Written By: - Date published: 7:51 am, February 8th, 2015 - 309 comments
Categories: Andrew Little, Deep stuff, john key, law, Maori Issues, national, newspapers, same old national, treaty settlements - Tags: treaty issues, Treaty of waitangi
It seems that we are in for a good old piece of race baiting to distract us from other issues. The Herald kicked things off yesterday by claiming that Andrew Little supported Maori having increased powers. The headline to this Herald Article suggested that Andrew Little thinks we should be having a look at giving Maori a power to make laws. But from the article the context of what he actually said was clear. He was not advocating for this power, he was recognizing the implications of a recent Waitangi Tribunal report which means this issue is a live one. What was said was this:
Mr Little made the comments yesterday, referring to a Waitangi Tribunal finding last year that Northland Maori did not cede their sovereignty when signing the Treaty.
Prime Minister John Key was criticised by elders at Waitangi for dismissing that report. Mr Little said the Waitangi Tribunal report found Maori should be able to make their own laws on matters affecting them. While that would be “highly problematic” he said it should be looked at.
Mr Little acknowledged it could concern some New Zealanders. “The fear is always that these things turn into a ‘they are getting special privilege’ or ‘they are getting a control we would never be able to have’. We have to be sensitive to that, but we’ve also got to understand for iwi now and those who have had their settlements and developed their own economic base, there are some things we might want to say they can be responsible for that is consistent with historical obligations.”
He said it was time to look at what would happen after the settlements were completed.
He said some Native American tribes had law-making powers over their territories in the United States where recognised tribes were exempt from some laws – including taxation – and could create their own laws in many areas. Mr Little said allowing separate law-making was “highly problematic”.
“But we shouldn’t be so dismissive of any claim by iwi over what they do. We do have to function as a nation-state and we don’t want to compromise that. But let’s have a look at it.”
The context is all important. The Waitangi Tribunal, one of the most important judicial bodies in the country, has delivered a brave yet utterly defendable report regarding the Treaty of Waitangi. From the letter accompanying the report:
It is our view that an agreement was reached at Waitangi, Waimate, and Mangungu in February 1840. That agreement can be found in what signatory rangatira (or at least the great majority of them) were prepared to assent to, based on the proposals that William Hobson and his agents made to them by reading te Tiriti and explaining the proposed agreement verbally, and on the assurances the rangatira sought and received.
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 rationale is essentially quite straight forward, under article one of the English version Māori ceded sovereignty to the Crown, but under the Māori version of the treaty Māori ceded “kawanatanga” which is closer to governance than sovereignty. If the English wanted to make it clear that Māori were ceding sovereignty the Treaty would have said that Māori ceded Tino Rangatiratanga, but then Māori would not have signed.
Which version should prevail? There is a principle of International Law that the indigenous version should prevail in case of conflict and the rationale behind this is clear. Why should a dominant foreign power refuse to do something it has promised to local people in their own language. The dominant foreign power should suffer from any ambiguity.
So no matter how scary this may be for some Kiwis, the Waitangi Tribunal decision is completely rational, utterly defensible and thoroughly principle based. The repercussion is that Ngapuhi (and other tribes) never ceded tino rangatiratanga. If they retain this they can make laws. Just think of them as something like Scotland.
And when you consider what Andrew Little said, all he was doing was commenting in quite a sophisticate and respectful way on the implications of the Waitangi Tribunal decision. Although rather than advocate for Māori having the power to make laws he said that this would be “highly problematic”.
The forces of the right, there to represent and preserve existing rights of privilege, have decried this example of race based privilege. Clearly this sort of privilege should only be bestowed on white people.
For instance John Key believes that Māori ceded sovereignty when the treaty was signed. As an indication of what weight should be placed on this opinion he also thinks that Aotearoa was settled peacefully. No doubt like scientists Key believes that if an august Judicial body comes up with an opinion he will be able to find an alternative august Judicial body with a counter view. Some criticise the left for branding Key as a liar. It is because we see a morally bankrupt PM willing to say anything as long as it supports the retention of power.
And the usual suspects have leapt into the fray and are claiming that Little is advocating for Iwi to be able to make laws, rather than reflecting on a reality which the Waitangi Tribunal has expressed an opinion on.
The Taxpayer’s Union has also expressed an opinion. Every time I learn of one of their releases I have the urge to post a certain graphic containing Jordan William’s opinion of women …
But lets get real here. We are going to have an intense negative debate about uppity Māori seeking privilege and the loudest voices against them will be the defenders of existing privilege. When you get to understand what is going on the problem is not that there may be privilege, just that there may be competition.