I’m retired and have the time to do the reading, but it concerns me that most adult New Zealanders have jobs or are raising children and so are otherwise engaged. There has already been a lot of commentary on Treaty issues in the media, but important points are often either overlooked or are given a misleading perspective. Here I will consider the central issue of sovereignty versus partnership with generous quotes from key sources so readers may judge for themselves.
I’m relatively new to the Waitangi problem and it took me a while to realize there are in fact two treaties. I don’t mean the so-called English and Maori versions. I soon learnt that a majority of Maoris had no English in 1840 and could not read and write. So what they knew of the Treaty was what was read to them in Maori that had been translated from an English draft. They could not read the English version and would not have understood it even if they had. Consequently it is impossible they could have agreed to it as a matter of fact. A treaty is an agreement, so there was no Treaty in English. Ruth Ross, Michael Belgrave and others concur that the Maori text is the Treaty. Any English ‘versions’ are either pre-Treaty drafts or post-Treaty back translations. These may be relevant, interesting and important, but they are not treaties.
The two treaties I refer to are the Treaty that was agreed by William Hobson and the Maori chiefs in 1840 – let’s call it Treaty-1840; and the subsequent treaty according to the Waitangi Tribunal, which I shall call Treaty-1975 after the legislation which created the Tribunal. Treaty-1975 has also been called The Treaty of Wellington 1986, referring to Section 9 of the State Owned Enterprises Act. We now have a third treaty proposed by David Seymour at the last election, which could provisionally be called Treaty-2023, but I will not consider that here.
After some time, I realized that the Treaty-1840 and the Treaty-1975 have significantly different meanings. I read, for example, Professor Elizabeth Rata who wrote that “the concept of a Treaty of Waitangi ‘partnership’ was created” by the courts in the 1980s. Professor Dame Anne Salmond further wrote “the judges’ framing of the Treaty as ‘a partnership between races’ cannot be securely traced back to the text of Te Tiriti”. Sir Robin Cooke, the then President of the Court of Appeal, declared “the principles of the Treaty are to be applied, not the actual words”. There is no mention of principles in the Treaty; they have been created by the courts as required. Salmond commented, “Sir Robin and his colleagues effectively rewrote Te Tiriti as a bilateral partnership between races…”
Yet some folk, especially in the media, conflate the two when they refer to the Treaty or even the Treaty of Waitangi. So when they say the Treaty has certain ‘principles’, meaning the principles referred to in Treaty-1975, a casual reader assumes that those principles are given in the Treaty-1840, when they are not. The ‘principles’ of Treaty-1975 constructed by the courts then assume the same status as the Treaty-1840 in the mind of the reader. As the ‘principles’ are a significant change to our constitution, I am disappointed at the presumption of the Tribunal to add them in without democratic endorsement.
Because most Maoris had no English and also could not read, at the 5 February meeting before the signing at Waitangi, the Treaty in Maori – Treaty-1840 – was read to them before further explanation from the British and speeches from the Maori chiefs. The entire agreement was therefore stated orally and any changes or additions made in the discussion after the reading were a part of the proposal agreed to by the chiefs (see Michael Belgrave, Historical Frictions: Maori Claims and Reinvented Histories, 2005, p. 65). The courts may accept oral agreements and so they can be legally binding, see here, but it is often difficult to prove the terms and enforce them without written evidence.
William Colenso, who was present at the signing, published The Authentic and Genuine History of the Signing of the Treaty of Waitangi in 1890 (see here). Colenso includes supposedly verbatim speeches made by 16 chiefs after Hobson and Henry Williams had read the Treaty in Maori; I count 10 For signing and 6 Against.
