The Grievance Industry, Part II

Putting Things Right

There is one aspect of the “grievance industry” in New Zealand that has just cause.  In 1840 the British Crown signed a solemn league and covenant with the Maori, now known as the Treaty of Waitangi.  One of the strongest motivations behind the Treaty (on both sides) was to establish and protect Maori title to their lands (which consisted of most of the country).  The text of the Treaty reflects that common concern. The right of Maori to sell their tribal lands was, of course, recognised.

However, the concept of Maori ownership of land was a problematic notion to Maori themselves.  What constituted ownership?  Self-policed possession was becoming the primary claim to ownership.  But that was a very murky business in many cases, since Maori tribal wars, retribution and utu meant that possession was an ephemeral and fluid reality, as tribes (and sub-tribes) warred, conquered, claimed land, lost land, and reconquered and regained it.
  Moreover, the fact that land was tribally owned meant that getting consent of the owners could be a complex business.  Many claiming the rights of ownership of (and therefore to sell) land subsequently turned out to be questionable, if not bogus.  Finally, the prices paid often proved to be contentious, in hind sight.  Some lands were sold for ridiculously low prices, others for exorbitant amounts when judged by subsequent market prices.

After the very early days were  over, and there was a settled Government, the native as a rule got a fair, and sometimes and exhorbitant (sic) price for his land.  That this was so may be gauged from the fact that thirty or forty years later it was possible to buy much of this land for less than was originally paid for it.  [Henry E. R. L. Wily, South Auckland: Some Sketches of its Early Settlement and Development, With a Glance At the Conditions Under Which It Was Colonised.  (Pukekohe: Franklin Printing and Publishing Co Ltd., 1939), p.92.]

However, twenty years or so after the signing of the Treaty, the government was found siding with the growing number of settlers in their relentless appetite to own land.  Whereas the original intent of the Treaty was for the signatories, including the Crown, to commit to protection of Maori land, two and a half decades later the policy and intent of the government was to get as much land as possible sold by Maori to Pakeha.  As a part of this drive, the government expropriated large tracts of Maori land as reparations for the Maori wars.  The government also set up the Native Land Court to effect almost forced sale of Maori land to the Crown and to settlers. 

The Native Land Court was one of the key products of the 1865 Native Lands Act. It provided for the conversion of traditional communal landholdings into individual titles, making it easier to purchase Māori land. Coming little more than a year after the Waikato War, this legislation was to achieve what many believed had not been accomplished on the battlefield – acquiring the land necessary to satisfy an insatiable settler appetite. The operations of the Land Court affected Māori more than those of any other colonial institution. When old rivalries were played out in court, the ultimate beneficiaries were Pākehā. Historian Judith Binney described the Native Lands Act as an ‘act of war’.

The Court was required to name no more than ten owners, regardless of the size of a block. All other tribal members were effectively dispossessed. The newly designated owners held their lands individually, not communally as part of (or trustees for) a tribal group. They could manage it, and sell it, as individuals and for their own benefit. [New Zealand History Online]

The Crown was clearly in breach of the Treaty.  To our mind that creates just grievance and cause for restitution.  A covenant had been broken; the covenant breakers must be required to make restitution.  Thus began the process known in New Zealand as the Treaty Settlements.

Chris Finlayson,  Attorney-General and Minister for Treaty of Waitangi Negotiations, recently provided an update on the progress, as well as reminding us all of the crux of the matters involved.

. . . .  Today I will represent the Crown at Cape Reinga to sign a deed of settlement with Ngati Kuri. It will be the fourth settlement the Crown has concluded with Far North iwi who, with Ngati Kahu, are often referred to as Te Hiku.  The Te Hiku iwi began a claim in the Waitangi Tribunal over a quarter of a century ago. The tribunal reported on their claims in its thorough and comprehensive Muriwhenua Report in 1993. It detailed the loss of life and land caused by the Crown’s failure to keep its promise to act in good faith towards iwi.

These sorts of claims are not ancient history. They are family histories, passed down from great-grandparents to their great-grandchildren. They are living memories of the history of the areas in which iwi still live and work.  Some people say they want an end to historical settlements. Most people agree. I do. Maori want them resolved as well. . . .

