Kereru, meet Felis catus

Why the Waitangi Tribunal's report on the status and effect of the Treaty changes nothing - and potentially everything.

The Waitangi Tribunal's just released report He Whakaputanga me te Tiriti: The Declaration and the Treaty, representing its findings on Stage 1 of the Te Paparahi o Te Raki Inquiry, is a bit of a door stopper. Its runs to some 534 pages, with another 40 odd of appendices.

But it's likely that the full substance of the Tribunal's research and analysis will be read by (at most) a few hundred history and law aficionados, plus those poor saps at the Ministry of Justice who have to do so as part of their work. For the vast majority of us, however, the real money passage comes at pages 525-526:

Our essential conclusion, therefore, is that the rangatira did not cede their sovereignty in February 1840; that is, they did not cede their authority to make and enforce law over their people and within their territories. Rather, they agreed to share power and authority with the Governor. They and Hobson were to be equal, although of course they had different roles and different spheres of influence. The detail of how this relationship would work in practice, especially where the Māori and European populations intermingled, remained to be negotiated over time on a case-by-case basis. But the rangatira did not surrender to the British the sole right to make and enforce law over Māori. It was up to the British, as the party drafting and explaining the treaty, to make absolutely clear that this was their intention. Hobson’s silence on this crucial matter means that the Crown’s own self-imposed condition of obtaining full and free Māori consent was not met.

Wow - that sounds pretty major! The Treaty wasn't actually the mechanism by which Māori accepted that the British Crown could take over running the motu known as Aotearoa/New Zealand!! Māori assumed that they would retain the capacity to make and enforce their own laws for themselves!!! What then flows out of that historical finding?

Well, at one level it doesn't mean anything at all. All the Tribunal is telling us is what a lot of historians have been saying for years - Māori didn't see the Treaty as intended to grant the Crown permission to come in and exercise ultimate control over everything in the new colony. The Tribunal itself makes this point, noting that "A number of New Zealand’s leading scholars who have studied the treaty – Māori and Pākehā – have been expressing similar views for a generation." But the Tribunal's conclusion doesn't then mean that the Crown does not in fact possess "sovereignty" in and over New Zealand today  so Chris Finlayson is entirely correct to claim in response to the Tribunal's report that "There is no question that the Crown has sovereignty in New Zealand."

He's right because it's what all the institutions charged with exercising public power in our society assume to be the case (because they are, for the most part, colonial institutions that are founded and run on the basic assumption that the Crown (in the form of other colonial institutions) is in charge of things). So, for example, back in 1992, the High Court in a case called Berkett v Tauranga District Court was confronted with the argument that the Crimes Act 1961 did not apply on Tuhua/Mayor Island because Parliament does not possess the constitutional power to legislate over this bit of land. The High Court judge pretty much dismissed that claim root and branch: 

For the final and crucial step, namely the acquisition of sovereignty by the Crown at that time, one must again venture beyond the reassuring confines of constitutional and domestic law as a closed system. The origins of that sovereignty are discussed by Richardson and Somers JJ in New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 at 671 and 690. They refer to Hobson's proclamations of 1840 declaring the Crown's sovereignty over New Zealand, the approval of those proclamations by the Crown in London and the publication of the proclamations later that year in the London Gazette. The questionable nature of some of the assumptions purportedly justifying the proclamations at the time (whole of North Island ceded by the Treaty of Waitangi; South and Stewart Islands unoccupied by any Maori group capable of exercising sovereignty there; no presence capable of resisting acquisition by discovery) has not detracted from the general recognition afforded to the proclamations ever since. As Richardson J commented "It now seems widely accepted as a matter of colonial law and international law that those proclamations approved by the Crown and the gazetting of the acquisition of New Zealand by the Crown in the London Gazette on 2 October 1840 authoritatively established Crown sovereignty over New Zealand".

As far as courts are concerned - and remember, it is courts that have the constitutional job of saying what is and what isn't "law" in New Zealand - the Crown has sovereignty because it said it had sovereignty. It doesn't matter if the historical or factual basis for that claim is flawed, because it's since become the fact on the ground (i.e. it has achieved "general recognition"). In that respect, sovereignty is like Tinkerbell in Peter Pan - if everyone claps their hands to show they believe in it, then it exists.