Here is a typical ‘For’ example:
Hoani Heke, a chief of the Matarahurahu Tribe, arose and said, "To raise up, or to bring down? to raise up, or to bring down? Which? which? Who knows? Sit, Governor, sit. If thou shouldst return, we Natives are gone, utterly gone, nothinged, extinct. What, then, shall we do? Who are we? Remain, Governor, a father for us. If thou goest away, what then? We do not know. This, my friends," addressing the Natives around him, "is a good thing. It is even as the word of God" (the New Testament, lately printed in Maori at Paihia, and circulated among the Natives). "Thou to go away! No, no, no! For then the French people or the rum-sellers will have us Natives. Remain, remain; sit, sit here; you with the missionaries, all as one. But we Natives are children -yes, mere children. Yes; it is not for us, but for you, our fathers -you missionaries -it is for you to say, to decide, what it shall be. It is for you to choose. For we are only Natives. Who and what are we? Children - yes, children solely. We do not know: do you then choose for us. You, our fathers - you missionaries. Sit, I say, Governor, sit! a father, a Governor for us." (Pronounced with remarkably strong and solemn emphasis, well supported both by gesture and manner.)
And a typical ‘Against’ example:
Suddenly, Te Kemara, a chief of the Ngatikawa, arose and said, "Health to thee, O Governor! This is mine to thee, O Governor! I am not pleased towards thee. I do not wish for thee. I will not consent to thy remaining here in this country. If thou stayest as Governor, then, perhaps, Te Kemara will be judged and condemned. Yes, indeed, and more than that - even hung by the neck. No, no, no; I shall never say 'Yes' to your staying. Were all to be on an equality, then, perhaps, Te Kemara would say, 'Yes;' but for the Governor to be up and Te Kemara down - Governor high up, up, up, and Te Kemara down low, small, a worm, a crawler - no, no, no. O Governor! this is mine to thee. O Governor! my land is gone, gone, all gone. The inheritances of my ancestors, fathers, relatives, all gone, stolen, gone with the missionaries. Yes, they have it all, all, all. That man there, the Busby, and that man there, the Williams, they have my land. The land on which we are now standing this day is mine. This land, even this under my feet, return it to me. O Governor! return me my lands. Say to Williams, 'Return to Te Kemara his land.' Thou" (pointing and running up to the Rev. H. Williams), "thou, thou, thou baldheaded man - thou hast got my lands. O Governor! I do not wish thee to stay. You English are not kind to us like other foreigners. You do not give us good things. I say, Go back, go back, Governor, we do not want thee here in this country. And Te Kemara says to thee, Go back, leave to Busby and to Williams to arrange and to settle matters for us Natives as heretofore."
These opposing views have in common that the chiefs understood their status in the proposed hierarchical relationship with the Crown, several using the metaphor of parent and child: The chiefs knew that by signing the Treaty they and their chiefly authority (mana rangatira) would be subject to the Crown which conflicts with the idea of a partnership.
Since 1840 the Treaty of Waitangi has been referred to as the ‘Maori Magna Carta’ (Belgrave, ibid., p. 68) and more recently by academic lawyer Paul McHugh in his 1991 book The Maori Magna Carta: New Zealand Law and the Treaty of Waitangi. The “Great Charter” was a 1215 agreement between King John and his barons according to which the barons gave their allegiance to the king in return for a tax reduction and legal redress. So claiming that the Treaty of Waitangi is equivalent to the Magna Carta is suggesting that the Maori chiefs are subject to the Crown without of itself alienating their chiefly authority. (I note that the great majority of the people got little from the Magna Carta, and almost all of the Magna Carta provisions have since been removed from British legislation anyway.)
The 16 chiefs whose speeches are given by Colenso signed the Treaty the next day, including those who spoke against it. In total 45 chiefs signed on 6 February 1840, each receiving two blankets and tobacco in return. Colenso then writes, “As each chief affixed his name or sign to the treaty the Governor shook him by the hand, saying (in Maori), "He iwi tahi tatou" (We are one people), at which the Natives were greatly pleased.” Note that He iwi tahi tatou is contrary to making a partnership, E hoa rua tatou.
Kohimarama Conference of Maori Chiefs, July 1860
Twenty years after the Treaty of Waitangi was signed, there was a conference of Maori chiefs at Kohimarama (now Mission Bay) in Auckland. The “Proceedings of the Kohimarama Conference” was published in the Maori Messenger, Nos. 13 to 18 (here). I have referred to Claudia Orange, The Treaty of Waitangi, 1987 & 2020, s.v., Kohimarama Conference 1860, p. 145 & p. 82 respectively.
