The draft school History Curriculum omits the tumultuous events leading up to the Treaty (Tiriti), what motivated the signatories, and how this shaped today.
As chronicled in Ron Crosby’s book The Forgotten Wars, from 1807 until the early 1840s iwi fought Musket Wars of indescribable brutality that devastated Māori communities and reset tribal boundaries. These wars arose from long-standing animosities, with war parties seeking utu in response to mana-degrading insults. British traders were complicit in selling muskets that made these wars possible.
The Musket Wars were fought with hallucinatory intensity. Deaths are estimated between 20,000 to 50,000. For comparison, the New Zealand Wars saw about 2,300 people killed, and New Zealand lost 16,000 killed in World War One. It seems crass and unfeeling to compare body counts as if to weigh evils against each other. For those with pacifist beliefs, violence is always wrong, except in extreme circumstances. In our only Just War, around 12,000 New Zealanders were killed in World War Two – something had to be done about Hitler.
Musket War devastation and civil disorder made Māori and European observers aware of the need for the rule of law in New Zealand. Māori actively sought Crown intervention, initially from the New South Wales (NSW) colonial administration.
In 1830 Captain Stewart allowed his ship The Elizabeth to be used by Ngāti Toa to attack Ngāi Tahu, many of whom were killed and eaten. The NSW Governor sought to bring Stewart to justice, however this failed due to lack of jurisdiction in New Zealand. In 1830 Sydney officials seized the Hokianga-built ship Sir George Murray for sailing without the flag or register required under British navigation laws. Without New Zealand acquiring colonial status, trade with NSW was imperilled.
In 1831, Ngāpuhi wrote to seek the Crown’s protection from external threats. While Ngāpuhi dominated the early Musket Wars, after 1825 it lost dominance and from the mid-1830s most iwi had muskets and an uneasy balance of power had emerged. It dawned on warring iwi that the harm inflicted on others would surely invite utu. This influenced some northern chiefs assenting in 1935 to He Whakaputanga o te Rangatiratanga o Nu Tirene: the Declaration of Independence of the United Tribes of New Zealand.
James Busby who had arrived in 1833 as British Resident in New Zealand drafted the Declaration, though he had no authority to do so. The Declaration asserted that sovereign powers were vested in hereditary chiefs. These chiefs entreated King William IV to “continue to be the parent of their infant State, and that he will become its Protector from all attempts upon its independence.”
In the late 1830s Ngāi Tahu appealed to the NSW Governor to intervene to protect their land rights against Te Rauparaha. While the Governor had no jurisdiction, British authorities knew they had to intervene to end the lawlessness. In 1839 William Hobson as Consul was empowered to negotiate with chiefs to seek Crown sovereignty over New Zealand.
The subsequent Treaty/Te Tiriti was an international treaty of cession and was accepted as such by major world powers of the time. As an international agreement the Treaty was not part of domestic law, however it legitimised creation of a government in New Zealand that could make and enforce laws.
The Treaty/Te Tiriti is New Zealand’s founding document as a colony of Britain and, together with the 1852 Constitution Act, is the starting but not the end point for New Zealand’s constitutional evolution. The Constitution Act 1986 marked the stage where Parliament became sovereign and the Crown was reduced to a symbolic and procedural role.
The Treaty/Te Tiriti unequivocally vests sovereignty, that is the power to make laws and to govern, in the Crown, which now means in the democratically-elected Parliament. It protects property rights over tangible properties owned by individuals and families as well as chiefs. The Treaty/Te Tiriti has nothing to say about intangible things such as language and culture. It creates equal rights for Māori as British subjects.
There are differences between the English and Māori Treaty versions, however the content had to be broadly agreed by both parties or the Treaty would be a nullity.
In the English language version the Treaty’s first article asks Māori chiefs to “cede 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…”
The language is unequivocal and leaves no scope to erode the Crown’s power to make and enforce laws and fulfil its other constitutional functions.
