha New Zealand needs to have a much better understanding of the well of tears that marks much of our joint past history; and we all need to recognise the past misconstructions of te Tiriti / the Treaty that have been imposed upon us by many of our forebears.
We submit that a restored understanding of the historic meaning of the Treaty, as outlined in this submission, would assist in providing a helpful and healing vision to shape a future New Zealand. A renewed public appreciation of the Ius Gentium sovereignty under which New Zealand was founded would foster support for and recognition of a rejuvenated Maoridom, working in partnership with the descendants of settlers who, a few years after their arrival in New Zealand, became too strongly wedded to the imposition of an ultra-nationalistic British heritage.
It is in this spirit that we jointly offer our insights and hopes to the Treaty of Waitangi Tribunal.
On behalf of the Tamihana Foundation:
Right Reverend Bishop Muru Walters
Mr Neil Coup
Reverend Father Michael Gormly
Mr Bernhard Kernot
Dr Petrus Simons
On behalf of the Reformational Christian Studies Trust:
Dr Duncan Roper
Mrs Sonya Roper
Dr Petrus Simons
Mr Steuart Henderson
Link to the Report
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