Tuesday, August 5, 2014

Barend Vlaardingerbroek: The Kings and Chiefs of Old Calabar and Old NZ

Treaties have been around for a very long time. There’s a boundary treaty inscribed on stone between the city-states of Lagash and Umma dating back over 4,000 years. The Egyptians and Hittites concluded a comprehensive treaty concerning territorial demarcation and defence around 3,000 years ago. 

Winding the clock forward, one of my favourites is the Treaty of Tordesillas of 1494 when the Pope carved the world up into two halves by drawing a line running down the middle of the Atlantic – the Spanish were to take one half, the Portuguese the other. It didn’t quite work out that way!

Treaties were important instruments of colonial policy. Contrary to popular mythology, the colonial era was not a simple matter of Europeans going in ‘boots and all’ and simply taking other people’s land; the British, French, Dutch and Germans often came to some formal arrangement with existing political hierarchies. The general policy was to ‘do a deal’ commensurate with the level of political and organisational sophistication of  the peoples they were dealing with – and with an eye on rival colonial powers’ activities in the region. If the local people were at a ‘primitive’ stage of development lacking any trappings of statehood such as discernible governmental structures, the land was declared terra nullius: land that belongs to nobody. This was the situation in Australia. This is not to say that the colonial authorities did not extend protection to the indigenous people – the British in particular did – but rather that they did not feel compelled to enter into any formal understandings with the indigenes in the form of a signed document. At the other extreme, where there were definite state entities in existence, the practice was often to negotiate treaties leading to protectorate status, such as Cambodia with France in 1867 and Bahrain with Great Britain in 1868.

The International Court of Justice (ICJ) in Cameroon v Nigeria 2002 discussed 19th-century colonial treaty practice with particular reference to sub-Saharan Africa. Treaties (mostly ‘treaties of protection’, not to be confused with treaties creating protectorates) were concluded with tribal entities – some 350 with chiefs in the Niger Delta alone – but in the words of the Court, these treaties were “entered into not with states, but rather with important indigenous rulers exercising local control over identifiable territories”. There is a fundamental distinction being made here as a treaty in contemporaneous international law necessarily involved two state entities. (Nowadays, it can also involve non-state actors such as intergovernmental organisations, but the 1969 Vienna Convention on the Law of Treaties covers only those between state entities – a parallel 1986 convention to cover non-state entities never entered into force for lack of ratification.) A late example of such an agreement was the Treaty of Protection Between Great Britain and the Kings and Chiefs of Old Calabar 1884. But the ICJ emphasised the fact that these were not ‘treaties’ in the strict legal sense: they neither relied upon, nor conferred, statehood.

Anthony Aust, ex-legal adviser to the Foreign and Commonwealth Office, in his book ‘Modern Treaty Law and Practice’ (3rd edition 2013), describes the underlying nicety with reference to a treaty that is better known to readers of these columns than the one with the kings and chiefs of Old Calabar:

In the nineteenth century, agreements between imperial powers and representatives of indigenous peoples, such as the Treaty of Waitangi 1840 by which Maori chiefs ceded New Zealand to the British Crown, were often drawn in the same form as a treaty and described as such. But since the land occupied by such people was, at the time, not considered to be a state such agreements were not treaties, even if they had, and continue to have, effects in domestic law. (p. 16)

(We know all about the “effects in domestic law” bit, don’t we?)

There is the argument that the Declaration of Independence 1835 meant that NZ was a sovereign state at the time of the conclusion of the Treaty of Waitangi – but the 1835 Declaration held only for the North Island, the South Island at that time being terra nullius. The North Island was moreover hardly thought of as a single state entity – rather, more like a loose federation of tribal entities like the “kings and chiefs of Old Calabar” who, to again use the ICJ’s words, exhibited “no evidence of a central federal power”.  

The Declaration had come with a request for British protection from the French; the Treaty subsequently went a step further by making the Maori subjects of the British Crown. This privilege was not extended to the people under the overwhelming majority of ‘treaties of protection’. A major consideration was the fact that White settlement was already underway, and was set to continue; it was accordingly inevitable that the place would become a clone of ‘the old country’, and it made sense to make everyone equal before the same – British – law. Everybody happy, right? ( - except the French).

The Treaty of Waitangi fulfilled an important function back in 1840, but was not a ‘treaty’ in the context of international law then, and it isn’t today. In fact, by the late 19th century it wasn’t really a legal entity in any sense of the term, Sir James Prendergast CJ (Chief Justice) describing it as “a simple nullity” in 1877. A hundred years later, it was put back on the political agenda with a vengeance.

If it isn’t a ‘treaty’, what is the Treaty? Without the Treaty of Waitangi Act 1975, it would probably have no standing at all. It’s a colonial-era agreement between the ‘kings and chiefs of old NZ’ and the Crown – the British Crown. Now there’s a powerful argument in favour of cutting the umbilical cord with ‘the old country’ once and for all – perhaps adopting the slogan “No more Crown, no more Treaty” would be just the shot in the arm the NZ republican movement could use.

