This page created 18 September 1998
Treaty of Waitangi & Maori claims
Treaty
text
Bruce Mason
A comic-strip view of history can lead to generalisations and prejudices as damaging as those which may be better put behind us.
Over the last decade there has been a one-sided, simplified view of the Treaty of Waitangi, and of the history of Maori - Pakeha interaction. I now know that the vague view of New Zealand's history that I obtained during my formative years in the education system of the 1950s and 60s was seriously deficient and strongly biased towards the European perspective. I, and most New Zealanders, have been poorly served in this regard.
However, in our eagerness to make amends, many are now over-compensating to the extent of adopting replacement comic-strip views of history...this requires the wearing of blinkers that shut out fact and circumstance that do not fit with the new vision. It also allows the redefinition of the meaning of words. Everything, in the words of Maori legal adviser Moana Jackson, should be "contextualised". Any consequent action, lawful or unlawful, can then be justified.
Most dictionaries say that sovereignty
entails the exercise of supreme, unmitigated power by nation states.
Like many New Zealanders I have been bewildered by claims by Moana
Jackson, Ken Mair and others demanding recognition of Maori 'sovereignty'
within New Zealand. As an absolute, unqualified power residing
in Parliament it appears that what they demand is a contradiction
in terms. How can sovereignty reside, in a shared or any other
form, anywhere else but in Parliament?
The Government has been slow and equivocal in responding to Maori
sovereignty demands, greatly worsening public unease. Justice
Minister Doug Graham dismissed claims of Maori sovereignty as
"unlikely to succeed", but without dismissing the possibility.
He further confused the issue by saying that "self-determination
for Maori could only be beneficial". Health Minister Jenny
Shipley has rejected Maori sovereignty as "having no basis
in law", but then advised New Zealanders "to urgently
form a view on the issue". If her first statement is correct,
what need for the second?
Prime Minister Jim Bolger, has latterly dismissed any possibility
of Government ceding sovereignty to anyone else (except perhaps
to overseas investors), but has left open the prospect of some
Government activities being delegated to Maori groups.
Some, like Moana Jackson, claim that Maori never ceded sovereignty
to the Crown on the signing of the Treaty of Waitangi. This is
on the basis that "no matter how powerful or respected a
Maori leader, he or she could not give away the sovereign authority
of their people". Such a view defies centuries of international
history. There are no shortages of treaties between nations where
leaders have done just that. True, in most cases the vanquished
have signed away their sovereignty under duress from victors.
Maori history is full of lost tribal sovereignty as a result of
conquest by invading tribes. Is Mr Jackson saying that it is acceptable
to lose sovereignty as the result of armed conquest, rather than
by voluntary agreement as occurred under the Treaty of Waitangi?
Other 'Maori sovereignty' advocates have claimed that the word
'kawanatanga' (meaning "complete government"--equivalent
of 'sovereignty', in Article 1 of the Treaty) was a neologism
and could not have been understood by the chiefs. However the
chiefs understood the power of life and death they held over their
subjects and it was this, and other rights, that they were ceding
to the Crown. Many chiefs also had extensive overseas experience
to assess the British as the least bad empire, and the British
legal system as their best hope for preserving their remaining
chiefly rights ('rangatiratanga' of Article 2).
Others state that the 1835 Declaration of Independence by some
northern North Island chiefs established New Zealand, or at least
part of it, as a sovereign nation. This sovereignty is implied
to have survived intact despite being superseded by the 1840 Treaty
of Waitangi.
Alternatively there may be a
valid basis for Maori sovereignty under the Treaty of Waitangi.
Perhaps there are express provisions that do allow a sharing of
power, self-determination, or separatism? Does Ken Mair's interpretation
of 'tino rangatiratanga' as synonymous with 'sovereignty' provide
an answer?
If new constitutional arrangements are being advocated, surely
as a precursor it is necessary for the wider community to understand
better the deal struck between Maori Chiefs and the Crown in 1840.
Why rely solely on assertions, from those with political axes
to grind or public lands to occupy, as to the content and meaning
of the Treaty?
