Barrie Davis: Maranga Mai and the Doctrine of Deceit

Are the authorities and the media participating to suppress information prior to the election? Barrie Davis tells the story of his experience of misinformation, disinformation and delay. 

In 2010 a National government, prompted by the Maori Party, signed up to the United Nations Declaration on the Rights of Indigenous Peoples. In 2019 the Labour government, then in coalition with NZ First, commissioned the He Puapua report to obtain opinions on how to meet the UNDRIP. The subsequent report proposes separate Maori authority across multiple layers of government, including a Maori Parliament or separate Upper House. The He Puapua report was withheld from the public until after the 2020 election when it was made public in 2021. NZ First leader, Winston Peters, claimed he did not know of the report and that he didn't agree to it being commissioned. National Party leader, Judith Collins, claimed that the Labour Government was secretly planning to hand power to the Maoris. In December 2022, the Labour government decided to put development of policy to implement UNDRIP on hold until 2024, after the October 2023 election. 

Something similar to the He Puapua scandal is happening again now, except that this time they are doing it openly. The Human Rights Commission (HRC) published the Maranga Mai report in February 2023 which says, “The principal recommendation of Maranga Mai! tasks the government with committing to constitutional transformation and establishing co-governance … Central to this reform would be the government condemning and rejecting the constitutional application of the Doctrine of Discovery to Aotearoa…” The then Race Relations Commissioner, Meng Foon, reportedly said the most important step now was turning these plans into actions. 

The Maranga Mai report and the application of the so-called ‘Doctrine of Discovery’ in New Zealand has been challenged by several academics. In response, the fourth estate – specifically Stuff and the New Zealand Media Council – and the Human Rights Commission, have avoided addressing their objections. I wrote “The Doctrine of Discovery Essay” on the particular objection by historian Professor Paul Moon and it was posted 21 June on BreakingViews HERE. 

In this present post, I will tell the story of my subsequent interactions with Stuff, the NZ Media Council, the Human Rights Commission and the Ombudsman, and along the way, give some insight as to the meaning, status, and implications of the ‘Doctrine of Discovery’ for our democracy. 

Background 

The concept known as the ‘doctrine of discovery’ has its roots in ancient Roman law. The Romans colonized parts of Europe including England during the first four centuries AD and developed generic principles and practical arrangements for dealing with the local populations (Frere, Britannia, c. 236). Variations of those principles or arrangements found their way into subsequent European practices during the Age of Discovery, when Europeans explored the New World. That included papal bulls from the Vatican intended to regulate Spain and Portugal. These various practices were still recognized when Cook arrived in New Zealand and for some time after the Treaty of Waitangi. Like the Treaty, ‘the doctrine of discovery’ is now so variously nuanced that it is necessary to say specifically what is meant when it is named. 

Nevertheless, the concept of discovery usually entails that when a European nation acquires sovereignty in a populated land outside of Europe, the local population retain ownership of the land which they can only sell to the sovereign power, an arrangement called pre-emption. That was the case in New Zealand as a consequence of the Chiefs signing the Treaty, the intent of which ceded sovereignty to the British Crown in Article 1 and agreed to pre-emption with the Crown in Article 2. (Fletcher, English Text of the Treaty, 324.) 

I first became aware of the Doctrine of Discovery on reading “Rejection of Catholic policy ‘good first step’,” by Tom Hunt in The Dominion Post, 3 April 2023, which claimed the Doctrine was a series of papal bulls which the Vatican had repudiated on 30 March 2023. I knew Henry VIII had separated England from Catholicism, so I thought that unlikely and found a couple of scholarly papers on the net by Professor Moon that confirmed my suspicion. 

Moon concludes that “the historical evidence militates so strongly against claims that it played any role at all in Britain’s intervention in New Zealand.” (Moon, 2022) “Certainly, Britain’s intervention in New Zealand was never predicated on the two essential tenets of the Doctrine of Discovery: the arbitrary assertion of territorial sovereignty over a colony; and the subjugation of that territory’s indigenous population.” (Moon, 2023) If there were any discovery principles implemented in New Zealand in the nineteenth century, they were not derived from papal bulls. If that is so, then the claim that the “Doctrine of Discovery was a series of papal declarations” is a mistaken construction, presumably by the author of the article, Tom Hunt. 