However, it also doesn't really matter what the Court thinks about the basis for the Crown's sovereignty, because the question actually is none of the Court's damn business. Its job doesn't extend to asking if the lawmaking and law applying bits of New Zealand's government are allowed to exist in their present form:

But in fact it is neither necessary nor permissible for a Court to delve back into history to establish the pedigree of the New Zealand Parliament, or the territorial scope of its authority, for the purpose of assessing the validity of a current statute. Once Parliament passes or adopts a statute, the Courts must apply it. An assumed clash of sovereignties in the mid-nineteenth century cannot provide the basis for challenging a New Zealand Act of Parliament.

And finally, Justice Fisher sums up the relationship between the Treaty of Waitangi and the basis for New Zealand's contemporary laws in pretty blunt terms: 

It will be apparant by this point that in my view the Acts do not derive their current legal authority from the Treaty, that they are binding upon all persons within the territory of New Zealand, that the territory of New Zealand embraces Mayor Island/Tuhua and that the statutes are therefore binding upon the applicants. No-one should underestimate the importance of the Treaty of Waitangi but the acts or omissions of one's ancestors with respect to the Treaty can have no bearing upon one's liability under a New Zealand statute of general application

Now, I've quoted these lengthy extracts from a more-than 20 year old case for a reason. As far as courts are concerned (as well as the other institutions of public power), the Treaty is not actually needed as a basis for the day-to-day functioning of the current legal order. And so whenever Māori litigants come before a judge claiming that she or he has no authority over them because their ancestors did not sign the Treaty (as happens on a semi-frequent basis), that judge invariably gives the very same answer as was given by the judge in Berkett. Equally, whenever Māori individuals or groups seek to assert alternative forms of legal authority within Aotearoa/New Zealand - by issuing things like a "Māori birth certificate, Maori passport and ... 'Maoritanga' currency", for instance - the State responds with force to put an end to the practice. The Waitangi Tribunal's words will not change that factual application of public power one little jot … a Māori defendant who tries to rely on its Report to argue that an "Iwi issued" drivers licence entitles them to operate a motor vehicle will receive the same flat answer as was given in the past. It doesn't, nothing you say about the Treaty changes that, and if you try to drive with one of those bits of paper you will be taken off to jail by men who can beat you or worse if you try and resist them.

That is, at its very core, what "sovereignty" means. 

So if that is the case, is the Tribunal's Report simply a lot of typing and paper, signifying nothing? Well, not necessarily. Because there's a distinction to be drawn between sovereignty in fact and the legitimacy of that sovereignty. And the Tribunal's report matters quite a bit for that latter matter. Here's why.

All nations have a narrative about what they are and how they came to be. These stories we tell ourselves about who we are and the way we got to be that way have real importance. Consider, for example, the effort that the Government is putting into producing a series of histories to mark the 100th anniversary of World War One. It's not doing this simply because Chris Finlayson personally is a fan of military history (and I have no idea if he is or not). Rather, it sees the occasion as one that was (and is) important in forming our identity as "New Zealanders". 

(Note - I'm not suggesting that the "WW100 Commemorations" are an exercise in State-promoting propaganda or the like. Rather, I'm using them as a contemporary example of the pull that history has upon us and the fact that we are prepared to expend time, effort and money in trying to better understand and mark the events of our past. In short, it shows how much our history matters.)

For the most part, then, the story we tell ourself about how New Zealand first came into being as a nation State is a pretty positive one. Sure, things may have not been perfect thereafter - the promises in the Treaty may have been broken at times when the Government might have got a bit greedy for Māori land and the like. But as a nation we started out with the best of intentions, with Māori being treated respectfully as co-equals by the British wanting to come over to live here. And Māori in turn were quite happy to invite the British in and give them the running of the joint. That's what the Treaty was all about: He iwi tahi tatou, and all that.

So we can all feel pretty good about where we are and how we got to be here (at least, once we've tidied up the last of the Treaty settlements and thereby made good our failures to live up to the Treaty's original promises). This is especially true if we compare ourselves to (say) those nasty racist Ockers who just up and shot the Aboriginal people who were already in Australia. That sort of using brute force to take over the country just wasn't the way we did things here!