The conference was called by Governor Thomas Gore Browne, in part to defuse the anti-government sentiment growing among Taranaki Māori. Orange wrote, “The treaty promises had been faithfully observed by the Crown, Browne asserted, but he concluded by issuing a stern warning that any acts contravening Maori allegiance would render the Maori people liable to forfeit the rights and privileges of British subjects.” That makes me wonder what stance our present Prime Minister took when he met with Kiingi Tuheitia Potatau Te Wherowhero VII at Ngaruawahia on January 15. It seems to me that by calling himself ‘King’ Tuheitia is promoting treason as New Zealand has an established monarch. How is our Prime Minister dealing with that?
The Kohimarama conference served to update and supersede the Treaty of Waitangi of 1840. Paora Tuhaere of Ngati Whata, who attended, noted that most tribes had not been at Waitangi, “But this conference is … the real treaty upon which the sovereignty of the Queen will hang because here are assembled chiefs from every quarter … to discuss questions and to seek out a path.” Orange says, Donald McLean, Native Secretary and Chief Land Purchase Officer, “was in complete accord with the idea, even referring to the conference as ‘a fuller ratification’, a notion first voiced by Tamihana Te Rauparaha.”
About 112 Maori chiefs from the North Island plus Taiaroa from the South Island attended the month-long conference, although some chiefs refused to do so. Most of the chiefs included in their speeches that they acknowledged British sovereignty over their nation and their satisfaction with it. They also referred to the good the British had brought to New Zealand, particularly law and Christianity.
Here is a typical example of a speech by Tamati Waka Nene (aka Thomas Walker Nene), a Nga Puhi leader, trader and government adviser (Maori Messenger, here):
“O people, listen! These are my words in your hearing. I shall speak about the Governor, and about the Pakehas. I am not accepting the Pakeha for myself alone, but for the whole of us. My desire when Governor Hobson arrived here was to take him as our Governor, in order that we might have his protection. Who knows the mind of the Americans, or that of the French? Therefore, I say, let us have the English to protect us. Therefore, my friends, do I say, let this Governor be our Governor, and this Queen our Queen. Let; us accept this Governor, as a Governor for the whole of us. Let me tell you, ye assembled tribes, I have but one Governor. Let this Governor be a King to us. Listen again, ye people! When the Governor came here, he brought with him the Word of God by which we live; and it is through the teaching of that Word that we are able to meet together this day, under one roof. Therefore, I say, I know no Sovereign but the Queen, and I never shall know any other. I am walking by the side of the Pakeha. Mr. McLean, this is all I have to say. People of the Runanga, 1 have finished.”
Claudia Orange further commented (p. 87):
Nene also noted the great changes in New Zealand over a few decades: “My wife does not know how to weave garments … Let the Europeans weave garments for me.” Pointing to the European style of house construction, he added: “Shall we again feed upon the roots of the wild convolvulus, fern root, and the pollen of bulrush?” There was no answer from the assembly.
The Conference unanimously passed a resolution at the last session, subsequently known as the Kohimarama Covenant: “That this conference takes cognisance of the fact that several chiefs, members thereof, are pledged to each other to do nothing inconsistent with their declared recognition of the Queen’s sovereignty, and of the unions of the two races; also to discountenance all proceedings tending to a breach of the covenant here solemnly entered into by them.” (Maori Messenger, here)
Maori Migration from Rural to Urban Areas, 1926 to 1970
At the time of the Kohimarama convention, the Maoris were living in traditional Maori settings and the British were establishing towns in Auckland, Wellington and elsewhere. While subject to the Crown, the Maori chiefs continued to assert their authority in their own area while the Maoris lived in the country outside of the towns. Bradford Haami, says in his 2018 book Urban Maori: The Second Great Migration (p. 19), “In 1926, only 9% of the Maori population lived in the cities and boroughs, with 90% of the Maori population still living in rural areas before World War II.” However, the Maoris made “conscious and deliberate organized decisions” to leave the traditional Maori settings presided over by the chiefs and move into the European towns: “By 1970 that percentage of the Maori urban population grew to 80%.”
