Monday, June 7, 2010

David Round: Claims of Maori Sovereignty Absurd

Last week I offered some arguments as to why any claim to ‘Maori sovereignty’ was absurd. Those arguments had a legal flavour to them; they centred on the actual words of the Treaty and their meaning, and the understandings and intentions of the signatories at the time. I did add, of course, that the Treaty was not the vehicle or instrument by which British sovereignty was acquired over New Zealand. The generally-accepted day when sovereignty was acquired was, until recently anyway ~ it is not impossible that fashionable cutting-edge revisionists have decided to question it ~ the generally-accepted day was the 21st of May 1840, when British sovereignty was formally proclaimed, and New Zealand became one country instead of a divided land of warring tribes. The Treaty was no more than a preliminary political proceeding, and in recent years the High Court has dismissed any claim that the Crown might not have sovereignty over part of New Zealand because a particular tribe did not sign the Treaty.

In terms of ceding sovereignty, then, the Treaty is still a legal nullity. It does not matter what precisely it said. As I say, the words of the Treaty, considered last week, in fact meant and must be taken to mean that sovereignty was intended to be ceded. But even if that were not the case, we would have to answer ~ so what?

Leaving aside, also, the issue of what ‘Maori sovereignty’ might actually mean, the entire claim that it might not exist is evidence of a deep misunderstanding of not only the nature of sovereignty but also the nature of reality. Sovereignty is the supreme power in a state; it is, as the O.E.D. tells us, ‘the supreme controlling power in a community’. This is a legal definition; the law will recognise someone or something (a parliament, say) as sovereign; but as well as being a matter of law sovereignty is also a matter of fact. The sovereign is the person who in fact exercises sovereignty. Legal conundrums sometimes arise when one person has de facto sovereignty, but when someone else might have some claim to be recognised as sovereign de jure. One person is in command on the ground; another person ~ an exiled king, perhaps, or a government that has fled from its own country after an invasion ~ still claims to be the lawful sovereign. We will not go into these riddles here. Suffice it to say that for one hundred and seventy years the Queen has in fact exercised sovereignty here. Any sovereignty, even if originally unlawful ~ a point which in New Zealand’s case I do not concede for one second ~ any actual physical sovereignty eventually becomes lawfully established. The present constitutional arrangements of the United States of America were established after a revolution against lawful authority. If that revolution had been unsuccessful, George Washington and his companions would have been executed as traitors, and rightly so. But they succeeded, and I do not hear anyone claiming that the United States government is illegal.

Again, in 1688 the undoubted lawful king of England, Scotland and Ireland was overthrown in a revolution; a revolution which, as I say, is by very definition ~ by the pre-revolutionary law ~ completely unlawful. Those who supplanted him on the throne owed their title to the revolution, not to ancient law. Yet are we seriously to say, then, that our present monarch is not Elizabeth II of the house of Windsor, but actually Francis of Wittelsbach, the Prince of Bavaria (being the rightful king by the pre-1688 law)? Come on. You would receive short shrift if you were to argue that in a court of law. Even if a regime were originally unlawfully established, it eventually acquires its own legality. The clear expressed meaning of the Treaty was indeed to cede sovereignty; but even if it were not, a regime universally accepted and one hundred and seventy years old is sovereign. Anyone who claims that Maori sovereignty has somehow survived, hiding in the hills somewhere or in the hearts of the people or some other convenient vague place ~ a tree trunk, perhaps ~ is on another planet.

The claim that sovereignty was never ceded is just the first step, of course. The next, obviously, is to say that this Maori sovereignty should be recognised or restored. If there were no treaty the same claim for sovereignty would be made, using some other pretext. The United Nations Declaration of the Rights of Indigenous Peoples is an ideal one, and we can be sure that we have not heard the last of that. But since there is the Treaty, that is the first thing to appeal to.