In New Zealand ‘Doctrine of Discovery’ is now a nebulous term used by the Maoris to refer to yet-to-be specified elements they want removed from legislation. It is a device; a name that is being used to promote an idea, the substance of which is largely absent. This is evidenced by the article header “Rejection of Catholic policy ‘good first step’”, as the Stuff article does not provide the subsequent steps. Instead, it says, “The Vatican's rejection of a 15th century policy … is being seen as a small start on a long road of amends” without identifying the compensations or the alleged wrongdoings. The Maranga Mai report also “tasks the government with … rejecting the constitutional application of the Doctrine of Discovery to Aotearoa” without saying what specifically is to be rejected. The reader is being covertly conditioned to accept further Maori demands without knowing what they are. There is information missing and the author of The Dominion Post article has uncritically accepted that. 

I wrote to the then Editor of the Dominion, Caitlin Cherry, and suggested that to give journalistic balance, she should publish a piece that reflects Moon’s views. She responded 21 April saying, “At this stage we won't be doing anything more on this topic, but we may in the future, and would consider then speaking with Professor Moon.” I replied saying that her response provided no information and anyway it was not a commitment. Now, four months later and a month from the election, Stuff has not published anything on Moon’s claims regarding the Doctrine of Discovery. 

Stuff and the NZ Media Council 

So I made a complaint to Stuff 30 April and when I did not get a response I made a complaint to the NZ Media Council 7 May. Two months later, NZMC sent my complaint to Stuff 10 July for their comments and sent Stuff's subsequent response to me for my final comments 24 July, which I provided 26 July. The Council made a ruling on my complaint 7 August and the NZMC advised me of the ‘not upheld’ ruling 25 August. Not satisfied with the ruling on my complaint, I escalated it to the Independent Chair of the Media Council, Raynor Asher, 30 August, and I now await his response. 

I think the NZMC process is fair, but the delays the NZMC introduced while the process was with them have pushed resolution of the issue right up to the election. Neither Stuff nor the NZMC accept that there is information missing from the debate on co-governance and that there is a need to have that debate prior to the election; hence they do not consider they are playing a role in the failure to resolve that problem. 

Moreover, the response from Stuff to my complaint to the Media Council was not their best work. Where I complained that the article claimed that the doctrine “allowed the ‘conquest, colonisation and subjugation’ of indigenous people including Māori” and quoted no one else but three Maoris, Stuff played the race card, saying “Dr Davis appears to disregard the views of the experts quoted, based on their race.” That’s like implying that I would discriminate against the Green Party if I were to complain that a Stuff article on climate change quoted only three Green MPs. Stuff reported only a partisan perspective as given by three Maoris and it should not be a problem that I said that. I believe the Maoris quoted in the Stuff report to be mistaken, but I did not disregard their views; instead I complained that Stuff did not publish the opposing views of academic historian Professor Moon. If they did, then we, the people can decide for ourselves, rather than have Stuff select a decision for us. 

The issue is whether the Catholic ‘Doctrine of Discovery’ was implemented in New Zealand, because if it was not, the Vatican repudiating the doctrine was irrelevant to New Zealand. To support their 3 April headline that “Rejection of Catholic policy ‘good first step’,” Stuff said that “Catholic missionaries were active in New Zealand from the late 1830s and were present at the signing of the Treaty of Waitangi.” But those Catholic missionaries did not determine British colonial policy and Stuff did not offer an argument that they did. That point is obviously irrational and irrelevant. Stuff was just throwing out superficial objections which the Media Council uncritically accepted. 

Stuff was mistaken to claim that “The so-called Doctrine of Discovery was a series of papal declarations”. I pointed out in my complaint to the Media Council and again in my subsequent response to Stuff, that the Vatican repudiation of the Doctrine, 30 March 2023, distinguished the ‘doctrine of discovery’ from the papal declarations (bulls).

