Barrie Davis: The Maori Magna Carta

The claim of partnership in the Treaty of Waitangi as the basis of co-governance, sits at the centre of the debate on the Treaty Principles Bill. At face, a partnership for governing the country seems an unlikely possibility. The Treaty is an agreement between Queen Victoria and about five hundred Maori Chiefs regarding the sovereignty of New Zealand. Partnership is not specifically mentioned and given the far greater power and authority of Queen Victoria a hierarchical arrangement is far more plausible.

 

In his 1991 book, The Maori Magna Carta: New Zealand Law and the Treaty of Waitangi, Paul McHugh gives his understanding of the judgements of the Court of Appeal and the recommendations of the Waitangi Tribunal as at 1991. He sums up their position as follows (p. 5):

 

“On the one hand, the Crown undertook responsibility for the protection of Maori society and interests, not least the mana of the chiefs and tribal property rights. On the other, the Maori agreed to the colonization of the country under royal aegis. This mutuality in which each side extracted certain benefits whilst also accepting concomitant responsibility provides the basis for the principle of ‘partnership’ and ‘the reciprocal obligations of the parties to act towards each other with reasonableness and the utmost good faith’. The Crown is honour-bound to protect and ensure Maori interests, however the tribes owe ‘loyalty to the Queen [and] full acceptance of her Government’. Maori interests under the Treaty of Waitangi cannot authorize unreasonable restrictions on the right of duly elected Government to follow its chosen policy.”

 

However, the “mutuality in which each side extracted certain benefits whilst also accepting concomitant responsibility,” does not necessarily provide the basis for a principle of ‘partnership’. It could also apply to relationships other than ‘partnership’. Thus, ‘partnership’ is not confirmed by mutuality and mutuality may be confirmed by more than one sort of relationship.

 

I will compare that legal perspective with my literal reading of the Treaty to show that the Treaty is not a partnership but a hierarchy of a Monarch and her subjects including the Chiefs and their tribes, similar to the Magna Carta.

 

Exegesis of the Treaty of Waitangi

 

My explanation of the text centres on the concept of sovereignty or dominion of the Queen (kawanatanga) and the sovereignty or authority of the Maori Chiefs (rangatiratanga), and the distinction of possession of the country by the Queen and ownership of land by her subjects. My argument is based on my understanding in English derived from the Treaty in Maori, with concern only for the rules of language (grammar) and without reading between the lines (lying).

 

Following Ned Fletcher (The English Text of the Treaty of Waitangi, 2022), I have considered four extant drafts in English, none of which is a full draft of the Treaty. In order of writing, they are: first, a preamble and three articles by James Freeman, Hobson’s secretary; second, three articles and a long concluding subscription by James Busby, the British Resident; third, a ‘fair copy’ of the first Busby draft, probably given to Hobson on 3 February; and last, a preamble by Captain William Hobson, first New Zealand Governor, which was derived from Freeman’s preamble and Busby’s articles and subscription.

 

Hobson’s preamble includes a note that Hobson was authorized by Lord Normanby, Colonial Secretary (here), to treat with the Maoris for “the recognition of Her Majesty’s sovereign authority” and explained that the purpose of sovereignty was “to establish a settled Form of Civil Government”. The first three drafts all include an Article 1 which says that the Chiefs cede sovereignty to the Queen. That gives the intent of the Treaty, but what does the Treaty in Maori actually say?

 

I have also considered three authoritative back-translations of the Treaty into English: T. E. Young in 1869; Michael Rotohiko Jones’ 1963 translation into English of Sir Apirana Ngata’s 1922 Te Tiriti o Waitangi: He Whakamarama; and erstwhile chair of the Waitangi Tribunal, Professor Sir I. H. Kawharu in 1987. These back-translations all say the Chiefs cede or give up forever all the government of their lands. If the Chiefs give all government to the Crown, then there is not co-governance.

 

I have additionally considered the ‘Littlewood’ document with a 4 February 1840 date and an 1833 watermark. It was reportedly discovered by the Littlewood family in 1989, initially suppressed by the authorities, and reported in the media in September 1992 (here). Its provenance is disputed as either a final draft written by Busby (Bruce Moon, here) or a back-translation by Busby (Dr Phil Parkinson, here). Whichever, presenter Ian Wishart claimed the ‘Littlewood’ document was generally censored in the media when a favourable reference to the document by Winston Peters was redacted from a NZ Herald article in 2004 (here). It is also curiously ignored (not disputed) in Ned Fletcher’s English Text book.