The completion of all settlements is now an achievable goal. It can happen, with the goodwill of all parties, in the next few years.  The settlements will end not because Maori and the public have tired of them, but because they are finished.  The Ngati Kuri will bring to 42 the number of settlements this Government has signed with iwi. That brings the total to 68.

National’s policy since the 1990s has been to address real grievances by reaching full and final settlements with genuine claimants in a timely fashion. Are there non-genuine claims? Certainly, just as there are vexatious cases in the common law courts. They are easy to spot. We are not interested in claims about the ownership of wind, for example.

We are determined, however, to put right the thoroughly and accurately documented cases of hurt caused by the Crown’s wrongful actions in the past. This is what Treaty settlements are about.  The faster we settle these claims, the sooner there is an end. The sooner we settle, the sooner iwi can see the benefits of their settlements, and the sooner all New Zealanders benefit from moving on from grievance. Justice delayed is justice denied.

And the good news is that the completion of settlements is closer than many people think.  The number of remaining settlements is fewer than 50. Many of the remaining claimants have signed agreements in principle setting out the broad parameters of their settlements, and the Crown is engaged with almost all groups.  We are well on the way to the end. And the sky has not fallen. Despite dire predictions from a small minority at the beginning of this process, the quality of life of most New Zealanders has not been affected in any way. Beaches, national parks, rivers and mountain ranges are still enjoyed by everyone in exactly the same way they were before.

What has happened is that iwi have invested in their people and their regions.  Rather than blowing the proceeds of Treaty settlements, as was again predicted by a vocal few, most have acted wisely and developed the capacity of their people.  That’s another fact that may have surprised some people at the start of this process: Treaty settlements have brought iwi closer to their local communities, not further away.   The result is less division, less fear of the unknown, and more unity.

We are gratified at the progress being made.  

Treaty of Waitangi Fables, Part III

Tribalism Makes Some Animals More Equal Than Most

This is the third piece recently seeing the light of day in the NZ Herald confronting the historical revisionism being foisted upon the Treaty of Waitangi and its signing.   Dr Elizabeth Rata takes up the issue of Maori tribalism and argues that it is incompatible with a democratic form of government.

Elizabeth Rata: Tribalism, democracy incompatible

5:30 AM Tuesday Jan 29, 2013

Tribalism is based on principles of inequality. Democracy is based on equality. So unity is only way forward.

The post-1987 idea of a Treaty ‘partnership’ is not true to the original Treaty. Photo / Alexander Turnbull Library

The recent Herald commentary by Ewen McQueen takes us further into a thoughtful consideration of the Treaty of Waitangi and the constitution. Using Sir Joseph Ward’s metaphor that “there can only be one sun in the sky”, McQueen showed why the post-1987 idea of a Treaty “partnership” is not true to the original Treaty. He concluded by noting that most chiefs agreed to give absolutely to the Queen the complete government over their land in return for guaranteed protection of chieftainship.

According to McQueen the constitutional review may help us find new ways for chieftainship to be expressed. I agree, the issue of chieftainship is crucial to the current national discussion convened by the Government’s Constitutional Advisory Panel. So what is the chieftainship issue?

If chieftainship still exists to be “expressed” then so too must the tribal political system of 1840 also exist. After all, to exercise chieftainship one must be a chief of something. This does appear to be the case. Who can ignore the existence of iwi today? The revived tribes go from strength to strength. It seems self-evident that the tribal kinship system that framed traditional Maori society is alive and well, albeit in a modernised form.

A lot rides on this point. Present-day iwi insist that they are the inheritors of the past. Their claims for greater political power, even constitutionally recognised power, and for vast economic resources follow from this premise of tribal revival. The vital importance of the Treaty is as the document of iwi inheritance, hence iwi leaders insistence that the Treaty be included in the nation’s constitution.

Yet how can a traditional tribal system be revived when it was destroyed by democracy? Tribalism and democracy are incompatible – they cannot exist together as political systems in the one nation. As the late New Zealand historian Professor Peter Munz noted, the condition for democracy is everywhere the end of tribalism with its birth-ascribed inequality and exclusive kin membership.

