John Robinson: The Crown should once again withdraw from negotiations with disruptive and extremist Ngapuhi

Northern tribes, Ngapuhi, have been so divided and arguing among themselves that there has been no agreement yet on a Treaty settlement.  Christopher Finlayson tried for several years to find agreement before finally withdrawing from negotiations in 2017.  The following Labour government left the problem to the current National-led coalition which is again facing problems.

Now Ngapuhi have come up with an outrageous claim for “an $8.43 billion redress for generations of losses” – almost double the total of around $4.3 billion for all settlements to all other tribes.

Why is any payment due?

The Ngapuhi iwi had been prominent in calling for British assistance, had been the first to welcome and sign the Treaty of Waitangi.  Their support for the new government included military action against one of their own, the rebellious Hone Heke.  Ngapuhi benefitted from the peace and prosperity of colonisation.

That historical record has been set aside with claims that sovereignty lies with the many subtribes, the hapu, who did not individually sign the Treaty.  This is equivalent to a claim that a nation cannot be held to an agreement without individual agreement by every small community, such as towns and villages.  The Treaty of Waitangi replaced such divisive and ruinous tribalism with a united nation, ending the rampant warfare that had been destroying the Maori population. 

That return to fragmentation, division and conflict has been supported by the Waitangi Tribunal and the Supreme Court, which have ruled that even today sovereignty rests with iwi and hapu – this is not one country but a mix of divided groups, taking us back to pre-Treaty tribalism, destroying the fabric of the nation.  The modern myth of great harms of colonisation has been built up by counterfactual history since 1975, the date of the setting up of the Waitangi Tribunal.  This is the line taken by the officials who provide information and advice to Members of Parliament and Government Ministers.

However, the current government has spoken out clearly against that division of sovereignty; Christopher Luxon told Parliament during Question Time the Crown was “sovereign” and Maori ceded sovereignty when signing the Treaty of Waitangi.  That understanding was once equally universal, as was made clear by Apirana Ngata in 1922: “This was the transfer by the Maori Chiefs to the Queen of England for ever of the Government of all their lands. … 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 main purport was the transferring of the authority of the Maori chiefs for making laws.”

The Government must overrule current official opinion and re-assert national sovereignty and equality of citizenship, not listen to arguments for the breakup of the country.

The serious shortcomings of official advice and actions are shown clearly by the shoddy manner in which settlement claims are dealt with.  There is no independent questioning of the grounds for claims, which should depend on clear breaches of the Treaty, and any reason for a claim is sometimes lacking, as was shown in 2010 when the Minister, Finlayson, replied to my request for a copy of one key historical account.  An account story of possible breaches of the Treaty by the Crown did not exist: it was “still to be agreed between the Crown and Ngati Toa as part of their Treaty settlement negotiations.”

Such a lack of professionalism matters particularly here, where my independent analysis has reached the very opposite conclusion, that: “Only Maori rebels broke the Treaty of Waitangi.  The Crown (in practice, the government of the day) never broke the Treaty.”[1]  Billions of tax-payer dollars and additional rights should not be handed over in such a cavalier manner.

The Ngapuhi claim is accompanied by a considerable mass of reports, most of which state the unverified words of the various complainants without critical evaluation.  Their presumed separate sovereignty is the key issue.  “At the heart of the claimants’ case is the protection of hapu rangatiratanga.  They alleged that the Crown was attempting to transform the Ngapuhi political structure to achieve a settlement outcome that had more to do with its policy preferences than those of Ngapuhi.  They argued that this was a breach of the Crown’s obligation to actively protect that hapu of Ngapuhi [to the] fullest extent practicable in possession and control of their ongoing distinctive existence as a people albeit adapting as time passes.” [2]

That claim of separate sovereignty surely negates the whole process.  As other iwi have pointed out, any settlement is only possible because the Crown has sovereignty and thus responsibility for any claimed past wrongs.

Other grounds include loss of lands, which was sold following lawful processes.  This did not involve any Treaty breach.   “The Treaty gave the right to govern, and British law prevailed thereafter.  Should the new authority make a judgement, and reach a decision, that someone did not like – or which some now disagree with – was not to break the Treaty, which simply gave the right to govern, without any promise of perfect adherence to any one point of view.  The Treaty involved simply setting up a system and a structure by which decisions and judgements would be made by the proper authorities – no longer by chiefly might and tribal warfare.”[3]

What should be the next step for the Minister for Treaty Negotiations, Paul Goldsmith?

There should never have been any such Treaty settlements, but it is now too late to end the process.  At least this, almost the very last possible settlement, should be treated with greater care.

Settlements can only be with those who accept the unity and sovereignty of New Zealand.  Negotiating in good faith implies setting out reasonable claims.  Ngapuhi must come to their senses or must forfeit the opportunity to waste the time of Ministers and public servants.  So long as this group claim fragmented sovereignty, the Minister should refuse further contact.  He has tried to meet and negotiate, but so long as they remain obdurate the Government must be prepared to repeat the unavoidable previous decision by Finlayson and withdraw from negotiations.

If Ngapuhi decide to rejoin New Zealand, the negotiations should seek separate advice and move away from the previous one-sided proceedings where the Crown (the Government and all the people of New Zealand) has not been adequately represented.    Alternative professional facts-based opinion and questioning of claims must be introduced.

The best way forward then calls for leadership from all public figures who must stand up for the basic principles of equality, sovereignty of a united nation and security of ownership.  Every Member of Parliament should state clearly and publicly that they accept those fundamental principles and will be guided by them.  That should be followed by similar statements by all local body members and others who claim to stand for our collective conscience – including churches and other religious bodies.  In terms of the proposed principles Bill this is “to drop any reference to the Treaty of Waitangi from the Bill and simply state the principle (or principles) that should guide New Zealand into the future.”[4]

Here I echo the conclusions of retired District Court Judge David Harvey when he appeals to universal beliefs rather than the one disputed document, the Treaty of Waitangi.  

“David Seymour has made a start and his principles so far seem to be the basic building blocks of a liberal democracy. 

Perhaps there should be a recognition of minority rights to avoid tyranny of the majority. But if we look at Seymour’s principles as stated, they would probably be recognised by John Locke, Thomas Jefferson, Edmund Burke and John Stuart Mill. They are fairly universal propositions for a democratic state. They encapsulate the rule of law, property rights and equality of treatment. 

However, the final determination of what the principles are should be left to the people who will have to live under them rather than be a decision for an unelected and largely unaccountable judicial priesthood.”[5]

References: 

[1] Robinson J 2024. Who really broke the Treaty? Tross Publishing.  Page 44

[2] Ngapuhi Mandat e Inquiry Submission 2015. https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_95773963/Ngapuhi%20Mandate%20Inquiry%20W.pdf 

[3] Robinson J 2024. Who really broke the Treaty? Tross Publishing.  Page 50

[4] Robinson J 2024. Just equality: The simple path from confusion to common sense.  NZCPR Guest Editorial.  https://www.nzcpr.com/just-equality-the-simple-path-from-confusion-to-common-sense/#more-39885

[5] David Harvey A matter of principles. New Zealand Listener. 7 Oct 2024

Dr John Robinson is a research scientist, who has investigated a variety of topics, including the social statistics of Maori.  His recognition of fundamental flaws in the interpretation of nineteenth century Maori demographics led him to consider the history of those times in several books.