Mike Butler: Sovereignty, law, and history

A claim that Ngapuhi never ceded sovereignty was one of the first shots fired at of a four-week Waitangi Tribunal hearing that started this week. The tribe wants the tribunal to affirm this viewpoint in a case that the presiding officer, Judge Craig Coxhead, said was unlike any others because it deals with the constitutional foundation of the country, while the tribunal's caseload usually covers historical land loss.

In international law, sovereignty means that a government possesses full control over its own affairs within a territorial or geographical area. There is usually an expectation that de jure and de facto sovereignty exist at the place and time of concern, and rest in the same organization. De jure, or legal, sovereignty is the theoretical right to exercise exclusive control over one's subjects. De facto, or actual, sovereignty is concerned with whether control in fact exists.

That Ngapuhi chiefs had actual control over their tribal district on February 6, 1840, would imply that they had a form of legal sovereignty over its people at that time, and that legal sovereignty is presumably what Ngapuhi argues was never ceded. Tribal “sovereignty” was more fluid and much more subject to change than the type of sovereignty the settlers brought. Ngapuhi chiefs had affirmed control over their tribal area during the preceeding 30 years of intertribal warfare in which the use of muskets wreaked carnage on competing tribes who were only armed with spears and clubs.

What did Ngapuhi chiefs expect when the signed the treaty, or “te tiriti”, as northern leader Erima Henare said, stressing the fact that the chiefs debated and signed the Maori version, so the Maori version alone should be considered? Every single chief present in 1840 at the signing was a battle-hardened warrior. "The fact that te tiriti was signed and that the foreigners were not annihilated is the best evidence that no demand to cede sovereignty was made," Henare said.

Another more obvious clue to the reason why chiefs freely signed was that they saw an advantage in having a formalised relationship with pakeha since it would bring trade, education through the missionaries, and more advanced technology. There was also the prospect of improved access to guns and ammunition to maintain the balance of power established through the Musket Wars. There was also an offer of protection that the chiefs had asked for.

Unfortunately for Ngapuhi chiefs, and for all chiefs throughout New Zealand, the days of their actual sovereignty were numbered. Through a series of military clashes -- the Flagstaff War of 1845-6, the capture of Ngati Toa chief Te Rauparaha in 1846, armed conflict in Wanganui in 1847, the Taranaki wars in the early 1860s, the Waikato invasion in 1863, the Pai Marire wars of 1865, and Te Kooti’s war from 1868-1872 -- the colonial government exerted actual sovereignty.

The democratic shift resulting from waves of immigrants was the other main cause of the settler government establishing actual sovereignty. About 2000 pakeha settlers lived here in 1840, while by 1908 New Zealand’s total population was to reach the one-million mark. Meanwhile, the Maori population had dwindled from around 70,000 in 1840 to 42,000 in 1896. Actually, the demographic shift had started before the treaty had been signed. According to historian Claudia Orange, the presence of English settlers meant chiefs realized that their circumstances had changed and they needed to reposition themselves taking the settler presence into consideration.

The topic of land was a key item on the agenda at the treaty discussions in early February 1840, since some chiefs had already learned that if they received merchandise in return for their mark on a document, they would lose control of land they had regarded as their own.

What will be the outcome of the four weeks of Ngapuhi hearings? Those who have read any Waitangi Tribunal reports will know that they differ from a dispassionate historical inquiry in that evidence taken at hearings is woven into lengthy, often tenuous, arguments to prove this or that breach of the treaty.

Going back to the oral history is a foundation of tribunal reports, and this is a key point for the Ngapuhi hearings. Te Tai Tokerau MP Hone Harawira said: “We get to hear the real story here, from the mouths of those who heard from those who are the grandchildren of the ones who were there”. The existence of extensive written history on the topic is acknowledged, but it is put to one side, and the oral history is taken as unassailable, beyond analysis, elevated almost to a metaphysical dimension. There is no fear of the “Chinese whispers” problem with oral history, where errors occur in the retelling. Common legal practice in a dispute is to go back to the first written detail to seek verifiability. The reliance on oral history bypasses verification.

So, if the Waitangi Tribunal agrees that sovereignty was not ceded, what then? Henare conceded that: "you and I know that the Government is not going to say 'all Pakeha people need to pack up', if the tribunal says what we say is true." Ngapuhi’s tribal area is part of the Far North, so at best their claim would be limited to that area. Harawira said, of Ngapuhi expectations, that: "There will be thoughts everywhere from absolute sovereignty, to a separate state - passports, defence, the whole gamut all the way down to what can we live with in terms of our relationship with government and all the expectations in between. All of those expectations will be mixed up in what people are doing here."

Returning to the legal definition of sovereignty, there is, "no de jure sovereignty without de facto sovereignty." In other words, neither claiming/being proclaimed sovereign, nor merely exercising the power of a sovereign is sufficient; sovereignty requires both elements. It is generally held that sovereignty requires not only the legal right to exercise power, but the actual exercise of such power.

Since Ngapuhi’s actual sovereignty is long gone, the hearings are possibly just a “consciousness-raising” exercise, to use a term out of radical 1960s politics. If so, Ngapuhi leaders who are raising expectations are doing their people a disservice.

If the Waitangi Tribunal agrees with Ngapuhi, which based on its track record I am sure it will, soon the government of the day will be faced with a choice of either caving into Ngapuhi demands, or crushing raised expectations, or reaching a settlement -- of cash and land. And if Ngapuhi successfully proceeds down that track, I’m sure the other tribes will be quick to follow.

Sources
Sovereignty, Wikipedia, http://en.wikipedia.org/wiki/Sovereignty
The Treaty of Waitangi, Claudia Orange, Bridget Williams Books Ltd, 1987.
“Direct line to voices of the past”, New Zealand Herald, Saturday May 15, 2010. http://www.nzherald.co.nz/politics/news/article.cfm?c_id=280&objectid=10644982&pnum=0