He Whakaputanga me te Tiriti – The Declaration and the Treaty

Written By: - Date published: 11:00 am, November 15th, 2014 - 50 comments
Categories: Maori Issues, national, Politics - Tags: , , ,

treaty waitangi

The Waitangi Tribunal has released a hugely important decision on the Treaty of Waitingi and the Government and others are already trying to downplay the significance of the decision.

Of itself this is very significant. On the left there is a period of reading and understanding and reflection, on the right there is a period of attack and an attempt to create a media angle.

The reasoning of the Tribunal is in my view faultless. At the time the Treaty was being negotiated the Northern tribes wanted to cede kawanatanga or governance to the English Crown. They never intended to cede tino rangatiratanga or sovereignty. The use of the different phrases was deliberate. And the Te Reo meaning of the treaty was clear yet the Crown used the ambiguity in the English version to suggest that Maori had willingly given away the sovereignty of Aotearoa.

From the report:

We have concluded that in February 1840 the rangatira who signed te Tiriti did not cede their sovereignty . That is, they did not cede their authority to make and enforce law over their people or their territories . rather, they agreed to share power and authority with the Governor . They agreed to a relationship: one in which they and Hobson were to be equal – equal while having different roles and different spheres of influence . in essence, rangatira retained their authority over their hapū and territories, while Hobson was given authority to control Pākehā .

The rangatira also agreed to enter land transactions with the Crown . The Crown promised to investigate pre-treaty land transactions and to return any land that had been wrongly acquired . in our view that promise, too, was part of the agreement made in February 1840 . Further, as part of the treaty agreement, the rangatira may well have consented to the Crown protecting them from foreign threats and representing them in international affairs where necessary . if so, however, the intention of signatory rangatira was that Britain would protect their independence, not that they would relinquish their sovereignty .

The evidence is that this is the arrangement that Hobson explicitly put to rangatira – both through the Māori text and through his verbal explanations – and that they then assented to after receiving assurances in respect of their equality with the governor . Though Britain intended to obtain the sole right to make and enforce law over Māori as well as Pākehā, Hobson did not explain this . rather, in keeping with his instructions, he emphasised that Britain’s intention was to control Pākehā in order to protect Māori . The detail of how this relationship was to work in practice, especially where the Māori and Pākehā populations intermingled, remained to be negotiated over time . it is clear that at no stage, however, did rangatira who signed te Tiriti in February 1840 surrender ultimate authority to the British .

While some may see our conclusions as radical, they are not. In truth, our report represents continuity rather than dramatic change . Leading scholars – both Māori and Pākehā – have been expressing similar views for a generation or more . When all of the evidence is considered, including the texts as they were explained to rangatira, the debates at Waitangi and Mangungu, and the wider historical context, we cannot see how other conclusions can be reached.

The Herald wasted no time in publishing a contrary opinion by historian Paul Moon who claims that the tribunal got basic historical aspects wrong.

“I was shocked by some of the statements contained in the report. “This is not a concern about some trivial detail, but over the fundamental history of our country, which the tribunal has got manifestly wrong.

“In particular, the tribunal alleges that ‘Britain went into the Treaty negotiation intending to acquire sovereignty, and therefore the power to make and enforce law over both Maori and Pakeha’. This is simply not true,” says Professor Moon, “and there is an overwhelming body of evidence which proves precisely the opposite. I cannot understand how the tribunal got this so wrong.”

I would like to see the evidence Moon says there is because the wording in the English version states that the chiefs gave “to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty which the said Confederation or Individual Chiefs respectively exercise or possess”.  It must have been the intent of the English to claim sovereignty over New Zealand.  Why else would the English version of the treaty contain this passage.

Of course this does not help the Crown.  There is a long standing and clear principle that where there are conflicting versions of a treaty the version using indigenous language is the preferred one.

