The myth of the cession of Māori sovereignty [sic]

A piece from a Dr Luke Fitzmaurice-Brown is doing the rounds again. It's called 'The Myth of the Cession of Māori Sovereignty' -- and argues (unsurprisingly) that "to accept that Māori surrendered sovereignty when they signed Te Tiriti o Waitangi in 1840 requires 'a profound suspension of disbelief'."

So I figured I'd fisk the Fitzmaurice-Brown fiction.

Mr Fitzmaurice-Brown [whose opinion piece excerpts appear in blue] is a law lecturer at the university formerly known as Victoria University of Wellington. Unlike him, I'll begin by defining my terms -- or at least the most important one: "Sovereignty":

Sovereignty is the supreme authority of a state or governing body to rule itself without interference from outside powers. It typically includes a few core elements:

• Political authority – the recognised right to make and enforce laws within a territory
• Independence – freedom from control or dictation by other states or entities
• Territorial integrity – authority over a defined geographic area
• Self-determination – the capacity of a people or government to decide their own political status and course

So this is what's contested. And the opinion piece by Fitzmaurice-Brown begins with some of those basic assumption, especially those last four:

Moana Jackson once said that to accept that Māori surrendered sovereignty when they signed Te Tiriti o Waitangi in 1840 required “a profound suspension of disbelief.” As he put it, no country anywhere in the world has ever guarded its independence for hundreds of years only to then relinquish it. He argued that “to assume that is what our people did flies in the face of human history, let alone Māori history, where the notion of giving away the authority to make independent decisions is not just culturally inconceivable, it is politically impossible.”

But there's an immediate problem. He talks about a "country" that "guarded its independence." A country? What country? There was no "country" here to claim independence, let alone to guard it. For hundreds of years -- those years that Jackson claims was spent "guarding" independence -- Māori was set against Māori as each tribe, iwi and hapu struggled, not for independence but for safety. For survival. If anything were guarded here it was tribal claims -- and, more accurately, they were not guarded but contested -- heavily contested. Tell the Te Rauparaha of 1820, for example, that he was guarding the independence of these islands and he would have laughed; he was not trying to guard the "country" as he warred his way from Kawhai to Kaiapoi, but to exterminate his enemies. 

In a series of islands with no visible outsiders, even the idea of a "country" would have been absurd -- you might even say it would require “a profound suspension of disbelief.”

There is no historical disgrace in societies contesting territory over each other-- but for the sake of peace and prosperity and everything that's wroth living for, they do need to get over it. For centuries, Europe endured that struggle. The idea of "sovereignty," which Mr Fitzmaurice-Brown leaps over so quickly, came from the Peace of Westphalia (1648) which ended the massively destructive Thirty Years' War in Europe. The idea came from it that religious authority behind a throne, which created these endless wars, must be replaced with something "better": an idea of nationhood in which each state held supreme authority within its own territory — with no higher power (pope, emperor, or otherwise) entitled to override it.

In this idea, sovereignty was not contested, it was recognised -- even in its breach. Inter-tribal or inter-religious battles were replaced with a recognition of some kind of right. And some kind of peace flowed therefrom.

If we drill down a level, that right to rule within a given territorial area came from the idea that the people within that territory were not subjects, but citizens, each of them holding some kind of rights. As this idea became better understood, it was realised that sovereignty is not a primary, freestanding right of "the state" or "the nation" as an entity in itself — it is a derivative right. It exists only because, and only to the extent that it does protect the individual rights of the people living under that government. In other words: Sovereignty is downstream of individual rights, not the other way around.

This has a sharp corollary that we should spell out explicitly: sovereignty is conditional on being a rights-respecting government.

We are already several miles from Moana Jackson's historical assumptions. Territorial authority for him comes not from the consent of the ruled, but from the point of a taiaha. 

But even if we've disproved the idea that there was one "country" here to cede authority, we're still left with his claim that those several tribal leaders who did control territory here -- not by right, but by military power -- would not have given away that gradually crumbling authority. Why would they when they were (apparently) all-powerful within their fiefdoms. Fitzmaurice-Brown cites Margaret Mutu in support of this idea:

Professor Margaret Mutu [he says] has pointed out the huge amount of evidence that casts further doubt on the myth of the cession of sovereignty. She states, for example, that in 1840 the Māori population numbered about 80,000, while the settler population numbered about 2,000. That the former would give up their sovereignty to the latter seems overwhelmingly unlikely. In some parts of the country, there were single-figure numbers of settlers when Te Tiriti o Waitangi was signed.

And this is true, of course. And unanswerable ... unless you go back to that realisation that the territorial authority of each tribe and tribal leader was continually contested. Signing Te Tiriti was not simply handing over the sovereignty of 80,000 Māori to 2,000 settlers for unfathomable reasons. It was an exchange: giving up the notion of continuing and ongoing territorial struggle (highlighted by the horrific self-inflicted Butchers' Bill experienced under the Musket Wars) for this new idea promulgated mostly by missionaries (however imperfectly) of peace within a given territorial area.

The rangatira who signed Te Tiriti were the modernisers of their day. As Lyndsay Head explains, their signatures ceding sovereignty were entirely rational:

"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."

It would be nice if that rationality were respected rather than brushed over by the likes of Mutu and Fitzmaurice-Brown.

He continues however:

Nevertheless, the idea that Māori ceded sovereignty in 1840 has been unquestioned by many New Zealanders for much of our country’s history. In large part this has been because of the appearance of the term in the English text of the Treaty of Waitangi. Article 1 of the Treaty states that Māori signatories ceded “all the rights and powers of sovereignty” to the ‘Queen of England’. Case closed, right?

Well, no. The English text of the Treaty of Waitangi was never actually signed on February 6 at Waitangi, with every signatory on that day signing their name to Te Tiriti o Waitangi, the text in te reo Māori. Subsequently around the country, about 500 Māori leaders added their name to Te Tiriti, but about 92 percent of those leaders signed the Māori text. ...

So, what does the text in te reo actually say?

Instead of mentioning ‘sovereignty’ (as the English text does), article 1 of the Māori text gives the Queen of England the power of “kāwanatanga”, a transliteration of the English term ‘government’ or ‘governance’. Kāwanatanga was likely intended as a far more limited form of authority, primarily aimed at enabling the Crown to control and discipline its own settlers (who were largely beyond the control of the English legal system in Aotearoa).

Mr FB is right, of course. Rangatira signed the te reo text, after they heard an explanation of it by the translator Henry Williams. Several of those rangatira were readers, but even those wholly reliant on Williams would have heard him say, in describing the Treaty's Article 1, that "the chiefs shall surrender to the Queen for ever the Government of the country, for the preservation of order and peace." That was from the description of his translated speech which Henry Williams wrote about to Bishop Selwyn, 12 July 1847 [reproduced in Hugh Carleton's The Life of Henry Williams]. 