The second Treaty article reads: “Her Majesty The Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession; but the Chiefs of the United Tribes and the individual Chiefs yield to her Majesty the exclusive right of Preemption over such lands as the Proprietors thereof may be disposed to alienate at such prices as may be agreed upon…”
Article Two specifically guarantees the rights of families and individuals as well as chiefs and tribes. Hobson and other British officials were aware that the Scottish clan lairds had used their chiefly powers to dispossess the poor. The Sutherland clearances peaked over 1814 -1820, and clearances to replace people with sheep were permitted right up to 1855. The Treaty created rights for individuals and families that moderated chiefly powers. In a similar spirit, the New Zealand government in the 1890s broke up the big settler land estates to facilitate smaller scale family farm developments. It failed to take the opportunity to pathway a lot more Māori families into private farm ownership.
By the late 1830s wealthy people in Sydney were speculating on land in New Zealand. Governor Gipps knew this, and it likely influenced the Article Two Crown pre-emption clause.
“Exclusive” in Article Two reflects the excludable nature of the properties referred to. “Undisturbed possession” implies non-interference, and assumes Māori agency in making best use of their property.
Article Three of the English version of the Treaty reads:
“In consideration thereof Her Majesty the Queen of England extends to the Natives of New Zealand Her royal protection and imparts to them all the Rights and Privileges of British Subjects.”
Article Three’s “royal protection” refers to domestic laws against crime. It is also a British Empire defence guarantee – a century later New Zealand was at war with Germany and Japan. Māori land at Raglan (Whāingaroa) was commandeered for an airfield in World War Two. Metaphorically, the Crown used its Treaty Article One sovereign rights to deliver on its Treaty Article Three “royal protection” obligations by overriding Article Two property rights. The problem came post-War when the land, part of which was used for a golf course, was not restored to Māori. After Eva Rickard led an occupation in 1978 the land was returned.
In 1840 Māori were subjects of the Crown, not partners with it. However, our democracy has evolved so that now voters appoint, reappoint or dismiss their Parliamentary representatives every three years. In a sense Parliament is therefore subordinate or subject to voters.
Māori are now partners with the Crown, however so too are other New Zealand interest groups that partner with the Crown for agreed purposes. The Treaty does not create superior rights for Māori over other New Zealanders. Only the Article Two pre-emption clause discriminates against Māori, by effectively depressing land sale values. This clause was justified in the 1840 context to, for example, prevent Māori being cheated in land sales. The clause is now redundant.
Most Māori signatories acceded to the Māori language version Te Tiriti o Waitangi. Te Tiriti translations into English can be politicised, however Apirana Ngata’s mana gives confidence in the translation he uses in his 1922 explanation of the Treaty (Ngata, 1922). This translation reads:
“The Chiefs assembled including Chiefs not present at the assembly hereby cede absolutely to the Queen of England for ever the Government [“kawanatanga” ] of all of their lands.”
“The Queen of England confirms and guarantees to the Chiefs and Tribes and to all the people of New Zealand the full possession [“tino rangatiratanga”] of their lands, their homes and all their possessions [“taonga”], but the chiefs assembled and all other chiefs yield to the Queen the right to alienate such lands which the owners desire to dispose of at a price agreed upon between the owners and person or persons appointed by the Queen to purchase on her behalf.”
“In consideration thereof, Her Majesty the Queen of England extends to the Natives of New Zealand Her Royal Protection, and imparts to them all the rights and privileges of British subjects”.
Debate centres on whether “kawanatanga” weakens Crown sovereignty, and the meanings of “tino rangatiratanga” and of “taonga”.
Over 700 Māori had visited Port Jackson (Sydney) before 1840 and observed what Crown kawanatanga (governorship) meant. They found that the Crown’s kawanatanga in NSW was absolute, indivisible, consequential, and included power over life and death.