Christopher Finlayson echoed Moon’s comments and said that the Crown still had sovereignty over New Zealand.  While in a legal sense that may be true the finding reinforces Maori’s historical view that the Treaty of Waitangi has been breached.  On Checkpoint he claimed that he had not had time to study the decision as it had only just been released but this is surprising given that it appears from a letter contained in the decision it was sent to Finlayson on October 14, 2014.  He also mentioned Moon’s comment that the decision was “rubbish”.

The decision will have special implications for the Nga Puhi settlement which is still being negotiated.  National’s desire to fast track the settlement may have been motivated in part by the likelihood that this decision would be against the Government.

The politics of this issue will be interesting and the Government’s response will be keenly analysed.  No doubt out in talkback land there will be many loud yet ill informed comments on how the decision could not possibly be correct.  But it reinforces a very clear historical reality that Maori have had their rights under the Treaty violated.

50 comments on “He Whakaputanga me te Tiriti – The Declaration and the Treaty ”

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  1. Michael 1
    15 November 2014 at 11:19 am

    The taking of single words out of the sentences in the Treaty and trying to use them out of context does not work. Clause one gives the British Crown the right to govern in the lands of New Zealand, clause two gives Maori Chiefs sovereignty over their property (but does not mention any sovereignty over their tribes or people).

    As Hobson noted as he shook the hand of every signatory of the Treaty at Waitangi, “He iwi tahi tatou.” (We are one people.)

    This, of course, does not diminish the later actions of the Crown in dispossessing many tribes of their lands through delibrate lawmaking and confiscation.

    • mickysavage 1.1
      15 November 2014 at 11:22 am

      But words are all important. For instance using the word “governorship” instead of “sovereignty” can dramatically affect the meaning of a sentence. And a verbal statement by one of the parties after the treaty has been signed cannot have any effect on the meaning of the treaty itself. I agree that even on the English version of the treaty Maori rights were broken.

    • Tracey 1.2
      15 November 2014 at 4:04 pm

      Words are important as is the legal principle of contra preferentum. The later is important to understand in any discussion of the Treaty.

      • Murray Rawshark 1.2.1
        15 November 2014 at 6:53 pm

        +1
        My nephew got an insurance payout because he quoted contra preferentum. I was quite impressed. It makes a nonsense of the claims of the racist right.

        • Tracey 1.2.1.1
          15 November 2014 at 7:36 pm

          It is a simple notion borne out of an understanding that when different languages are involved someone might try to trick the other.

  2. karol 2
    15 November 2014 at 11:22 am

    Yes. i found the media coverage of this puzzling.

    In the past I have looked at the history of the signing of the treaty, and the differences between the Māori and English language versions of the Treaty. Consequently, the latest judgement seems pretty much correct to me.

  3. Bill 3
    15 November 2014 at 11:28 am

    To be honest, I thought the Tribunal’s announcement was just an official body echoing what ‘everyone’ already knew;- that Maori had the sovereignty of a foreign power imposed on them.

    For me, the only question is how much legitimacy should be afforded to a show of force, and what can be done to undo many, many decades of – how to say? – ‘custom and practice’ with regards governance here-a-bouts.

    For what it’s worth, the only solution I can see (and have ever seen) is an extension of tino rangatiratanga beyond Maoridom – to all of us in our communities and societies where we exercise collective, social governance in our, necessarily, various ways.

    Before the inevitable objections predicated on ideas of chaos are made, can I suggest that a little thought is given to dynamics of governance and law in pre-colonial Australia?

    • karol 3.1
      15 November 2014 at 11:44 am

      At the very least, the judgement shows a great wrong/s have been done to tangata whenua and manu whenua.

      Righting it at this stage in history, is a major problem.

      But, ultimately, it all seems to go back to the western hunger for private ownership of land. And behind that, capitalism.

      • Tracey 3.1.1
        15 November 2014 at 4:09 pm

        And the extreme cultural differences between the west and others. As you point out for the west the only value of import is financially… For many indigenous folks who depended on the land retained a deep connection with that land and the place of humans within nature.