Of course, they would have heard it in te reo, in which Williams translated the word "Government" as "kawanatanga katoa."  That little word katoa is rarely mentioned by today's revisionists. And with good reason. Because, as Ewen McQueen observes, "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'."

But, as everyone from Hugh Kawaharu to Matthew Hooton to Margarat Mutu to Mr Fitzmaurice-Brown would counter, what about "Article 2 of the te reo text [which] guaranteed that Māori would continue to be able to exercise 'tino rangatiratanga' over their whenua, kainga, and taonga katoa – translated by Sir Hugh Kawharu as their lands, their villages, and all their treasures. 

This is the closest the te reo text gets to mentioning sovereignty [says Mr Fitzmaurice-Brown], but in the te reo text it is a power reserved for Māori, not for the Crown.

Mr Fitzmaurice-Brown lectures in law, but appears ignorant of even the first principles of the subject. In law, an earlier Article (which often sets the fuller context) generally takes precedence over later articles. And if Mr Fitzmaurice-Brown were to read that earlier Article, he would see those words "kawanatanga katoa," i.e., complete Government, which the te reo text (as translated by Te Tiriti's first translator) says "the chiefs shall surrender to the Queen for ever." 

Why would they do that? As answer, the Article continues: "For the preservation of order and peace."

If you don't have Hugh Carleton's Life of Henry Williams (and why would you, it's poor reading even for historians) you can read Williams's transliteration of the te reo text on page 481 of Ned Fletcher's tome. Perhaps Mr Fitzmaurice-Brown could read (or re-read) it? Because it contains in only a few words the counter to the first two of his opinion piece's main points.

He continues however. 

The evidence against the cession myth is further bolstered by another document, signed in 1835 – He Whakaputanga o te Rangatiratanga o Nu Tirene: the Declaration of Independence of the United Tribes of New Zealand. Generally referred to just as He Whakaputanga, it is an assertion of Māori mana, sovereignty, and independence, addressed primarily to an international audience ...

This is a pathetic claim, evidence only of the ability to grasp at straws. The Declaration was the idea of James Busby, the British Resident here desperate for something to do. Written by him, signed by thirty-four northern chiefs, it was formally acknowledged by the Crown in May 1836.  

What did it say? 

It asserted that sovereign power and authority in the land (‘Ko te Kingitanga ko te mana i te w[h]enua’) resided with Te Whakaminenga, the Confederation of United Tribes, and that no foreigners could make laws. Te Whakaminenga was to meet at Waitangi each autumn to frame laws ....

Te Whakaminenga, the Confederation of United Tribes, in which sovereignty was supposed to reside, never met to "frame laws" -- in fact it never met again. As the NZ History site acknowledges, For many,  the Declaration was primarily a matter for Ngāpuhi, who were ninety percent of the signatories. For any other rangatira to travel to Ngāpuhi territory for any reason in 1835 was still to take your life in your hands, so it's not surprising no more came of it. Historian Paul Moon sees it as a ‘regional goodwill agreement rather than a national document of truly constitutional significance.'" 

It's only significance, having been recognised by the British Crown, was to ensure that any lingering claim to sovereignty derived from the Declaration was firmly expunged by Te Tiriti -- which is precisely the opposite of Mr Fitzmaurice-Brown's argument.

Persistent as ever, however, he continues:

More recent scholarship suggests the cession of sovereignty (in the sense of all-encompassing power, including over Māori) may not have even been intended in the English text. That is a debate for another day ...

Indeed, that alleged "recent scholarship" by Ned Fletcher is when I entered that debate in two opinion pieces at Newsroom not so long ago.

... but in the meantime, the myth of the cession of sovereignty persists. ... To return to Moana Jackson’s words about the suspension of disbelief, I would add that believing Māori ceded sovereignty in 1840 also requires a suspension of humanity. Put yourself in the shoes of the actual rangatira who signed Te Tiriti. If you assume the humanity of those leaders, if you assume they were intelligent, competent, and humane, you can’t possibly reach the conclusion that they just gave away everything that mattered to them and their people. It’s hard to think otherwise unless you believe Māori were unintelligent, incompetent, and inhumane.

Mr Fitzmaurice-Brown began his opinion piece essentially suggesting that to see Māori ceding sovereignty made you dumb. To that he now adds that it makes you racist. What a vile person he must be.

If you assume the humanity of those leaders, if you assume they were intelligent, competent, and humane [he says, to repeat], you can’t possibly reach the conclusion that they just gave away everything that mattered to them and their people.

And of you think otherwise, he implies, you're a racist. Is this the lowest of the low? Of course an honest person can reach that conclusion. To cite just Lyndsay Head above, she argues it was precisely the intelligence, competence, and humanity of these modernising rangatira that recognised Māori citizenship within a British legal paradigm was, in 1840, a completely rational choice. 

Does Mr Fitzmaurice-Brown answer that? Of course not.

Lyndsay Head's argument is only reinforced by what the signatories themselves were reported to have said in that first signing (as we can read in Colenso's account), and what they said about their signing two decades later in Kohimarama -- what Claudia Orange once called the renewal of a Covenant.

The Kohimarama Conference began with then Governor Gore Browne recalling to those assembled (including more than 100 rangatira from Ngāpuhi in the north to Ngai Tahu in the south, who by then were mostly competent in English, and who could also enjoy translations into to reo):

On assuming the Sovereignty of New Zealand Her Majesty extended to her Maori subjects her Royal protection, engaging to defend New Zealand and the Maori people from all aggressions by any foreign power, and imparting to them all the rights and privileges of British subjects; and she confirmed and guaranteed to the Chiefs and Tribes of New Zealand, and to the respective families and individuals thereof, the full, exclusive and undisturbed possession of their lands and estates, forests, fisheries, and other properties which they may collectively or individually possess, so long as it is their wish to retain the same in their possession.
    In return for these advantages the Chiefs who signed the Treaty of Waitangi ceded for themselves and their people to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty which they collectively or individually possessed or might be supposed to exercise or possess.

The astute reader will notice that these are almost exactly the words to which Mr Fitzmurice-Brown objects -- that is to say, almost a recapitulation of the Treaty terms. No one rose to object.

The Conference itself concluded on 10 August 1860 with rangatira gathered there giving unanimous agreement that:

the several Chiefs, members thereof, are pledged to each other to do nothing inconsistent with their declared recognition of the Queen's sovereignty and of the union of the two races ... [16] 

It was Apirana Ngata six decades later who reminded Māori that

The Government placed in the hands of the Queen of England, the sovereignty [mana] and the authority to make laws. ... it made the one law for the Maori and the Pakeha. If you think these things are wrong and bad then blame our ancestors who gave away their rights in the days when they were powerful.
    Those ancestors were not stupid. They knew what they were about, and and had a pretty fair idea of what they were promised.

But perhaps they knew less about what they were agreeing to and signing than geniuses like Mr Fitzmaurice-Brown, and the intellectual giants who are sharing his work on social media.