From the redoubtable Governor William Bligh of “mutiny on the Bounty” fame through to Richard Bourke and George Gipps in the 1830s, Māori observed kawanatanga in practice in NSW. For example, Governor Gipps hung seven white Australians found guilty of murdering unarmed aborigines in the Mayall massacre in 1838. Gipps didn’t ask Queen Victoria for permission to execute white British subjects who had murdered indigenous people as her powers were instantiated in him.
In the Te Tiriti text, Māori were guaranteed “tino rangatiratanga” or chieftainship over their lands, villages, and other properties. As Ngata wrote: “There was without doubt Māori chieftainship, but it was limited in its scope to its sub-tribe, and even to only a family group. The Māori did not have authority or a government which could make laws to govern the whole of the Māori Race” (Ngata, 1922).
Dame Tariana Turia confirmed this tino rangatiratanga interpretation in 2002 when she stated that “we are advocating, when we raise the issue of tino rangatiratanga – the exercising of whanau and hapu mana” (Turia 2002).
Whilst tino rangatiratanga does not challenge Crown sovereignty or kawanatanga and the making of laws, it can imply economic self-determination at the individual, family and hapu level. That is, Māori can be economically self-reliant, have choices in life, and the confidence, pride and wellbeing that comes from this without challenging the Crown or the Parliamentary sovereignty that has evolved from it.
Such economic self-determination and mana motuhake is achievable without constitutional change. It is not achievable if constitutional change, future Treaty settlements or Māori-Crown partnerships strengthen tribal elitists at the expense of Māori people as a whole.
The people’s elected representatives through their policy heft, law making powers and executive institutions should support Māori (equably with other New Zealanders) to achieve economic self-determination rather than inventing “principles” that are not in the Treaty/Te Tiriti.
Law is neither self-interpreting nor self-enforcing and depends on social consent and support. For example, unlike the English language version, Te Tiriti does not specifically mention fisheries. If Te Tiriti is accepted as authoritative this may raise issues relating to fisheries rights. However, Māori fisheries rights are accepted by New Zealanders, and this settles the matter.
Likewise, Māori blockades to prevent coronavirus spreading to Northland reflected historical memory of the devastation caused by the1918 flu epidemic that killed 9000 New Zealanders, including 2500 Māori. These blockades were legally marginal, however they supported the Prime Minister’s leadership in rallying the community against coronavirus, and they reminded us that the law is there for the protection of the people.
“Taonga” in 1840 referred to objects and real property such as whare, tools, personal effects and land, not intangible things. Hongi Hika defined taonga as “property procured by the spear”. The 1820 Māori dictionary defined taonga as “property”. So too did the 1844 William Williams dictionary. This is significant because many Waitangi Tribunal claims assert that taonga includes, for example, language, culture, knowledge, water, and many other “things” that were not considered taonga in 1840.
A tangible taonga is a rival, excludable good that can be protected through a property right and is tradeable. Intangible taonga such as language, culture or knowledge are non-rival and non-excludable goods. That is, your Te Reo fluency takes nothing away from someone else’s Te Reo use, and might enhance it. Knowledge may be hard to create but the marginal costs of disseminating it may be extremely low or nil.
From 1840 the Crown was slow in asserting its mandated authority. Before the Treaty was signed Christianity, settler influencer, changing Māori mindsets and economic forces had signalled the end for cannibalism and slavery. However, Crown inaction meant slavery persisted in the Chatham Islands into the 1860s.
Whilst Musket War conflict ended in the early 1840s, land right conflicts involving Māori, settlers and the Crown soon began. In the Wairau incident in 1843, Ngāti Toa warriors killed 26 people, mainly Pakeha. The Crown decided not to take action against Te Rauparaha since he appeared to be within his legal rights, though his rights enforcement seemed rather extreme.
Te Rauparaha, responsible for killing so many Māori and Pakeha, died of natural causes as a free man, has a famous haka attributed to him, and an arena and aquatic centre named after him. Let history judge!
