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The Treaty of Waitangi: sovereignty, principles, people and progress

16 Feb 2024

| Author: Warren Pyke

In 1960, the first Waitangi Day Act was passed by the second Labour government, enabling any area of the country to substitute a Waitangi Day holiday for its provincial anniversary day.

To the 40,000 Māori who signed a petition prior to the passing of this legislation, the Waitangi Day Act affirmed the status of the Treaty of Waitangi in the national life of the country. Iriaka Ratana, the first Maori woman MP, who held Western Maori for nigh on 20 years, said at the time that “the cause of my election to Parliament is the Treaty of Waitangi”, seeing the proposed Act as “a mark of the trust which the Māori has in Her Majesty the Queen.” (NZPD Vol 325, 2964-65).

The member for Southern Māori, Whetu Tirikatane, said Māori looked upon the treaty as a “sacred possession” and that, “From the time I came into this House [in 1932] I have not lost sight of the Treaty of Waitangi.” (NZPD Vol 325, 2968-70). This echoed T W Ratana, who figuratively carried the treaty in one hand and the Bible in the other and said, “There is only one way for us to be sure of survival and justice, and that is through the ratification of the Treaty of Waitangi.” (Whetu marama, 28 October 1933).

Her late Majesty Queen Elizabeth said this at Waitangi in 1963 (Northern Advocate, 7 February 1963, quoted in Keith Newman, Ratana Revisited, Reed Books, Auckland, 2006, at 408): “Whatever may have happened in the past, whatever the future may bring, it remains the sacred duty of the Crown today, as in 1840, to stand by the spirit of the Treaty of Waitangi and to ensure that the trust of the Māori people is never betrayed. …Europeans and Māori can go forward together in confident partnership to make New Zealand a modern and prosperous nation, at the same time showing understanding and tolerance of each other’s distinctive culture and customs.”

This reflected Her Majesty’s earlier statement that “the Crown is not merely an abstract symbol of our unity but a personal and living bond between you and me.” This bond continues, as His Majesty King Charles affirmed on Waitangi Day 2023: “The Treaty of Waitangi/Tiriti o Waitangi was signed 183 years ago in the reign of my great-great-great-grandmother, Queen Victoria. It established an enduring connection with my family that I am honoured to continue”, referring to the treaty as a “covenant between two peoples”.

But what of this reference to “two peoples”? How valid is it in contemporary New Zealand where many New Zealanders have Māori whakapapa and other ancestry?

My Māori ancestry traces back to the late 1830s and a marriage between an English whaler and a Māori woman at Moeraki. I also have Scottish, Irish, Australian and French ancestry. My wife and children are Māori. I have uncles and aunts who are Māori and of other stock but I also have an ancestor who received the New Zealand Cross for acts of bravery during battles in Whanganui (Sgt Samuel Austin, whose medal is on display in the Waiouru Army Museum, for rescuing two imperial officers, who were brothers, in separate battles). I have ancestors who fought in the inter-tribal conflicts in the early 19th century. My history is often representative.

What it comes to is this: some who are Māori, strongly identify as such, others do not and others see themselves as New Zealanders. There is no one way of being Māori and there is no one way of being a New Zealander and we can identify as we wish because we live in an open society where we all enjoy a large measure of personal and cultural freedom, whatever our origins. Part of that freedom is, for Māori, guaranteed by the Treaty of Waitangi, which the Crown is honour bound to uphold.

No culture is fixed in time. The late Indian philosopher J Krishnamurti observed: “Culture, as the word indicates, is something that is constantly growing, changing, a movement without any particular end”, seeing it as “a movement in freedom, not within the pattern of an ideology, which becomes tradition.” (J Krishnamurti, This Matter of Culture, Orion, London, 1979).

It is instructive to compare Pacific cultures that are closely aligned to Māori culture, noting that language and customs have changed over time following Polynesian migrations to New Zealand, as those people adjusted to a new environment. Tikanga has changed since European migration, an obvious change being the culture of utu, which no longer permits killing, dismembering or cannibalising of one’s vanquished opponents (before people think Europeans were a morally superior lot in the 18th century, see the references to cannibalism in Europe, in Anne Salmond Between Worlds, (Penguin/Random House, New Zealand, 1997, at 96) and see the reference to the barbaric hanging, drawing and quartering of the man who had tried to assassinate King Louis XV of France in 1757 (Salmond, at 178).

