Visitors With Votes.

The Way We Were - And Hoped To Remain: The iconic photograph of Prime Minister Norman Kirk holding the hand of a little Māori boy at Waitangi on 6 February 1973 held out the promise of a future founded upon the uncomplicated and uncontested acceptance of racial equality.  

WAITANGI DAY commentary see-saws manically between the warmly positive and the coldly negative. Many New Zealanders consider this a good thing. They point to the unexamined patriotism of July Fourth and Bastille Day celebrations, and applaud the fact that the character of Aotearoa-New Zealand, and its future evolution, remain matters for passionate disputation, rather than military chauvinism and outsized flags.

Conservatives of a certain age are less confident of the virtue of this annual debate. They look back wistfully to that period of New Zealand history when the constitutive peoples of New Zealand, Māori and Pakeha, gathered at Waitangi to celebrate the 1840 treaty signing which, according to Queen Victoria’s representative, Captain William Hobson, constituted them as “one people”.

In the memories of these people, no Waitangi Day better illustrated this notion of national unity than 6 February 1973. That was the day when the newly-elected Labour prime minister, Norman Kirk, announced that henceforth Waitangi Day would be known as New Zealand Day.

A powerful visual image of Kirk’s intentions for this new public holiday was provided by the photograph of a big prime minister holding the hand of a little Māori child as the two of them made their way across the Treaty Ground. Symbolically, the image suggested that the rising generation of Māori should expect to live lives of equivalent fullness to those of their Pakeha compatriots. The photograph’s clear assimilationist message was not welcomed by all, but for a large number of New Zealanders it expressed their hope for a future founded upon an uncomplicated and uncontested acceptance of racial equality.

“Why can’t we have Waitangi Days like that anymore?”, these old-timers ask. “Why can’t we celebrate the positive national achievements of New Zealanders, regardless of ethnicity? What is to be gained, in terms of strengthening social cohesion, by foregrounding – and all-too-often fomenting – this country’s ethnic divisions?”

The straightforward reply from the nation’s historians, Pakeha and Māori, is that the legacy of conquest, land seizure, economic marginalisation, and cultural erasure central to the European colonisation of New Zealand is seared into the collective memory of its indigenous people. At some point, the historical injustices that have not been forgotten by the colonised will have to be acknowledged and redressed by the colonisers. To suggest otherwise, they insist, is itself an act of colonialist oppression. Moreover, as the rising generation of Māori nationalists are only too willing to point out, by no means all these injustices are historical. Far too many of them are contemporary.

The articulation of such grievances, long assumed by the victors of the New Zealand Wars to be safely buried in the past, gathered momentum throughout the 1970s and 80s and were characterised by legal challenges and vigorous political protests.

The impressive Māori Land March of 1975 hastened the creation of the Waitangi Tribunal. Equipped with quasi-judicial powers, the Tribunal was instrumental in investigating past wrongs, determining the most appropriate means of their redress, and introducing New Zealanders to a more complete account of their history. Over the course of the next 50 years, its power and influence would undergo significant expansion.

The forcible eviction of the Ngati Whatua occupiers of Bastion Point in 1978 presented New Zealanders with a rare and shocking demonstration of the raw power of the Pakeha state. Hundreds of Police officers were involved, with logistical support provided by the armed forces. The operation provided a jarring reminder to New Zealanders that the alienation of Māori land and resources was predicated on the actual or threatened use of force by political and legal institutions that were overwhelmingly dominated by Pakeha – and remained so.

The watershed event that finally extinguished the sunny optimism of 1973, however, was the 1981 Springbok Tour. The dramatic and at times violent incidents that marked the 56-day tour by Apartheid South Africa’s rugby team brought the idealistic champions of classical racial equality into frequent and often uncomfortable contact with Māori protesters who had experienced first-hand the widespread and deeply ingrained Pakeha racism that, thanks to the Tour, would ensure the re-election of Rob Muldoon’s National Government.

