upton-on-line
23rd May 2002
In this issue (shame-facedly the longest ever)
Upton-on-line explores a remarkable speech by Bill English on
treatyology. Upton-on-line does not involve itself in
partisan wrangles. But this speech – researched by Bernard Cadogan
– is so exceptionally interesting that he can safely recommend it to
readers of any political colour. It will cause few digestive problems.
As a result of the length of this piece, an "I-told-you-so"
sort of story about the need for a more formalised Trans-Tasman dialogue
(launched in this column and endorsed by the Foreign Affairs &
Defence Select Committee of the NZ Parliament!) will have to wait
until the next issue.
Treatyology – new revelations from the Hubbell Space Telescope
Well not quite. But there is an almost theological aspect to many Treaty
of Waitangi theorisings. So when someone trains heavy-duty research
tools on questions that haven’t previously been subjected to intense
enquiry, the results can tend to make previous theories look a bit astrological
in comparison. Such is the result of the intensive research that National’s
leader, Bill English, has had his gifted historical researcher,
Bernard Cadogan, undertake. The result – a speech entitled "The
Treaty of Waitangi and New Zealand Citizenship" delivered by
English at Victoria University’s Centre for Public Law on May 7th
– is remarkable.
Not in the sense that it somehow ‘solves’ the debate any more than
fabulous pictures of unimaginably distant galaxies solve the mysteries
of the universe. Rather, it is the measured, reasonable and painstakingly
researched way in which English declines to accept much of the Maori
sovereignty agenda – without as much as a sidewise glance in the direction
of the red-neckery that has hitherto characterised most conservative
readings of the Treaty. It is one of the most significant speeches by
a New Zealand politician upton-on-line can recall in recent times. (Despite
an overly generous reference to upton-on-line in the text – upton-on-line
helped ask some of the questions over two years ago - the speech is
squarely the result of English’s judgement and Cadogan’s forensic skills).
With a build-up like that, any sensible reader would go straight to
the text – and here’s the link if you want to do just that: http://www.national.org.nz/wcontent.asp?PageID=100005571
(The full footnoted version of the speech is obtainable at http://www.national.org.nz/wcontent.asp?PageID=100002709,
by clicking on the pdf button.)
But for those who can’t be bothered clicking further here are some
excerpts, and some commentary from upton-on-line.
To start at the end
In a speech almost completely devoid of partisan commentary, English
started and finished by relating his historical analysis to the views
expressed in a recent TV3 documentary on tino rangatiratanga.
Here’s how he finished:
Unless more New Zealanders become aware of the content of modern
Treaty discourse, and where that discourse will inevitably
take us, we are going to wake up one day, and find that New Zealand
has been reconfigured more or less as that shown in the TV3 documentary
"2050 – What if … ". Then New Zealanders, Pakeha, Pacific
and Asian, and Maori too – for most Maori want to be ‘just New Zealanders’
– will ask, "How could this have happened?" And the
judges will keep explaining in their judgements, and the Ministers
will remain silent, the media will bite on the sensational aspects
of it, and no ‘ordinary’ New Zealander will be any wiser. I admit
that the New Zealand Government and the British Government before
it have been responsible for breaches of the quasi-contractarian dimension
of the Treaty. But the solution to the challenges that the Treaty
presents to all New Zealanders lies in a single standard of citizenship
for all. And considering the Treaty’s original intent, I for one will
not apologise for being proud of being a New Zealander.
What did the TV3 documentary reveal that was so alarming? Upton-on-line
procured a video of the programme, one of a series of Inside New
Zealand documentaries under the 2050 – What if…? title. It
was a depressing example of the genre, not so much for the subject matter
(what could be more topical than examining life in a re-named, puritanically
bi-cultural Aotearoa with passport controls between rohe and
toll roads operated by iwi?) but the utterly unreflective presentation.