Rangatiratanga means "Ownership"

IT MIGHT SURPRISE YOU to know, since so much hangs upon it, that the Treaty's term 'tino rangatiratanga' is 'a missionary neologism'—one of many. [1] Its root word is ‘rangatira,’ which was of course an original te reo word meaning ‘chief.’ This new word coined by Williams then stresses the power, authority, and agency of the chief.

Article Two of Te Tiriti promises to preserve tino rangatiratanga; courts have interpreted this in various ways to mean that chiefs (Rangatira) retain some kind of chiefly power. But Te Tiriti itself fails to fully clarify of what that power consists. [2] Lawyers since have taken advantage of this imprecision by arguing that it means some kind of chiefly sovereignty (although not over the whole country, since each iwi only extended so far). Ned Fletcher and others have argued since that the English text agrees with this idea, saying that the sovereignty ceded by the Treaty was “compatible with ongoing tribal self-government,” suggesting then that “tino rangatiratanga” means Māori self-government. 

His view is both an expansion and a clarification of the mainstream view of what “tino rangatiratanga” might mean.

Context is important. Like most law, Te Tiriti is hierarchical. Article One focusses on sovereignty; Article Two has a focus on land and resources. There was a logical progression from one Article to another, with the first Article, logically and in law, taking precedence. Sovereignty first, then clarifying what that sovereignty is for.

So with this context then, what is chieftainship about? Answer: It is primarily about ownership — about ownership of that land and those resources. But it is ownership in a "chiefly" sense, analogising the control of a chief over a tribe's land and resources to that of a property right. In his book One Sun in the Sky, author Ewen McQueen explains why Williams's translation reverts to the collective to offer this guarantees:

It is true that in translation Henry Williams has taken an approach that better aligns with the more [collectivist] Māori world-view, rather than the more individualistic European outlook. As such the Māori version does not refer to individuals holding exclusive possession of property. Instead we find chiefs exercising “chieftainship over the lands, villages and all their treasures. [3]

In seeking to find a te reo word to describe the unfamiliar concept of property rights, Williams has unfortunately conflated a legitimate recognition of an individual right to property with a non-existent claim to a collective right. "But the expression 'collective rights' is a contradiction in terms.” [4]

This then makes for a disastrous confusion. Confusion, because the intent of Article Two is to impart property rights, an individual right. But the reference to chieftainship is about collective tribal rights over land.  Disastrous because Te Tiriti should have treated all Maori as individuals instead of as members of a tribe. But it really does nothing of the sort except by implication.

Instead, as written, it cemented in and buttressed the tribal leadership and communal structures that already existed here —encouraging the survival of this wreck of a system until morphing, as it has today, into this mongrelised sub-group of pseudo-aristocracy: of Neotribal Cronyism. 

Nonetheless, as [former Chief Justice] William Martin wrote in 1860,

"This tribal right is clearly a right of property… To themselves they retained what they understood full well, the ‘tino Rangatiratanga,’ ‘full Chiefship,’ in respect of all their lands…’” [5]

This is not trivial. This is why sovereignty, was ceded.

“EVEN THE 'TINO' OF the Māori version is better understood in this context,” argues McQueen. “It does not mean that the chiefs’ authority is unqualified in a government sense. Rather it is Henry Williams’s translation of how the chiefs would retain possession of the lands, forests and fisheries. The English version emphasised such possession would continue ‘full exclusive and undisturbed.’ Williams has rendered this concept as ‘tino’ rangatiratanga. It is about Māori retaining full agency over their land and resources. It is not a statement about unqualified political sovereignty.” [Emphasis mine.]

So “rangatiratanga” relates to ownership. “Tino” gives force to this relationship, giving it the force of a property right.

NOTES:

[1] Paul Moon, The Path to the Treaty of Waitangi, David Ling Publishing, (2002) p. 147

[2] Hugh Kawharu back-translates te tino rangatiratanga as 'the unqualified exercise of their chieftainship,' which doesn't quite clarify things, although the next phrase tries, the Queen guaranteeing "to protect the Chiefs, the subtribes and all the people of New Zealand in the unqualified exercise of their chieftainship over their lands, villages and all their treasures ..."
    In Ned Fletcher's reconstructed English text, the corresponding phrase is "full exclusive and undisturbed possession of their Lands and Estates, Forests Fisheries and other properties ... "

[3] Ewen McQueen, One Sun in the Sky, Galatas Press (2020), p. 42-43. 

[4] Ayn Rand, ‘Collectivized Rights,’ in The Virtue of Selfishness, New York, Signet, June 1963

[5] William Martin, The Taranaki Question, The Melanesian Press(1860), p. 9.

[This post is based on the 2024 post at my NZ History blog: 'POSTSCRIPT 2: Rangatiratanga as Ownership'

RELATED:

• It's still the "chieftainship" that is the problem — NOT PC
• Kawanatanga katoa > tino rangatiratanga — A POLITICALLY INCORRECT HISTORY OF NEW ZEALAND
• When was sovereignty properly established here?  — A POLITICALLY INCORRECT HISTORY OF NEW ZEALAND
• Ned's Puzzling Treaty — NEWSROOM

"I cannot see how anyone could possibly object to a bill committing our country to racial equality and to the sovereignty of Parliament"

"I myself cannot see how anyone could possibly object to a bill committing our country to racial equality and to the sovereignty of the Crown and Parliament.
    "Nor can I see any constitutional objection to our sovereign parliament — the very parliament that has made reference over the years to the ‘principles of the Treaty’ — taking the logical and necessary next step of explaining what those principles are.
    "Nor can I see any objection to leaving the final decision on the matter to a referendum of ordinary citizens ~ whom we do, after all, trust every three years to decide on our rulers for the next Parliamentary term....
    "Nevertheless, some people obviously do object to this bill. Unless they occupy a different reality, however, they must be aware that the bill is, rightly or wrongly, strongly supported by very many other New Zealanders. That is an undoubted and indisputable fact. Those New Zealanders supporting the bill may be misguided, but the fact of their support is absolutely clear. ...
    "[Some objectors argue] that since governments since 1987 ‘have abdicated responsibility’ for interpreting [sections of law containing these principles], that job has been left to the courts — which has now led, allegedly, to ‘clear understandings’ of what [such a section] means. [For example,] that ‘[t]his Act shall so be interpreted and administered as to give effect to the principles of the Treaty…’ ...
    "[Some objectors complain] that governments have ‘abdicated responsibility’ for interpreting [these 'principles' sections], but also complain that Parliament, by this bill, is attempting to interpret the section! [They] cannot have it both ways. Surely Mr Seymour’s bill is an acceptance — not before time! — of Parliament’s responsibility to say what the principles of the Treaty are."

~ David Round from his article 'The Decline of Conservation'

"When Parliament can't do its job and pass clear, intelligible laws, then the courts & people are left with no choice but to make rules & laws on their own."