It’s time for the Treaty of Waitangi to go the same way as the Treaty of Protection Between Great Britain and the Kings and Chiefs of Old Calabar – into the history books as an instance of how the world used to work – a world that is long gone. Now let’s for goodness sake move on!

Barend Vlaardingerbroek is associate professor of education at the American University of Beirut. He also has academic qualifications in science, arts/humanities and law. Feedback welcome at


Barry Tomlin said...

I think just dump it (T o W ) now! Before it destroys NZ any further.

Anonymous said...

When the Treaty of Waitangi was entered into in 1840, New Zealand consisted of hundreds of dispersed and petty tribes, each in a constant state of war with one another, and lacking any concept of nationhood. Some 512 chiefs signed the Treaty, while a substantial minority refused to, meaning there were probably more than 600 of these individually insignificant groups.

Contrary to modern-day misrepresentation, the Treaty of Waitangi was not with a collective “Maori,” but with tribes.

Assertions that a Maori nation state existed when the Treaty was signed rest upon formal recognition by England’s King William IV in 1836 of the 1835 Declaration of Independence of the so-called “Confederation of United Tribes” and associated flag.

Any “official recognition” of pre-Treaty collective Maori control of New Zealand must be placed in its proper historical context, which ethnic nationalists conveniently omit to do.

The so-called "Maori Flag" (not the tino rangatiratanga Maori sovereignty flag of the 1990s) was adopted by Northland chiefs in 1834 at the behest of British Resident James Busby, after a NZ-built ship owned by Europeans was impounded in Sydney for not flying the flag of a recognised nation state.

Busby presented the chiefs with a variety of designs. They eventually chose a flag modelled on that of the Church Missionary Society, with which they were well familiar. This was not a Maori initiative, but a Pakeha-brokered expedient to protect New Zealand's pre-Treaty commerce.

Nor was the 1835 Declaration of Independence driven by the puny number of Maori chiefs who signed it. This "paper pellet to fire at the French" was fudged together by Busby to head off Colonial Office fears of an impending takeover by French adventurer, Baron De Thierry.

Initially carrying the signatures (or rather the thumbprints) of 35 Northland chiefs, the Declaration was ultimately signed by just 57 chiefs, all residing north of the Firth of Thames. Since these chiefs represented less than 10 percent of all the tribes of New Zealand, the Declaration can hardly be held up as evidence of a national consensus.

The arguments of Maori sovereignty activists are further undermined by the impotence of the handful of chiefs who signed the Declaration to act or even deliberate in concert.

Signatories had pledged “to meet in Congress at Waitangi in the autumn of each year, for the purpose of framing laws for the dispensation of justice, the preservation of peace and good order, and the regulation of trade." Inter-tribal animosities meant this body never met nor passed a single law, despite their common undertaking to do so.

Unknown said...

Agreed with most of what you have to say and of course with the dicovery of the Littlewood document the treaty claims would have been over years ago if we had a politician in this country with any testicles. But the bit about Australia and the aborigines is a little kind to the British. They did hunt down and kill all the Aborigines in Tasmania for sport and the opium wars in China were a bit on the nose old chap.

Anonymous said...

You ATE ALL the Moa You Killed and Ate almost ALL the Mori Ori, You killed ALMOST ALL the little white people who lived here BEFORE YOU, You WON'T STOP eating ALL the Kereru even though it is an endangered species, You KEEP DEMANDING Money from EQUALLY IMPOVERISHED NEW ZEALANDERS AND YOU WANT RESPECT...I Hear the Mutton Bird(which you also claim some funked-up cultural right to eat} migrates from here to there in Japan where Fukushima is poisoning and Radiating us here via sea in NZ. Maybe if you EAT ALL OF THEM? BAH HUMBUG go and do some REAL RESEARCH. RACISM is being used to divide us WAKE UP

Pieter D Vlaardingerbroek.. said...

The treaty of Waitangi was signed by the Moari chiefs and Tribes in good faith with expectations of shared economic equality.At a time when Moari out numbered the Pakeha 100 to 1..Subsequently the once proud land owners were relegated to the tiolet end of the socio econonic ladder as their lands and ecnomic resources were stolen by successive New Zealand Governments .Resistance movements and campainers for justice passed the baton from generation to generation and fought in the Land courts .Fast forward 200 years .2014 The majority of the land issues have been sorted and Moari and Pakeha have kissed and made up.The TainuiTribe posted the tribes net worth at a billion dollars after 20 or so years of self determination.This week the Whanganui River Tribes in an official Government engagement recieved the river and lands back and recognition that the river is a living entity..New Zealand is in 2014 a different place to twenty ,thirty or fifty years ago. nz herald article by unknown geneticist in 2012 stated that
At this time nearly every family in New Zealand is related to a moari or has a member with Moari blood and within the next hundred years we will have totally interbred and we will all be tangatawhenua... all people of the Land.

Anonymous said...

Your comment above about Maori owning the land and getting ripped off by wicked Whitey is incorrect, Peter.