Upton-on-line hadn’t seen any New Zealand television for 18 months
and was shocked by just how far he had been seduced by European and
global television that tends to let interviewees think out loud and
develop complex points at some length. The verdicts of a hapless cast
of opinion leaders were spliced together, with often just a sentence
each devoted to some breathtakingly controversial point. Given the editorial
policy, it would be unfair to criticise the pronouncements of any contributor
in what became a pointiliste canvas of views hung loosely around
the epic domestic tensions of a ‘typical’ bicultural household in 2050
(complete with avant garde dream home and sleek silver-grey family
saloon).
To give diasporan readers the flavour, we had John Tamihere MP apparently
building a constitutional principle around the sound bite that "Jews,
7th Day Adventists and Catholics all have their own schools
– it’s just a matter of choice"; Andrew Sharpe was heard
to write off bi-lingualism on the basis that it would involve "too
much effort for too many people" to fight against the power of
English; Ella Henry placidly intoned that "by 2050 we will
have resolved issues surrounding professional inequities"; Chris
Laidlaw came across as an even more wilful bleeding-heart liberal
than normal with his injunction to "try a bit more separatism and
see how we get on"; Findlay McDonald from the Listener
was allowed a delphic "so far so bad" (to be contrasted with
broadcaster Dale Husband’s "it’s going to be Ace".
Thoughtful commentators like Radio NZ’s Al Morrison sounded choleric
in their truncation.
The format suited some participants. Jane Kelsey’s exasperation
in understanding so clearly what the rest of us are too lumpen to recognise
was communicated with even more pained sorrow than normal: "there
is no question that we will have tino rangatiratanga. The question
is how tauiwi will respond to that assertion." (Her recipe?
– access to money to enable Maori "to carry out the kind of work
which is consistent with tino rangatiratanga"). Tau Henare
revelled in the opportunity of getting some of his unforgettable one-liners
away – "round up the rednecks and fundamentalists, find an island
and put them on it". Denis Dutton, cunningly shot with grand
piano and collection of primitive art works in the background, did a
superb rendition of the exasperated, enlightenment academic that he
is in real life. And Carl Stead somehow held onto his laconic
political incorrectness in noting that, since te reo was of no
use anywhere in the world outside of New Zealand, making everyone learn
it seemed "a heavy burden as a courtesy to Maori."
In other words, it was a bonfire of conflicting opinions, tossed into
the conflagration often without context or qualification, backed by
a voice-over narrative that veered between being banal and offensive.
(Try for this size: come 2050 "will those things that Pakeha take
for granted – jobs, homes, culture – be under threat?" Sorry, upton-on-line
didn’t know they were the preserve of Pakeha) But running through it
seemed to be the view that the existence of something called tino
rangatiratanga bears one constitutional interpretation and that
leads directly to a divided sovereignty and two classes of citizenship.
That is what English so thoughtfully challenged.
The English thesis in a nutshell
…in a very stylised form, goes something like this:
- New Zealand represents a singularity in terms of its constitutional
evolution; there are no models and the Treaty and what followed have
to be understood in terms of the intellectual and administrative values
of the time;
- Britain quite consciously saw itself as securing, through the Treaty,
sovereign authority in and over New Zealand and in the process made
all of its inhabitants subjects;
- The Treaty of Waitangi was – and remains - a hybrid instrument with
domestic elements and the colour of a treaty at international
law with all the legal consequences that flow from that;
- The surrender of sovereignty by Maori made them subjects and in
time citizens (but on a slower timetable than Pakeha as a result of
discrimination). The result was full political integration in a way
that occurred nowhere else in the Empire but failings to honour the
protections Maori were entitled to expect, were egregious;
- Arguments that try to sustain an unextinguished thread of Maori
sovereignty on the basis of the Treaty or locate vestigial evidence
in the 1852 Constitution Act cannot be sustained;
- None of this denies a reading of tino rangatiratanga that
would permit all manner of devolution in areas like health or education
for those who choose it.
First some history
English starts with the historical backdrop:
Although our country has relatives in the world, we have no twin.
This is because of the way in which New Zealand sovereignty was established
by the Treaty of Waitangi.