        Equally tainui had a thriving commercial trade, including with sydney until they were stripped of their land and cultural and financial foundation.

        No big deal, i am sure the average white kiwi would be over any such stripping from their family in a few generations sarc/

      • The lost sheep 3.1.2
        15 November 2014 at 5:52 pm

        Conquest, taking of Sovereignty, and slavery are not behaviors unique to Western Capitalism. Most cultures have behaved that way at times, including Maori.

        Human nature is the root cause of those behaviors, not Capitalism.

        • Draco T Bastard 3.1.2.1
          16 November 2014 at 11:00 am

          two points:

          1. That doesn’t mean that we should allow it and
          2. It’s not human nature but the nature of some humans.

          • The lost sheep 3.1.2.1.1
            16 November 2014 at 12:36 pm

            We are just lucky human nature has generally moved forward from 1840. It’s a blessing that we live in the most peaceful times in human history.
            Gosh, and it is world almost completely organised under the Capiltalist system….maybe there is a linkage there?

            • Draco T Bastard 3.1.2.1.1.1
              16 November 2014 at 1:52 pm

              Gosh, and it is world almost completely organised under the Capiltalist system….maybe there is a linkage there?

              Nope. Capitalism has been the cause of more wars throughout history than anything else. It was socialism and anti-capitalism that brought about the peace that you mention. It is capitalism that is again bringing about war in the Ukraine and Middle East.

              • TheContrarian …
                16 November 2014 at 2:04 pm

                Errr pretty sure the concept of war has been around far longer than the concept of capitalism.

                You comment is erroneous bullshit.

                • Draco T Bastard …
                  16 November 2014 at 5:17 pm

                  No, I think you’ll find that the forms of capitalism (private ownership, charging interest, hierarchical society and the rich living off other peoples work) has been around since the dawn of civilisation. Really, that’s what Debt: The first 5000 years is all about.

                  And it’s never worked in all that time.

                  • TheContrarian …
                    16 November 2014 at 7:12 pm

                    War is, and has been, independent of capitalism. War is inherent in social species regardless of higher economic arrangement.

                    You’re talking out your ass.

                    • Draco T Bastard …
                      16 November 2014 at 9:50 pm

                      Wow, now you’ve moved the goal post from recorded history of humanity to all social species in all time.

                      Yeah, fuck off.

                    • TheContrarian …
                      17 November 2014 at 9:45 am

                      It doesn’t matter Draco, war is inherent and predates Capitalism and has multiple other factors – whether it is recorded history or not.
                      You’re talking out your ass.

                    • vto …
                      17 November 2014 at 10:00 am

                      is not capitalism a version of war?

                    • The lost sheep …
                      17 November 2014 at 11:31 am

                      Only in the mind of a hard core Socialist.

    • Kiwiri - Raided of the Last Shark 3.2
      15 November 2014 at 11:57 am

      the only solution I can see (and have ever seen) is an extension of tino rangatiratanga beyond Maoridom – to all of us in our communities and societies where we exercise collective, social governance in our, necessarily, various ways

      Quite. That is the real significance of the Tribunal’s findings for today.

    • Tom Jackson 3.3
      15 November 2014 at 2:21 pm

      that Maori had the sovereignty of a foreign power imposed on them.

      Which among other things, made the practice of slavery illegal.

      • karol 3.3.1
        15 November 2014 at 2:26 pm

        And replaced it with wage slavery and the private ownership of land. Things that falls particularly hard on Maori.

        • Tom Jackson 3.3.1.1
          15 November 2014 at 2:34 pm

          That’s an argument for a better constitutional settlement, not for Maori sovereignty.

          New Zealanders seem very confused about the difference between effective sovereignty and legitimate sovereignty. One concerns who actually exercises the power (formerly Maori, now the Crown) and the other concerns who ought to exercise that power.