In other words, in the middle half of the 20th century 70% of Maoris migrated from the Maori country to the European towns. Haami says “the ‘pull’ to the city in search of ‘work, money and pleasure’ was strong, but so too was the force of the ‘push’ away from the rural regions due to the unsustainable earning power of tribal land.” The Maoris flourished during that time with census data showing a fourfold increase of population from 70,000 (1926) to 290,000 (1971).
Haami continues:
“The rising population presented a problem where the diminishing of a Maori land base could not sustain employment for Maori and people would have to migrate to the cities to find work.
“Additionally, the de-valuation of Maoritanga was manifest through the idea of setting aside one’s Maori identity for a Pakeha education that would allow the next generation to live comfortably in a Pakeha orientated world. Whanau divisions, harsh domestic conditions and in some cases the heavy presence of kehua (ghosts), makutu (curses) and tapu (restrictions) were more personal reasons for moving.” (p. 19).
So, it was the Maoris themselves who recently chose to abandon the environment of traditional Maori chiefly authority (rangatiratanga) so that a flourishing Maori population could more fully participate in the urban pakeha taonga. Now they have that, aspirational part-Maori leaders want to audaciously reimpose a previously abandoned chiefly authority and establish a reinvented Maori way on the largely non-Maori population in the European engineered cities and towns. Given the European way succeeded where the Maori way failed them that does not seem like a wise move. It seems more like a power grab by ambitious part-Maori leaders.
Conclusion
Things have clearly got out of hand. Regarding his five-year term as Chief Human Rights Commissioner, Paul Hunt wrote in The Post, 16 January 2024, there has been “a deepening understanding and acceptance of ti Tirti o Waitangi. Recent setbacks will be short term. Non-Maori have nothing to fear from te Tiriti and much to gain.” But he did not offer any examples. It is pleasing that the new coalition Government are saying they will address aspects of the degradation of our democracy due to institutionalized Maori privilege. But if we do not conclusively resolve the problem of Waitangi now, He Puapua will be re-started after the next swing of the pendulum when we are again faced with a Red-Brown-Green government similar to that which we have just experienced.
The people who drafted the Waitangi Treaty-1840 did not look far into the future. Michael Belgrave tells us (Ibid., p. 66), “The world that created the treaty, interpreted it, and gave it meaning was quickly eclipsed by the agendas of the new state. The treaty was more the end of an era than the beginning of one.” Those who made Treaty-1840 did not consider the problems of today – such as migration, housing and environment, mostly brought about by a burgeoning human population – and so their Treaty does not address them. If we are to account for the pressing issues we now face, it is necessary that we do not let a Maori interest group triumph over New Zealand society with a distorted interpretation of an anachronistic agreement from the nineteenth century deceptively marketed under the brand ‘The Treaty of Waitangi’.
We should not be constrained by the 1840 Treaty and we need to do a reset on the impertinent Treaty-1975. We need a social contract that does not distinguish on the basis of race and that recognizes the already present blurring of racial categories of part-Maoris and non-Maoris – including Islanders, Asians and others – leading to the inevitable disappearance of distinct races altogether. We need a return to basic democratic practices and to trust ourselves to identify rational evidence-based principles for New Zealand legislation and law. For that we need to debate David Seymour’s proposal, as he suggests, and then make a decision on the Treaty in a binding referendum.
Dr 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.
11 comments:
The Tiriti o Waitangi was only 1 of 6 Documents that made New Zealand into a British Colony with a Governor and Constitution that set up New Zealand’s political, legal and justice systems under one flag and one law, irrespective of race, colour or creed. Governments have completely ignored the other 5 documents that have allowed the Tiriti o Waitangi to be manipulated and mis-interpreted never intended by those who signed it in 1840. The Six Documents are,
1. Letter from the 13 Ngāpuhi Chiefs – 1831. The government ignores the letter the 13 Ngāpuhi chiefs wrote to the King of England asking him to be their guardian and protector. This letter shows Maori were in trouble and needed British protection, not only from themselves, but they were afraid New Zealand was about to be annexed to France.
