Barrie Davis: Trick or Tribunal

Annually humiliating politicians at Waitangi has become a cathartic rite of Maori resentment, but other than that what is the point of it? Making threats of violence in the media, doing war dances in Parliament and pulling grotesque faces do not constitute an argument. And flashing, using expletives and calling people names only serve to diminish one’s credibility.

What now is the purpose of Waitangi Day and the relevance of the Treaty of Waitangi?

In a recent post, “Kawharu’s re-written treaty,” Mike Butler is critical of the late Sir Hugh Kawharu’s back translation (together with 11 Notes) of the Treaty in Maori into English, saying “He produced what is often called the Kawharu translation, and that translation was accepted by the government of the day.(1)” Source (1) gives a link to “The Kawharu translation” on the Waitangi Tribunal website, as it is also preferred by the Tribunal of which Kawharu had been a member.

After advising the Kawharu translation was used in the Lands case (1987), and as the basis of Sir Geoffrey Palmer’s five Principles (1989), and “claims for everything, including assets that no one knew anything about in 1840, such as radio frequencies,” Butler concludes:

“In a nutshell, the treaty partnership ideology behind these developments can be traced to Kawharu’s rewrite of the treaty and the government’s adoption of the principles of Crown action.”

Kawharu, however, said he produced two translations: one representing the words of the original in Maori and, from that, another which he referred to as “an attempt at a reconstruction of the literal translation”. It is the latter to which Butler refers.

When introducing this second version, Kawharu says:

“The following is an attempt at a reconstruction of the literal translation. While sometimes much is made of the several English versions of the Treaty, to my knowledge there is only one Maori version (allowing for the odd spelling mistake) and this is the one signed by all but a small minority. Discussion in English (as well as in Maori) of the meaning of the Treaty should therefore focus on the Maori version and on its literal translation.

“Dictionary assistance is of course helpful, but understanding of concepts and context is more vital, hence the frequent reference today to ‘rangatiratanga’, ‘taonga’, ‘kawanatanga’ and so on.”

(Source: Waitangi: Maori and Pakeha Perspectives, ed. I.H. Kawharu, 1989, p. 320.)

There are two points to take from Kawharu’s comments. The first is that Butler’s description of “Kawharu’s manifesto dressed up as a treaty translation” is worth considering further. The manifesto, the public version dished up to us by the Waitangi Tribunal (here), was disparaged even by its author as “an attempt at a reconstruction”. It is, Butler says elsewhere, “what he thought the chiefly signatories may have understood in 1840.” Yet it is the “attempt at a reconstruction of the literal translation”, the “manifesto dressed up as a treaty translation”, that has been used in Government legislation from 1975.

What we have been fed is propaganda that is drawn from history but that has additionally been manipulated for effect. It is a simplistic interpretation intended to be understood in a particular way by the general public and is used as the central proclamation of a broader propaganda campaign that we have been subjected to for decades (see here and here). It has become a sacrosanct policy statement, the mere naming of which is now automatically paired with an invocation of guilt and an accusation of racism. Furthermore, we have been conditioned to resile from any expression we make should it be called ‘racist’, irrespective of what the epithet ‘racist’ refers to or whether the attribution was substantiated.

The second point is with respect of Kawharu’s claim that “Dictionary assistance is of course helpful, but understanding of concepts and context is more vital”. Yes, context is important, but identifying the meaning of the Treaty from the context of the Maori language used at that time is not the only dimension to context. Mike Butler made the point that “he made no attempt to present Te Tiriti in its historical context”.

To identify the purpose of the Treaty, it is useful to place the Treaty within its changing times as it was only one of a string of documents that were instrumental in bringing about the New Zealand nation. These include the Declaration of Independence of 1835; Queen Victoria’s Royal Charter of 1839; the Treaty of Waitangi on 6 February 1840; Hobson’s Proclamation of Sovereignty on 21st May 1840; and Queen Victoria’s Royal Charter of 16 November 1840.

It is often claimed that the Treaty of Waitangi is New Zealand’s founding document, but that isn’t so. By the Royal Charter/Letters Patent of 1839 New Zealand was already under the laws and dependency of New South Wales when the Treaty was signed. The Treaty obtained from the Maoris agreement to recognize the sovereign authority of the Crown (see Normanby’s instructions below). New Zealand was subsequently founded as a separate entity by Queen Victoria’s 16 November 1840 “Charter for erecting the Colony of New Zealand, and for creating and establishing a Legislative Council and an Executive Council.” By what is now called the Constitutional Charter of New Zealand 1840, or just the Charter of 1840, New Zealand was made a British Colony with its own Governor, political, legal and justice systems in 1841. The Charter of 1840 does not mention the Treaty of Waitangi and so is not expressly dependent on it. It was followed by the Royal Charter of 1846 and the New Zealand Constitution Act 1852, which is often claimed to be the definitive instrument.