The young, well-educated, middle-class Pakeha who mostly comprised the anti-tour movement found themselves at a moral disadvantage when challenged to account for the fact that they were willing to suffer Police batons for Black South Africans but not for Brown New Zealanders. Why was the racism of the White South Africans capable of inspiring a mass anti-racist movement, but not the equally egregious colonialist excesses of Pakeha regimes past and present?

The only acceptable answer was: “Because we’re as racist as the Rugby thugs.”

“Damn right!” came the Māori nationalists’ retort, “And now is the time for you to do something about it!”

Which they did. For the next forty years the students who had supplied the shock-troops of the anti-tour movement accepted the wero Māori Nationalists had laid before them and slowly but surely integrated it into whatever institutions they found themselves in a position to influence and/or control. Political parties, the courts, universities, schools, hospitals, the public service, law firms, the news media, trade unions, even corporations: all those institutions into which young, idealistic New Zealanders were disgorged annually. Places where, increasingly, the best way to get along was to go along with the ever-expanding ramifications of “the principles of te Tiriti o Waitangi”, and the Crown-Māori “partnership” which the New Zealand judiciary had determined the Treaty to mandate.

By the 2020s this self-replicating social layer of te Tiriti-inspired professionals, administrators and managers numbered in the hundreds-of-thousands and was exerting a decisive influence over the evolution of New Zealand’s political, social and cultural institutions. Binding its members together was a deep mistrust, bordering on active hostility, directed at that part of New Zealand society which evinced little or no understanding of, or enthusiasm for, te Tiriti and the transformational narrative it was driving forward. That this part of New Zealand almost certainly outnumbered te Tiriti’s promoters and protectors gave cause for even greater concern, raising serious doubts about the cultural safety of democratic institutions.

Nevertheless, it was this strategic aggregation of Pakeha allies that facilitated significant cultural, economic, and political indigenous progress – precipitating a veritable “Māori Renaissance”. Mutually reinforcing, the alliance between Pakeha jurists, administrators, and educators, and the rapidly expanding Māori middle-class fostered by te Tiriti’s official rehabilitation and the opportunities flowing from a succession of substantial iwi-based “Treaty settlements”, continued to grow and strengthen. By the second decade of the twenty-first century it had solidified into the permanent and seemingly unchallengeable arbiter of New Zealand’s social, economic, cultural and constitutional development.

Te Tiriti’s victory may have been complete in these institutional islands, but they were surrounded by a vast sea of doubt. A substantial majority of Pakeha, as well as a growing portion of the recent immigrant population, struggled to accept the Waitangi Tribunal’s increasingly radical findings. Before their eyes the power of the Crown seemed to be crumbling away – a shrinkage of sovereignty fuelled by historical revisionists who flatly contradicted the public’s understanding (however flawed) of their nation’s story.

It was only a matter of time before this public doubt crystalised into public anger. Increasingly, the narrative growing out of the Treaty’s judicial and bureaucratic restoration was being presented to Pakeha in ways that not only made clear the “settlers’” general unfitness to shape its evolution, but also rejected, absolutely, their democratic right to do so.

That the 80 percent of New Zealanders who did not identify as Māori were to be given no say in elevating the Treaty’s status to that of supreme and unchallengeable law was finally made clear in the He Puapua Report. This document, penned by Treaty scholars and activists, and presented secretly to the Sixth Labour Government in 2019, detailed the changes required to ensure that New Zealand’s constitutional arrangements conformed with the United Nations Declaration on the Rights of Indigenous Peoples.

The measures required to achieve this goal in time for the bicentennial celebration of the Treaty’s signing in 2040 were deemed to necessitate a full-scale constitutional revolution. This was not to be attempted in one go, however, but piecemeal. Each step along the way was to be accomplished through stand-alone, apparently unconnected, legislative adjustments. Significantly, the plan included no provision for these cumulative, transformational, changes to be presented to the whole citizenry for ratification by referendum. Like the proverbial slow-cooked frog, Pakeha New Zealanders were to be kept in ignorance of their constitutional fate until it was too late to change it.