Property rights come about in one of two ways:

1. What in a pre-legal society might be referred to as “Customary Title.” This is not ownership at all, merely a temporary right of use or occupation, lasting only until extinguished by superior force.

2. Legal ownership. This means the ability to exclude others by the force of law. The underlying requirement is a universally recognised, settled form of civil government that protects property owners against violent dispossession, and provides for ongoing security of tenure, i.e. “time without end in the land.”

One commentator has stated: “On the eve of the signing of the Treaty of Waitangi, there was not one inch of land in New Zealand without its Maori owners.” While such an assertion is politically useful, it is factually vacuous.

Prior to the signing of the Treaty of Waitangi in February 1840, there was no such thing as a collective “Maori.” Nor was there any settled form of civil government. The functional social unit of pre-European Maori society was the hapu, or sub-tribe. Each hapu was in a Hobbesian state of nature (“War of every man against every man”) with every other hapu, making life “nasty, brutish and short.”

In his book Maori Land Tenure: Studies of a Changing Institution (1977), Sir Hugh Kawharu blatantly sets out to fabricate a ‘universally recognised’ body of Maori property rights pre-dating the Treaty of Waitangi. By implication, these were rudely subsumed by white-settler governments, who substituted their own Eurocentric notions of property ownership. This now widely accepted thesis is arrant nonsense designed to fudge or remove the fact that “Customary Title” is in practical terms no title at all.

Within the hapu-controlled estate, whanau groups sometimes enjoyed the exclusive rights of occupancy or usufruct that Kawharu has identified, but the only universally accepted concept of land ownership BETWEEN hapu was "Te rau o te patu" or "The Law of the Club."

This means that before 1840, though Maori tribes were effectively the sole occupants of New Zealand, they were never owners. In the absence of a settled form of civil government, hapu merely used or occupied land only until someone else came along and took it off them.

Article I of the Treaty of Waitangi (the assumption of national sovereignty by the Crown) modified this position; also Article II, which purported to convert this ephemeral “Customary Title” into permanent legal ownership.

However, the Treaty was never meant to convey to Maori ownership of the entire land area of New Zealand. It was intended to secure the various hapu in a legal (as opposed to “Customary Title”) ownership of land that they actually used or occupied as at February 1840.

In practice, this meant ownership of land identifiably occupied and cultivated. It is ludicrous to propose that someone would expend more energy foraging for food than it would provide once found. So at a most generous assessment, such ownership might stretch to include perhaps one day’s hunting and gathering range around a Maori settlement.

Anonymous said...

At the time the Treaty was signed, even in the vastly more populous North Island, such settlements were typically few and far between.

The North Island in 1840 was home to an estimated 100, 000 Maori. Edward Dieffenbach, a German-born naturalist who travelled throughout the North Island in 1844, reported that "even in the areas of greatest Maori habitation, there are huge tracts of land, even up to hundreds of miles, between the various tribes [hapu]."

The South Island lay practically deserted. Edward Shortland's 1846 census found some 2, 500 Ngai Tahu, resident at several coastal locations. To suggest that 2, 500 people [a] lived on; [b] cultivated; or [c] hunted and gathered over more than 13 million hectares of land is arrant nonsense.

Even in the North Island, aside from the immediate areas around a Maori settlement, the "waste lands" were uninhabited, unimproved, uncultivated, and untrod by human feet, other than those of an occasional war party or traveller. Since the forcible exclusion of other groups was in practical terms impossible, the “waste lands” had no “Customary Title” owners to become legal owners under Article II of the Treaty.

The mischievous notion that Maori “owned” land and associated resources they neither used nor occupied was a fiction propounded in the 1840s and 1850s by the missionaries. They were well aware that the Crown had little money for land purchasing. The missionary agenda was to keep secular, worldly Pakeha confined to areas already settled, thus ensuring missionaries remained the only European influence in the all-Maori hinterlands they sought to Christianise.

The Crown was obliged to accept this misinformation because it had a mere handful of troops available to enforce its edicts against 100, 000 well-armed and potentially warlike Maori. Once Maori learned that the Treaty supposedly gave them title to the entire land area of New Zealand, each hapu became an instant "owner" of huge tracts of "waste land" adjoining its settlement(s). Naturally, this created multiple competing “ownership” claims.

NZ Republic said...

Changing to a New Zealand Head of State and becoming a republic will not affect the process of treaty reconciliation and it is a common misconception that cutting formal links to the British monarchy will somehow make the treaty null and void. Both Monarchy New Zealand and New Zealand Republic (along with constitutional law experts and academics) agree on this point.

The rights and obligations of the British Crown were transferred to New Zealand with the signing of the Statute of Westminister in 1947. The British Crown (and that means the British parliament/state not just royalty) were all transferred to the New Zealand Crown (ie the NZ state/parliament). The treaty has since then been recognised and addressed in numerous pieces of legislation here in NZ. The process of reconciliation continues and most iwi have signed full and final settlements.