Lord Normanby's Instructions to Captain Hobson, dated 14 August 1839 read, in part:

“…it has been resolved to adopt the most effective measures for establishing amongst them a settled form of civil government. To accomplish this design is the principal object of your mission. … The Queen, in common with Her Majesty’s immediate predecessor, disclaims for herself and her subjects every pretension to seize on the Islands of New Zealand, or to govern them as a part of the dominions of Great Britain, unless the free and intelligent consent of the natives, expressed according to their established usages, shall be first obtained. … Her Majesty’s Government have resolved to authorise you to treat with the aborigines of New Zealand for the recognition of Her Majesty’s sovereign authority over the whole or any part of those islands which they may be willing to place under Her Majesty’s dominion.”

Having obtained sovereign authority over the whole of the islands, Queen Victoria then issued the “Charter for erecting the Colony of New Zealand,” dated 16 November 1840. Paul Moon and Peter Biggs say in The Treaty and its Times, p. 236:

Constitutionally, in 1840 New Zealand was still a dependency of New South Wales. It was not until May 3rd 1841 that New Zealand became a separate Crown Colony of Great Britain and Hobson was sworn in as Governor-in-Chief. This was an important change of constitutional status – New Zealand was a separate colony in its own right and was no longer administered from New South Wales. And the Governor received his instructions directly from the Colonial Secretary in London.

So the Charter of 1840 and not the Treaty established the colony of New Zealand and led to planning and building the nation: The Treaty of Waitangi is therefore not New Zealand’s founding document.

Recall also, that while all this was going on, the Maoris were busy committing genocide on the Morioris by slavery and cannibalism. The Moriori population reduced from 2000 in 1835 when the Maoris arrived, to 200 in 1862 when they left. The Morioris did not sign the Treaty of Waitangi as the Chathams were not annexed to New Zealand until 1842, by which time New Zealand was a separate colony and the Treaty was irrelevant.

Nevertheless when announcing an agreement in principle to settle historical Treaty of Waitangi claims of Moriori, 16 August 2017, the then Minister for Treaty of Waitangi Negotiations, Christopher Finlayson, said: “In 1835 two iwi originally from Taranaki migrated to Rēkohu/the Chatham Islands and enslaved Moriori. Following the annexation of the islands to New Zealand in 1842, the Crown failed to take appropriate action to end the enslavement, despite Moriori pleas for relief.” The agreement includes a total value of financial and commercial redress of $18 million and outlines cultural redress including the transfer of certain Crown lands to Moriori and a co-management regime with the Maoris.

I don’t begrudge the Morioris the money, myself, but the Maori invasion of the Chatham Islands in 1835 was five years before the Treaty was signed, so neither the Maoris nor the Morioris were subject to the Crown then. After the Treaty was signed the Maoris were subject to British law and so responsible for whatever they subsequently did to the Morioris, such as killing and eating them. If the Maori tribes are legal entities which can receive Treaty payments, then they are also entities that can pay the $18 million to the Morioris. And why is there a co-management regime with the Maori tribe who enslaved the Morioris?

Perhaps there is an argument for it in beak-speak, but it makes no sense to me. The Maoris flouted the Treaty from the start and somehow in the last five decades they have turned it around so the Crown is responsible for their behaviour. The Crown is the Government and the Government represents we the people. So we the people are now responsible for Maori behaviour. The present situation is not fair and reasonable and I want it resolved, please.

The He Puapua report, developed in 2019 but hidden from voters until after the 2020 election, is a blueprint for achieving 50:50 co-governance of the country by the Maori tribal elite by 2040. The then Prime Minister, Jacinda Ardern, was in the process of transferring half of decision-making power to unaccountable and unelected Maori leaders, who represent just 17 percent of the population. These Maori elites would then have had disproportionate influence and the right of veto over the other 83 percent of New Zealanders, who would have become second-class citizens in their own country. The Maori Health Authority is a portent of that. There was no democratic mandate for this radical change to our constitution to an antidemocratic regime and indeed the Prime Minister took pains to avoid it. (see Mark Hanson, NZCPR, 2021, here.)

PM Ardern resigned at the beginning of the 2023 election year, leaving someone else to face the fallout and someone else again to fix it. The trouble is, it has got away on us now and it is proving difficult to get back.

Prior to the 2023 election, the Maori Party said they want to establish co-governance between the Crown and Maori by 2040, as recommended in the He Puapua report: Co-leader Debbie Ngarewa-Packer called for a Maori Parliament or separate Upper House as recommended by He Puapua, and Rawiri Waititi made the same call again at the recent Waitangi gathering. The Waitangi Tribunal has already assumed the role of a Maori parliament to some degree and seeks to expand it further. The Maori Party also aspires to dominate the House of Representatives where Maoris are already disproportionately represented by a factor of two. The intention is to replace democracy with what Professor Elizabeth Rata calls Maori re-tribalism.