 

Note that the kawanatanga sovereignty of Queen Victoria was dominion over a quarter of the earth’s population and the possession of a quarter of the earths land surface; the rangatiratanga sovereignty of each Chief comprised the mana Rangatira (chiefly authority) over their respective tribes and the ‘ownership’ of tribal land. I will show that, by the Treaty: the Maoris ceded their mana Rangatira (chiefly authority) to the Queen’s far more powerful kawanatanga (Monarch sovereignty) by Article 1, retained ownership of their land by Article 2, and agreed to British law (tikanga) by Article 3. The Chiefs thereby placed themselves and their tribes under the Queens authority, similar to the Magna Carta.

 

I will identify what the relevant words of the Treaty meant to those who drafted it and to those who signed it at Waitangi. The difference in my literal approach to the legalistic approach of the Court of Appeal and the Waitangi Tribunal will result in a different outcome. The Treaty could perhaps be ‘the foundation for a developing social contract’, but if so that contract would be in addition to the Treaty and could include additional sources, such as Maori mythology (e.g., the anthropomorphization of mountains and rivers, here; or the playing of whale music to kauri trees, here).

 

The Treaty of Waitangi

 

Partners are people or groups who possess something jointly, although not necessarily equally (McHugh, p. 253). In the case of the Treaty, that could be that they jointly possessed the government of New Zealand.

 

However, that is not so, because by Article 1 the Chiefs gave the Queen of England forever the kawanatanga(government) over their land. Busby’s draft and the ‘Littlewood’ document refer to ‘sovereignty’(1840), the Treaty has kawanatanga, and the back-translations of Young (1869), Jones (1963) and Kawharu (1987) refer to ‘government’.

 

Sir Apirana Ngata, himself a lawyer, says Article 1 means a complete cession and for the Maoris that meant a cession of te mana Rangatira, which translates as ‘chiefly authority’ over their tribal domain. Ngata points out that the Maoris did not have kawanatanga (government) over the entire country; but that “The sum total of the authorities [mana] of the Maori Chiefs ceded to the Queen was the Government [Kawanatanga] of the Maori people.”

 

Furthermore, Article 2 says the Queen arranges and agrees to the Chiefs, the tribes and all the people, the rangatiratanga of their lands, homes and possessions. Whereas the Treaty refers to rangatiratanga, Busby, the Littlewood document and Jones after Ngata refer to ‘possession’, and Young and Kawharu refer to ‘chieftainship’. So, here, rangatiratanga (chieftainship) refers to ‘ownership’ of property (i.e., tangible things; see Piers Seed, Taonga and Contra Proferentum, 2023). Moreover, according to Article 2, that rangatiratangaor ownership of property applies to ‘tangata katoa o Nu Tirani’ (‘people all of New Zealand’), which includes Maoris, part-Maoris and non-Maoris.

 

So, for the Chiefs, in addition to ‘evidence of breeding and greatness’ (Williams Dictionary, 7th edition), further attributes of rangatiratanga included te mana Rangatira (chiefly authority, Article 1) and ownership of property (Article 2). Essentially this means possession and ownership respectively of their tribal domain.

 

Te mana Rangatira which the Chiefs gave to the Queen is thus added to the Queen’s already enormous kawanatanga as Sovereign of a quarter of the earths land and population. Hence, the Queen’s sovereignty is far greater than that of the Chiefs, collectively or individually, further indicating a hierarchical relationship.

 

McHugh (p. 16-7), after Victorian law expert A. V. Dicey, distinguishes ‘legal’ from ‘political’ sovereignty: “‘Legal sovereignty’ is vested exclusively in the Crown. It is the only legal source of governmental authority in our legal system. All acts of government derive from legal rule recognizing the Crown’s ultimate authority.” So, Queen Victoria could not have shared her ‘legal sovereignty’ with the Chiefs.

 

Nevertheless, McHugh writes (p. 16-7), “The interpretation of the Treaty of Waitangi by such agencies as the Court of Appeal and the Waitangi Tribunal … have shown that the Treaty reserves at least a special ‘political sovereignty’ for Maori society.”

 

Indeed, the Preamble of the Treaty says Queen Victoria desires to retain the rangatiratanga (chieftainship) for the Chiefs (so the Young, Jones and Kawharu back-translations). However, the Freeman draft, Hobson’s draft preamble, the ‘Littlewood’ document and the ‘official’ Treaty in English omit this (‘Littlewood’ says, “her desire to preserve to them their land”).

 

The purpose of the Preamble is to give the intent of the Treaty and contextualize the provisions that follow, which are the three articles. That the Queen desires the Chiefs retain their chieftainship is not a guarantee of the Queen or a requirement of the Treaty, but an expression of a wish for the retention of her vassals in their role as chiefs. As Ngata says in his Explanation, “Let us wait until the three covenants of the Treaty are fully explained to see the full significance of this thought in the mind of Queen Victoria.”

 

I have considered Articles 1 and 2 above which show that their chieftainship was significantly curtailed because they had placed their chiefly authority in the possession of the Queen. Furthermore, it was additionally curtailed because, by Article 3, they had agreed that the Queen would give them the same tikanga as the people of England; which is usually taken to mean they are subject to British law.