That such a plan was thought to be implementable in an open democratic society speaks eloquently of elite New Zealanders’ assumptions concerning both the powers they wielded and the extent to which those powers could be challenged by ordinary citizens. As Sir Geoffrey Palmer makes clear in his book The New Zealand Constitution In Crisis, confidence in his own and other elite actors’ ability to sideline the democratic process was considerable:

The logic of the approach was as follows… Some parliamentary action by way of legislation was needed to make a base. But if that legislation itself redressed the grievances it would run into the problem that the majority of the community would oppose it. If, on the other hand, legislation was used to set up processes, and procedures and the principles on which decisions should be based were stated, it may be possible to get even a majoritarian legislature to act. The initial commitment required was to a process. No tangible outcome was provided by the legislation itself. What should be done was to be decided only after judicial or quasi-judicial processes had assessed individual cases. First it was necessary to give the courts something to interpret. Such was the nature of the approach I brought to both statutory incorporation of the Treaty in statutes, and extension of the Waitangi Tribunal to examine grievances back to 1840.

What brought He Puapua and the elite Treaty project generally to grief certainly wasn’t its exposure and condemnation by mainstream journalism. Indeed, the opposite was true: the major media organisations saw themselves as integral to the project’s success. Ultimately, what doomed the elites’ Treaty project to failure was the democratising impact of social media.

Palmer’s “processes” required media gatekeepers committed to keeping “the majority of the community” out of the game. In fact, so reliant upon the exclusionary powers of these gatekeepers were Palmer’s strategies for their ultimate success, that the moment the Internet empowered ordinary citizens to receive and impart information independently of the mainstream media and its guard-dogs, they began instantly to fall apart.

The picture that emerged from the collective exertions of these “citizen journalists” was as clear as it was disturbing. The bureaucratic and administrative elites had, since the early-1980s, come to view themselves as the irreplaceable brain and muscle of what political scientists call the “permanent state”, and constitutional lawyers refer to, simply, as “The Crown”. They had arrived at this conclusion alongside the leadership of the tangata whenua, who saw themselves, and were certainly acknowledged by the leaders of the Permanent State, as the “Permanent People”. The relationship between the two was mutually reinforcing.

The conclusion to be drawn from this reading of New Zealand’s constitutional, political and cultural evolution is daunting.

The status of those who are members of neither the Permanent State nor the Permanent People is problematic – to say the least! That they constitute a majority of the population is openly acknowledged by both the Crown and Māori. But, majorities under pressure from minorities all-too-easily behave tyrannically. Meaning that, while New Zealand remains a representative democracy, the non-Crown, non-Māori majority is likely to be treated as a permanent threat.

Because, what are they really? Victims of history: the flotsam and jetsam of a botched process of colonisation? Communities without roots, lacking permanent interests, bereft of cultural awareness, and off to Australia at the drop of a hat? A people just passing through?

No wonder Māori politicians call these New Zealanders manuhiri – visitors.

But that is not what they call themselves. It would, therefore, be most unwise of both the Permanent State and the Permanent People to forget that these visitors, these citizens, still come armed to the teeth with votes.

This essay was originally posted on The Democracy Project website on Friday, 14 February 2025.

Comity Be Damned! The State’s Legislative Arm Is Flexing Its Constitutional Muscles.

Packing A Punch: The election of the present government, including in its ranks politicians dedicated to reasserting the rights of the legislature in shaping and determining the future of Māori and Pakeha in New Zealand, should have alerted the judiciary – including its anomalous appendage, the Waitangi Tribunal – that its days of calling the shots on race relations in general, and the Treaty in particular, were coming to an end.

THE CONSTITUTIONAL PRINCIPLE of “comity” acknowledges the susceptibility of what should be complimentary state functions to dangerous entanglement. It enjoins the three branches of government; executive, legislative and judicial; to demonstrate a mutual respect for each other’s functions. Without “comity”, not only is the smooth functioning of the three branches of government put at risk, but also the political legitimacy of the state itself.