The process was halted by the last election and is now being reversed to some extent. But Prime Minister Luxon is already weakening his stance and we will in time become disillusioned with the present coalition Government. When that happens, the pendulum will swing and the Maori Party will again be in Government. They will then restart the He Puapua program. Each time they do that, they take it forward a notch. If you want to know what an indigenous government does to a country, read the recent media reports on South Africa. That is why we need a decisive outcome now for a lasting solution.

Democracy has its problems, but it is the best system we have tried so far. We should make an explicit decision to retain democracy or to replace it with Maori tribalism. We cannot have both because the one will displace the other, which our politicians have been allowing to happen for the past four decades. New Zealand is passively regressing into a Maori ethno-state due to subservience of the politicians and apathy of the voters. Even so, there is not a democratic mandate for it.

There have been attempts to stop re-tribalism and, if his Orewa speech is anything to go by, Don Brash may have done so had we given him a bit more support. Now David Seymour and the ACT Party are giving us a second chance with the Treaty Principles Bill. There is no reason to expect there will be a third.

Dr Brash said in his speech “…there is, of course, a highly distinctive Maori culture, which many people see as central to their identity …” But he goes on to say:

“Anthropologists tell us that by 1900 there were no full-blooded Maori left in the South Island.  By 2000, the same was true of the North Island.  Today, nearly 70% of 24 to 34 year old New Zealanders who identify as Maori are married to someone who does not.”

It is inevitable that the phenomenon of race will disappear; that is the sure future. So why are we making such a fuss about Maori identity now, but not Asian identity, Islander identity or European identity? It is because distinguishing part-Maori from non-Maori enables the Maori elite to make a power grab and a lot of money. Does anyone know how much of the Treaty billions has trickled down to the poor Maoris the elite Maoris keep telling us about? Or how much tax the iwi corporations pay now? Let us know in the Comments section.

PM Luxon has recently said he views the Treaty of Waitangi as “akin to partnership” between the Crown and Maori, and that National would not be supporting the Treaty Principles Bill beyond the first reading. He further claimed that the Treaty Principles Bill has created “tension”. But the Government shouldn’t cave because a tiny faction has a tantrum. There’s no point having a Government that doesn’t govern. Mr Luxon should accept and acknowledge that democracy is paramount in our constitution and that we should not allow our democracy to be displaced by tribalism.

David Seymour reportedly responded as follows (Newshub, 7 Feb):

Seymour said Luxon has used “different language at different times”

“But my bet is that when it comes up for a second vote, which is maybe a year away from now, and what will decide it is what the public wants, and no one knows that at this point because it hasn't been written, it hasn't been debated, Seymour said.

Seymour's election proposal was to rewrite the principles, pass the Bill through Parliament and essentially have it ratified by public referendum at the next election.

Asked if he is promising there will be a referendum if the Bill is successful, Seymour said: “No, it's quite possible that the legislation will pass and the job will be done, Parliament has finally spoken.”

So according to David Seymour, “what will decide it is what the public wants.” We the people have a role to play; but I suggest we will need to be assertive to get what we want.

So start gathering your thoughts to make a submission to Members of Parliament at the Select Committee stage which could begin in May. Keep it rational and keep it factual. You should say what you want, why you should have it, and by when you expect to get it. Develop an evidence-based rational argument for a panel of MPs selected from across the political spectrum.

So, to answer the question, what is the relevance of the Treaty of Waitangi today?

The Kawharu translation of the First Article says all the chiefs, “give absolutely to the Queen of England for ever the complete government over their land”, and the Treaty Principles Bill will say much the same. Our Government has not been fulfilling that role for decades: ‘complete government’ does not mean ‘just the pro-Maori issues’. The Maori seats should have been abolished, the Waitangi Tribunal needs to be wound up and the Treaty principles should have been explicated – and they have done none of it. By the Treaty of Waitangi the Crown agreed to be responsible for the complete government of New Zealand, not just the bits that suit the Government of the day.

We need to ensure that democracy – not Maori tribalism – remains the central tenet of our constitution so that we the people – part-Maori and non-Maori – are properly and equally represented in the government of our country. When the Third Article says “the same rights and duties of citizenship as the people of England”, that refers above all to the right and duty of suffrage. If Christopher Luxon does not meet his Treaty obligation of complete government to preserve our rights and duties we need a Prime Minister who will, Judith Collins perhaps.

A final word. When I refer to ‘the Maoris’, I sometimes mean the 2.6 per cent who vote for the Maori Party. When I look about me and see the remaining 15 per cent of the population who call themselves Maori, I see people who no doubt have their trials and tribulations, but are nevertheless participating with everyone else in the slings and arrows of New Zealand society, together with its considerable benefits. These people I see as fellow humans wrestling with life and its inevitable consequences, as I do too.

The 2.6 per cent I see as being resentful of the more developed culture that feeds, clothes, houses, and overwhelmed them. That tiny subversive faction would be beneficially curtailed with the disestablishment of the exclusive Maori Parliamentary seats, as was recommended with the introduction of MMP. But is our Government going to do it? Is our Government going to govern or has PM Luxon been intimidated by Maori ‘tension’ at Waitangi?

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.