The New Zealand Wars began in 1860 in Taranaki and continued until the conflict with Te Kooti ended in 1872. Since 1872 New Zealand has had a period of civil peace unusual in the democratic world and never observed at all in any tribalistic or authoritarian society.
However, the New Zealand Wars, how the economy has developed and what skills it has rewarded are associated with injustices and inequalities to be addressed. The Waitangi Tribunal has done some good work in restitution for Crown injustices, especially from the 19th century. However, land-based Treaty settlements do not address today’s socio-economic challenges, partly because the sources of wealth now are radically different to what they were in 1840.
Treaty claimants, politicians, judicial activists and the Waitangi Tribunal itself have for decades gone beyond the Treaty/Titiriti texts and made up principles, interpretations and historical narratives that support specific Treaty claims. Some eminent historians have criticised some Tribunal claim reports and historical analyses as flawed, factually unreliable or fabricated.
The Tribunal processes and associated negotiations have expended political and public sector energies, cost a lot financially, and been divisive. Many claims submitted to the Tribunal would best be addressed through mainstream policy processes and public sector responses.
The Tribunal is not now a dispassionate judicial body. It functions more in an advocacy mode. It is not required to undertake intervention logic and social cost benefit analysis on its recommendations, nor to consider where the costs sit or what unintended consequences might need to be managed. Its processes invite overstatement of preferences and lobbying which may benefit those at the table while others bear the cost.
The Tribunal and government processes have also favoured iwi over hapu, families and individuals. Making iwi the legal owners of Treaty settlements conflicts with the English language Article Two text protecting Māori family and individual rights and with the “all the people” reference in Te Tiriti Article Two.
The result is that issues that matter for Māori such as education, employment, incomes, housing, net worth, and health and justice are not addressed effectively, and scarce analytical resources are dissipated, often on side issues.
An egregious example is the Wai 262 claim, submitted in 1991 and extended multiple times over the last thirty years. It is a sweeping claim over flora and fauna, including genetics, intellectual property rights past, present and future, and the right to protect, enhance and transmit the cultural, medicinal and spiritual knowledge and concepts found in the life cycles of indigenous flora and fauna. It includes a “right” to environmental well-being dependent upon the nurturing and wise use of indigenous flora and fauna. It blames the Crown for “failing to preserve kumara varieties brought to Aotearoa by Kupe, thereby rendering them extinct in this country”.
Wai 262 is self-satirising. It is known in Wellington circles as the “Jarndyce versus Jarndyce” claim after the court case in Bleak House that financed generations of lawyers long after the parties to the case had died of old age and everyone else had forgotten what the case was about in the first place.
The claim is outside the Treaty/Te Tiriti’s scope and the Tribunal should not have heard it. Instead, the issues it raised should have been addressed as policy and operational matters. This would have delivered more for Māori and other New Zealanders at lower cost, faster, and with fewer unintended consequences such as delays in updating New Zealand’s intellectual property laws.
Māori disadvantage can be a business opportunity for tribal elitists, lawyers, some academics and public servants and religious entrepreneurs. Some elitists narrate an idealised atavistic past to other Māori, while themselves enjoying modernism’s comforts. Cloaked in “social justice” language, such narratives are driven by self-interest, not the interests of Māori individuals and whanau, let alone other New Zealanders.
However, good things have come from some iwi with visionary leadership and the wisdom to configure their governance and commercial structures to run on modernist not kinship lines. Some valuable initiatives have emerged, such as Ngai Tahu’s Whai Rawa savings scheme.
New Zealanders are concerned at the socio-economic gaps between Māori and other citizens. However, the Tribunal is the wrong body to address these gaps. By strengthening the tribal elites it may have caused new inequalities. By encouraging a victim mentality it may have eroded the psychology needed for Māori to do better.
Race-based approaches have momentum in government, the bureaucracy, the education system and in much of Māoridom. The challenge for those supporting a more racially-divided New Zealand will be explaining how it can benefit all New Zealanders.