This is a big enough ask in a republic with a written constitution, but it imposes an enormous set of expectations in countries governed by the Westminster System. When the executive and legislative arms are conjoined, as they are under the Westminster System, the judicial arm is acutely exposed to being bullied into conformity by its “brothers”. It is a bold and/or reckless judiciary that negates the virtues of comity by challenging the elected centres of state power head-on.

The limits of judicial power have been on vivid display in the palace of Westminster ever since the Supreme Court of the United Kingdom declared “unlawful” the legislative mechanisms devised by the Conservative Government of Rishi Sunak to “Stop the Boats!”. Incensed by this breakdown in comity, Sunak and his party passed a law negating the judgement of the Supreme Court justices. Regardless of the actual conditions on the ground, the House of Commons has declared the Central African state of Rwanda to be a “safe place” for asylum-seekers.

In the course of this bitter constitutional arm-wrestle with their own judges, Conservative MPs have voiced equally bitter condemnations of the European Convention on Human Rights (the charter drafted in the late-1940s by the UK, among others, in the aftermath of Nazism’s defeat) and its judicial extension, the European Court of Human Rights (ECtHR) whose jurisdiction still extends across the United Kingdom.

From the perspective of Tory MPs, British judges overturning the will of the elected representatives of the British people is bad, but manageable. On the other hand, being told what to do by a bunch of European judges is intolerable. Small wonder, then, that there is a growing clamour from the British Right for the UK to repudiate the Convention and withdraw altogether from the ECtHR. Predictably, human-rights activists in the UK are outraged and dismayed by such suggestions.

Historically, the principle of comity enjoyed only a brief lifespan in the United States where, early on in the history of the American Republic its Supreme Court seized – and has exercised ever since – the right to strike down as “unconstitutional” the decisions of the lower courts as well as the executive and the legislative branches. Unelected, and enjoying lifelong tenure, the nine justices of the US Supreme Court have wreaked havoc across two centuries of American history. “Dred Scott”, its most infamous judgement, declared that African-Americans could never enjoy the same rights as White Americans, and made the American Civil War inevitable.

Bringing the vexed issues of minority rights before the judicial arm has, however, always attracted those who cannot persuade either political leaders, or legislative assemblies, to respond to their appeals. The strategy is particularly attractive if the judiciary gives cause for activists to suspect that it might look sympathetically upon their respective causes.

So it was that, from the 1950s to the 1970s, the US Supreme Court proved jurisprudentially obliging where federal and state legislatures proved politically obdurate. Legally outmanoeuvred by liberal lawyers and judges, the American Right drew the obvious lesson from historic victories like “Roe v. Wade” – make sure that conservatives, not liberals, dominate the Supreme Court. Implementing that strategy took the Federalist Society the best part of 50 years, but it got there in the end.

Naturally, with the judiciary in the hands of their enemies, left-wing Americans reached out instinctively for the legislative branch – most especially those provisions of state constitutions allowing for legislation by plebiscite. Statewide referenda on issues enjoying clear majority support, like abortion, were able to overcome even the most outrageous of Republican gerrymanders.

And now the principle of comity looks set to vex the New Zealand political scene. The Waitangi Tribunal (which entertains pretensions to being a court) has summonsed a cabinet minister, Karen Chhour, to appear before it and answer its questions.

This unprecedented move has elicited strong, and arguably quite threatening, responses from senior parliamentarians outraged by what they clearly consider to be an egregious breach of the principle of comity. In turn, their remarks have prompted claims that the cabinet members responsible, David Seymour and Shane Jones, are constitutionally out of line and should be reprimanded by the Prime Minister.

The passions now in evidence have not arisen out of nowhere. For at least three decades the New Zealand courts have been encroaching on territory that rightly belongs to the legislature. That the legislature deliberately set the judiciary up to act as its proxy on the Treaty of Waitangi does not excuse the latter’s reckless acceptance of its poisoned chalice. The fraught historical relationship between Māori and Pakeha is simply not susceptible to judicial remedy, being adjudicable only by the electorate – responding through the ballot box to policy alternatives thrashed out by New Zealand’s political parties.