"Having said that, the Justice Minister is right. When Parliament can't do its job and pass clear, intelligible laws, then the courts & people are left with no choice but to make rules & laws on their own. So schools & universities have decided how to interpret the Treaty their way, including how pupils are taught in this regard. Government departments have ruled on how employees must act, as have Councils, and private firms. Real estate authorities have ruled on obligations of agents regards the Treaty. Meanwhile judges have gone & done their own thing. And maybe you & me, next time we swim near the foreshore, or stand on a sea bed, should make our own rules & judgements, in negotiation with others, as to what we can, or can't, do. Maybe it should be sorted out by private bargains.
    "After all, Parliament has failed to lead. Perhaps it doesn't deserve to be called "sovereign", when it can't pass proper laws anymore. Maybe its best to leave things up to the people & their organizations to make their own laws. Parliament is looking inept, embedded in a City where water pipes burst around it, red cones block streets, broken ferries are berthed nearby & few people want to go into work anymore. Maybe power should go back to the people."

~ Robert MacCulloch from his post 'Maybe NZ's Minister of Justice is Right. When Parliament Can't Make Laws, the people have no choice but to take the Law into their Own Hands.'

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'

"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 katoa] 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 katoa) 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 katoa) 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?'

"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

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?

Sovereignty: The Nature of Government

Over the course of the Enlightenment, ideas on sovereignty were changing – and were changing most on how sovereignty was justified. What gave anyone the right to boss someone else around?

To start at the beginning: “a government is an institution that holds the exclusive power to enforce certain rules of social conduct in a given geographical area.”[1] But who, or on what basis, gives a government the moral authority to do that.

Earlier times were happy to ignore the question, devolving these questions to ones about who had the power. Might made right. If Attila the Hun could invade and conquer, then Attila was your new sovereign. And if Attila needed a justification, there was always a witchdoctor to be cultivated who could supply one.[2]

This co-relationship between Attila and his assorted Witchdoctors eventually morphed into the idea of the Divine Right of Kings, a symbiotic relationship in which priest, Archbishop or Pope would sanctify the monarch in return for his organisation's elevation as the official state religion.

The relationship was a symbiotic one for them both.

The cosy power structure was dramatically overturned by Enlightenment thinkers like John Locke, who demolished any idea of Divine Right to rule, and argued instead that the sovereign’s moral authority derived only from the mandate of its citizens. Citizens, not subjects, was the new rule – the constitutional monarchy Locke helped establish being “tied up’ constitutionally to protect the individual rights established in the Bill of Rights, 1688.

This means that the government is not the ruler, but the servant or agent of the citizens; it means that the government as such has no rights except the rights delegated to it by the citizens for a specific purpose. [2]

The idea, when ill-defined, could go wrong – as it did in the French Revolution and later, when dictators proclaims themselves to represent or embody the will of the people. But the idea is a deceptively simple one that took years to develop and understand: that (as Thomas Jefferson was to phrase it [3]) government’s derive their just powers from the consent of the governed.

This -- that government could be a moral undertaking, for which consent was needed -- was a transformation in human affairs and was, arguably, the culmination of Enlightenment thinking.[4]

And it was the reason that, for a period from the early to mid-1800s (until the Indian Mutiny and ideas about utilitarian calculus began to change everything) Britain began asking for the informed consent of native populations in places in which it intended creating new sovereign governments.

But what exactly is the nature of government, and what form precisely does sovereignty take? READ ON...

"A government is an institution that holds the exclusive power to enforce certain rules of social conduct in a given geographical area....
    "The precondition of a civilised society is the barring of physical force from social relationships - thus establish­ing the principle that if men wish to deal with one an­other, they may do so only by means of reason: by discus­sion, persuasion and voluntary, un-coerced agreement.
    "The necessary consequence of man's right to life is his right to self-defence. In a civilised society, force may be used only in retaliation and only against those who initi­ate its use. All the reasons which make the initiation of physical force an evil, make the retaliatory use of physi­cal force a moral imperative....
    "The use of physical force - even its retaliatory use­ - cannot be left at the discretion of individual citizens. Peaceful coexistence is impossible if a man has to live under the constant threat of force to be unleashed against him by any of his neighbours at any moment. ...

"If physical force is to be barred from social relation­ships, men need an institution charged with the task of protecting their rights under an objective code of rules. This is the task of a government - of a proper govern­ment - its basic task, its only moral justification and the reason why men do need a government.
    "A government is the means of placing the retaliatory use of physical force under objective control - i.e., under objectively defined laws. ... This is the means of subordinating 'might' to 'right.' ...

The nature of the laws proper to a free society and the source of its government's authority are both to be de­rived from the nature and purpose of a proper govern­ment. The basic principle of both is indicated in The Declaration of Independence: 'to secure these [individ­ual] rights, governments are instituted among men, de­riving their just powers from the consent of the gov­erned . . .'' 

Since the protection of individual rights is the only proper purpose of a government, it is the only proper subject of legislation: all laws must be based on individ­ual rights and aimed at their protection. All laws must be objective (and objectively justifiable): men must know clearly, and in advance of taking an action, what the law forbids them to do (and why) , what constitutes a crime and what penalty they will incur if they commit it.
    "The source of the government's authority is 'the consent of the governed.' This means that the government is not the ruler, but the servant or agent of the citizens; it means that the government as such has no rights except the rights delegated to it by the citizens for a specific purpose.
    "There is only one basic principle to which an individ­ual must consent if he wishes to live in a free, civilised society: the principle of renouncing the use of physical force and delegating to the government his right of physi­cal self-defence, for the purpose of an orderly, objective, legally defined enforcement. Or, to put it another way, he must accept the separation of force and whim (any whim, including his own)....

"Such, in essence, is the proper purpose of a govern­ment: to make social existence possible to men, by pro­tecting the benefits and combating the evils which men can cause to one another."

~ Ayn Rand, from her essay 'The Nature of Government'

[1] Ayn Rand, ‘The Nature of Government.’
[2] The concept and mutually-dependent relationship of Attila and the Witchdoctor is explained in the title essay of Rand's 1961 book For the New Intellectual. In her view, the concept described two philosophical archetypes: "Attila, the man who rules by brute force…respects nothing but the physical reality immediately before him, respects nothing but man’s muscles, and regards a fist, a club, or a gun as the only answer to any problem—and the Witch Doctor, the man who dreads physical reality, dreads the necessity of practical action, and escapes into his emotions, into visions of some mystic realm where his wishes enjoy a supernatural power unlimited by the absolute of nature (pp. 8-9)."

[3] Ayn Rand, ‘The Nature of Government.’
[4] Jefferson, US 'Declaration of independence,' 1776
[5] See especially Peikoff, ‘The Nation of the Enlightenment,’ in Ominous Parallels, 1983

Sovereignty

Cretin on a rope

MĀORI RANGATIRA NEVER CEDED SOVEREIGNTY say various parties including the Waitangi Tribunal, law professors at the University of Auckland and VUW, and the protestors who dangled in front of Te Papa's Treaty display yesterday and began defacing it.