In the lead-up to New Zealand’s creation in 1840, the Maori political
and social environments had been devastated by more than two decades
of musket wars. From 1817, warlords and their forces killed tens of
thousands. Entire areas were ethnically-cleansed. It was likely that
further slaughter could not be avoided by traditional means, nor could
further violent dispossessions of hapu of their traditional
homelands, be prevented. An outside arbiter was thought to be absolutely
necessary by an increasing number of Maori. Many Maori began to seek
law, either from the Bible, or from the British. So they also
began seeking a legislative sovereign power to make that law, and
to enforce it.
On the British side, the political and intellectual environment at
the time of New Zealand’s creation, was the principled libertarianism
of Britain in the 1820s and 1830s. That age saw Britain’s abolition
of slavery; emancipation of Catholics and other religious minorities;
recognition of the new Latin American republics and the establishment
of protective exclusion zones around them; intervention in the Greek
war of national liberation; and evolution of a principled colonial
policy in India. The Reform Bill transformed the political landscape.
Free trade and repeal of the Navigation Acts had begun to transform
Britain’s economy and those of its colonies.
And the British did one other thing: the Colonial office invented
"New Zealand." New Zealand was to be an entirely new type
of colony. Its people were supposed to ‘co-evolve’. The new land’s
British subjects, of both founding races, were to intermarry. Later
generations would become amalgams of 1840’s Maori and European populations,
hence that derided term these days, amalgamation. It was expected
in the 1830s and 1840s that upper class Maori would intermarry with
upper class European, the middle and the working classes likewise.
The two peoples were to embrace. New Zealand was to become a ‘racially’-homogenous
community, like those that had emerged in Peru, Chile, Venezuela or
Mexico, all recently liberated from Spain.
On the question of what the British believed themselves to be about
in concluding the Treaty, English is unequivocal that they sought sovereignty
in a way that did not admit of some continuing indigenous sovereignty:
to establish this new sovereignty, Lord Normanby, the Secretary of
State for the Colonies in the Melbourne government, instructed Captain
Hobson that certain pre-conditions had to be satisfied before
any treaty could be signed with the "Aborigines of New Zealand".
"I have already stated," Lord Normanby wrote in Hobson’s
Instructions, "that we acknowledge New Zealand as a Sovereign
and independent State … ".
He then immediately, albeit implicitly, acknowledged that this was
a polite legal fiction: New Zealand was a "Sovereign and independent
State so far at least as it is possible to make that acknowledgement
in favour of a people composed of numerous, dispersed and petty Tribes,
who possess few political relations to each other, and are incompetent
to act, or even deliberate, in concert."
Even so, Lord Normanby continued, "the admission of their
rights [emphasis added], though inevitably qualified by this
consideration, is binding on the faith of the British Crown. The Queen,
in common with Her Majesty’s immediate Predecessor … disclaims for
herself and for her Subjects, every pretention to seize on the Islands
of New Zealand, or to govern them as part of the Dominion of Great
Britain, unless the free and intelligent consent of the Natives, expressed
according to their established usages [emphasis added],
shall first be obtained. … "
In conclusion, Normanby told Captain Hobson that: "Her Majesty’s
Gov[ernmen]t have resolved to authorise you to treat with the
Aborigines of New Zealand for the recognition of Her Majesty’s Sovereign
authority over the whole or any parts of those Islands which they
[emphasis added] may be willing to place under Her Majesty’s
Dominion."
This is all a reminder of just how powerful the British were at the
time. Yet in 1820s and 30s Britain, global power had to be wielded
conscientiously. The realpolitik and overt racism that characterised
the Empire later in the century were not yet evident. So why did the
British negotiate to extend full British sovereignty over New Zealand?
For the option of establishing a protectorate was available.
Protectorate status for indigenous peoples was seen as an attractive
remedy in many colonial situations. For one thing, protectorate status
maintained a degree of sovereignty for those being protected. The
last "Grand Master" imperialist, Lord Curzon, Viceroy of
India, declared: "A Protectorate is a plan adopted for extending
the political or strategical, as distinct from the administrative,
Frontier of a country which the protecting Power is, for whatever
reason, unable or unwilling to seize and hold itself, and, while
falling short of the full rights of property or sovereignty [emphasis
added], it carries with it a considerable degree of control over
the policy and international relations of the protected State."