Here is what the Vatican said: 

5. It is in this context of listening to indigenous peoples that the Church has heard the importance of addressing the concept referred to as the “doctrine of discovery.” The legal concept of “discovery” was debated by colonial powers from the sixteenth century onward and found particular expression in the nineteenth century jurisprudence of courts in several countries, according to which the discovery of lands by settlers granted an exclusive right to extinguish, either by purchase or conquest, the title to or possession of those lands by indigenous peoples. Certain scholars have argued that the basis of the aforementioned “doctrine” is to be found in several papal documents, such as the Bulls Dum Diversas (1452), Romanus Pontifex (1455) and Inter Caetera (1493).

The “doctrine of discovery” is not part of the teaching of the Catholic Church. Historical research clearly demonstrates that the papal documents in question, written in a specific historical period and linked to political questions, have never been considered expressions of the Catholic faith. At the same time, the Church acknowledges that these papal bulls did not adequately reflect the equal dignity and rights of indigenous peoples. The Church is also aware that the contents of these documents were manipulated for political purposes by competing colonial powers in order to justify immoral acts against indigenous peoples that were carried out, at times, without opposition from ecclesiastical authorities. It is only just to recognize these errors, acknowledge the terrible effects of the assimilation policies and the pain experienced by indigenous peoples, and ask for pardon. Furthermore, Pope Francis has urged: “Never again can the Christian community allow itself to be infected by the idea that one culture is superior to others, or that it is legitimate to employ ways of coercing others.”

7. In no uncertain terms, the Church’s magisterium upholds the respect due to every human being. The Catholic Church therefore repudiates those concepts that fail to recognize the inherent human rights of indigenous peoples, including what has become known as the legal and political “doctrine of discovery”.

That is, the Vatican said certain scholars had argued the basis of the concept known as the ‘doctrine of discovery’ is to be found in several papal bulls, but it did not agree that is the case. Instead the Vatican said that the bulls had been manipulated for political purposes and that the ‘doctrine of discovery’ is not part of the teaching of the Catholic Church. 

Hence, the concept that “has become known as the legal and political ‘doctrine of discovery’” is not the Pope’s to revoke, and nor did he do so. Instead, the Vatican only refused to accept or be associated with the concept known as the ‘doctrine of discovery’. So Tina Ngata was correct to say “the Vatican was trying to distance itself from the doctrine,” except that the Vatican implied it had never been associated with it. So the Stuff headline “Rejection of Catholic policy” was mistaken. 

Instead, the Church acknowledged that the papal bulls did not adequately reflect the equal dignity and rights of indigenous peoples and claimed the bulls were manipulated for political purposes without opposition from ecclesiastical authorities. The Vatican asked to be forgiven for this error. So the Vatican claimed the Church did not bring the concept known as the ‘doctrine of discovery’ into effect, but nor did the Church stop it. The Vatican therefore did not accept responsibility for either the nature or effectuation of the applied ‘doctrine of discovery’. 

Stuff was therefore mistaken to claim that “The so-called Doctrine of Discovery was a series of papal declarations”. That means the repudiation of the legal and political ‘doctrine of discovery’ by the Vatican has little if any relevance to New Zealand and Claire Charters was mistaken to say “the rejection showed the Vatican was finally acknowledging its legacy of racism and dispossession of indigenous people, including Māori.” So Stuff did not meet the journalistic principle of Accuracy on this central point, yet the NZMC Ruling says, “The Media Council does not believe the article was inaccurate”. 

Stuff’s 3 April article also did not meet the journalistic principle of Balance. While the Media Council Ruling says “The Media Council acknowledges that there are differing views on the Doctrine of Discovery”, it further said “Dr Davis cited Dr Moon as having a dissenting view of how the Doctrine may have impacted Maori during the colonization of New Zealand, but he appeared to be a lone voice against the weight of contrary academic research.” 

That claim ignores what I wrote in my 7 May complaint to the NZMC, and which I repeated in my 25 July response to Stuff: 

There are others who agree with Professor Moon. Moon (2022, n. 54) says a claim by Miller and Ruru in 2008 that the Doctrine of Discovery applied to New Zealand was challenged back in 2010 by Sheryl Lightfoot. Moreover, academic lawyer Paul McHugh (1989) wrote that an outcome of Britain separating from papal authority by an Act of Supremacy in 1558, was that the English positioned their approach to colonialism above the papal bull, which they derisively disparaged as a dogmatic, one-sided statement of belief. Moon (2023) also claims that, “… for historians working in the field of New Zealand’s colonisation, arguments about the Doctrine come across as little more than a latter-day conspiracy-theory…” 

The most compelling of those sources is Paul McHugh. Wikipedia says the courts have accepted and cited his writings which “fundamentally changed the course of New Zealand politics.” In a chapter essay “Constitutional Theory and Maori Claims” (in Kawharu, Waitangi, 1989), McHugh wrote “From the first, the English aspired to place the legality (for they believed it was a matter of law) of any imperium the Crown might acquire over the non-Christian societies of the New World on a higher ground than conquest or unilateral assertion (as in the vilified Papal Bull Inter Caetera of 1493).” 