 

Shared history

We live as a nation not just because of our individual histories but because of our shared history. New Zealand did not become a French, Dutch, German or American colony for three primary reasons – the prior voyages and landings of Captain Cook and his successors and the numbers of British whalers, traders and settlers who followed, along with British naval power, and the making of the Treaty of Waitangi.

Some of the rangatira who signed the treaty had travelled to London and Sydney in the 1820s and 1830s and they had observed the industrial development in England and colonisation of indigenous Australians (see O’Malley, op cit below, at 38). Nevertheless, they elected to settle with the British Crown. As the Colenso records of the proceedings at Waitangi in February 1840 show, some chiefs knew full well the powers that lay in wait for them if they signed the treaty, but it was by then a question of assessing the lesser of evils.

Rangatira entered into the Treaty of Waitangi as a way to secure their interests and those of their people. But the settlement of New Zealand proceeded at a swifter pace than most chiefs or even the British foreign office may have anticipated. Trouble started early after the treaty was signed and British sovereignty was proclaimed. Settler numbers mushroomed amidst corruption, avarice, greed and eventually war. Ngāpuhi was a large and powerful Northland tribe in the first half of the 19th century. Hongi Hika and other Ngāpuhi rangatira gained access to firearms by pursuing a lucrative trade with whalers and sealers, using these firearms to vanquish other North Island tribes in armed conflict prior to 1840 (for a readable account of this period and of the New Zealand Wars, see Vincent O’Malley, The New Zealand Wars, Nga Pakanga O Aotearoa, Bridget Williams Books, Wellington, 2019).

Tensions between the governor and colonists emerged quickly in Northland, leading to Hone Heke felling the flagstaff at Kororareka multiple times and his sacking of the town in 1845. Full-blown war eventually broke out in 1860 throughout most of the North Island, as retold by O’Malley. The war devastated Māori commerce and was destructive of the Māori way of life, and it included war crimes such as the brutal killings of civilians and destruction of property at Rangiaowhia by the armed cavalry under the command of Lieutenant-General Cameron (in February 1864, see O’Malley, at 122). The location of this now-vanished village is just down the road from where I now live and I shiver every time I think of it. Only the Kingitanga held out until the opening of the main trunk line, which opened up the King Country between 1890 and 1910.

 

Early breaches

The work of the Waitangi Tribunal and subsequent settlements has given Māori a measure of justice. But just that. The settlements do not represent measured compensation but are relatively modest awards for the dishonourable and brutal conduct of the Crown, settler governments and powerful settler interests, such as the New Zealand Company.

Their actions caused a whole race of native people to be dispossessed in their own land, in breach of the Crown’s solemn promise to protect them and to guarantee rangatiratanga in Article 2 of the treaty. As the French legal academic and philosopher Jacques Ellul has observed of European colonisation, European powers had no legal, moral or other right to deprive indigenous peoples of their way of life.

The tribunal has relevance as a watchdog over government action, as it was initially intended to be. Its work ought to diminish as the land and other settlements are finally completed. But the tribunal will still have a vital role to play. Whether its recommendations and interpretations of the treaty are accepted by Parliament or by the courts is a matter for those bodies to determine, applying the law and including any relevant tikanga and references in legislation to the treaty or the principles of the treaty that may impact upon the issues in a given case. Even where the treaty is not specifically mentioned in the text of particular legislation, it may, subject to the terms of the legislation, be a permissible extrinsic aid to statutory interpretation (Ngaronoa v Attorney-General [2017] NZCA 351, [2017] 3 NZLR 643, at [46]).

The Lands case remains the leading precedent (New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA). Three principles have been extracted from that case: partnership, active protection and redress.

Partnership is said to involve mutual obligations between the Crown and Māori of reasonableness, good faith, honourable conduct and co-operation. The development of treaty law is readably canvassed in the recently published Treaty Law – Principles of the Treaty of Waitangi in Law and Practice (K Hille, C Jones and D Ward, Thomson Reuters, New Zealand, 2023). If one reviews the law as set out in this book, one may well conclude we are not in need of any curative legislation in this field.