          The idea that the inaccuracies of the Treaty restore legitimate sovereignty to Maori assumes that they had it in the first place – a dubious assumption at best. In the absence of some substantive argument for the moral rightness of Maori sovereignty, we might as well be listening to the descendants of an absolute monarch complain that they were wrongly robbed of sovereignty they would have inherited save for those pesky democratic revolutions.

          There is actually some sort of argument for the sovereignty of the present government in the social contract tradition. Make of that what you will, but at least it’s an argument.

          • karol 3.3.1.1.1
            15 November 2014 at 2:38 pm

            That’s an argument for a better constitutional settlement, not for Maori sovereignty.

            Back at you as you raised the issue of slavery.

            There is actually some sort of argument for the sovereignty of the present government in the social contract tradition. Make of that what you will, but at least it’s an argument

            The basis for your arguments here look to be European traditions/legal definitions of sovereignty, social contract and governance.

            • Tracey 3.3.1.1.1.1
              15 November 2014 at 4:10 pm

              And wilfully ignoring contra proferentum a very english legal principle

            • Tom Jackson 3.3.1.1.1.2
              15 November 2014 at 5:08 pm

              The basis for your arguments here look to be European traditions/legal definitions of sovereignty, social contract and governance.

              That’s because the explicit question of sovereignty arises only in these traditions. But it doesn’t really matter, since the question of why people should accept a sovereign power can be raised by anyone and the only good answers will be ones that give good reasons to everyone (which is exactly the point of the contract tradition).

              If you want to be a radical relativist, then go ahead, but you undercut your own argument by doing so, for there is then no binding reason for the majority to care about Maori sovereignty at all.

      • adam 3.3.2
        15 November 2014 at 3:12 pm

        What a crock Tom Jackson, Slavery was folding in the face is Christianity, not the state. Nor the treaty, or any other force.

        Because quite frankly slavery was in full force in other colonies, and former English colonies.

        • Tom Jackson 3.3.2.1
          15 November 2014 at 5:10 pm

          Slavery was abolished throughout the British Empire in 1833.

          Thanks for playing.

          • Murray Rawshark 3.3.2.1.1
            15 November 2014 at 7:42 pm

            Wow. A whole seven years before the treaty. And now NAct and Serco are bringing it back.
            These days our real inspiration comes from the US and A, who formally ended slavery in 1865.

      • Rawsharkosaurus 3.3.3
        16 November 2014 at 2:55 pm

        “Which among other things, made the practice of slavery illegal.”

        Tell that to the Taranaki Māori who were later enslaved by the Pākehā government of the day, sent to Dunedin, kept in disgraceful conditions and forced to labour for the city administration. Many of them died as a result of that treatment.

  4. Foreign Waka 4
    15 November 2014 at 12:08 pm

    Timing is everything…. when major changes in laws are prepared, privacy, labor, ownership, social security etc…. a big diversion is needed. And voila, well done. And just about everybody jumps on the wagon, busy to defend their position, seeing riches in the making, being defensive about anticipated losses …. and all the while the rug is pulled. When will NZlanders start to wake up?

    • karol 4.1
      15 November 2014 at 12:21 pm

      The treaty and related land issues are very important. It’s not a diversion, but part of a raft of inter-related issues.

    • weka 4.2
      15 November 2014 at 1:06 pm

      “Timing is everything…. when major changes in laws are prepared, privacy, labor, ownership, social security etc…. a big diversion is needed”

      Is that a statement about colonisation in the 1800s?

      • Foreign waka 4.2.1
        15 November 2014 at 1:18 pm

        Not getting my point just is exactly making my point…. not seeing beyond the point of personal me is what will tank NZ.

  5. Tom Jackson 5
    15 November 2014 at 2:20 pm

    Of course this does not help the Crown. There is a ling standing and clear principle that where there are conflicting versions of a treaty the version using indigenous language is the preferred one.

