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.