Professor Vowles notes that the late Hugh Kawharu’s authoritative translation of the key text of the Treaty of Waitangi says:
“The Chiefs …give absolutely to the Queen of England for ever the complete governance over their land.”
Vowles concedes that any commonsense reader would see no difference between “complete governance for ever” and “sovereignty”.
It is conceivable that some signatories might have believed that their continuing right to the “exercise of their chieftainship” meant that they retained some share of the sovereignty over “ordinary people”. But “Kawharu also noted that “chieftainship” was based on limited authority and is best understood as “trusteeship”, says Professor Vowles. “By implication, then, chieftainship did not mean sovereignty. This idea was simply not in the Maori conceptual toolbox at the time”.
Vowles then attempts to draw a distinction between “legal sovereignty” – which, in a democracy, is vested in the people through their elected Parliament and cannot be divided – and “secular sovereignty”, which can be shared around. The latter concept appears to encompass all instances of a legal exercise of authority such as the administrative decisions of public servants.
I’m bound to disagree with the learned professor. Why should we distort the ordinary meaning of words? The Oxford dictionary tells us that “sovereignty” means “supreme authority in a state” – ”the person, institution or body having the ultimate authority to impose law on everyone else in the state and the power to alter any existing law”.
Delegated powers can never meet a definition which requires “ultimate” or “supreme” authority. Powers may be delegated BY a sovereign but never TO a sovereign.
Whatever the outcome of these semantic quibbles, the legal situation is clear. The arguments of some academics (not Professor Vowles) that some Maori chiefs somehow have some sovereignty over some people in some circumstances has no standing whatever in law.
The same academics are fond of the judgments of the Court of Appeal in the 1987 ‘Lands Case’ [NZ Maori Council v Attorney-General [1987] 1 NZLR 641] in which it is suggested that the treaty relationship was “akin to a partnership” in certain narrow respects. This is what the Lands Case had to say about the claim to sovereignty [Somers J at p 15 of his judgment]:
“We were referred to a number of valuable commentaries on this part of the Treaty and to the several determinations of the Waitangi Tribunal . They provide grounds for thinking that there were important differences between the understanding of the signatories as to the true intent and meaning of Article 1 of the Treaty. But notwithstanding that feature, I am of opinion that the question of sovereignty in New Zealand is not in doubt. On 21 May 1840, Governor Hobson proclaimed “the full sovereignty of the Queen over the whole of the North Island” by virtue of the rights and powers ceded to the Crown by the Treaty of Waitangi and over the South Island Stewart Island on grounds of discovery. These proclamations were approved in London and published in the London Gazette of 2 October 1840. The sovereignty of the Crown was then beyond dispute and the subsequent legislative history of New Zealand clearly evidences that. Sovereignty in New Zealand resides in Parliament”. [Emphasis added]So, that should have been the end of the matter. The NZ Maori Council had their day in Court 36 years ago and they lost on this issue – outright. The 1987 decision has not been and could not be challenged in any Court of competent jurisdiction. The subsequent views of the Waitangi Tribunal, and its inability to take no for an answer, are both irrelevant and disrespectful.
Professor Vowles says the issue of Maori sovereignty is central to the debate over the Government’s pending Treaty Principles Bill. If he is right, then the argument is over before it has begun. The law is settled and the constitutional position is clear – New Zealand sovereignty is vested in the New Zealand House of Representatives and nowhere else.
Barry Brill OBE JP LL.M(Hons) M.ComLaw is a former MP and Minister of Energy, Petrocorp director, and chair of the Gas Council, Power NZ, ESANZ, and EMCO. He is presently the Chairman of the New Zealand Climate Science Coalition.
10 comments:
The oft-quoted claim is that the Maori version of te Tiriti, takes precedence over the English version, thus giving them control over the meaning of the Treaty.
This is a legal and logical fallacy.
The claim stems from the principle of Contra Proferentem, (Latin: against the offeror) also known as Protection of the weaker party.
The principle stipulates that if a clause in a contract is ambiguous, it should be read in a way that disfavours the party who originally drafted, introduced, or demanded the inclusion of that specific clause.
The first point is that Contra Proferentem originates from the case of Canada Steamship Lines Ltd v The King in 1952. Another older and more fundamental legal principle is the Presumption against retrospectivity. New laws cannot be applied to old events. Contra Proferentem applied to the Treaty is a legal fallacy.