McHugh expanded on that in his The Maori Magna Carta: New Zealand Law and the Treaty of Waitangi (1991, p. 31): 

The charters issued by the Crown during the seventeenth century claimed extensive rights to colonize territory across the Atlantic. They also constituted a governmental authority with local judicial, legislative, and executive powers. The charters blended the exercise of the Crown’s foreign-relations power with the constituent power. The Crown had assumed this capacity in response to the pretensions of Spain and Portugal. In 1493 the papal bull Inter Caetera had divided the non-Christian world between Spain and Portugal. Although Protestant nations, including England, were later to vilify this as a demarcation beyond the papal gift, the bull was apparently no more than a demarcation of zones of spiritual responsibility. Nonetheless, the non-Iberian monarchs of Europe characterized it as a grant of title to the New World. An important function of the early seventeenth century English charters, then, was the assertive rejection of any European claim to territory in the New World unsupported by actual settlement. The Crown’s charters for the New World were largely directed against the papal gift. 

That is, according to McHugh, an outcome of Britain separating from papal authority by an Act of Supremacy in 1558 was that the Crown issued charters for colonialism in competition with the claims of Spain and Portugal which were regulated by the Vatican. The English positioned their approach to colonialism above the papal bull, which they derisively disparaged in the belief that it was a threat to their aspirations in the New World. So if the British instituted any discovery principles, including in New Zealand, the authority could not have come from the Vatican, and so they were not the Vatican’s to revoke. 

The claim that Moon is a lone voice is false. 

Maranga Mai and the Human Rights Commission 

The anonymous Maranga Mai report published by the HRC in February 2023 claims New Zealand was colonized under the authority of the Papal Doctrine, that the Doctrine was a factor to the impact of colonization on Maoris, and that rejecting the constitutional application of the Doctrine is central to establishing co-governance. 

On 11 July I wrote to the Chief Human Rights Commissioner, Paul Hunt, regarding “Review of Claims Relating to the ‘Doctrine of Discovery’ in the Human Rights Maranga Mai Report, 2022” provided to the HRC by Professor Paul Moon a month previously. Moon’s Review concludes as follows: 

Many of the main historical claims and assertions made in Maranga Mai in connection with the Doctrine of Discovery variously show signs of errors in fact, misrepresentation, errors of omission, errors in historiography, ideological interpretation, presentism, the rendition of subjective interpretations and opinions as objective material, patterns of bias, and a lack of awareness of the relevant primary sources and bodies of literature that ought to inform discussion on the topic. 

As an example of Moon’s claim, I note that the Maranga Mai report is confusing if not confused, and misleading if not mistaken when it says: 

In Aotearoa, Lieutenant William Hobson under the doctrine, declared sovereignty over Te Waipounamu (The South Island) in 1840 and claimed it for the Crown. In 1840, The Treaty of Waitangi (English version) was partially signed and mainly by North Island rangatira. 

Nevertheless, the British Crown proclaimed sovereignty and cession under the doctrine and the treaty (Ruru J. & Miller R. J, 2008). 

The doctrine paved the way for colonisation of Aotearoa, underpinned the establishment of the New Zealand government and its legislation, and established the white supremacy and systemic racism which exists today. Through colonisation, premised on the notions of racial superiority outlined in the doctrine, tangata whenua were displaced from their traditional lands, territories and resources. 