The British Crown, however, was never a suzerain over
any protectorate. The British had to reconcile the Maori desire
to come under British law, and so become British subjects, with what
further colonisation would demand. If Maori in 1840 had refused
to surrender their sovereignty, Hobson would have annexed only the
land under contemporary British settlements. This, however, would
have prevented the expansion of settlements beyond what would almost
literally have been beachheads. Pakeha would have remained ‘beachcombers’,
and incapable of providing the economic development and capital that
Maori so desired.
"Hobson’s choice" would then have been to secure the sale
of adequate land to the settlements and the conversion of not just
title, but of sovereignty as well, piece by piece. Maori surely would
have been utterly perplexed by having to demarcate iwi homelands
as British Protectorates, while the lands in between their designated
refugia and British settlements constituted a kind of no man’s
land.
But as Hobson’s Instructions made perfectly clear, he was to extinguish
the source and practice of aboriginal sovereignty, and ultimately
of self-government. The Treaty of Waitangi was the first in a series
of instruments and actions to effect this.
For Maori sovereignty proponents this is a predictably unwelcome conclusion.
Disagreement about what the Treaty means is almost as old as the document
itself. What is novel are the conclusions English draws from his reading
of it. He asserts that in dealing with sovereignty in the way that it
does, the Treaty of Waitangi is not just an indigenous document with
quasi-contractarian aspects. It is also a treaty at international
law which overrides exclusive appeal to the contra preferentem
rule (discussed in upton-on-line two years ago) and opens up the
provisions of the Vienna Convention on interpreting international treaties:
Assertions of Maori sovereignty are usually buttressed by the claim
that the international legal principle of contra preferentem
should prevail. This principle was first propounded in 1899 by the
United States Supreme Court, in the case Jones v. Meehan. Contra
preferentem is the legal principle which states that, where the
language of a contract is said to be ambiguous, the contract must
be construed against the party selecting the terms in it.
Contra preferentem is also the last resort for people who
do not share in the citizenship of the country asserting sovereignty
over them, to obtain remedy for grievance. I consider that in New
Zealand, contra preferentem is a valuable principle, but not
a supreme one. It is sound American law, but the concept does not
fully extend to cover New Zealand’s circumstances. Maori, by Article
I, in international law, fully ceded sovereignty, and by Article III,
became British subjects just like Pakeha.
In any dispute about the meaning or effect of the Treaty of Waitangi,
the United Nations 1969 Vienna Convention on the Law of
Treaties, ratified by New Zealand in 1971, over-rides contra
preferentem.
Article 33, clause 4 states: " … when a comparison of authentic
texts [in two or more languages] discloses a difference of
meaning … the meaning which best reconciles [emphasis added] the
texts, having regard to the object and purpose of the treaty, shall
be adopted."
So, does Article II of the Treaty of Waitangi mean that New Zealand
should ultimately be dissolved into separate and autonomous tribal
governments, plus a state representing the "Rest of New Zealand",
plus an over-arching authority? Some argue that British intentions
in signing the Treaty of Waitangi were and are irrelevant and that
the meaning of rangatiratanga is what some Maori say it means
– an unextinguished aboriginal right to self-government, according
to the contra preferentem principle.
Article 33 of the Vienna Convention, however, means that British
as well as Maori intentions are highly relevant in any discussions
of the meaning and long-term significance of the Treaty of Waitangi.
So Article 33 restores ‘bilaterality’ to Treaty interpretation. Maori
were indeed sovereign in 1840. But the Treaty of Waitangi fully conveyed
that sovereignty. This was recognised by the other international maritime
powers in the Pacific at that time – France, the United States and
Russia in particular.