Unfortunately, the lawyers, judges, and university professors, who had taken responsibility for dealing with the volatile matters vouchsafed to them by frightened politicians were not prepared to let the voting public adjudicate the principles of the Treaty of Waitangi, or any of the other pressing issues driving race relations in New Zealand. As in the United States, the judges seized the initiative. The expectation was clear: on this, the judicial branch would be leading its executive and legislative brothers.

It was a decision only those not subject to electoral sanction could possibly have made. As the shape of a “Tiriti-based” constitution, in whose creation the overwhelming majority of New Zealanders had been denied involvement, began to emerge, revealing a schema in which the democratic principle was being treated as, at best, an irritant, and, at worst, something to be eliminated altogether in the name of “indigenisation” and “decolonisation”, the people, and at least some of their political representatives, began to realise just how far back along the road the judiciary had lost sight of the principle of comity.

The election of the present government, including in its ranks politicians dedicated to reasserting the rights of the legislature in shaping and determining the future of Māori and Pakeha in New Zealand, should have alerted the judiciary – including its anomalous appendage, the Waitangi Tribunal – that its days of calling the shots on race relations in general, and the Treaty in particular, were coming to an end.

In the spirit of comity, the judiciary and the Waitangi Tribunal should have stepped back, relieved, perhaps, that the executive and legislative branches of the New Zealand state were, at long last, stepping up to their constitutional responsibilities. What they chose to do instead, however, was summons Karen Chhour.

As Crown Law’s counsel have been making admirably clear in the High Court today, that was a mistake.

This essay was originally posted on The Democracy Project website on Monday, 22 April 2024.

David Parker Rejects Co-Governance.

Stubbornly Thoughtful: According to veteran political journalist, Richard Harman, the Environment Minister David Parker rejected the inclusion of co-governance provisions in his Natural & Built Environments Bill, facing-down the opposition of Nanaia Mahuta and Labour’s Māori Caucus “in what may be seen as a defining move by the Government, which has been under fire over the Three Waters co-governance proposals.”

ON HIS POLITIK WEBSITE, Richard Harman reveals how Environment Minister David Parker upset the co-governance project. Labour’s Māori Caucus saw co-governance becoming a central feature of Parker’s Natural & Built Environments Bill – the legislation poised to replace the Resource Management Act. On the all-important regional bodies established by the legislation, it was assumed that 50 percent of the seats would be reserved for Māori, leaving the rest for the rest.

According to Harman, Parker refused: successfully facing-down the opposition of Nanaia Mahuta and the Māori Caucus “in what may be seen as a defining move by the Government, which has been under fire over the Three Waters co-governance proposals.”

While Harman is undoubtedly correct to interpret Parker’s successful resistance as an important straw in the wind, it would be wrong to count it as a total victory. As Harman, himself, went on to report, the proposed clause in the Natural & Built Environments Bill which states: “that in achieving the purpose of this Act, those exercising functions and powers under it must give effect to the principles of Te Tiriti o Waitangi”, remains intact.

It is important to remember that the co-governance project is justified as a way of giving effect to the principles of the Treaty. Fifty-fifty representation is promoted as the political expression of the supposed Treaty “partnership”. The Natural & Built Environments Bill isn’t out of the woods yet.

Even so, the fact that a Labour cabinet minister has taken a stand against co-governance – with the support of both a Cabinet and a caucus majority – is an extremely important political development. Without Labour, the co-governance project could never have progressed so far. If Parker’s stand is emulated by other Labour MPs, then co-governance will be stopped in its tracks. Neither the Greens nor the Māori Party have the numbers to push it forward against Labour resistance.

What Harman’s reporting makes clear is the alarm which even rumours of Parker’s resistance generated. The Māori Council and their corporate iwi allies – represented by the former National Party Attorney-General, Chris Finlayson – took their concerns to the Waitangi Tribunal. While legal niceties prevented the Tribunal from releasing a definitive judgement on co-governance and the Natural & Built Environments Bill, it did suggest that its absence from the legislation would be undesirable.