The central assumption on which the claim is made that the Treaty
promised Maori sovereignty is the Article 2 provision guaranteeing
to Chiefs the unqualified 'tino rangatiratanga' over (all) their
lands, forests and fisheries. There are also notions of 'equal
governance', 'bi-culturalism', and 'equal partnership' which are
claimed to flow from the Treaty. Such views are gravely flawed.
They arise from very selective reading of the Treaty and redefinition
of the meaning of the term 'tino rangatiratanga'.
Most definitions I have seen have 'rangatira' meaning chief; 'rangatiratanga'
as chieftainship; 'tino rangatiratanga' being a superlative form
of chieftainship or evidence of greatness. It is nevertheless
a different and lower order of authority from the supreme sovereignty
ceded to the Crown under Article 1 and enacted by proclamation.
The Crown has the power to make and enforce law--to keep the peace,
by force if necessary. The Crown's title to its territory is indivisible--it
shares its sovereignty with no-one.
The Waitangi Tribunal is of the view that tino rangatiratanga
does not refer to a separate sovereignty but to tribal self management
on lines similar to what we understand by local government. "Contemporary
statements show well enough that Maori accepted the Crown's higher
authority and saw themselves as subjects, be it with substantial
rights reserved to them under the Treaty".
The matters and resources that should be subject to tino rangatiratanga
are those reserved to hapu under the Treaty, not all lands, forests
and fisheries as is almost always implied. The latter view ignores
the land sales provisions of Article 2. If land and associated
resources have been lawfully sold to the Crown then tino rangatiratanga
is extinguished over these. I have examined the sales deeds for
most of the South Island and have found that "rivers, lakes,
the woods, and the bush, and all things whatsoever within those
places, and all things lying thereupon" were either explicitly
or implicitly sold by chiefs to the Crown.
The meaning of Article 2 has been woefully distorted by Maori
separatists and by many of their liberal allies. To claim now
that no valid land sales occurred is mere raving. The main point
of Article 2 was to prevent (at Maori initiative) racketeering
'land sales' between a variety of dubious foreigners and 'chiefs'
who were not duly authorised to sell. The pre-emptive right of
the Crown to purchase any lands which the proprietors "...may
be disposed to alienate..." is the main effect of Article
2. It certainly does not hint at any possible separate legal system
or jurisdiction for Maori any more than for other landowners.
Aside from the content of the Treaty, the concept of bi-culturalism
ignores the reality that the traditional concept of 'Pakeha' no
longer fits the very diverse character of non-Maori society. New
Zealand is now a multi-cultural society. It is not confined to
two cultures. Recognition of multi-culturalism does not deny the
right of different ethnic groups, including Maori, to retain their
cultural identities. A bi-cultural model denies that diversity.
Multi-culturalism, based on mutual respect, allows the celebration
and enjoyment of ethnic diversity, while retaining the entitlements
and powers of equal status and protection of individuals before
the law, and the law makers. That is consistent with Article 3
of the Treaty. A Crown-Maori shared-power or sovereignty model
is not.
A complete reading of the Treaty
is essential for a grasp of its meaning and to understand the
weighting that should be given to its various (superficially conflicting)
provisions.
The Treaty, in Maori and English versions, consists of a preamble,
three articles, and an epilogue. To obtain full understanding
of the relationship struck between Maori and the Crown, each Article
must be read in its entirety, related to other articles, then
to the purposes of the Treaty as set out in the preamble.
On the ceding to the Crown the right of complete sovereignty or
government (Article 1) and the granting of exclusive pre-emptive
(purchase) rights of land to the Crown (Article 2), Maori would
retain either exclusive and undisturbed possession of their lands
and estates forests fisheries and other properties so long as
it is their wish to retain the same in their possession or the
unqualified exercise of chieftainship over all their lands, villages
and all other treasures (Article 2). In consideration of the foregoing
Maori were granted the same rights, privileges, and duties of
citizenship as the people of England (Article 3). The 'either'
'ors' arise from the different versions of the Treaty. In my view
the versions don't materially differ if all their content is taken
into account.