I shall leave until next week what exactly advocates of Maori sovereignty might want, and what some of the proposals and ‘visions’ they put forward for our future would mean for our increasingly divided country. I shall finish today by just returning to the narrower legal arguments and mentioning one or two more matters.

The Treaty ceded ‘kawanatanga’ to the Crown, while the Queen recognised the ‘tino rangatiratanga’ of the chiefs and granted all Maori the rights of British subjects. ‘Rangatira’ is an old Maori word, although just as accurately translated as ‘person of rank’, ‘noble’ or ‘gentleman’ as by ‘chief’. ‘Rangatiratanga,’ though, was another word coined by the missionaries, and certainly no clearer in its meaning than ‘kawanatanga’. Some Maori sovereignty advocates say that the true word for sovereignty would not be ‘kawanatanga’ but ‘mana’, and that this was not granted to the Crown. By the same token, of course, we would reply that ‘mana’ was not declared by the Treaty to stay with the chiefs either.

The Treaty’s third article makes Maori British subjects, and that is quite inconsistent with any continued Maori sovereignty. How could the Queen give any guarantees of protection to Maori unless she first had authority over them? We have to read the Treaty as a whole. One gets the impression sometimes that the 1840 signatories agreed only to Article II. That is hardly so. The Treaty has a preamble and three articles. Anything it might or might not say about chieftainship in Article II has to be read in the light of Article I which, even in the Maori version, has the chiefs give the Queen ‘complete government’, and Article III, whereby the Queen gives Maori ‘the rights and duties of citizenship’.

By 1840 quite a few Maoris had travelled overseas, to Australia or even to England. Many more had heard, in general terms, about the position of the Crown in those countries. They knew what British authority involved; they were not fools. Do their descendants claim that they were?

Some years ago I was present when the then Race Relations Conciliator gave a lecture on the Treaty and race relations to the Canterbury Law School’s first year class. She informed the class that Maori considered that the powers of a ‘kawana’ were very limited, because the ‘kawana’ whom Maori were at the time most familiar with was Pontius Pilate, kawana of Judaea, and (she claimed) Pilate’s powers were very limited, because he could not even impose the death penalty. Therefore, she said, Maori did not intend to cede sovereignty when they conceded kawanatanga.

How do these people get these well-paid jobs? If she had the most basic elements of an education, she would have known that it was the Roman governor, and he alone, who had the power to impose the death sentence. That was precisely why the Sanhedrin sent Jesus to Pilate, because the Jews themselves could not impose the death penalty. Pilate was a powerful, not an impotent man. Moreover, Pilate was obviously and very clearly the local representative and servant of a great distant empire and emperor. Maoris familiar with the Bible, as most were by 1840, would have a very good idea of what of a governor was really like, and of the vast authority ultimately residing in a distant monarch.

Nga Puhi in their present claim for sovereignty are making much of the 1835 Declaration of Independence of the Confederation of United Tribes. That arrangement was, as I said last week, never better than a comic opera, without any real existence outside Mr Busby’s hopes and good intentions. But even if it were a reality, note that that 1835 declaration, when speaking of sovereign power and authority, does not use the word rangatiratanga to translate the sovereign power. Rather, it speaks of ‘kingitanga‘(another neologism, i.e. a newly-coined word) and ‘mana’. It is impossible to believe that in five years the word rangatiratanga had acquired the new meaning of sovereignty, and had displaced these other words. Clearly, in 1835 ‘rangatiratanga’ did not mean sovereignty. In fact, in 1832 Lord Goderich, who had appointed James Busby, had his rank translated by Henry Williams to Nga Puhi as ‘tinorangatira Goderich’. (I am indebted to my friend Bruce Moon for pointing this out to me.) Clearly, then, a tinorangatira is a subordinate. ‘Kawanatanga’ has a much better chance of being the depository of sovereignty.