Clearly, the Tribunal has become an integral part of the co-governance political machinery: a body of sufficient mana to offer cover for both the project and its political sponsors. The same applies to much of the media, academia, and – more worryingly – the courts. And yet, even this impressive line-up of allies could not hope to save co-governance if it was openly repudiated by a Government.

How far would the co-governance project have proceeded had John Key not agreed to ratify the UN Declaration on the Rights of Indigenous Peoples? How could the Treaty’s “principles”, and its expectations of “partnership”, have been embedded in so many Acts of Parliament had not successive governments declined to take issue with them? The co-governance project may not be the historical offspring of senior National and Labour politicians (like Geoff Palmer and Chris Finlayson) but they certainly provided the room in which it was conceived.

Only now, and only to thoughtfully stubborn individuals like David Parker, is the extraordinary naivete and arrogance required to facilitate the co-governance project becoming clear. It simply did not occur to those Pakeha politicians who set about creating a Māori middle-class to keep the increasingly restive Māori underclass from setting the country on fire, that their creation might one day turn on its creator. Locating cultural and ideological enemies at the very heart of the colonial state was never likely to produce a happy ending.

Extracting these racial revolutionaries from the strategic locations they have occupied in the course of their “long march through the institutions” is not going to be easy. Judges, in particular, cannot be removed without a great deal of fuss. Ideologically-driven public servants, academics, teachers and journalists are similarly well-placed to defend the “gains” of the racial revolution. And then there’s the younger generations of New Zealanders. These youngsters may not be intellectually or emotionally equipped to challenge the radical orthodoxy of their revolutionary mentors, but they are more than equal to the task of inflicting a lot of harm on their behalf.

All of which adds up to a difficult and potentially dangerous mission should Mr Parker and his Labour comrades agree to accept it. They will have to re-learn both the liberal-democratic catechism of universal human-rights and freedoms (the freedom of expression in particular) as well as the good old democratic-socialist creed that bound the Labour Party and the Ratana Church together so tightly all those years ago. Fortunately, they have at least two very important things going for them. 1) Most New Zealanders – Māori and Pakeha – do not want co-governance. 2) The electorate will reward any government that has the guts to say: “This far, but no further!”

This essay was originally posted on The Daily Blog of Thursday, 3 November 2022.

Can Sovereignty Be Shared?

Warm Words: Jacinda’s intentions and those of her Maori caucus colleagues are unquestionably benign. But in political circumstances as fraught as those presently confronting her government, good intentions are seldom enough. If, as the revisionist historians insist, Maori sovereignty was never ceded to the Crown, then the descendants of the Waitangi signatories’ determination to reclaim it; to exercise it; is entirely reasonable.

SPEAKING FROM THE PORCH of the whare runanga, overlooking the Waitangi Treaty Ground, Jacinda Ardern challenged Maori to challenge her. “[W]hen we return in one year, in three years, I ask you to ask of us ‘what have we done?’ Ask us what we have done to improve poverty ... ask us, hold us to account.”

Jacinda asked Maoridom to score her government on how well – or how badly – it has addressed the big issues confronting Maori. She spoke encouragingly about New Zealanders coming to terms with their country’s history and the Waitangi Treaty’s pivotal role in shaping that history.

What she was careful not to do, however, was openly concede – as the Green Party leader, James Shaw did – that Maori had never ceded sovereignty to the British Crown. As Prime Minister, such a concession would immediately pitch New Zealand into a protracted and extremely bitter constitutional crisis.

The authority of the Crown in the Realm of New Zealand is absolute and indivisible. To preserve that authority, the settler government of Sir George Grey invaded the Waikato in 1863. Through the bitterest strife, the kingitanga movement came to understand that Her Majesty’s Government would never accept the idea of a sovereignty shared between Pakeha colonists and tangata whenua. The only sort of Maori king acceptable to the British Crown was the sort that wielded no power.

The notion that sovereignty was never ceded to the Crown by Maori arises out of the radical and highly tendentious historiography of the Waitangi Tribunal. For this particular historical interpretation of what transpired at Waitangi on 6 February 1840 to stand, however, it is necessary to ignore all the subsequent actions of the Crown between that date and the early 1980s.