The proposition of 'Maori sovereignty/rangatiratanga' hinges on
selective quotation from Article 2 by cutting out reference to
the inseparable provision for land sales, and by ignoring the
overarching right of governance/sovereignty granted to the Crown
under Article 1.
The English preamble states that the Treaty was to ensure the
recognition of Her Majesty's Sovereign authority over the whole
of New Zealand. This is confirmed by the translated Maori version
whereby the Chiefs agreed to a (single) Queen's Government being
established, not dual governments. There is ample evidence that
Maoris had urged this, and that the British government was very
reluctant to take on any more far-flung territories.
There is an urgent need for greater public awareness of the full
content of the Treaty to avoid continuation of the blinkered view
that has had currency in recent times. Even the balanced and well
promoted view of the Treaty presented by the New Zealand 1990
Commission has been swept aside in a wave of political correctness
and radicalism.
At the heart of the issue is
the need for tolerance if we are to live together in peace and
harmony. But we also need to achieve much more than this if New
Zealand is to remain a comfortable place that all New Zealanders
can call "home". We must be able to understand and enjoy
our differences without feeling threatened.
Elevating the rights of one race (which happens to be a minority)
to that of an 'equal' with the majority of society under a dual
sovereignty or similar model, will create inequality between New
Zealanders as individual citizens. A Maori individual would end
up with greater civil and political influence, and worth, than
individuals of non-Maori descent. Institutionalising differences
of personal entitlement and power on the basis of ethnicity is,
by its very nature, racism. How can this possibly honour Article
3 of the Treaty which grants all New Zealanders the same rights
and duties of citizenship, or our strong, if somewhat bruised,
self-image of egalitarianism? There will be disproportionately
greater representation and power for Maori individuals within
the institutions of government. This will hinge on ethnicity not
on equal citizen representation. Proposals for shared power on
an ethnic basis do not sit well with attaining equality for citizens
or with the recent electoral changes to proportional representation.
There have been numerous breaches
of the Treaty by the Crown, especially by settler governments,
but the current simplified view of our history does not acknowledge
that there were major differences in treatment meted out to Maori
from one tribe to the next. The assumption is that seizure and
confiscation of land by the Crown occurred everywhere. Whereas
on occasions governments have honoured the terms of the Treaty.
Waitangi Tribunal reports reveal Maori 'grievances' can be either
real or imagined. Many commentators, and advocates for Maori,
have fallen into a 'global guilt trap' whereby they assume or
portray all 'claims' and 'grievances' concerning Maori as valid.
A corollary is that to be Maori is, by definition, to be aggrieved.
This is not a very rewarding position for anyone to be in.
It is a matter of historical fact that the Treaty is the founding document of New Zealand. Honouring and implementing its provisions requires a scrupulous regard for its content. Flights of fancy into all manner of disreputable claims of Maori sovereignty, self-determination, separatism and suchlike not only dishonour the Treaty but remove the possibility of it serving as a workable foundation for New Zealand society.
Bruce Mason is researcher for Public Access New
Zealand. He was born and has lived in Otago all his life, with
origins traced back to Scotland. He is an indigenous* New Zealander, and knows no other home.
He strongly believes in egalitarian principles, the equality of
rights for all people no matter their race, ethnicity, or circumstance,
and the necessity for mutual respect. He is known for ruffling
the feathers of those bent on advancing self-interest at the expense
of others. He is best known as a defender of the Queen's Chain
and advocate for public lands and access in the South Island high
country. In 1993 he published a paper on the Principle
Treaty of Waitangi and the principle of 'partnership'.
He concluded that under the Treaty there is not, as popularly
asserted, an 'equal partnership' between the Crown and Maori.
* "born or produced naturally in
a region" (Concise Oxford Dictionary)
An abbreviated version of this article was first published in
'The Independent' on 8 September 1995.
The views expressed are those of the author and are not necessarily
shared by Public Access New Zealand.