Barrie Davis: Seeding Sovereignty in the Spring

A debate has recently begun between the Government and the Maoris regarding sovereignty (here). Prime Minister Christopher Luxon said that Maori had ceded sovereignty, and “the Crown is sovereign”. On the other hand, Professor Claire Charters from the University of Auckland replied that the te reo Māori version will always take precedence in the law and head lecturer Carwyn Jones from Te Wānanga o Raukawa explains the English text speaks about sovereignty going to the British Crown, but that the Māori text refers to tino rangatiratanga being guaranteed to Māori.

That debate is incoherent and unnecessary and I will explain why.

The first point to note is that it is broadly agreed that the Treaty of Waitangi is that in Maori, not English, for two reasons: First, the Treaty in Maori is what a large majority of the chiefs signed in 1840; and Second, a large majority of the chiefs had no English and so could not have agreed to a version in English which they did not understand. The so-called ‘official’ version in English is a fake anyway and should not have been included in the Treaty of Waitangi Act 1975.

The debate about sovereignty is illogical because it is posed as a choice of either that the chiefs ceded sovereignty to the Crown or that they did not cede sovereignty to the Crown. It must be one or the other, but it can not be neither.

Cede means “give up (power or territory)” (Oxford Concise), which entails that they must first have it. The Treaty itself says, the chiefs “give absolutely to the Queen of England for ever the complete government [kawanatanga] over their land” (trans. I.H. Kawharu). That does not require that they give up their chiefly power or territory. The problem with the debate is that it does not allow for an arrangement whereby both the Queens power of sovereignty and the chiefs’ power of rangatiratanga could exist together.

It has sometimes been mentioned that the Chiefs did not have sovereignty to cede. When writing about Normanby’s instructions to Hobson, Professor of History Paul Moon (The Path to the Treaty of Waitangi, 2002, p. 111), says:

“The key issue in this segment is the type of sovereign power that Maori would be expected to cede. In the setting of the instructions as a whole, the sovereignty referred to is that of a national sovereignty, which the instruction’s author reasonably assumed was absent from the Maori communities in the country.” ... “No national system of rule was in operation by Maori at this time, so the British were essentially asking for permission to acquire a type of sovereign rule which Maori would not have to sacrifice, as they did not possess it. This is distinct from the superficial interpretation of this passage, in which Maori arbitrarily surrendered all their sovereign rights and powers to the Crown”

So, by Article 1 of the Treaty, the chiefs did not cede sovereignty but instead accepted sovereignty; that is, they agreed that they would be subject to the Crown. That does not necessarily mean that they relinquished their chieftainship (tino rangatiratanga). That suggests an arrangement similar to the Magna Carta in which the Barons are subject to King John. The Barons were still barons with the dignity and estate of a barony, but as such they are subject to the Crown.

In the article Carwyn Jones claims (here) “We often think about that [rangatiratanga] as being self determination or independence, and that's an idea which is actually much more like sovereignty [kawanatanga]. So that's being retained by Māori. And so it would be inconsistent with that guarantee for Māori to have ceded sovereignty in Te Tiriti.” Except that it isn’t. What they think it is much more like and what it was actually are two different things.

Professor Sir I. H. Kawharu (Waitangi, p. xix) says, “rangatiratanga … means ‘evidence of breeding and greatness’. Here, ‘breeding and greatness’ allude to the two main characteristics for leadership: primogeniture (generally male) and proven ability [which is] that power and authority that is endowed by the gods to human beings to enable them to achieve their potential, indeed to excel, and, where appropriate, to lead.” He made no reference to self determination and independence which is a modern construction.

Certainly the chiefs gave up an aspect of their self determination and independence – in particular the authority for making laws, such as the abolition of slavery, cannibalism and infanticide – but that did not of itself affect their god given ability to lead their tribe, which determined their chieftainship. So they retained the “unqualified exercise of their chieftainship over their lands, villages and all their treasures” of Article 2.