In fact, at William Williams’ Dictionary of the New Zealand Language, (first edition 1844, revised 1852) you will see that it does not actually contain the words tinorangatira, tino rangatiratanga or kawanatanga at all. The reason for this must be that Williams regarded all of these words as neologisms of his own making, coined certainly in response to a need, but not proper Maori words and not properly to be included in a dictionary of the Maori language.

It might well be that no Maori chief who signed the Treaty could foresee the shape of constitutional government one and a half centuries later. No more can we predict what our constitution will be like in another century and a half. From the various versions of the Treaty, from the speeches and discussions, it will be possible to spin all sorts of interpretations. That is what lawyers do, after all. But there is no doubt that Maori saw the Treaty meetings as, in James Belich’s words, ‘significant ceremonies marking some kind of new deal’. It is also clear that, as he further points out, ‘British law and the machinery of state often received a surprisingly enthusiastic reception among Maori from 1840 right into the 1860s’, and there was also ‘Maori enthusiasm for settler neighbours and willingness to sell land for them to settle on’. These were all acts of consent to a European state and legal system.

If any further proof were needed of the acceptance of the Queen’s sovereignty, we may find it in the Kohimarama Conference of 1860. We do not hear much about this conference these days. We cannot to be blamed for that ~ there is, for example, not the slightest mention of it in Michael King’s Penguin History of New Zealand. I am sorry to say that the omission of this significant event must distort any account of the events of those times. We disapprove of other countries omitting unfortunate episodes from their school history textbooks; the omission, whether deliberate or accidental, of any mention of the Kohimarama Conference contributes to the widely-perpetrated anti-colonial understanding of our history and general white liberal guilt complex. The Conference was summoned by Governor Gore-Browne, the same governor responsible for the now-condemned Waitara Purchase which sparked war in Taranaki. It was attended by more than 112 chiefs ~ who agreed with the Governor that the acts of Taranaki Maori were acts of disloyalty to the Crown. Many of those chiefs, indeed, offered to send troops to assist the governor in suppressing the rebellious Taranaki. In the course of that conference most of these chiefs, including many from Nga Puhi, state repeatedly that Maori and Pakeha are now all one people under the Crown.

These chiefs’ descendants, in now attempting to deny the Queen’s sovereignty, betray their own ancestors as well as the country that nurtured them.

11 comments:

Anonymous said...

Well stated, I look forward to next weeks installment.

alan said...

I have been an avid (if somewhat lay)student of the proceedings of NZ Treaty and consequent history. I have NEVER HEARD of the Kohimarama Conference before... how absolutely very enlightening. Not jus tthe fact it occured, and what was said and decided, but more tellingly, the lack of it being mentioned in any contemporary journals etc. Thank you

Anonymous said...

GEORGE SAID.... I am most interested in the KOHIMARAMA Conference and therefore can not wait a moment longer to read such facts, most enlightening article.

Anonymous said...

You haven't heard of it much because it is a can of worms, other suggested reading for fleshing out historical circumstances and understandings is the 1986 doc: Puao te Ata tu. Enjoy! :D

Anon Pakeha

Rawiri said...

Hi David

Part one:

I have been reading your comments and have felt the need to address some of the points you have made, as well as the energy in which your comments permeate.

What has not been acknowledged in your article is the Doctrine of Discovery, its historical context with the Papal Bulls, a document created between the European Monarchies and the Vatican that led to a patina of legality for European powers to stop fighting amongst themselves over lands belonging to the Indigenous cultures in the new worlds sparking off worldwide colonization

Nor did it mention the stance of the British Empire under the Norman Yoke Appendage making treaties with the indigenous cultures recognising them as being of the same measure as the European monarchies themselves

This is what led to He Whakaputanga Declaration of Independence 1835. Under He Whakaputanga Declaration of Independence 1835 a document signed by Mr Busby and The United Confederation of Chiefs, carrying the approval and protection of His Majesty King William VI of the British Empire that was Gazetted and recognised around the world enabling the United Confederation of Chiefs to be able to trade on a global scale whose connotations you coined as, nothing more than a comic opera.