The incompatibility goes deep into the very structure of politics. Tribalism is based on principles of inequality. Democracy is based on equality. Kin status is what matters in the tribe; citizenship is the democratic status. Tribalism is exclusive. To belong you must have ancestors who were themselves born into the system. Democracy by contrast includes people from all backgrounds. The matter of who is included and who is excluded touches all areas of New Zealand life. Many New Zealand families have members who are Maori and members who are non-Maori. What would it mean for New Zealand if this division were to become a political division throughout every level of our institutions?

Those wanting to place the Treaty into New Zealand’s Constitution must address the implications of the fundamental incompatibility between democracy and tribalism if the constitutional review is to have any real purpose. The equality versus inequality, inclusion versus exclusion incompatibility goes deep into the very nature of the political system. Democracy has three elements: the nation, the state, and the citizen. The nation is the overall framework and idea we have of ourselves as the nation New Zealand. The state is parliament and all the institutions and systems of government. Citizens are the subjects of the nation-state and have rights that flow from along with responsibilities to the system.

The principle of universalism is the base upon which these three elements rest. Indeed, democracy could only become a political system once this principle was widely accepted. Universalism justifies the equal status of the citizen. It justifies our human rights, including the right to have a cultural or religious identity. Democratic universalism doesn’t rule out various forms of cultural identity within the one nation. Tribalism does. Democracy separates political status from cultural/racial identity. Tribalism is unable to do so.

The place of religion in New Zealand is a good example of the division between political status and identity. Many New Zealanders have a religion but their religious identity is not part of the political arrangements, although the right to exercise their religion is. Race and culture are like religion – an identity but not a political status. We meet in the political sphere as equal citizens not as members of a religion, a race, or a tribe.

For this reason race or cultural identity cannot be included as a political status in a constitution. What a constitution can include, and New Zealand’s constitution already does, is the right that each individual has to exercise his or her cultural identity. It is a right enshrined in legislation which protects the ongoing identification people may have with their racial heritage. It is a right that can exist only because of our equal status as citizens, a status that comes from the universalist principle that we are all equal as human beings. The right of people to belong to and practise their iwitangi in society at large but outside the political sphere is guaranteed by democracy’s principle of human rights.

This takes me back to the question of chieftainship. Can chieftainship be exercised in a democracy? The comparison with religion holds the answer. Just as bishops and priests lost their considerable political power to democracy’s system of accountable leadership, so too must today’s iwi leaders accept the same limitations. Their influence on the political system should be that of any other social organisation or business corporation. Just as one sun is the sky is true for the nation’s sovereignty so it is true for our institutions.

Democracy can only exist in one unified nation with a constituted government accountable to its equal citizens. Its three elements must stand united upon the foundation of the universal human being.

Dr Elizabeth Rata is an associate professor in the School of Critical Studies at the University of Auckland and a member of the Independent Constitutional Review Panel.

 
 

Treaty of Waitangi Fables, Part II

Maori “Co-Sovereignty” a Modern Invention

There have been a number of excellent articles appearing about the Treaty of Waitangi and its place in New Zealand.  They have gone a long way towards debunking and rejecting the historical revisionism now abroad amongst many Maori.  These political activists have been trying to deploy the Treaty to justify Maori sovereignty equal to, or over the Crown.

These issues are so important to New Zealand’s future–particularly when the country is starting to consider more formally the possible role and function of a constitution–that these articles deserve wide readership.  To that end we have decided to republish them in Contra Celsum as they appear from time to time. 

The next article addresses the mistaken idea of co-sovereignty which is now being asserted by many Maori groups.

Ewen McQueen: There can be only ‘one sun in the sky’ and that’s the Crown

5:30 AM Tuesday Jan 22, 2013

In 1908 the Tuhoe chief Rua Kenana came down from his mountain stronghold to discuss matters of state with Prime Minister Sir Joseph Ward. To Rua’s question on the issue of sovereignty, Ward replied: There can be only one sun in the sky. As we review the place of the Treaty in our constitution, we would do well to remember his words.

Protection of rangatiratanga or chieftainship is a fundamental Treaty guarantee. However, for some, rangatiratanga has gained a lot in translation. Ngapuhi, for instance, have challenged Crown sovereignty at the Waitangi Tribunal. They argue that the guarantee of rangatiratanga means they never relinquished sovereignty when signing the Treaty.

The Ngapuhi claim is not an isolated aberration. It is the inevitable outcome of Treaty history being revised for the past two decades by activists, lawyers and bureaucrats. The revision process means it has now become fashionable to speak of Crown and iwi as Treaty “partners”.