English then turns to the constitutional and administrative mindset
that underlay the (largely unsuccessful) experiments in constitution
building encapsulated in the New Zealand Constitution Act 1852
which, in making provision for an element of self governance, has been
construed by some as providing evidence of an unextinguished parallel
sovereignty:
What no-one made wholly explicit however, was that existing practices
and customs would stand only "for the time being". The confusion
over rangatiratanga has arisen because de facto Maori
self-government persisted under the new regime. Article 71 of NZCA
1852 did not make matters much clearer.
British colonial policy created two kinds of British subjecthood
in New Zealand in the two decades after the Treaty; Maori remained
under tutelage as subjects, equal before the law, but unable to take
part in representative government. Collective ownership excluded them
from the franchise. Pakeha had the full rights of citizenship - voting
and representation. The British extended enough "subjecthood"
to enable orderly land transactions.
The NZCA of 1852 set up central and provincial government. Maori
were effectively excluded, confined in their political identity as
British subjects through their iwi and hapu. There was
no universal franchise only property franchise and Maori could only
become citizens if they eventually established individual ownership.
Article 71 of the New Zealand Constitution Act 1852 gave Maori the
right to limited and local self-government. The question of whether
these rights emanated from Article II of the treaty of Waitangi was
avoided, as the Colonial Office and the British Government did not
think that they did. But it is evident that Article 71 was a temporary
expedient, another of Sir George Grey’s way-stations on the road to
amalgamation.
Herman Merivale, Permanent Under-Secretary of the Colonial Office,
summed up contemporary policy to Sir George Grey on 29 November 1848:
"In a country where there is great readiness for rebellion,
allowing the organisation of the tribes to fall into decay is a safeguard
for our authority."
There had been no question of integrating Maori as Maori into
settler political institutions under the New Zealand Constitution
Act of 1852. Maori individuals with individualised land tenure, however,
could exercise their franchise and stand for election. Racism was
not necessarily behind the limitation, nor was the policy to encourage
them to individualise land tenure altogether insidious in intent.
Liberals everywhere in the mid-nineteenth century were convinced,
in all honesty, that corporate mortmain was an evil. As William Gladstone
himself observed in 1869 in relation to Irish land tenure:
"To get lands out of Mortmain would be very desirable, if
there are any means short of compulsion by which we can promote it.
A corporation is almost under a natural incapacity for the full discharge
of the duties of a Landlord".
Mortmain is the locking up of land and resources in corporate ownership,
and then throwing away the key –the land is off the market. The land
and resources in question may or may not be well managed, but bad
managers cannot be removed. That applied to established churches,
universities, certain feudal privileges; and for iwi as well.
Iwi ownership was seen to be feudal and inconsistent with liberal
citizenship. It is a classical ethical and economic doctrine.
The 1852 Constitution Act failed. It relied on Maori patterns of
land tenure to change, and they didn’t. It took another two decades,
and war, to resolve the question that Maori had exactly the same kind
of British subjecthood as Pakeha. They could participate in representative
government. Maori representation by Maori, was part of the post-war
settlement. The Maori Representation Act 1867 established universal
male suffrage for Maori, in advance of Pakeha. The franchise for Maori
and Pakeha remained unsynchronised for the next hundred years.
The balance of English’s speech explores aspects of the early to mid-Victorian
mind on sovereignty which will no doubt be of interest to devotees of
intellectual history (see the item below on A Victorian Smoking Gun).
But his conclusion is straightforward enough:
What has taken place in New Zealand since 1840, is not assimilation,
nor even amalgamation. What actually began in 1840 was incorporation,
the incorporation of Pakeha into Maori and Maori into Pakeha.
The Treaty extinguished Maori sovereignty, and constituted a single
sovereignty. What was intended was convergence of the two different
kinds of subjects created while New Zealand was a Crown Colony. The
New Zealand mind has taken some long time to accept and adapt to one
standard of citizenship. 19th century Governments ran roughshod
over Maori because Maori were seen as subjects, but not citizens.
We can only move forward – not on different paths but on one path
– by fulfilling citizenship, not dividing it. In any case our demography
will defeat attempts to apply indigenous law from places where populations
are much smaller, or geographically defined.