 

International status

The former Chief Justice, Dame Sian Elias, says the treaty has international legal status and it is “constitutional” because it was constitutive of the new State.

The Court of Appeal has described the treaty as “the starting point for the legitimacy narrative of New Zealand’s constitutional arrangements.” (Ngaronoa v Attorney-General, op cit, at [60]). Interpreting Articles 1 and 2 of the treaty together with Article 3, which granted all Māori the rights and privileges of British subjects, suggests the sovereign power must have the ability to secure those rights and privileges, not just against pakeha, but also as between Māori, which in view of the musket wars was a matter of some consequence to the weaker tribes (see Ned Fletcher, The English Text of the Treaty of Waitangi, Bridget Williams Books, 2022, page 469).

Dame Sian Elias, in the interview cited above, opined that sovereignty was ceded, but that the grant was of a “fettered sovereignty”. That means, I interpret, that Article 1 was subject to Article 2, namely that the right of government was to preserve intact those things promised to all Māori under Article 2.

To conclude that rangatira did not think the Crown would assume overall governmental power, subject to the provisions in Articles 2 and 3, suggests that rangatira were naïve. Who was going to be the power to control inter-tribal war? Further, some significant ariki chose not to sign up: Te Wherowhero of Tainui and Te Heuheu of Tuwharetoa among them (see Ranginui Walker, Ka Whawhai Tonu Matou, Struggle Without End, Penguin, Auckland, 1990, at 97).

When the text of the treaty was read to chiefs at Waitangi, some objected because they knew it meant their chiefly status was to be relegated under the governor (Walker, at 94). This objection must have been noticed by others present on 5 February 1840 at Waitangi.

 

Sacred taonga

Which brings me back to TW Ratana and the Ratana MPs quoted earlier. They saw the treaty as a sacred taonga. As such, it is not to be redrafted, reframed or reinterpreted into something it was not. The obligation on the Crown to protect Māori interests is clear; it does not become any clearer by tacking on a collection of principles.

As Dame Sian Elias reflected, partnership does not help much either, since if by that word it is intended to mean equality, few partnerships are equal. All that radical egalitarianism extracted from a burgeoning set of principles, like the co-governance movement, will produce is social division or worse. Against such notions are the firmly established obligations of honour and trust resting heavily on the Crown under the treaty, encapsulated by the three principles cited above. It is in the light of those obligations that government must formulate policies and offer the protection of equality before the law.

Māori remain a diminishing minority in their own land and have a right to the full protection of the Crown into the uncertain future. But the policies advanced must be harmonious with our democratic system of government – we cannot return to a lost world of shared tribal power which may have carried on for a time after the treaty was signed.

Māori already play a large part in society, in the professions, in business, government, the justice sector and through large tribal entities, such as Ngāi Tahu and Tainui. We should not forget the progress made and our successes, or let the voices of protest paint Māori in a warped light. Yes, Māori are disproportionality represented in the negative statistics, but there are many others in those categories too.

What we need are effective policies, not rhetoric. An important way for Māori to steadily advance is to build up their participation in the life of the country through the democratic system of government, as envisaged by the Royal Commission on the Electoral System, which looked to MMP as a vehicle for greater Māori representation and participation in a form of government that is the worst except for all of the rest, including tribal government.

As Winston Churchill put it in the House of Commons on 11 November 1947: “Many forms of government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of government except for all those other forms that have been tried from time to time.”

We have seen the Royal Commission’s vision coming to life as Māori MPs mushroom in number across all parties represented in Parliament. However, these modern-day Māori MPs have to remember how progress was made by their forerunners, such as Apirana Ngata and the Ratana MPs, who worked in a sophisticated manner with their parliamentary colleagues for the betterment of all Māori.

Continued advancement of education, better housing, healthcare, support for whānau and an emphasis on holding families together with both parents in the home, venture finance on fair terms, mentoring for young Māori in workplaces (and the development of a culture of work): these are the things that are needed for Māori to progress in a complex modern world. They will not be achieved by empty rhetoric or bills before Parliament about sovereignty and treaty principles. ■

 

Warren Pyke is an Auckland barrister ■

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