Perhaps an argument could be made that Contra Proferentem takes precedence over Presumption against retrospectivity. Relegating the Presumption would simultaneously mean a new law can simply overturn the Treaty. In fact, this already happened in 1877 when Chief Justice James Prendergast described the Treaty as ‘worthless’ and a ‘legal nullity’. The Treaty was reinstated precisely because of the Presumption. Such an argument is a logical fallacy – without the precedence of Presumption, there is no Treaty.
To further labour the point, it must also be noted that Contra Proferentem is a principle for contract law. The Treaty is not a contract; otherwise it would be known as the Contract of Waitangi. It is a treaty because neither side had legal jurisdiction over the other. There are no rules or principles of contracts that can be applied to it. Nor do treaties have a higher authority to appeal to.
"The legal fraternity has overstepped its boundaries in applying a modern New Zealand legal system to a treaty between parties that existed outside New Zealand law". The Waitangi Tribunal is another legal fallacy – the Treaty does not give the Tribunal authority over the Treaty because the Tribunal and New Zealand law only exists under the Treaty.
Even if we consider it as a matter of principle and in good faith, the argument still fails. Protection of the weaker party (an interpretation of Contra Proferentem) is another fallacy. At the time, Maori were far stronger than the settlers. It is condescending to take this approach. Maori signed, not because they were weak, but because they saw a benefit to themselves.
Disfavouring the drafters is likewise a fallacy. The issue is not the drafting, it is the translation, which is an entirely separate matter. Ngata’s book answers this. The drafting itself was undoubtedly favourable to Maori, which is why they signed. I am not denying the many Treaty breaches that happened later, I am limiting my discussion to the precedence argument.
To conclude, I will quote Ngata’s own words:
“the Maori version clearly explained the main provisions of the Treaty” and “It was the chiefs who bespoke the land and gave it away. They had the power even for life or death. These were the powers they surrendered to the Queen. This was the understanding of each tribe.”
The Treaty vs Te Tiriti- By Andrew B from the BFD site
I fear if Bell Gully described sovereignty to the Supreme Court that Mr brill would lose miserably. And I am not sure Mr Luxon would do anything about it except breathe a sigh of relief that he could now side step the whole issue…
We sort of know that.
Its a shame Maori can't see it .
The Waitangi Tribunal disagrees with Mr Brill (and everyone else with half a brain) by finding that the Ngapuhi tribe did not cede sovereignty. Which goes to show that the Waitangi Tribunal has outrun its time. Probably by 30 years or more. This BS about grievances should never have surfaced, let alone cost taxpayers ( 2% of Maori?) the fortune it has, all to benefit the chiefs. The sans culottes had a point. I wonder when your Maori peasant will wake up to that?
This is the legal argument, but the convention is that the natives have the last say. What did the signatories understand? It’s quite clear that they were surrendering control to the Crown, but retaining authority over their own rohe and its people. I’m fine with that. But are the people? Do Maoris really want King Tuheita and his associates to be King Charles the First? No, I didn’t think so.
The legal facts will escape most ordinary lay people - unless they are expressed in very simple terms.
It is known that Maori activists and their supporters are playing with words and spurious interpretations of the Treaty. Dangerous - as too many gullible people might take notice.
It is vital that citizens get a clear picture of what NZ as an ethnocracy would mean- i.e. special privilege and final authority/power for one specific ethnic minority and second class status for the majority
i believe the 'treaty' is indeed a nullity - the third clause doesn't hold anymore! none of the NZ citizens (maori, early settlers, new immigrants) have the same rights as the british subjects. you can't just claim the rights a british citizen has. isn't that enough to say the 'treaty' belongs to a museum and not relevant to the present day NZer?
This analysis shows some opinions so far from true they can only be the flimsiest fancies.
Thank you.
Excellent comment above.
> quote Ngata’s own words:
“the Maori version clearly explained the main provisions of the Treaty” and “It was the chiefs who bespoke the land and gave it away. They had the power even for life or death. These were the powers they surrendered to the Queen. This was the understanding of each tribe.”
This makes it very clear. Sovereignty implies the power of life and death and the chiefs gave it up.
Do these activists want pre 1840s tikanga law as part of their partnership ?
Yeah right, that's real civilization!
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