Which means that in its own way, William Hobson’s description is
almost right. Even though we are not, even now, "all one people",
since 1840, we have been becoming one. We were always meant
to fuse our two versions of subjecthood into common New Zealand citizenship.
Let’s not lose faith in New Zealand, now. It has already brought us
a long way.
Maori "blood soil and language" nationalist arguments promise
not a single remedy for Maori advancement, or for their country’s
advancement. These arguments are 200 years old. New Zealand is in
fact a post-nationalist response to racial coexistence. New Zealand
will not continue "Onward" as our national motto used to
say, by going back to the duality of the 1840s to the 1860s.
What’s the bottom line here?
There’s really only one hard conclusion being pushed for by English:
a single sovereign entity governed, at the end of the day, by a parliamentary
democracy pretty much like the one we’ve got. Not controversial territory,
you’d think. And in no way inconsistent with the further devolution
to Maori of all sorts of services such as health (which English himself
had a hand in as a minister), nor the on-going settlement of grievances
that relate to the many egregious takings of Maori property that litter
the first century or so of New Zealand’s history.
But it is controversial if you’re part of the growing band who see,
in tino rangatiratanga, not devolution but political cession
– the recognition of a parallel sovereignty, allegedly unextinguished
from time immemorial, that somehow excludes from the reach of current
Parliamentary arrangements all manner of issues by dint of a partition
of constitutional powers between Treaty partners. This was the scenario
painted in the TV3 documentary. This was the line English was drawing
(and one assumes his political opponents would draw too).
And what weight should all this historical ferreting carry?
This is more contentious. There is no way that historical research
can be regarded as a science that deals in definitive judgements. And
there is no way those Maori who have kept alive, across generations,
a belief that tino rangatiratanga encompasses a sovereign personality
unextinguished by the act of British possession, are going to relinquish
that view just because Bill English claims to have archival evidence
to support another point of view.
It seems to upton-on-line that English’s challenge is first and foremost
to Pakeha New Zealand, in particular those who trace their ancestry
back to the same culture that sent its emissaries to sign a treaty at
Waitangi – the British. It is a challenge to involve themselves in coming
to grips with the cultural, political and intellectual setting in which
those authorities were operating; and to ask themselves whether, looking
at the alternatives that were available to them (such as the extension
of a protectorate) they imagined that they were entering into a shared
sovereignty.
So to a considerable extent English’s challenge is not to Maori but
those members of the academic priesthood that have chosen to deny a
Hobbesian interpretation of the extension of British power. That interpretation
enabled them, progressively (and negatively) to mistreat Maori as subjects,
but on the other hand (positively) forced them to acknowledge Maori
(again progressively) as citizens rather than segregate them as happened
in the Cape Colony.
Whether or not English’s exploration of intellectual history stand
up will no doubt be the subject of fierce academic debate (and will
involve a few people having to read sources they may have never previously
bothered to study). But his approach to the uses of history seems sane
enough:
…we have to keep in mind that the polar opposites in indigenous law
are the tendencies either to be a-historical, or historicist.
We may either disregard history in an attempt to achieve some great
abstraction, or we can be totally absorbed in hermetically-sealed
and ideology-driven interpretations of the past. The proper balance
between these two extremes when it come to the Treaty of Waitangi
has yet to be found.
But this is of secondary importance. The debate over New Zealand’s
constitutional arrangements won’t be settled in the common room – and
shouldn’t be settled in the courts. It will have to be settled by New
Zealanders in a political setting – and, one would hope, without the
two parties running off to The Hague under the Vienna Convention! What
English does, skillfully to upton-on-line’s mind, is suggest to Pakeha
New Zealanders that there is an intellectually respectable argument
at international law to support the sovereign arrangements that currently
apply in New Zealand. Those just happen to be the only relations under
which a peaceable – or politically workable - solution to the country’s
future is likely to be secured. They are without prejudice to many Maori
claims for reparation and devolution. But they are most certainly arrangements
that cannot stand alongside the sovereigntist version of tino rangatiratanga.