Indeed, “partnership” has become the mantra of a whole new paradigm of interpreting the Treaty.  Taken to its logical conclusion, this paradigm sees iwi not so much as loyal subjects of Her Majesty’s Government but rather co-regents expressing their own sovereignty. Advocates of this position assert the Treaty merely granted the Crown a partial concession to exercise authority over incoming settlers, while at the same time preserving for iwi ultimate authority over all things Maori. In effect it is argued that the Treaty established a dual sovereignty in New Zealand.

However, such thinking ignores both the Treaty itself and the historical context in which it was signed.  Start with the Treaty text. Much is made of the differences between the English and Maori versions. But one thing is certain – the word partnership appears in neither. The Treaty articles do not even imply a partnership in a constitutional sense. Rather they establish the British Crown as the ultimate legal authority in return for protection of Maori interests. The latter include land and chieftainship (rangatiratanga). However, that chieftainship is guaranteed within the context of the overarching sovereignty of the Crown.

As the Waitangi Tribunal noted in its 1987 Muriwhenua report: “From the Treaty as a whole it is obvious that it does not purport to describe a continuing relationship between sovereign states. Its purpose and effect was the reverse – to provide for the relinquishment by Maori of their sovereign status and to guarantee their protection upon becoming subjects of the Crown.”

The tribunal’s reference to the Treaty “as a whole” is key. The Article Two guarantee of rangatiratanga must be understood in the context of the whole document. Iwi signed up to the whole Treaty, not just the second article. Article One establishes Crown sovereignty. In it chiefs agreed to “give absolutely to the Queen of England forever the complete government over their land”. That’s Professor Sir Hugh Kawharu’s translation of the Maori version. It doesn’t leave much room for manoeuvre.

Kawharu’s translation of Article Three is equally straightforward. Maori took on “the same rights and duties of citizenship as the people of England”. The Court of Appeal reinforced this in a key 1987 judgment, stating “For their part the Maori people have undertaken a duty of loyalty to the Queen, [and] full acceptance of her Government”. Ironically this judgment also introduced the Treaty partnership concept that is now so popular. Full acceptance of Crown sovereignty is less fashionable.

In addition to the Treaty text, we have William Colenso’s detailed first-hand account of the debate at Waitangi. It shows that many chiefs were initially reluctant to sign the Treaty, precisely because they understood it would establish an authority above theirs. Tareha replied to Hobson: “We only are the chiefs, rulers. We will not be ruled over. What! thou, a foreigner, up, and I down! Thou high, and I, Tareha, the great chief of the Ngapuhi tribes, low! No …” Others expressed similar sentiments. In the Hawkes Bay one chief, Te Hapuku, even drew a diagram showing the Queen above the chiefs.

It is clear then, that while Maori may not have grasped the finer nuances of sovereignty, they definitely understood the critical issue – the Treaty established a governing authority over and above their chieftainship. However, most still signed it.

They did so not because of assurances of “partnership”, but because they were persuaded of the benefits that Crown authority would bring. These included law and order, peace between tribes and increased opportunity for trade. Tamati Waka Nene, for instance, urged Hobson to remain as “a father, a judge, a peacemaker”. These were the arguments advanced in support of the Treaty. Clearly they were persuasive, for most chiefs agreed to give absolutely to the Queen the complete government over their land.

Of course they did so in return for guaranteed protection of chieftainship. The constitutional review may help us find new ways for that chieftainship to be expressed. But let us never forget the foundational constitutional reality that the Treaty established – one sun in the sky.

Ewen McQueen blogs at RenewNZ.org

Treaty of Waitangi Fables

Propaganda and Myths

Over the past thirty years much ado has been made about the Treaty of Waitangi. Prior to that time–not so much.  Political activists and those pursuing a definite political agenda have begun using the Treaty of Waitangi as a pretext for their particular agendas.

In most cases, those agendas have to do with “more”–by which is meant special interest groups attempting to secure more money and more power and more recognition by successive governments.  The Commentariat, the governmental ministries, and successive politicians have largely gone along with it.  They have been duped, probably wilfully so. 