    It’s sort of irrelevant. The question is not who has effective sovereignty, but whether that sovereignty ought to be recognised as legitimate. Were New Zealand an absolute monarchy, it would be wrong to recognise the monarch as the legitimate sovereign, because absolute monarchy is tyranny. One can mount similar arguments against Maori sovereignty, or indeed that of the current government.

    • mickysavage 5.1
      15 November 2014 at 3:51 pm

      Corrected my typo “ling” to “long”.

      Surely the validity of the Crown’s actions is the thing that should be concentrated on. It dealt with Maori as if their sovereignty was legitimate but through disingenuous use of two differently worded treaties and through clear breaches robbed Maori of land and taonga. Are you saying this was OK because Maori are somehow less deserving?

      • Tom Jackson 5.1.1
        15 November 2014 at 5:24 pm

        You’re missing my point. I don’t know whether Maori had a legitimate claim to sovereignty or whether the government that replaced them did. Without such knowledge, the Treaty is reduced to an historical curiosity.

        If you want to take the Treaty seriously, you need to prove that the Maori were deprived of legitimate sovereignty. We can argue until we are blue in the face about whether the Treaty was an honest deal (I suspect it wasn’t), but in terms of constitutional legitimacy that is an irrelevance unless we can prove that Maori had legitimate sovereignty in the first place (which is itself a big ask).

        In comparison, we would scoff at the descendants of an absolute monarchy claiming that they had been wrongly deprived of sovereign power by the democratic revolutionaries, precisely because absolute monarchs aren’t entitled to it. This is the case even if morally suspect means were used to overthrow the monarchs.

        We need some criterion of what is to count as legitimate holding of sovereignty before we can address the question of whether Maori were deprived of it. People just avoid that question and assume that they were. But it’s a poor assumption.

        I suspect people want to avoid that discussion because it would show the Treaty to be an irrelevance when it comes to sovereignty (as I think it is: the moral case for Maori sovereignty is a dead duck, in my view). On the other hand, even had the Treaty not existed it was clearly unjust to deprive Maori of their properties (understood in a wide sense) by force. I can’t think of any justifiable account by which governmental sovereignty over New Zealand would not also entail a responsibility for rectification.

        That’s why I think the Treaty is irrelevant. It merely repeats what Maori are entitled to under any morally acceptable constitution, and where it departs from that (as in the case of the issue of sovereignty) it’s just wrong.

        • Tracey 5.1.1.1
          15 November 2014 at 5:31 pm

          How does contra proferentum impact your treatise?

        • Bill 5.1.1.2
          15 November 2014 at 5:54 pm

          Sovereignty resides in the singular person exercising their sovereignty/freedom/power through their society. In other words it’s simultaneously individual and collective, insofar as the individual is ‘dead meat’ without their society.

          Now, the myth of a ‘social contract’ in a western context is exactly that – a myth. Sovereignty/power/freedom was wrenched away from people by monarchs, then states, and further removed of late by corporations, by force of arms, guile, and gawd knows whatever mechanisms.
          Their (ie, church, state, monarch, corporation) claim to, and exercise of sovereignty then, has never been, and can never be morally legitimate.

          Any argument about the legitimacy or otherwise of sovereignty within pre-colonial Maoridom is a moot point.

        • Flashing Light 5.1.1.3
          15 November 2014 at 7:30 pm

          We need some criterion of what is to count as legitimate holding of sovereignty before we can address the question of whether Maori were deprived of it. People just avoid that question and assume that they were. But it’s a poor assumption.

          Well, given that the Crown accepted that Maori “legitimately held” sovereignty over New Zealand (hence treating with them in the first place), and that English common law assumed (and continues to assume) that Maori did (see R v Symonds and Ngati Apa v Attorney-General), and international law assumed (and continues to assume) that Maori did (see, e.g, UNDRIP), perhaps the better question would be why you doubt that this is the case?

        • mickysavage 5.1.1.4
          15 November 2014 at 7:40 pm

          Tom you are arguing that the morality of the English’s actions depends on the quality of Maori claims of sovereignty. Why not hold the English to a more simple standard, if they agreed to it they should stick to it?