The alternative
Those Pakeha who interpret their legal and intellectual history differently
are morally obliged, in acknowledging a parallel and unextinguished
aboriginal sovereignty, to advocate the complex partition of the country
along the lines featured in the TV3 documentary. Upton-on-line is inclined
to agree with English that this line of thinking finds its roots in
another strand of European intellectual history - the romantic cultural
nationalism of blood, language and soil as espoused by Herder
and Fichte. It’s a free world and people can choose to line up
behind this definition of what it is to be human. But English’s speech
is an assertion that it is not (as seemed to be the implication of the
TV3 documentary) an inescapable reading of the early Victorian mind.
Reaction to the speech (mainly for diasporan readers)
It is early days and upton-on-line is far from the New Zealand media.
Enquiries of English’s office reveal huge interest – by no means all
of it favourable. Unsurprisingly, he hasn’t won immediate endorsement
from Maori commentators. On the other hand, his people advise that much
Maori commentary is substantive, earnest and interested. That is all
he could have hoped for – after all, he is implicitly suggesting that
the two parties to the Treaty may not have actually been in agreement
at all, notwithstanding good faith. It is possible for minds not to
meet without either party realising it at the time.
The most dismissive comments have come, rather, from those in the academic
world who have confidently hitched their wagons to the dual sovereignty
line. Jane Kelsey, with the supreme confidence of one who has
rarely been troubled by doubt, labelled the speech "one of the
most ignorant pieces of writing … that I’ve read for some years…".
Worse, she judged it to be "extraordinarily incompetent in constructing
an argument where they started with the outcome and then tried to put
together a reasoning that would justify it and signally failed."
This sort of thoughtful and reflective commentary is hard to argue
with. But there is something a little odd about her claim to Mana
News that "it’s one of the paradoxes that Maori assertions
of tino rangatiratanga tend in fact to die down when the Crown
doesn’t actively contest them, or parties don’t contest them. Labour’s
focus on settling property claims and its reticence to have any sort
of full-blown debate on republicanism and constitutionalism has actually
kept those issues relatively off the agenda. But what we see is that
assertions of Maori sovereignty take centre stage when parties up the
anti…"(Radio NZ Mana News Wednesday 15).
Hold on a moment. This is the same person who, on the TV3 documentary,
said that tino rangatiratanga was an inevitability. In which
case shouldn’t we be debating it – getting ready for it even? Keeping
quiet about the inevitable seems a funny strategy.
Lest anyone imagine the reaction to English was predictably left/right
in opposition or support, Chris Trotter (the Left’s most insightful
journalist) described the speech as being one of "considerable
erudition and dialectical skill". Embedding his analysis in a curious
contrast of English’s uncharismatic style to the posthumously successful
Pym Fortuyn, Trotter judges English’s conclusions to be "at
once philosophically consistent and politically potent". Chris
and Jane must have read different books.
Finally – a Victorian smoking gun
If you’ve got this far, you can probably cope with one fascinating
little glimpse into the sort of thinking that prevailed in the higher
echelons of the mid-19th century British colonial administration.
Upton-on-line had not heard of the Herman Merivale referred to
in English’s speech (see above). Enquiries of Bernard Cadogan reveal
some fascinating things about how a British treaty sceptic saw the fate
of things.
Merivale turns out to be an expert witness on early New Zealand affairs.
He was a very senior official at the Colonial Office between 1847 and
1859, eleven of those years the Permanent Under Secretary. He had come
from academia, having been Professor of Political Economy at Oxford.
During 1839-41, he delivered a series of lectures on colonisation and
colonies – lectures that were collected and published in 1861. By then,
events in New Zealand were degenerating into armed conflict. Merivale
added a grim footnote to his lecture of twenty years earlier in which
he effectively advocated the alternative ‘protectorate’ solution that,
by signing the Treaty, the British had rejected. Merivale insinuates
that the British didn’t really subscribe to what the Treaty implied
in terms of property but became consumed by "mistaken zeal"
for a "literal execution of the Treaty". If the British had
truly believed that Maori were the owners of the country they should,
he maintained, have turned the North Island into a native reserve and
settled in the South Island.