 

So, by the Treaty, the Chiefs were subject to the dominion of the Queen and bound by the laws of her Parliament.

 

Moreover, the Preamble did not guarantee them their chieftainship and they would still need to retain it for themselves. The idea that Queen Victoria proposed accepting responsibility for the Chiefs’ chieftainship is not tenable.

 

The speeches made by the Chiefs at Waitangi on 5 February make clear that they were quite aware of the hierarchical arrangement. I have put excerpts from two speeches in an Appendix if you have not read them before. It is well worth doing so as they give a feel for the ‘spirit of the time’. There is no doubt that the Chiefs knew essentially what was being proposed.

 

Nevertheless, it is clear from Treaty history that none at Waitangi, including the British, expected the Chiefs to stop being Chiefs. It is a matter of fact that after the Treaty was signed at Waitangi on the 6th of February, on the 7th of February the Chiefs returned to their respective tribes as their Chiefs. Two decades later, after defeating the uprising of the kingite Chiefs and in accordance with the desire of their Queen, the British hosted the queenite Chiefs as Chiefs at the Kohimarama conference. There, they recognized British sovereignty and discussed furthering the unity of the natives and the colonists (John Robinson, The Kohimarama Conference 1860, 2022).

 

But there was now a new sort of government over them and the Chiefs had a status similar to the minister of a church with influence over his flock today. An analogy from history is a baron who ruled over a large area of the countryside and acknowledged allegiance to a sovereign king.

 

That situation remained until the Second World War at which time 90% of Maoris still lived in rural tribal communities. But, after the war, a large majority of Maoris deserted the realm of chiefly authority and by the mid-1970s almost 80% lived in European cities (Bradford Haami, Urban Maori: The Second Great Migration, 2018).

 

It was the Maoris themselves who abandoned te mana Rangatira.

 

The Court of Appeal and the Waitangi Tribunal

 

McHugh says (p. 314):

 

“The Tribunal has constantly referred to the Treaty of Waitangi as something more than a ‘sum total of its component written words’. It was ‘the foundation for a developing social contract’ with a wairau or spirit of its own.”

 

The ‘wairau or spirit’ claimed by the Waitangi Tribunal is in part the 1840 zeitgeist of the writers of the Treaty. But it is also to a significant degree a projection of the beliefs held by its readers today. It is greater than the sum of its parts due to the Treaty of Waitangi Act 1975 which assumes the Treaty additionally includes principles: Its ‘Title’ page says it is “An Act to provide for the observance, and confirmation, of the principles of the Treaty of Waitangi …” What principles? It does not demonstrate there are such principles or offer even one example. That is what NLP practitioners call a ‘presupposition’: the Act presupposes the idea of ‘principles’ as a future receptacle for the emerging desires of a burgeoning Tribunal (here). I call it sleazy linguistics and misleading legislation.

 

Even now, 50 years later, Te Ara tells us (here), “There is no final and complete list of treaty principles. Instead, official documents have referred to treaty principles in general terms, without including the actual treaty text …” They are refusing to specify the principles so they can make it up to suit themselves as they go along, under the slogan ‘partnership, protection and participation’.

 

The Act gives jurisdiction to the Waitangi Tribunal to observe and confirm unidentified principles rather than the meaning of the text of the Treaty. So, to meet the requirements of the Act, the Waitangi Tribunal developed convoluted arguments to fabricate improbable additions which are not demonstrated as being apparent in the Treaty. The principles claimed for the Treaty are a self-fulfilling prophecy made by the Act and fulfilled by the Tribunal as instructed. It’s a rort.

 

An example is McHugh’s above claim that “the Crown undertook responsibility for the protection of Maori society and interests, not least the mana of the chiefs and tribal property rights.” Under rangatiratanga, the Maoris themselves were responsible for these things. In particular, there was ongoing inter-tribal warfare which decided “the mana of the chiefs and tribal property rights”. They were prohibited warfare by Article 3, so their rangatiratanga was curtailed and diminished, but it still remained.

 

To the extent that rangatiratanga was retained, so also must the responsibilities that go with it, including the responsibility for their existential prosperity. Such meritocracy is an essential element of the human condition. We have evolved to strive to survive and when we thrive we strive. It’s a positive reinforcement schedule: nothing succeeds like success.

 

That is the argument for equality of opportunity versus equity of outcome and it applies to all New Zealanders today. The Treaty does not require the Crown to “protect and ensure Maori interests” but to give Maoris the same opportunity to realize their material interests as for “all the people of New Zealand”. For the Crown to legislate otherwise is not acting “with reasonableness and the utmost good faith”. It is instead bad kawanatanga, developed within the ‘wairau or spirit’ of diversity, inclusion and equity.