The picture eloquently painted in your article refers more to barbarianism, an under estimation of the intelligence and social structure and adaptability not acknowledged, as opposed to the beginnings of future growth of a nation before colonisation. Although some context may be relevant it takes it away from what was developing before the Treaty of Waitangi.

These are examples of historical context not acknowledged as part of any theoretical underpinning in your article so therefore lacks any robust analysis and becomes nothing more than whimsical rhetoric

The very basis by which this country is founded on according to your submission although unlawfully established eventually acquires its legality... Really? What is that claim based on and/ or referenced to so that it may have any LEGITIMATE validity?

What you speak of in terms of lawful and legal are two different forms of law, with different connotations. Lawful represents natural live sovereign human beings, where as legal (Legislative statutory Acts, regulations, policies) represents Government created fictitious artificial entities that represent the same name as you recognised by your name in all CAPITAL LETTERS created for the purpose of New Zealand Government using its own citizens as capital – currency in global commercial commerce.

End of Part one:
David Waretini Karena

Rawiri said...

Hi David

Part Two

Your comment the High Court has dismissed any claim that the Crown might not have any Sovereignty over a part of New Zealand as they did not sign the Treaty. Of corse they did, The NZ Government and Courts make up the SAME Corporate system.

Your insinuation that they are different is nothing more than a myth. The Crown makes up the Executive Board who create Acts the High Court’s make up the Judiciary of whom apply the Acts.

There is a distinct difference between The British Monarchy who signed the Treaty and the Crown Her Majesty the Queen in Right of New Zealand (Of whom did not sign the Treaty)

The NZ Crown Her Majesty the Queen in Right of New Zealand does not represent Her Majesty Queen Elizabeth II, the Head of State of New Zealand. It is an Executive Corporation that is registered with the US Securities & Exchange Commission. They can be found on the website:

http://www.sec.gov/cgi-bin/browse-edgar?action=getcompany&CIK=0000216105&owner=exclude&count=40 .

Tell me why is the New Zealand Crown registered with the US Securities & Exchange Commission???

It is because Prime Minister Rob Muldoon sold the country to the Federal Reserve in the US over his Think Big Projects that went bust. However that debt (only) belongs to the NZ Government who in turn uses its NZ citizens to pay it. They are not the same entities as YOU would have every one believe, they are two separate entities.

You have made the comment that the clear meaning of the treaty was to cede sovereignty so I ask you is that your opinion or have you something valid to reference it to?

You seem to mention the differences between Tino Rangatiratanga and Kawanatanga and even Mana and I would ask you what your qualifications are, academic or otherwise to determine what the word of another culture means within a western context when the words you have mentioned have values and epistemologies that do not sit within a western paradigm?

RE: the Revolution. The British Monarchy at the time was illegally squeezing the Colony via the Federal Reserve Bank of England. This is what historically led to the war. You also assumed that no one has claimed the United States Government is illegal, Have you totally ignored the voice of the Native American Indians of whom had 500 Treaties with the European Settlers, all Broken and destroyed under the Papal Bull decrees?

End of Part Two: David Waretini Karena

Rawiri said...

Hi David

Part Three

My argument to you is that Maori (The Internal Sovereign Partner also known as the Internal (CROWN) DID NOT Cede Sovereignty to the NZ Settler Government who are nothing more than a Global Corporate Business who should not even be called the Crown as they have no legitimate and or valid Sovereign authority in New Zealand.

1844 Queen Victoria opened up an account so that the New Zealand Settler Government would pay tax (RENT) for the right to OCCUPY New Zealand.

The NZ Settler Government under Governor Fitzroy could not pay the tax so waived the Pre-emption clause in article 2 and began selling land on the open market in breach of Article 2 of the Treaty of Waitangi so that he could pay tax with some money and build up the NZ Settler Government with the rest.