2. Declaration of Independence – 1835. The government ignores the Declaration of Independence that was a complete failure as the chiefs could not form a united body to claim sovereignty over New Zealand. A fact ruled by Chief Justice, Sir James Prendergast in1877, “No political body existed capable of making cession of sovereignty.
3. Queen Victoria’s Royal Charter – 1839. The government ignores Queen Victoria’s 1839 Royal Charter/Letters Patent that placed New Zealand under the dependency of New South Wales. Britain could not have placed New Zealand under the dependency of New South Wales if Maori had sovereignty over New Zealand.
4. Tiriti o Waitangi – 1840. The government ignores the fact, the Tiriti o Waitangi only asked the Maori chiefs to give up their governments (Tribal control) to Queen Victoria in Article 1. Article 2 guaranteed both Maori and Pakeha the rights to their lands, settlements and property, and Maori could only sell their lands to the Crown at an agreed price. Article 3 made Maori British Subjects with the same rights as the people of England. No more, no less, no Partnership, and definitely no Co-governance, but since the Tiriti o Waitangi was signed, its Maori words have been continually mis-translated to give Maori special rights over all other New Zealand Citizens. As Attorney General, Sir Geofrey Palmer stated on the ABC in 1990, “It is, now, a document that is so vague and unclear, that is its primary problem”.
5. Queen Victoria’s Royal Charter – 1840. The government ignores Queen Victoria’s 1840 Royal Charter/Letters Patent that separated New Zealand from New South Wales dependency and made New Zealand into a British Colony with a Governor and Constitution that created New Zealand’s Legislative and Executive Councils and granted authority to Governor Hobson to make laws. Without Queen Victoria’s 1840 Royal Charter/Letters Patent, New Zealand would have remained under the dependency and laws of New South Wales.
6. First Sitting of the Legislative Council – 1841. The government ignores the First Sitting of the Legislative Council in 1841 that set up New Zealand’s political, legal and justice systems under one flag and one law, irrespective of race, colour or creed.
Until we force governments to recognize these 6 Documents that made New Zealand into a British Colony under one flag and one law, irrespective of race, colour or creed, the Tiriti o Waitangi and the history surrounding it will continue to be rewritten giving Maori special rights and privileges never intended by those who signed it at Waitangi on 6 February 1840 with the words, “He iwi tahi tatou – We are now one people”, before being taken around the country and signed by over 500 chiefs.
There is no other document in New Zealand’s history that comes anywhere near to a true Founding Document and first Constitution than Queen Victoria’s Royal Charter/Letters Patent dated 16 November 1840, but we must not ignore the other 5 documents that made this possible.
For copies of these 6 documents, log onto: http://www.onenzfoundation.co.nz.
Researched by: The One New Zealand Foundation Inc. Est: 1988. (Copyright) 3 January 2024.
I cannot fault any of your words here Barrie and I wouldn’t want to. Learning about the treaty is a lifelong effort for all New Zealanders. Thank you for adding so much to everyone’s understanding.
Your essay should be read aloud to the attendees at the Maori King’s hui starting January 20th. After that, at the Ratana gathering then at Waitangi.
An excellent summary and conclusion, Barrie, as we absolutely must put this matter to rest one way or the other.
A letter in the The Post today would, no doubt, have had you 'gnashing your teeth' and for those that don't subscribe, it was essentially suggesting we embrace co-governance, because the Maori population was growing faster than that of Pakeha and if we don't embrace it, Maori might well demand more in time. Nevermind the inconvenient truth that those purported Maori, have more Pakeha genes than the race which they are inclined to identify with - very likely for personal gain. People like the author of that letter (who has a very English/Pakeha name) are fools, and clearly have little appreciation of the past proclivities of certain Maori opportunists, nor the destruction and corruption of our society that co-governance would undoubtedly create - ultimately resulting in us being akin to a banana republic.