The challenges for the open society, democratic humanists are to articulate how the socio-economic gaps between Māori and other New Zealanders can be closed, and to understand how Māori culture can play a bigger part in the nation’s life.
Closing the gaps should focus on all New Zealanders from low socio-economic backgrounds rather than on race. Effective policies to reduce poverty and lift socio-economic prospects will benefit Māori disproportionately. Policies can build from mainstream interventions and services that work, and new initiatives can be developed.
However, closing the socio-economic gaps does not overcome Māori cultural loss and social fragmentation. As well as poverty’s stress burden Māori have also borne the psychic burdens of prejudice, slights, “jokes”, disrespectful pronunciation, indifference to their unique knowledge and world view, and instrumentalist tokenism.
The challenge therefore goes beyond socio-economic equity to include language and culture.
Tikanga can play a more active role in society without being part of statute or common law. Waiting politely in queues is English tikanga imported into New Zealand. It is “enforced” as a social norm, not through law. Likewise, rahui as resource management tikanga is increasingly supported in the community without the need for statutory or common law underpinning.
Tikanga evolved to serve pre-European Māori tribal needs. Over time some tikanga has become maladaptive and is dispensed with. However, much tikanga is integral to the Te Ao Māori world and can be adopted more widely. Tikanga can strengthen kinship and other relationships between people, and will be more influential in for example Oranga Tamariki. Tikanga could also make a big difference in the justice and corrections systems.
Māori make up around half the prison population, and one reason for this is a lack of connections that support positive identity, narratives and social norms. Photo sequences from babyhood to old age typically track a well-balanced person’s life. A break when someone disappears from the photographic record often reflects a disrupted life and a loss of connections.
The justice system isolates offenders from their connections. Tikanga could place more emphasis on mana restoration for victims and restorative justice for offenders that sustains their connections and softens the impact of offender sentencing on dependent whanau. Victoria University academics and students are doing some valuable thinking on these issues – Gage (2020) is an example.
In the 19th centuryreligious movements emerged to overcome social fragmentation and to create new connections and sources of meaning for Māori. These movements included mainstream Christianity, Pai Mārire, Ringatu and in the 1920s, Ratana. In our times, tikanga can help restore connections that have been lost.
We should also consider how new rehabilitative connections and sources of meaning can be formed. These may be cultural, religious or humanist, they may lead to a marae, church, mosque, to the international “Republic of Science” or “Republic of Letters” – that is to whatever philosophies and identities that can connect people with others and help them make something positive out of their lives.
The reaction to the draft history curriculum and to the He Puapua plan has challenged the zeitgeist that all Māori problems stem from colonialization and the solution lies in Te Tiriti o Waitangi and in retribalisation. No tribalized society has ever succeeded socio-economically in the modern world. If New Zealand continues down a path that strengthens tribalism and amplifies birth-ascribed racial differences between people there will be few winners and many more losers.
However, those who support an equal rights-based democracy need to demonstrate how the socio-economic gaps between Māori and other New Zealanders can be closed. They must also help revitalisation of Māori culture and tikanga, its weaving into society’s fabric, and its integration into our institutions. Without this being achieved we are likely to spend the next 181 years arguing about what the Treaty/Tiriti meant, and the Wai 262 claim will still be offering sustenance to future generations of lawyers and will remain unresolved.
Crosby, R. 2020: The Forgotten Wars. Why the Musket Wars matter today. Oratia Books, Auckland.
Gage, K. 2020: Māori under-representation in the legal profession. Employment Law Bulletin September 2020.
Ngata, Apirana 1922: The Treaty of Waitangi, an explanation; Te Tiriti o Waitangi, he whakamarama. NZETC: New Zealand Electronic Text Collection.
Turia, Tariana 2002: Trauma and Colonisation. Speech to the 9th annual Australasian Society for Traumatic Stress Studies. Waipapa Marae, Auckland University 9 March 2002.