The Treaty was mostly signed by North Island Chiefs because there were only 1,000 Maoris in the South Island of a total New Zealand Maori population of 100,000. About 500 North Island Chiefs signed the Treaty in Maori with 39 signatures on a version inexplicably in English at Waikato Heads. Lieutenant-Governor Hobson (not Lieutenant) issued two proclamations on 21 May 1840: one asserted that sovereignty over the North Island had been ceded to Her Majesty as from the date of the Treaty (6 February), and the other asserted sovereignty over the South Island and Stewart Island on the grounds of discovery. After Hobson made the declarations, Lieutenant-Colonel Thomas Bunbury sailed south in the Herald and collected signatures from 56 Chiefs before taking possession of the South Island and Steward Island in June on the grounds of cession, making the grounds of discovery redundant. By 15 October 1840, 546 Chiefs around the country had signed. (Buick, The Treaty of Waitangi, Ch. V “In Search of Signatures”) 

Hobson was under pressure from the French to claim New Zealand for the British. On 2 August 1838 Captain Jean Langlois had purchased most of Banks Peninsula from the Maoris and on 11 July 1840 Captain Charles Lavaud on board the 22 gun Aube, had arrived in the Bay of Islands, ostensibly to consult with French Catholic Bishop Pompallier who lived there. It was understood that Lavaud intended to assist in the possession of the territory claimed by Langlois and it was rumoured that the French were plotting to take possession of Akaroa. (Moon, Hobson, 155, 158.) 

Interestingly, in a 21 July letter to Captain Owen Stanley of the Britomart, Hobson wrote: 

You will perceive by the enclosed copy of Major Bunbury’s declaration that, independent of the assumption of the sovereignty of the Middle and Southern Islands, as announced by my proclamation of the 21 May last, the principle chiefs have ceded their rights to Her Majesty through the officer [Bunbury], who was fully authorized to treat them for that purpose. 

That is an indication that Catholic aspirations were opposed to the British intervention in New Zealand which supports the view that the Vatican did not determine British colonial policy, as Moon says. My 11 July letter to Paul Hunt, Chief Human Rights Commissioner, reads in part as follows: 

If Professor Moon is essentially correct, and I believe he is, I am concerned that the voting public has been misinformed regarding this election issue and that delay in addressing public perception will mean it does not happen in time for the election. If that is so, then the Human Rights Commission will have wrongly affected the election result with the Maranga Mai report... 

The public are being conditioned to accept ‘Doctrine of Discovery’ as a pejorative name for a nebulous set of yet to be identified issues that Maori radicals and their supporters want removed from New Zealand legislation. My contention is that if there are specific issues, they should rather be described and rationally argued based on the relevant evidence. My concern is that Professor Moon’s review will be swept under the mat until after the election, something like He Puapua. 

On 23 July, the HRC replied with a stock response: “The Commission is currently drafting a factsheet to accompany the report which should be available on our website by October 2023. The factsheet will likely address some of the questions you have raised.” Similar to the response from Stuff editor Caitlin Cherry, the HRC response may be after the election and even then their factsheet will not necessarily address the issue raised in my complaint. 

Not satisfied with the HRC response, and feeling I had been fobbed off, on 1 August I made a complaint to the Ombudsman, saying: 

If Professor Moon is essentially correct, and I believe he is, I am concerned that the voting public has been misinformed regarding this election issue and that delay in addressing public perception will mean it does not happen in time for the election. If that is so, then the Human Rights Commission will have wrongly affected the election result with the Maranga Mai report. To avoid that possibility, Maranga Mai must be condemned and that condemnation effectively communicated in time to allow public debate prior to the election. 

Three weeks later, on the 23 August, I received a reply from the Ombudsman’s office saying: 

We received your complaint about the Human Right Commission on 1 August 2023. Your case reference number is 00XXXX. 

Once your complaint is assigned to an investigator, they will contact you. 

It took them 3 weeks to assign a case number and I have yet to hear from an investigator. It now seems unlikely the Ombudsman will address the problem of the misleading Maranga Mai report before the election. I have been fobbed off. 

Recall that “The principal recommendation of Maranga Mai! tasks the government with committing to constitutional transformation and establishing co-governance … Central to this reform would be the government condemning and rejecting the constitutional application of the Doctrine of Discovery to Aotearoa…” Note also that it is anonymous. So, we are now in a situation where a pro-Maori faction of unknown persons – but in the name of the Human Rights Commission – has assigned our government the task of removing elements – which they will later specify – from our legislation. They say they want the government to establish co-governance, but they have already surpassed that and descended into ethno-nationalism. 