Racial division is no way to run a country. It never was, and most certainly isn't in what should be the enlightened times of the 21st Century.
Do keep up the good work.
Referendum ASAP - or Apocolypse inevitable.
A very clear sensible explanation of how the Treaty was written. That the 1975 Waitangi Tribunal Act added “so called principles”should never have passed into law. It is not David Seymour who is trying to change “the principles”. He is merely trying to turn back the clock to what was intended in 1840, not what the 1975 Act imposed. The cost to our country is not only racial disharmony but economic as well.
This overlooks the written statement by the head of crown law, the attorney general, in 2014 which said "the inescapable conclusion in law is that the treaty of Waitangi failed to take sovereignty away from New Zealand and that therefore the only legal document of precedence in NZ is the 1835 Declaration of Independence (He Wakaputanga) and that nothing since then has changed anything about that"
He then nervously commented that he didn't like to think about what that means for sovereignty today.
But here is what it means. Iteams you have exactly what is asked for in the closing section of the article above when it says:
"We need a social contract that does not distinguish on the basis of race and that recognizes the already present blurring of racial categories of part-Maoris and non-Maoris – including Islanders, Asians and others – leading to the inevitable disappearance of distinct races altogether. We need a return to basic democratic practices and to trust ourselves to identify rational evidence-based principles for New Zealand legislation and law."
That is exactly what He Wakaputanga is.
It created a federation of the united states of NZ. A federation of and for all people of all races that make NZ their home.
That means all of you.
I could point out the errors all through the article, but that not really necessary.
What truly necessary is that the people of NZ recognise they have a legal authority to rule themselves and be free of foreign dominance via corrupt corporations that run the Westminster parliament we are currently unwittingly giving our permission to illegally rule over us.
And for the record the Congress of that federation is regularly still meeting and did so just last weekend. It's time we algor onboard.
To Anon@ 8.33am
2. Declaration of Independence – 1835. The government ignores the Declaration of Independence that was a complete failure as the chiefs could not form a united body to claim sovereignty over New Zealand. A fact ruled by Chief Justice, Sir James Prendergast in1877, “No political body existed capable of making cession of sovereignty.
3. Queen Victoria’s Royal Charter – 1839. The government ignores Queen Victoria’s 1839 Royal Charter/Letters Patent that placed New Zealand under the dependency of New South Wales. Britain could not have placed New Zealand under the dependency of New South Wales if Maori had sovereignty over New Zealand.
The democratic Republic of New Zealand would be a good place to start.
And Anon@8.33pm, you conveniently didn't state the name of the Attorney General you cite was Christopher Finlayson. Enough said I would have thought, but then some do put trust in strange places and each to their own?
And in that regard, look at what has reputedly just 'leaked' from our Ministry of Justice. Apparently, it makes claim that the Treaty was "partnership." Funny, I can't see any words to that effect in it, and nor did Colenso (who recorded what was said at the time) make any mention of the same. And, nor again was that term (or kind of arrangement) used a few decades later by the assembled Chiefs at the meeting at Kohimarama.
Barrie,
The Treaty of Waitangi was only 1 of 6 Documents that made New Zealand into a British Colony under one flag and one law, irrespective of race, colour or creed and only played a very small part as can bee seen from the following article, http://onenzfoundation.co.nz/the-tiriti-o-waitangi-just-1-of-6-documents/
I have not seen the statistics but would be interested to see how many Maori did not sign the Treaty but marked it thereby revealing they were illiterate and could not have read the Treaty much less understand it. A function of law is to protect individuals. What protection was offered to illiterate parties expected to enter a contract of which they had no understanding and did their marks have legal status? It seems the simple act of bringing the Maori under the protection of British law thereby ending the horror of tribal warfare has been lost by making the Treaty a political football with a one-size-fits-all approach that actually fits whatever agenda various spin doctors attach to it.
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