Maori chieftainship was not like British sovereignty. The sovereignty (kawanatanga) referred to in Article 1 is with respect of all of New Zealand whereas chieftainship is with respect of an individual tribe. There were about 100,000 Maoris at the time of the Treaty which about 500 chiefs signed and others did not, so the tribes were quite small and on average each comprised around only 200 people at most. Chieftainship therefore entailed much less authority over a much simpler social structure than the government (kawanatanga) of the entire country that was proposed and subsequently implemented by the British. It is not just a matter of degree; they are categorically different and provide very different outcomes of evolutionary significance. By providing sovereignty, the British lifted the Maoris out of the Stone Age.

It is sometimes objected that the chiefs did not understand what sovereignty, translated as kawanatanga in Article 1, entailed. In a note to his translation of ‘kawanatanga’ as ‘government’, I. H. Kawharu (p. 319, n. 6) claimed, “There could be no possibility of the Maori signatories having any understanding of government in the sense of ‘sovereignty’ i.e. any understanding on the basis of experience or cultural precedent.”

I believe that claim to be mistaken as several chiefs travelled to England prior to the Treaty. As early as 1806, Moehanga (Te Mahanga) of Ngapuhi visited London where he met Earl Fitzwilliam and, he claimed, King George III and Queen Charlotte who apparently gave him tools and money. In 1820, Hongi Hika, also from Ngāpuhi, along with his nephew Waikato and missionary Thomas Kendall, had a five month stay in London, where he met King George IV, who gave him gifts which he sold to buy muskets, and Cambridge where he worked with Professor Samuel Lee and Kendall on the first Maori dictionary. Hongi Hika’s visit to England contributed to the Treaty of Waitangi with Ngāpuhi and other tribes.

So Maori chiefs had significant opportunity to garner an understanding of sovereignty on the basis of experience and cultural precedent and to communicate that among themselves. They would have seen firsthand what British sovereignty entailed. England was magnificent and at the height of her powers. Victoria was sovereign over a quarter of the earth’s surface and a quarter of its population. Even the slums of Dickensian London would have been preferable to their dirt-floored grass huts back home. That and much more would have been apparent to the visiting chiefs who would have been awed by the power and capability of British sovereignty.

When the chiefs subsequently signed the Treaty on 6 February 1840, they agreed to be subject to the Crown. Their comments recorded by Colenso at the meeting the day before make clear that they understood that, and subsequently at the Kohimarama Conference in 1860. But when the chiefs left to return to their villages on 7 February 1840, they were still the chiefs of their individual tribes and that situation remained for the following century.

Until World War II 90% of Maoris still lived in rural tribal communities, but by the mid-1970s almost 80% lived in cities (Bradford Haami, Urban Maori: The Second Great Migration, 2018). Professor Moon wrote (New Zealand in the Twentieth Century, 2011, p. 307), “The city offered a playground of leisure as well as work opportunities [and] a place where individuals could live unfettered by the encrustations of tribal traditions and constraints…”

The Maoris themselves deserted the realm of chiefly authority which some self-styled Maori leaders now want to reinstitute in the European cities. But the present Maori leaders do not exercise a continuation of the customary rangatiratanga of the chiefs of yesteryear. They are more like corporate CEOs and I wonder what they are doing with the profits.

The concept of rangatiratanga remained after the Treaty of 1840, but with the implementation of British sovereignty in New Zealand it became outmoded and after a century it fizzled out. With the Treaty of Waitangi Act 1975 and the Waitangi Tribunal, Maoris with names like Helmut Modlik and Graham Rankin claim to be the heirs of nineteenth century tribal chiefs in order to usurp power for themselves. The provisions of the Treaty have been corrupted and need to be reset. Mr Luxon would achieve that and avoid distracting debates on issues like sovereignty if he were to allow the referendum on the Treaty Principles Bill.

As David Seymour says at 12:00/15:50 in the podcast embedded in the RNZ article:

“What does matter is that New Zealand is able to go forward as a country together where all people have the same basic rights.”

Why are we having a problem with that?

References

“Sovereignty debate sees major parties weighing in for first time,” Radio NZ, 30 August 2024 (here).

https://www.rnz.co.nz/national/programmes/focusonpolitics/audio/2018953469/sovereignty-debate-sees-major-parties-weighing-in-for-first-time

Podcast: https://www.rnz.co.nz/audio/player?audio_id=2018953469

Professor Sir I. H. Kawharu (ed.) Waitangi: Maori and Pakeha Perspectives of the Treaty of Waitangi. Oxford University Press. 1989.

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.