Because of the difference between the Treaty and Tiriti, said protestors yesterday, Māori at the various Tiriti signings never agreed to what the English translation claimed. Protestors' spokesperson Haimana Hirini said "the English Treaty of Waitangi text was not a translation because it incorrectly stated that Māori ceded sovereignty."

Mr Hirini thinks he knows better than the many Māori who spoke at the various signings around the country in 1840, who were --apparently -- confused. As were the many who, at Kohimarama twenty years later, reaffirmed their decision to sign. Confused, all of them.

Including the rangatira Maihai who, at the Mangungu hui in the Hokianga, said (in opposing the signing) that he would be agreeing to "Kwini Wikitoria" being "the great chief here." [1] (Which was true.)

And the rangatira Raumati, who supported the signing, who told Hobson, "I say come, come now it is for you to direct us and keep us in order."[2]

Or at the Kaitaia signing, where Chief Nopera Panakareao said the new Kawana would be "a helmsman for our canoe." [3]

Or at Waitangi itself, the first signing, when the day began with opposition from several rangatira, including Tareha, of the Ngatirehia tribe, who objected: "We only are the chiefs, rulers. We will not be ruled over. ... Thou high, and I, Tareha, the great chief of the Ngapuhi tribes, low!" [4] He clearly understood the position proposed. And he signed.

And Kawiti, rangatira of the Ngatihine tribe, who objected initially on the understanding that the Kawana would have the power to regulate, saying in horror, "What! ... even I, Kawiti, must no paddle this way, nor paddle that way, because the Governor said 'No' ..." [5] (He signed.)

Or Te Kemara, a rangatira of the Ngatikawa, who clearly understood that agreement would mean the Kawana having police power: "If thou stayest as Governor, then, perhaps, Te Kemara will be judged and condemned. Yes, indeed, and more than that--even hung by the neck. No, no, no. ... Were all to be on an equality, then, perhaps, Te Kemara would say 'Yes'; but for the Governor to be up and Te Kemara down--Governor high up, up, up, and Te Kemara down low, small, a worm, a crawler--No, no, no." [6]  He too understood that, like Roman governor Pontius Pilate in the New Testament (which had been recently translated into te reo and was enormously popular -- with the word governor transliterated therein as "kawana") the kawanatanga to be exercise, and thus ceded by signatories in Te Tiriti, could mean the power of life and death. (He too signed, but not before confessing that Bishop Pompallier had told him "not to write upon the paper, for if he did he would be made a slave." [7])

But not one of the speakers in any of the meetings recorded, even speaking in opposition, used the term "partnership." And no assurance was given anywhere that chiefs would be "up high" with governor in authority, somehow sharing power. The positions were clear to all. Like Pilate's governorship, Hobson's kawanatanga would mean only the Kawana would be "up."

These rangatira were very far from confused, and several had already seen something of the world beyond these shores. Rewa, chief of the Ngaitawake tribe for example, who also initially object to signing saying that "we," the rangatira, "are the Governor--we, the chiefs in our fathers' land. ... What! this land to become like Port Jackson and all other lands seen [or found] by the English. No, no." [8] (He too signed, after saying that Bishop Pompallier "had striven hard with him not to sign" as well. [9])

It was Tamati Waka Nene who turned the day at that first signing on the morning of February 6th: he "rushed into the tent attended by chiefs and other followers" to give "an address to his countrymen in a strain of fervid and impassioned eloquence..." [10] After damning many of the misbehaving "strangers," "foreigners" and "grog-sellers" who covered the land around Korareka -- "even as the grass and herbage" -- Nene turned to Hobson and concluded: "Do not thou go away from us; remain for us--a father, a judge, a peacemaker. ... Stay though, our friend, our father, our Governor. ... Do not listen to what 'the chiefs of ] Ngapuhi say. Stay thou, our friend, our father, our Governor. "[11]

A friend. A father. A judge. A peacemaker. A Governor with elevated authority above the rangatira, with the power to rule, to regulate, to exercise police power -- with the very power of life and death if necessary.

Many of the speakers, it's true -- too many -- picked up on the idea of the Kawana being a "father." Which was certainly unfortunate, and was not corrected. But a judge. And a peacemaker. That was valuable.

But perhaps it was intended, even so, that the Governor/Kawana only have sovereignty over settlers? Not so, Hobson corrected a rangatira at the Hokianga meeting, who had expressed that view, explaining calmly that "English laws could only be exercised on English soil."[12]

IT MIGHT STILL BE THOUGHT that, perhaps, rangatira remained confused, and were only signing because they thought the "strangers" and "foreigners" would remain in low numbers, and could be ignored. Yet, two decades later, at Kohimarama, while the Kingitanga in the Waikato were expressing violent opposition to the government, and after "tangata Tiriti" now outnumbered tangata whenua in these islands (this point was officially passed in 1858[13]), several of these same signatories were invited to reaffirm their support for Te Tiriti. Which they did, Tamati Waka Nene telling listeners why he had supported the signing so vehemently:

0 people listen: These are my words for ourselves to Speak about the Governor and about the Pakehas. I am not accepting the Pakeha for myself alone but for the whole of us. My desire when Governor Hobson arrived here was to take him as our Governor in order that we might have his protection. Who knows the mind of the Americans or that of the French? Therefore I say let us have the English to protect us. Therefore my friends, do I say, let this Governor be our Governor and this Queen our Queen. Let us accept this Governor, as a Governor for the whole of us. Let me tell you, ye assembled tribes, I have but one Governor. Let this Governor be a King to us. Listen again, ye people! When the Governor came here he brought with him the Word of God by which we live; and it is through the teaching of that Word that we are able to meet together this day under one roof. Therefore I say, I know no King but the Queen [i.e., he rejected the Māori king] and I never shall know any other. I am walking by the side of the Pakeha. Mr. McLean, this is all I have to say. People of the Runanga I have finished.[14]

The putative host for the hui, Paora Tuhaere of Ngati Whatua o Orakei agreed, saying:

Hearken, all ye people to my words! These were my words to the first Governor, to the second Governor and to the third Governor: I want the Laws of England. Hearken, ye people, two things commend themselves to my mind - the Governor and the Queen. For thereby do we, both Pakeha and Maori, reap good. This is my speech. The best riches for us are the Laws of England. [15]

"The Kohimarama Conference had begun with then Governor Gore Browne recalling to those assembled (including more than 100 rangatira from Nga Puhi in the north to Ngai Tahu in the south):

On assuming the Sovereignty of New Zealand Her Majesty extended to her Maori subjects her Royal protection, engaging to defend New Zealand and the Maori people from all aggressions by any foreign power, and imparting to them all the rights and privileges of British subjects; and she confirmed and guaranteed to the Chiefs and Tribes of New Zealand, and to the respective families and individuals thereof, the full, exclusive and undisturbed possession of their lands and estates, forests, fisheries, and other properties which they may collectively or individually possess, so long as it is their wish to retain the same in their possession.
    In return for these advantages the Chiefs who signed the Treaty of Waitangi ceded for themselves and their people to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty which they collectively or individually possessed or might be supposed to exercise or possess.