In her speech “In Defence of Democracy” at the Real Change Event 2022, Elizabeth Rata - HERE - said: 

When the combination of reactionary politics and wealth accumulation is justified by ‘myths of past perfection’, we have what I call, the neo-tribal capitalist version of the wealth-power merger. The corporate tribes have already acquired considerable governance entitlements. The next and final step is tribal sovereignty. It’s a coup d’etat in all but name, accomplished not by force but by ideology and enabled by a compliant media. Given the enormous success of retribalism, is it too late to reclaim New Zealand from the relentless march to blood and soil ethno-nationalism? That depends upon our willingness to understand, value, and restore democracy. 

The election next month may be the last chance we have to do that. 

REFERENCES 

1. “The Doctrine of Discovery in New Zealand: A Case of Historical Disinformation,” Paul Moon, Open Inquiry, 12 April 2023. 
https://openinquiry.nz/the-doctrine-of-discovery-in-new-zealand-a-case-of-historical-disinformation/ 

2. “The historicity of the Doctrine of Discovery in New Zealand’s colonisation,” Paul Moon, 2022, Te Kaharoa: the Journal of Indigenous Pacific Issues 15(2):1-39 (39 pages). 
https://openrepository.aut.ac.nz/items/1d74def4-3e2f-45fc-858f-ff1a4b4b6bb0 

3. “Review of Claims Relating to the ‘Doctrine of Discovery’ in the Human Rights Maranga Mai Report, 2022,” Paul Moon, June 2023, Unpublished. 

4. “Rejection of Catholic policy ‘good first step’,” The Dominion Post, Tom Hunt, 3 April 2023; “Rejection of Catholic conquest and 'white supremacy' law not enough: advocate,” Stuff, Tom Hunt, 2 April 2023. 
 https://www.stuff.co.nz/pou-tiaki/131672474/rejection-of-catholic-conquest-and-white-supremacy-law-not-enough-advocate  

5. “Maranga Mai!: The Dynamics and Impacts Of Colonisation, Racism, and White Supremacy upon Tangata Whenua in Aotearoa, Te Kāhui Tika Tangata,” New Zealand Human Rights Commission, November 2022. 
https://tikatangata.org.nz/cms/assets/Documents/Etext_Maranga-Mai_Summary-Report_PDF.pdf 
https://tikatangata.org.nz/cms/assets/Documents/Maranga-Mai_Full-Report_PDF.pdf 

6. “Barrie Davis: The Doctrine of Discovery Essay,” NZCPR, 21 June 2023 
https://breakingviewsnz.blogspot.com/search/label/Dr%20Barrie%20Davis 

7. P. G. McHugh, The Maori Magna Carta: New Zealand Law and the Treaty of Waitangi, Oxford University Press, 1991.

8. P. G. McHugh, ‘Constitutional theory and Maori claims’ in (ed.) I. H. Kawharu, Waitangi: Maori and Pakeha perspectives of the Treaty of Waitangi (Oxford University Press, Auckland, 1989), p. 29.

9. “Stuff Editorial Code of Practice and Ethics,” 28 September 2020, includes: 
https://www.stuff.co.nz/about-stuff/300106664/stuff-editorial-code-of-practice-and-ethics

Balance

Journalists should strive to represent all significant sides to a story, to serve our audience with a balanced picture.

For long-running issues, balance can be achieved cumulatively over time rather than every piece of content needing to feature every voice.

10. Media Council “Statement of Principles”, Retrieved 3 May 2023, includes: 
https://www.mediacouncil.org.nz/principles/

Principles

Accuracy, Fairness and Balance

Publications should be bound at all times by accuracy, fairness and balance, and should not deliberately mislead or misinform readers by commission or omission. In articles of controversy or disagreement, a fair voice must be given to the opposition view.

Exceptions may apply for long-running issues where every side of an issue or argument cannot reasonably be repeated on every occasion and in reportage of proceedings where balance is to be judged on a number of stories, rather than a single report.

Barrie Davis is a retired telecommunications engineer, holds a PhD in the psychology of Christian beliefs, and can often be found gnashing his teeth reading The Post outside Floyd’s cafe at Island Bay.