          The problem is with the irrelevancy argument is that land was owned communally and there was an agreement that alienation would only happen a certain way. This did not happen.

        • Flashing Light 5.1.1.5
          15 November 2014 at 7:40 pm

          That’s why I think the Treaty is irrelevant. It merely repeats what Maori are entitled to under any morally acceptable constitution, and where it departs from that (as in the case of the issue of sovereignty) it’s just wrong.

          How can a morally acceptable constitution deny Maori the right to exercise control and decision-making power over those aspects of Maoritanga that remain in today’s world (if they choose to do so)?

          Or, put it this way – imagine that the referendum on Scottish independence had passed with majority support. Would a “morally acceptable constitution” allow them to or prevent them from leaving the UK and establishing an independent state? And if the sovereignty of the UK can be disaggregated – indeed, must be disaggregated if the Scots so chose – then does that not problematise your argument somewhat?

  6. Wynston Cooper 6
    15 November 2014 at 2:26 pm

    In the English text, Māori leaders gave the Queen ‘all the rights and powers of sovereignty’ over their land. In the Māori text, Māori leaders gave the Queen ‘te kawanatanga katoa’ or the complete government over their land.

    The word ‘sovereignty’ had no direct translation in Māori. Chiefs had authority over their own areas, but there was no central ruler over the country. The translators of the English text used the Māori word ‘kawanatanga’, a transliteration of the word ‘governance’, which was in current use. Māori knew this word from the Bible and from the ‘kawana’ or governor of New South Wales.

    http://www.nzhistory.net.nz/politics/treaty/read-the-Treaty/differences-between-the-texts

  7. Murray Rawshark 7
    15 November 2014 at 6:50 pm

    The important thing about this report is that it is one small step toward a more just Aotearoa. It was very precisely worded and said nothing about events after 1840, or how the crown gained sovereignty. It does not comment on the legitimacy of this sovereignty.

    Its findings are about those who signed the treaty at three places in the Bay of Islands and the Hokianga, in 1840. There may well be subsequent findings as they release part 2 of the report.

    It is important all round that we take this for what it is, unlike Bradbury who thinks it has taken sovereignty back from the crown. He does a lot of damage with his illiterate ravings and would benefit from a course in reading comprehension.

    As for Paul Moon – he’s an author of children’s fiction. ATI was better when the tutors taught welding and shorthand. Now they call themselves professors and churn out garbage.

  8. Corokia 8
    15 November 2014 at 7:13 pm

    The Otago Daily Times downplayed it to the extent that they did not report on it at all in today’s print edition.

  9. Disabled Liberation Aotearoa NZ DLANZ 9
    17 November 2014 at 5:55 am

    A great item Mickey and DLANZ posted this on our FACEBOOK too…..
    ”Totally agree as He Whakaputunga 1835 is a foundation of Aotearoa’s History…..Disabled Liberation Aotearoa NZ DLANZ Proposed back in 2012 / 13 that Governor General also be answerable to Waitangi and NZ Maori before they sign Regal’ Signatories….Sale of Assets and Sky Casino are just 2 examples, where the people don’t think govt has mandate….also Public Holiday 28 October….seems fair….my view”….hope is on the horizon…keep smiling”

    KIA KAHA
    Doug Hay
    Cordinator DLANZ

  10. bOXER COOK 10
    21 November 2014 at 5:32 pm

    I attendded the waitangi hui embargoed release of stage 1 report, 14/nov/2014, heard, the report read out, now i am up with the play. took three days to read the book online,all submissions, it completed my 20,000 piece puzzle to be completed, all evidence fell in to place, and i agree 100% with the report by the waitangi tribunal. Nga mihi ki te ropu whakamana ta ratou korero,Kaore te Nga Rangatira i tuku ta ratou mana. … Bring it ON round 2….Boxer

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