The astute reader will notice that these are almost exactly the words to which yesterday's protestors expressed such violent objection -- that is  to say, almost a recapitulation of the Treaty terms.

The Conference itself concluded on 10 August 1860 with rangatira gathered there giving unanimous agreement that:

the several Chiefs, members thereof, are pledged to each other to do nothing inconsistent with their declared recognition of the Queen's sovereignty and of the union of the two races ... [16]

It was Apirana Ngata six decades later who reminded Māori that 

The Government placed in the hands of the Queen of England, the sovereignty [mana] and the authority to make laws. ... it made the one law for the Maori and the Pakeha. If you think these things are wrong and bad then blame our ancestors who gave away their rights in the days when they were powerful.

Those ancestors were not stupid. They knew what they were about, and and had a pretty fair idea of what they were promised.

But perhaps they knew less about what they were agreeing to and signing than the geniuses who took power tools yesterday to Te Papa to make their argument.

NOTES:
1. Waitangi Tribunal 2014, p. 380
2. Waitangi Tribunal 2014, p. 383
3. Lindsay Buick, The Treaty of Waitangi, 1914, p. 150
4. W. Colenso, The Authentic and Genuine History of the Signing of the Treaty of Waitangi, 1890 facs., Government Printer, (reprint, 1971, by Caxton Press) p. 24
5. Colenso, p. 22
6. Colenso p. 17
7. Colenso, p. 34
8. Colenso, p. 19
9. Colenso, p. 34

10. Felton Mathew, The Founding of New Zealand: The Journals of Felton Mathew, ed. Rutherford, 1940, (AH & AW Reed for Auckland University College) p. 37
11. Colenso, p. 27
12. Waitangi Tribunal 2014, p. 380

13. "In 1858 [Māori] were estimated at 56,049, of whom 31,667 were males and 24,303 were females." History of New Zealand, Rusden, Vol II. ch. 12. Population of non-Maori was now 59,328. [Stats NZ]

14. Te Karere Maori, July 13th, 1860, p. 15

15. ibid

16. Claudia Orange, in her discussion of the Kohimarama Conference ("possibly the most important gathering of chiefs since Waitangi," p. 77), notes that "sovereignty" was translated in the proceedings as "mana." Ref: 'The Covenant of Kohimarama,' NZ Journal of History, July, 1980, pp74-75

17. Proceedings of the Kohimarama Conference, comprising Nos. 13 to 18 of The Maori Messenger. 

Why are some Māori protesting the new government? And what can we learn from it? [UPDATED]

 

SO LET'S FISK WHAT one of the Te Pati Māori (TPM) protest leaders said this morning, about why they've been out there trying to block traffic, because I think it's helpful to understand the protestors' objections to the new government's policies. And particularly revealing about a key difference on Te Tiriti.

Tureiti Moxon runs primary health provider Te Kōhao Health in Hamilton which is taxpayer-funded by Whānau Ora. She is against any rearrangement of Whānau Ora. She was also on the establishment board of the Māori Health Authority (Te Aka Whai Ora). Unsurprisingly, she is also against the new government's plan to bring Te Aka Whai Ora back into the mainstream health system. Before joining Te Kōhao Health, she worked for several years as a lawyer, working on Treaty claims. He has stood several times for Te Pāti Māori, and been their electoral chair for the Tainui electorate.

She is articulate, and seems representative both of those who've risen in protest against the policies of this government -- and those who've benefited from those of past governments. She told Corin Dann on Morning Report that the new government's policies are "anti-Māori" -- a "sweeping suite of policies" that are just, she says, "archaic."

THE "SUITE," SUMMARISED BY by interviewer Corin Dann, is what she claims to be an attack on Te Tiriti, on the Maori language, on the Maori health authority, and on a "smokefree" New Zealand. [her points are in italics]:

"[The new government] has been given sovereignty ... but what it doesn't have is the support of the people to whom a lot of those policies are aimed at."

Since her claim in about numbers: The number voting for TPM was in the thousands. The number out there this morning was in the hundreds. The number voting for the new governing parties is in the hundreds of thousands. But since Luxon has said he's going to govern for everyone, she has that point.

"In many ways we just feeling as if we're being attacked, every which way" she said, attacking the new government, "simply because a lot of their policies are ... anti-Māori policies."

Are they? Let's hear her argument.

"The worst of it is [the suite of policies is] taking us back a hundred years. It is taking us back to colonisation."

Really? Big claim. Still no argument.

"What we're saying is: No, we've ... worked too hard on our race relations [not just in] our organisations but in this country ... to bring about a better partnership in terms of Te Tiriti with the government and all those partners that we now have good relationships with."

The principle of partnership here is her key point. Which doesn't go back to colonisation, but only to Geoffrey Palmer and Richard Prebble -- and to Lord Cooke of Thorndon, whose Court of Appeal found, when asked by Palmer and Prebble to define (without offering any guidance from Parliament, as you'd expect from decenty-written law) what the principles of the Treaty might be, that it is "akin to a partnership." And which is, in fairness, what the new government says it will question via new legislation taken to a first reading in Parliament.

"They've decided to take back the power and control unto themselves" she says of that fairly tepid promise. "For a very long time ... iwi have been working very closely to bring about a partnership that actually has meaning, and is not just on paper.

But it's not even on paper. Cooke's Court only found something "akin" to a partnership, inviting further definition from lawmakers. 

In the meantime, "akin" is not "is."

Nonetheless, there's been significant momentum in the 36 years since to ignore that word "akin' and to cement in this idea of a full partnership -- as if that principle had been there since 1840, or had been enunciated in 1987 by the Court of Appeal.

And we might also ask: a partnership between whom exactly? That is to say, between the Crown (which Moxon acknowledges as one of the parties) and which particular individuals? Because, notice that she seems to be talking about a collective effort here, as if Māori as a collective should be co-governors, with some special class of rangatira acting as power-brokers on their behalf.  This is important in understanding her objections. 

"... [that] includes Maori in decision making ..."

Individual Maori make decisions every day about their own work and wellbeing. They're perfectly capable people. Why do they need the patronisation of a government? There was nothing in Te Tiriti requiring that. Nothing requiring they be in government -- even though many are, on their own merits.

"... and in co-governance ..."

Why? Te Tiriti never called for co-governance (see below). And the previous government's covert push to implement it was only partially successful. (Which suggests her main objection is to the break in momentum that she thinks this government represents.)