The fraudulent actions of Governor Fitzroy and other Politicians since him like Governor Grey who actively participated in illegally selling 66,400,000 acres of land before the process of pre-emption could be implemented put the British Empire and Maori Trustee Her Majesty Queen Victoria in a predicament. If the New Zealand Settler Government followed the terms and conditions stipulated under Article 2 of the Treaty of Waitangi in regards to Pre-emption so that the British Empire could gain pre-emptive right for purchase of land, then with the gaining of a BILL OF SALE would have also come the transfer of SOVEREIGNTY from the Tangata Whenua Maori United Confederation of Chiefs to the British Monarchy who then in turn would have had as a result the mandate to transfer the status of Sovereignty to the NZ Settler Government. This is the process that would have kept the NZ Settler Government in Honour. However as a result, they are now, and forever will be in Dishonour until everything is rectified.


The result of Governor Fitzroy’s, and Governor Grey’s actions created a situation where there is; NO BILL OF SALE, so there was; NO transfer of Sovereignty.

The impact of that action resulted in No Land having ever been sold, it is all acknowledged as being illegally occupied.

In the Common law case Nireaha Baker versus Tamaki the presiding Judge, Lord Davey decreed that the NZ Settler Crown lacked unreviewable prerogative power in relation to Native title, and that the Crown Grant did not amount to extinguishment of Native title. Therefore all land remains Customary Maori Land deemed ‘Crown (Maori Sovereign) Land’ for certain purposes.



End of Part Three
David Waretini Karena

Rawiri said...

Hi David

Part Four:

The conclusive truth of this issue is that only Sovereigns as the authentic owners have the mandate and the capacity for legislating laws. The NZ Settler Government is not sovereign; it is a corporation, an artificial self –appointed authority

Only Maori are Sovereigns having established themselves since 28th October 1835 with the He Whakaputanga Declaration of Independence document.

The main key element is this: The Internal Sovereign Partners have a valid, authentic and legitimate document that cemented their Sovereign status; The NZ Settler Government Corporation has NO documentation and / or valid, and / or authentic and / or legitimate claim.

Please refer to Treaty of Waitangi violations so what you reckon? The Treaty is a Nullity you reckon? Then that just leaves He Whakaputanga Declaration of Independence that stands under Allodial and Customary Native Title and pre dates and surpasses any Westminster system.

The reality is, we all have to live in New Zealand together and create shared space for dialogue in a way that is safe, that is respectful and has the best interests of each party at heart then we can move forward as a nation.

What permeates from your article is the ideology of a dominant patriarchal discourse whose discursive practices serve to undermine the voice of a people who are striving to articulate their interpretation of what the basis and the understanding was of the Treaty of Waitangi at its inception. European people should not have to feel afraid that the Indigenous people are beginning to find their voice and make sense of a process and re assess the interpretation of it.

I would like to see a time when we can truly look each other in the eyes and shake hands as equals, under this current context we cannot as the current practice of the wider New Zealand body is to ignore what was established via the Maori version of Te Tiriti o Waitangi that allowed all other cultures to share this country with the first Nations peoples.

End of Part Four: David Waretini Karena

Rawiri said...

Hi David

I will be keen to see if you will post my comments on your blog, how ever I will post your comments as well as my own on my own blog.

Regards

David Waretini Karena

Anonymous said...

Rawiri,
Im afraid you have made one error that deserves correction. The company displayed on the sec site is "Her Majesty the Queen in Right of New Zealand" not
"NZ Crown Her Majesty the Queen in Right of New Zealand". You are joining two individables.
The NZ Crown is a subisdary of the CROWN, which is the City of London Corporation, while the "Her Majesty the Queen in Right of New Zealand" is the trust of our joint and several sovereignty, that as you point out is bankrupt.

Anonymous said...

To Anonymous RE your: Her Majesty the Queen in Right of New Zealand" is the trust of our joint and several sovereignty. what does that actually mean in laymans terms? when you say is the trust of our joint & several sovereignty