THE “CONVERSATION” demanded on the meaning of the Treaty of Waitangi is likely to be short. Not because there is no need for a national debate on how Maori and Pakeha should live together in the twenty-first century, but because the current defenders of te Tiriti (as it is now advisable to call the Maori translation of Captain Hobson’s document) will be unable to present a convincing defence of their ahistorical interpretation of its undertakings.
The reason for this incapacity is a simple one. To make their proposed solutions work, the whole history of New Zealand subsequent to the signing of the Treaty must be set to one side, and New Zealanders living in 2021 must proceed as if they are living in 1840. This is necessary because in no other way can the terms employed to translate the English of the Treaty into the Maori of te Tiriti be infused with real constitutional significance. What the promoters of a Tiriti-based constitution of Aotearoa are saying, in effect, is that everything which New Zealanders came to understand about their state must be cast aside, and that we must all begin again.
Is it reasonable to ask the five million human-beings inhabiting these islands in 2021 to agree to such a proposition? Dr Emily Beausoleil, senior lecturer in Political Science at Victoria University, writing for Newsroom, insists that it is.
Working from the strongly contested conclusion of the Waitangi Tribunal that “the rangatira who signed te Tiriti o Waitangi in February 1840 did not cede sovereignty to the British Crown”, Dr Beausoleil dismisses dissenters’ objections as “misconceptions” born out of “conflicting translations” and “the greater airtime the English version has had in our schools, media and government.” She does, however, acknowledge that the Tribunal’s 2014 rangatiratanga bombshell “also raises serious questions without any easy answers about what fulfilling these Articles [of te Tiriti] would require of us as a society today.”
Well, yes, it most certainly does.
Serious questions about the Treaty’s meaning have been raised before in New Zealand history. The most serious were arguably those raised by the leaders of the new settler state established by the New Zealand Constitution Act of 1852, whose first Parliament met in Auckland in 1854. A strong argument can be mounted that the Foreign and Colonial Office, in persuading the British parliament to grant its New Zealand colony a large measure of self-government, was effectively affirming the cynical view of the Treaty enunciated by one of the Governors of the land-grabbing New Zealand Company:
“We have always had very serious doubts whether the Treaty of Waitangi, made with naked savages by a consul invested with no plenipotentiary powers, without ratification by the Crown, could be treated by lawyers as anything but a praiseworthy device for amusing and pacifying savages for the moment.”
There is a logic to the Treaty, however, which is present in both the English and the Maori versions. A logic which asserted itself more and more forcefully as the settler government of New Zealand became ever more firmly established, and the number of Pakeha arriving in the country grew by leaps and bounds. The guarantees contained in Article 2 of the Treaty: that only the Crown could purchase Maori land; and that any decision to sell land had to conform with the tikanga (customs and practices) of chieftainship; were simply incompatible with the settler government’s vision of New Zealand’s future. The Maori King Movement, by refusing to sell any more land to the Crown, exposed the logic of the Treaty in a way that made a decisive settler response inevitable.
It came in 1863, when the settler government, aided by 12,000 imperial British troops, militarily overwhelmed the Maori Kingdom of the Waikato. Article 1, which, in the only version of the Treaty the settler government recognised, granted the Crown full and undivided sovereignty, was deemed to trump Article 2. This amounted to what the distinguished New Zealand legal scholar, Professor Jock Brookfield, described as a “revolutionary seizure of power”.
It was a revolution which resulted in the Treaty of Waitangi being dismissed as “a simple nullity”, and which led to the ruthless suppression of all Maori resistance to Pakeha rule. Built upon the expropriated resources of the autonomous Maori communities which preceded it, the New Zealand State has, with the passing of time, won both the de facto and the de jure right to dispose of these islands as it sees fit.
Dr Beausoleil’s arguments in favour of implementing the “Tiriti-led” recommendations of the controversial He Puapua Report would be a lot more convincing if she simply acknowledged that, for the logic of the Treaty to be successfully reasserted, then a similar “revolutionary seizure of power” will be necessary.
Significantly, the word “revolution” does not appear in Dr Beausoleil’s Newsroom post. The transition to a Tiriti-based constitution is, instead, to be accomplished by education and persuasion. In her words:
“When we understand these commitments, objections that He Puapua is divisive and undemocratic […] begin to ring hollow. Changing our institutions to more fully realise the unceded authority of tangata whenua would not only fulfil our Tiriti and United Nations Declaration on the Rights of Indigenous Peoples obligations and thereby make our power arrangements more legitimate – it would also mean greater self-determination, equality and meaningful voice among Tiriti partners.”
That’s a nice vision of the future, but, as someone who lectures in Political Science ought to know, the efficacy of education and persuasion in the state’s application of political, economic, social and cultural power is – to put it mildly – limited. Such a host of interests; such an array of prejudices; such a collection of legal and constitutional objections stand in the way of securing majority consent for even a tenth of He Puapua’s recommendations that the chances of bringing any of them into force by democratic means are vanishingly small.
More to the point, if a majority of New Zealanders come to believe that their government is attempting to bring about a revolutionary change in New Zealand’s constitutional arrangements by stealth, then the opportunity for any of us – Maori or Pakeha – to participate in the creation of Dr Beausoleil’s “more just, more honourable, more inclusive Aotearoa” will disappear entirely.
When Britain’s soldiers, having executed the “revolutionary seizure of power” demanded of them by the settler government, departed, did they leave behind them a more just, more honourable and more inclusive New Zealand? Or, did they bid farewell to a state which, having secured these islands by force of arms, would surrender them to nothing else?
This essay was originally posted on The Daily Blog of Tuesday, 11 May 2021.