"... and with a swipe of the pen they decide, 'Nah, we're not having that any more'...."

And yet that's what governments (in whom she seems to put her faith) do all the time. And she does agree that this one has sovereignty. So we're back to her simply saying "I don't support it."

"... without even thinking about the consequences of what that actually means in terms of Te Tiriti O Waitangi, which has the guarantee of tino rangatiratanga; and there's no guarantee of tino rangatiratanga in the policies [inaudible]."

She's implying here that tino rangatiratanga must equal respect for Te Tiriti and the Maori language, for the existence of a Maori health authority and "smokefree" legislation, and support for widespread co-governance. Big claims! Respect for the first two can be agreed with -- even as we can debate what form that takes. The next two have no basis therefrom -- and in any case the majority of the "smokefree" legislation remains in place, unfortunately. 

Her last point, really, is the point in question here, and the one from which everything else would flow, if the last half-century's momentum (which she celebrates) were to continue.

"The Waitangi Tribunal has been around for about fifty years, and they have been the ones who have been the experts in Te Tiriti ..."

Not exactly. The Tribunal is only asked to hear and to advise the government of the day on alleged breaches of the Treaty, its hearings being adversarial (rather than any kind of partnership, or investigation), its historians being funded largely to seek out and highlight these alleged breaches, their reports on these breaches becoming (by their sheer volume) becoming the locus of modern-day historical research. And so if  they as historians and it as an institution have become experts in anything, it is primarily as experts in the Treaty's alleged misapplications, rather than in its ideal.  

There is a difference,

Note too that the Tribunal's findings are not and never have been binding on the government of the day. Depite all its apparent lustre, it is an advisory body only.

"... and in the principles ..."

No, the Tribunal is not even empowered to rule on the so-called principles -- which have developed in other courts as they have struggled to make sense of what this phrase means that inserted so unthinkingly into most law since. The Tribunal is empowered only to hear and advise on breaches of promise of Te Tiriti, not on any of that other legislation.

"...and in the development of Te Tirity jurisprudence. And what we're saying is that after fifty years of all that institutional knowledge is that everybody knows more about it than them."

No, I don't think that's what the new government is saying at all. One of the coalition partners (an actual partner) is saying it was a mistake thirty-six years ago to insert into legislation the phrase "the principles of the Treaty of Waitangi" without first defining it in legislation  -- a mistake, because it invited the courts to do the lawmakers' job for them, which one of the coalition partners is now trying to do.

"A lot of New Zealanders unfortunately do not know a lot about it..."

And this is very true. 

"...and they'd like it to disappear, as this government is trying to do now. To make it invisible. Well, it's not invisible, it's the founding document of this country."

It looks as if Ms Moxon knows very little about what this government is trying to do. Or at least, what one coalition partner is trying to do. Which, in this context, is to call for the undefined principles (dreamed up in 1987 and on) to be well defined. As all objective law should be. And not at all to touch what she calls the founding document.

"Whānau Ora  .... is an example of what New Zealand can look like: Maori looking after ourselves ..."

As the head of a Whānau Ora practice herself, Moxon is (like the well-heeled TPM president John Tamihere) a beneficiary of the taxpayer's funding. To be cruel, one might say it's more an example of the taxpayer looking after a Māori elite, like Tamihere, who funnel the crumbs to those they claim to represent.

"...Maori having control over our own health ..."

She's conflating two people here. Individual Maori do have control over their own health. And always have, And did just as much before the creation of the separatist health organisation that has missed all its own agreed targets. (Waikato Tainui leader Parekawhi Maclean saying (very kindly): "its inability to put in place the necessary level of capability and capacity to progress its key functions had hampered performance.") 

What she means is that some Maori have control over other the health of other Maori. Why does shared ancestry make that necessary? How does that help an individual's health outcomes?

I am hardly an advocate myself for a government health system of any kind. But a separatist system seems the worst of both worlds, particularly for individual Maori concerned with their own health, and forced into this system, for whom results have been less than stellar. Suggesting that prioritising kaupapa over medicine is perhaps not the best idea.

"...Māori having a say in what we would like to see, and what is needed, in our own communities ..."

Individual Māori, qua individuals, have a say in their community just as much as the next individual. It's becoming apparent that what she's advocating for is for some Maori (those like her and Tamihere et al) to speak on behalf of and 

"...and when they take those things away from us [that] we have worked so hard to stand up and to put into legislation and to get that real kind of partnership that we believe is necessary for us to thrive in this country as equals...."

This is the crux: Who's this "we" here?

She's not calling for all New Zealanders to be equal as individuals -- i.e., each of us enjoying equal individual rights and privileges under law per the third Treaty clause.  What she's after instead -- what she and others in her elite strata have worked so hard for, to achieve that momentum -- is for Māori as a collective to be made equal in political power to the government. With a Māori elite distributing the spoils.

That, to her and to many others, is what "partnership" truly means. Political power. 

It's a patronising collectivist vision that looks to government for power and largesse, and to individuals of every ancestry to be milch cows. It's not one envisioned by either treaty.

One-hundred and eighty-three years ago, Te Tiriti emancipated Māori slaves, and put an end to the idea that the mass of men here had been born with saddles on their back, with a few rangatira booted and spurred to ride them. That was the effect of Te Tiriti: to free taurekareka.

"... and they made it [the Māori Health System] out to be race based ..."

Isn't it?

"...in actual fact it's something that is needed in our country."

An already-failing separatist system is needed? I'm not sure she's even made an argument for that, beyond the argument that the ancestry of here and those like her should bestow upon them political power.

There was a name for that in mediaeval Europe: it was called feudalism.

"The government has to hear [this] because as long as it keeps pushing that  kind of rhetoric [?] and that kind of belief system, that's what's divisive, that's what's pulling this country apart, because we have a special place in this country, and that's [inaudible], and it's important that they get it right now." 

It is important they get it right. And I think they think they might.

Ned Fletcher argues that English and Māori texts of the Treaty
agree, and that both promise Māori self-governance.

HERE'S THE MOST IMPORTANT point she made -- and there are many. But this one stands out: that she  is talking at all times of Māori as a collective rather than of individual Māori. This helps reconcile the two apparently competing views of two persuasive recent views on the Treaty, aired in Ned Fletcher's recent book The English Text of the Treaty of Waitangi (which Moxon cites approvingly), and in Ewen McQueen's 2020 book One Sun in the Sky.

 Both books argue persuasively that the English and Māori texts do reconcile (which overturns the scholarship of several decades, since Ruth Ross first raised the issue fifty years ago), and both argue that Māori did cede sovereignty (without which any "partnership" would be moot in any case). 