Dr Paul Moon has written a piece in the NZ Herald on six common myths about the Treaty of Waitangi–the most pernicious being that first promulgated by the Maori Party that the Treaty is New Zealand’s founding document.  Moon dismisses that fabrication in four short sentences.  Not that his argumentation will stop that particular canard making the rounds.  Political activists and those seeking special interests are renown for never letting the facts get in the way of a good story.
 

Paul Moon: Exploding popular myths about the Treaty of Waitangi

By Paul Moon 5:30 AM
Tuesday Jan 29, 2013

One of the things that seems to survive largely intact over successive Waitangi Days is the set of stock misconceptions about the Treaty. Each February, a wide range of views on the agreement are trumpeted for a few days, and then, after that short burst of constitutional cacophony has died down, they are generally left to lie in silence for another 12 months.

This being the case, it might be helpful to clarify a few of the misunderstandings about the Treaty. Here are six common assertions about the agreement which are manifestly incorrect:

1. The Treaty is the foundation of our system of government
This surprising gem was proposed by some members of the Maori Party a few years ago. It is, of course, demonstrably wrong. The system of government ushered in by the Treaty was characterised by there being no elections, no political parties, with most of the government’s activities, policies and funding controlled by London, and with the Governor exercising near-dictatorial powers in the colony. The foundation for our current system of government was established with the passage of the 1852 New Zealand Constitution Act, which almost ignored the Treaty altogether.

2. The Treaty was not signed in good faith / Maori were tricked into signing it.
In the 1970s, the catch-cry of some Maori protest groups was that “the Treaty is a fraud.” And while the slogan was eventually abandoned, the sentiment that some deception was involved remained.  Admittedly, there were occasions where Maori and the Crown had different understandings and expectations of the agreement.  However, all the available evidence demonstrates that Sir James Stephen, who conceived the idea of a Treaty with the chiefs, and William Hobson, who executed the instructions, acted with the utmost good faith.

3. The Treaty was an attempt to conquer New Zealand
The last thing Britain wanted to do in the 1820s and 1830s was to conquer New Zealand. Since Cook arrived in the country in 1769, Britain had every opportunity to assert sovereignty over New Zealand but repeatedly refused to do so. The costs were prohibitive, the advantages unclear, and British government policy was firmly against the idea. It was largely the wilful actions of the New Zealand Company in 1839 that finally forced the British government’s hand reluctantly to initiate a treaty.

4. A French threat prompted the signing of the Treaty
The notion that a possible French threat to take over New Zealand encouraged the British to seize sovereignty of the country does not match with what is known of British motives for the Treaty. France’s flirtations with New Zealand in the early 19th century never reached the point of penetration, and French officials were ambivalent about the opportunities New Zealand offered them. At the same time, the British knew that their Gallic neighbours had little inclination and less chance of making New Zealand a French possession. Indeed, a cynic might suggest that the French were a far greater threat in New Zealand waters in the 1980s than the 1830s.

5. The so-called “Littlewood Treaty” is the “correct” English version of the agreement.
There are good historical, textual, and circumstantial reasons that undermine the arguments of the supporters of this document, but one argument alone clinches it conclusively: the so-called “Littlewood Treaty” is an unsigned document, so by definition, cannot be a treaty (which necessarily are agreements signed by parties to them). However, this inconvenient truth has not stopped its advocates claiming that there is a conspiracy to conceal this supposedly “real” treaty.

6. There is a fourth article of the Treaty
The suggestion that there is a “fourth article” of the Treaty, which promotes religious freedom, emerged in the 1990s, and still clings tenaciously to some people’s views about the agreement. Dame Lyndsay Freer, for example, referred to it just a few weeks ago. The “fourth article” is easily debunked, however. Neither the Maori nor English text of the Treaty contains this article. Also, there is no evidence from 1840 that anyone even considered the possibility of such an article existing. The exponents of the “fourth article” cite conversations held between Hobson and others at Waitangi as somehow constituting binding parts of the Treaty, but this is based on false reasoning and an impoverished understanding of international law. 

Unfortunately, this list is just the tip of an iceberg that proves reluctant to melt away. However, maybe some people will use this Waitangi Day to learn more about the events behind the slogans, and acquaint themselves with the intriguing history that sprouts from the Treaty.

Dr Paul Moon is professor of history at AUT University, and the author of several books on New Zealand history.