Merivale’s prescription (produced in full below) is a mixture of Victorian
racial prejudice, liberal views about the importance of alienable property
and genuine concern for the fate of Maori confronted by fraudulent dealings
and an increasingly antagonistic settler community. But it is a fascinating
insight into the sort of alternative strategy to the one deployed by
Sir George Grey and the Colonial Office – and one that might have justified
itself. No-one can know how the protectorate solution might have fared,
but it is at least plausible to argue that its paternalism would have
led to the permanent denial of citizenship. Furthermore, it is seems
unlikely that Britain – or other European countries snooping around
for colonial possessions – would have left a Maori ‘reserve’ unmolested
for long.
The Treaty route – conferring full subject status on Maori as well
as colonial settlers – unleashed a Hobbesian sovereignty in territorial
New Zealand that dispossessed and demoralised Maori. It contained within
it the seeds, however, of Maori citizenship in a viable nation. There
is no model for New Zealand – English is right about the singularity
of what happened in 1840 – but it wasn’t an inevitable one and Merivale’s
counterfactual would almost certainly have been worse. Upton-on-line
for one is glad that the Treaty was signed rather than a protectorate
established.
Merivale’s Lament
"One of the most unfortunate instances of the misapplication
of nations founded on English law to the case of savages has been,
in my belief, the system adopted in New Zealand as to the so-called"
tribal ownership" of land by the natives. The New Zealand tribes
had as between themselves some recognised rights over soil. One tribe
respected the boundary of another, unless in cases of disputed right.
Each tribe cultivated patches of land occasionally, moving from one
to the other, within its own district, but regular occupation there
was none. This title the British Government thought fit to erect into
the absolute right of an owner of the soil, according to strict European
usage. By the "Treaty of Waitangi", the crown guaranteed
"to the chiefs and tribes of New Zealand, and to the families
‘and individuals thereof, the full, exclusive, and undisturbed possession
of their lands and estates". They yielding to the crown "the
exclusive right of pre-emption over such lands as the proprietors
"thereof may wish to alienate". Thus by a few worlds of
conveyancing language, the "tribes" in their collective
character were recognised as the private landowners of the whole of
a great island into which at the same time European settlers were
poured by the thousands. Lord Grey contended on very strong grounds
of abstract reason, and in conformity with the general understanding
of nations, "that the savage inhabitants of New Zealand have
no right of property in land which they do not occupy, and which has
remained unsubdued for the purposes of man". But this assertion
of general principle came too late to be of much practical use after
the treaty of Waitangi. And the friends of the Aborigines in New Zealand
and in England, in what I deem mistaken zeal, insisted on the literal
execution of that treaty, not simply as a treaty, but as itself founded
on correct principles. They stood up for native rights, forgetting
that when a right is established, without at the same time establishing
the corresponding party to maintain it, evil instead of good is done
to the protected party. If the doctrine that the natives were absolute
owners of the soil, and not compellable to part with it, was to be
maintained, British settlers should have been excluded and the Northern
island maintained as a native reserve. The doctrine and the practice
were irreconcilable.
To induce the natives to part with their land has required a constant
exercise of diplomacy and cajolery, and sometimes, doubtless, of fraud;
while on their part, the caprice of uncultivated minds, or mistaken
notions of self-interest, or the evil counsels of others, have constantly
interfered to make them retain land urgently wanted; and the disputes
if themselves about a "right", artificially rendered so
valuable, have led to bloody feuds, and at last to disastrous war,
which nothing but singularly temperate management could have averted
so long. Had the New Zealanders, from the beginning, been treated
as clients for whom the British government was authorised to act –no
fancied "right" of ownership acknowledged, but fair compensation
always made them whenever land, over which a tribe was accustomed
to range, was taken for the use of settlers- it is probable enough,
not only that these evils might have been averted, but that a noble
race, now hastening apparently to decay, might have been preserved
to Christianity and civilisation."
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