 

For the courts and the Tribunal to make the claim of partnership in the Treaty is not even reading between the lines: it’s just not there. They are projecting their own jurisprudence or ideology into the document.

 

The parties do not have co-governance of New Zealand because by Article 1 the Chiefs gave the Queen of England forever the kawanatanga (government) over their land. Another obvious objective of a partnership would have been an agreement to create New Zealand. However, no mention is made of making New Zealand a British colony and the British colonists subsequently built New Zealand without co-government with the Maoris.

 

Instead, the parties had opposite roles and different responsibilities, so their relationship was not one of equals. It was a hierarchy whereby the Chiefs accepted the Queen’s full Government, so the Chiefs were subject to the Queen. Therefore, the Treaty of Waitangi is not akin to a partnership.

 

Paul McHugh writes towards the end of his book (p. 314):

 

The Tribunal “uses legal principles to justify rather than to authorize an interpretive approach beyond the literal construction of the actual words of the Treaty. In large part this approach is justified by the Treaty of Waitangi Act which describes the Tribunals jurisdiction in terms of the principles rather than the text of the Treaty of Waitangi.

“Thus the Tribunal was able to recognize, and the Court of Appeal to agree strongly with, the concept of ‘partnership’ between Crown and tribe as a principle of the Treaty of Waitangi. The term ‘partnership’ itself does not appear in the texts of the Treaty. One would also have difficulty translating the concept into practical legal terms. None of the legal concepts encountered earlier in this book come near any resemblance to ‘partnership’ other than as some sort of non-legal exertion on the Crown’s exercise of its legal sovereignty. Literalism and legalism give way before the Waitangi Tribunal to a wider-ranging approach.”

 

As the Chiefs are bound to the Queen by an obligation of allegiance and as they are also holders of land by her offer in Article 2, they are her vassals. They are therefore analogous to a baron; a person who holds lands or property from a sovereign, such as King John and his barons. The Treaty of Waitangi is therefore akin to the Magna Carta, as the title of Paul McHugh’s book suggests.

 

It is highly unlikely that Queen Victoria, arguably the most powerful monarch of all time presiding over a sophisticated global empire, would enter into a partnership with 500 primitive Maori Chiefs. When ‘King’ Tawhiao travelled to London in 1884 he failed to even gain even an audience with Queen Victoria.

 

The Treaty is a concise, coherent document. It becomes ‘a bloody difficult subject’ when looking for something that isn’t there. If it were a genuine attempt to identify principles, the obvious place to look is in Normanby’s instructions to Hobson. Possibilities include the principle of taxation, the ‘principle of self-funding’ by pre-emption, and the principles of “the common law right of Maori to their land and each chief’s sovereign status within his territory …” (Moon and Biggs, The Treaty and its Times,” pp. 173, 166, 161). The rational approach is to identify how such principles are (or are not) recognized in the Treaty; the problem is that it may not yield the results desired by the Tribunal.

 

The Waitangi Tribunal and its 1975 Act work in the opposite direction by first identifying present aspirations, such as ‘partnership’, and then constructing a long-winded argument within which is concealed a dubious attempt to validate the extraction of desired principles. It has been a piece of managed propaganda from the outset, using phrases such as ‘full and final settlement’ and ‘observance, and confirmation, of the principles of the Treaty of Waitangi’ and ‘What’s good for Maoris is good for New Zealand’.

 

The positioning of the Treaty of Waitangi as a partnership has been incrementally brought into effect over the past fifty years in an attempt to vindicate the implementation of co-government in our institutions and constitution.

 

‘Partnership’ is a monstrous lie.

 

If the Government were to recognize that now, the question would become: Will the effect of co-governance be reversed? I suspect the authorities will construct a sanitized version of their manoeuvrings, consign that to the history books, and decline to comment further. Their treatment of the He Pua Pua report and the removal of Ngata’s Explanation from City Council libraries are already examples of that. Co-governance leading to Maori rule is being imposed on us irrespective of the facts and devoid of reason.

 

But a question will still remain: Why have they done this? Why has our government allowed a faction from within our population to take over the government of our country? Just the opposite is happening in the UK where the indigenous population is White, so it is happening globally and it is based on race. On the one hand, they condemn racism and on the other they facilitate it.

 

There must be a common cause, which presumably is a global institution such as the United Nations or the WEF. Yet we seldom if ever hear of them. I don’t even know who they are, let alone get to vote for them. Does that qualify us as a democracy? I suggest that ‘democracy’ is being cynically used as a device to placate the masses.

 

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.

 

Appendix: Two Speeches by Chiefs at Waitangi, 5 February 1840

 

William Colenso, who was present at the signing, published The Authentic and Genuine History of the Signing of the Treaty of Waitangi in 1890 (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."

 

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.