The problem then is that the Waitangi Tribunal's report makes that rosy narrative pretty hard to sustain. Because if the Treaty wasn't the way in which those Māori who signed it agreed that the British Crown could take charge of the country, then what was? And the alternatives look pretty bleak - essentially, you're left with the fact that over time the Crown proved to be the larger, stronger and more numerous party, which then was able to use that fact to impose its will over Māori groups who didn't want to have it happen.

Which, if you want to think about it, is pretty much what Russia is doing in the Ukraine. Or Israel is doing in the occupied territories of the West Bank. Or China might one day want to do to us, in a world where climate change starts to make our land and resources increasingly attractive.

I'm going to suggest that there's three possible responses that might then get made to the Tribunal's Report. 

(Actually, before we get to them, there is one other response that may be made. It might be argued, as Paul Moon apparently does, that the Tribunal got its conclusions quite wrong. I'm not going to get into that historiographic battle, except to say that the Tribunal's institutional position as a permanent commission of inquiry means that this is now pretty much the official or orthodox account of what happened. It is now, for all intents and purposes, "the Truth" about what occured with the Treaty.)

First, we might try to say that all this history stuff just doesn't matter in terms of how we order our current world. Why should whatever happened 174 years ago be allowed to have any bearing on how we live together as a country today? All I'll say in response to this question is that it's not really a tenable argument to make in terms of understanding our constitution; that is, the rules, practices and  that govern how power legitimately may be exercised in our society. For if we're going to say that things that happened in 1840 are too far in our past to speak to us today, then there's an awful lot of our law that we are going to have to junk - including such seminal documents as the Magna Carta (1297), the Petition of Right (1627) and the Bill of Rights (1688).   

So while I get that there's a somewhat understandable tendency to dismiss those bits of our past that don't fit comfortably into our present self-understandings as being "ancient history" that shouldn't be accorded any contemporary importance, I don't think you can pick and choose relevance based purely on whether it complicates things. In short, we need some sort of account of how today's New Zealand (including the institutions that govern society as a whole) came to be the way it is. A part of that account has to explain why it is that our governing institutions came to possess, and continue to possess, their lawmaking and application powers. And if that account doesn't rest on the Treaty, then what does it stand upon? 

Well then, a second response might be to accept that the Treaty did not function to transfer sovereignty to the Crown and that in fact this was achieved by the sorts of forceable imposition of authority that we today condemn other nations for undertaking. That is to say, the Crown is sovereign because it won the battle for power - partly by force of arms, partly through the imposition of its judicial authority, partly by taking advantage of the fact that the Māori population declined through disease and other factors. 

Two points about this response. The first is that it does not necessarily mean that the current New Zealand State is hopelessly compromised or lacks any moral legitimacy at all. There may be very good reasons why we might think that the society we have developed is a pretty good one to have - it produces outcomes that we can feel proud of today. However, and this is my second point, how good do we feel about telling ourselves this story about how our society came to be? How happy are we to be a slightly less terrible version of Australia; our forebears may not have hunted Māori for sport, but they still were not much better than bullies who took what was not theirs through being bigger, stronger and more numerous? Is that a national narrative we are prepared to live with?

The third response, then, is to accept that the Treaty did not function to transfer sovereignty to the Crown and so the way our society has developed has failed to keep to the original promises made in it. That is to say, the ongoing deprivation of Māori sovereignty is a breach of the fundamental bargain that was made between the parties.

If we do accept that picture, then it really poses a challenge to us. Because if we want the story we've come to tell ourselves about the Treaty and what it means for who we are to be true, then we can't just keep on keeping on as we've done. Nor can we resolve the breaches of the Treaty simply through payments of money, transfer of resources, and apologies. Rather, it calls for a more radical reworking of the sharing of power over at least some aspects of New Zealand between the Crown and Māori in order to make good the Treaty's original vision.

And that, it seems to me, is the real importance of the Waitangi Tribunal's Report and its conclusions. It provides us with a choice - you can either have your comfortable and ennobling history of the Treaty as the founding document of New Zealand, or you can have the current New Zealand State in which the Crown has the right to exercise ultimate sovereignty over all aspects of life within it. But you can't have both.