But Fletcher argues that Māori (as a collective, through their rangatira) were promised self-governance, leading to partnership; whereas McQueen (writing before Fletcher's book) argues this paradigm makes no sense:

Taken to its logical conclusion, this paradigm sees iwi not so much as loyal subjects of Her Majesty's Government but rather co-regents expressing their own sovereignty. Advocates of this position assert the Treaty merely granted the Crown a partial concession to exercise authority over incoming settlers, while at the same time preserving for iwi ultimate authority over all things Maori. In effect it is argued that the Treaty established a dual sovereignty in New Zealand.

However, such thinking ignores both the Treaty itself and the historical context in which it was signed.

Start with the Treaty text. Much is made of the differences between the English and Maori versions. But one thing is certain - the word partnership appears in neither. The Treaty articles do not even imply a partnership in a constitutional sense. Rather they establish the British Crown as the ultimate legal authority in return for protection of Maori interests. The latter include land and chieftainship (rangatiratanga). However, that chieftainship is guaranteed within the context of the overarching sovereignty of the Crown.

As the Waitangi Tribunal noted in its 1987 Muriwhenua report: "From the Treaty as a whole it is obvious that it does not purport to describe a continuing relationship between sovereign states. Its purpose and effect was the reverse - to provide for the relinquishment by Maori of their sovereign status and to guarantee their protection upon becoming subjects of the Crown."

The tribunal's reference to the Treaty 'as a whole' is key. The Article Two guarantee of rangatiratanga must be understood in the context of the whole document. Iwi signed up to the whole Treaty, not just the second article. Article One establishes Crown sovereignty. In it chiefs agreed to 'give absolutely to the Queen of England forever the complete government over their land.' That's Professor Sir Hugh Kawharu's translation of the Maori version. It doesn't leave much room for manoeuvre.

[Hugh] Kawharu's translation of Article Three is equally straightforward. Maori took on 'the same rights and duties of citizenship as the people of England.' The Court of Appeal reinforced this in a key 1987 judgment, stating 'For their part the Maori people have undertaken a duty of loyalty to the Queen, [and] full acceptance of her Government.' Ironically this judgment also introduced the Treaty partnership concept that is now so popular. Full acceptance of Crown sovereignty is less fashionable.

The key difference is that Fletcher, I think, sees the Clause Two promise or "rangatiratanga" as a collective one, to be exercised by chiefly rangatira; whereas McQueen more properly sees the promise as applying individually, as a property right that could be enjoyed individually.

Just as Magna Carta was an agreement between nobles and king that came to recognise and protect individual rights of all, even commoners, so too does the recognition and protection of rangatiranga when seen individually come to do the same thing -- protecting all individual rights equally:

The preamble to the 1840 Te Tiriti makes clear that its purpose was to create a settled form of government and to secure peace and good order.

Article One confers on the Crown sovereignty or kāwanatanga (the right to make laws and to govern).

Article Two protects property rights and is based on Magna Carta principles. Magna Carta aimed to protect the English nobilities’ property rights by limiting the Crown’s powers. It catalysed a dynamic relationship between property rights and political power that led to the emergence of the modern British democracy. It created a basis for human rights protection by linking it to property rights. Magna Carta established the principle that no one is above the law – it helped establish the rule of law.

In Te Tiriti Article Two Queen Victoria promises ‘te tino rangatiratanga’ of their properties not just for rangatira and hapū, but for ‘nga tangata katoa o Nu Tirani’, that is ‘all the inhabitants of New Zealand’.

Article Three made Māori subjects of the Crown. It gave Māori equal rights with other Crown subjects, not additional or superior rights.

To use Moxon's words, but with this understanding: to thrive in this country as equals we all (as individuals) must take off our collectivist lenses...

Ewen McQueen argues that English and Māori texts of the Treaty 
agree, and that neither promise Māori self-governance.

UPDATE:

Writing back in mid-November, Moana Maniapoto confirms that Māori activists are interpreting rights to be collective, rather than individual -- the effect of equal rights being to make a Māori elite equal in political power to the government -- a clear grab for political power based on an incorrect understanding of rights.

She begins her opinion piece by quite explicitly opposing David Seymour "pushing individual rights over collective rights." So when Seymour clarify the Treaty's third clause to mean "All New Zealanders are equal under the law, with the same rights and duties," she opposes this because, she says:

Act interpret this to focus on individual rights. Not the obligation to ensure that all who share this land under the Treaty have equal enjoyment of their respective collective rights and responsibilities....

The "Tiriti-centric constitutional model" she demands would require power-sharing between collectives -- "Māori, Pākehā and tangata Tiriti, joining the dots to solving practical problems around housing, health, schools, water, environmental degradation . . .  roads."

Ayn Rand points out the flaw, and the power grab:

Since only an individual man can possess rights, the expression “individual rights” is a redundancy (which one has to use for purposes of clarification in today’s intellectual chaos). But the expression “collective rights” is a contradiction in terms.

Any group or “collective,” large or small, is only a number of individuals. A group can have no rights other than the rights of its individual members. In a free society, the “rights” of any group are derived from the rights of its members through their voluntary, individual choice and contractual agreement, and are merely the application of these individual rights to a specific undertaking. Every legitimate group undertaking is based on the participants’ right of free association and free trade. (By “legitimate,” I mean: noncriminal and freely formed, that is, a group which no one was forced to join.)

For instance, the right of an industrial concern to engage in business is derived from the right of its owners to invest their money in a productive venture—from their right to hire employees—from the right of the employees to sell their services—from the right of all those involved to produce and to sell their products—from the right of the customers to buy (or not to buy) those products. Every link of this complex chain of contractual relationships rests on individual rights, individual choices, individual agreements. Every agreement is delimited, specified and subject to certain conditions, that is, dependent upon a mutual trade to mutual benefit.

This is true of all legitimate groups or associations in a free society: partnerships, business concerns, professional associations, labour unions (voluntary ones), political parties, etc. It applies also to all agency agreements: the right of one man to act for or represent another or others is derived from the rights of those he represents and is delegated to him by their voluntary choice, for a specific, delimited purpose—as in the case of a lawyer, a business representative, a labor union delegate, etc.

A group, as such, has no rights. A man can neither acquire new rights by joining a group nor lose the rights which he does possess. The principle of individual rights is the only moral base of all groups or associations.

Any group that does not recognise this principle is not an association, but a gang or a mob.

Any doctrine of group activities that does not recognise individual rights is a doctrine of mob rule or legalised lynching.

The notion of “collective rights” (the notion that rights belong to groups, not to individuals) means that “rights” belong to some men, but not to others—that some men have the “right” to dispose of others in any manner they please—and that the criterion of such privileged position consists of numerical superiority.

Nothing can ever justify or validate such a doctrine—and no one ever has. Like the altruist morality from which it is derived, this doctrine rests on mysticism: either on the old-fashioned mysticism of faith in supernatural edicts, like “The Divine Right of Kings”—or on the social mystique of modern collectivists who see society as a super-organism, as some supernatural entity apart from and superior to the sum of its individual members.

The amorality of that collectivist mystique is particularly obvious today ...