The construction and elaboration of the New Zealand State; the creation and interpretation of its laws; the legal status and inviolability of its citizens’ private property: all would be called into question if the idea that Maori sovereignty was never actually ceded to the Crown in 1840 was ever to be formally accepted by a New Zealand prime minister and her government.

Warm and inclusive though Jacinda’s speech from the whare runanga may have been, it was nevertheless the speech of a political leader in control of an absolute and indivisible state apparatus.

Was she promising to turn that apparatus to the urgent task of uplifting Maori New Zealanders out of poverty, homelessness and the bitter legacy of 178 years of colonial oppression? Yes, she was.

Was she proposing to unleash a constitutional revolution inspired by revisionist historians’ interpretation of the Waitangi Treaty? No, she was not.

Jacinda’s speech to the Iwi Leaders Forum at the beginning of her five-day sojourn in the Far North made clear her government’s intentions. In short, these were all about dealing with Maori material deprivation. Iwi leaders intent on pushing forward “cultural” issues – by which they mean constitutional issues – will very soon find they are pushing in vain.

Do the 13 Maori members in Labour’s caucus get this? Are they okay with this?

In all probability they are working very hard not to apprehend the dangerously contradictory currents into which Labour’s waka is drifting. All of them are eager to begin the process of uplifting their people. How many of them have thought through the medium-term consequences of this policy of empowerment is another matter altogether. What they will do when material uplift morphs into uncompromising cultural assertion is anybody’s guess.

The whole of Labour’s team is desperate to draw a line under the malign political effects of Helen Clark’s and Margaret Wilson’s Foreshore & Seabed Act. The demise of the Maori Party as a parliamentary force has raised hopes that this has, indeed, occurred. But it will take more than Jacinda’s warm words to cause the structures of sovereignty and executive power by which all New Zealand prime ministers are constrained to disappear in a puff of stardust.

Clark and Wilson did not overturn the Court of Appeal’s judgement out of racially-motivated spite. They overturned it because to do otherwise would have been to catch the judgement’s loosened legal thread in their fingertips, pull on it, and watch the entire constitutional garment of New Zealand unravel before their eyes.

Jacinda’s intentions and those of her Maori caucus colleagues are unquestionably benign. But in political circumstances as fraught as these, good intentions are seldom enough. If, as the revisionist historians insist, Maori sovereignty was never ceded to the Crown, then the descendants of the Waitangi signatories’ determination to reclaim it; to exercise it; is entirely reasonable.

The question which such a response immediately poses, however, is as difficult as it is portentous: Can two peoples exercise equal sovereignty in an undivided state?

This essay was originally posted on The Daily Blog of Tuesday, 6 February 2018.

Nothing Wrong With John Key's History.

Done Deal: The Prime Minister's comments regarding the peaceful settlement of New Zealand have been ridiculed by his detractors, but they were considerably less controversial than the Waitangi Tribunal's assertion that Maori never ceded sovereignty to the British crown. (Image drawn from the TVNZ docudrama About Waitangi: What Really Happened?)

THE PRIME MINISTER, John Key, has been much mocked over the past week for his claim that New Zealand was settled peacefully. Hoots of derision have echoed through the Twittersphere from those who profess to know their New Zealand history a great deal better than the Prime Minister.

 

Are they right? Is Mr Key wrong?

 

It might help to place the Prime Minister’s comments in context. His remarks followed the Waitangi Tribunal finding that the tribal chieftains of the far-North did not cede sovereignty to the British Crown when they signed the Treaty of Waitangi on 6 February 1840.

 

This finding is considerably more controversial than anything the Prime Minister decided to offer by way of commentary. The Auckland-based historian, Paul Moon, has already derided the Tribunal’s historical conclusions, and his intervention is unlikely to be the last.

 

Indeed, it is extremely difficult to understand how the Waitangi Tribunal’s latest finding could be so provocatively definitive. The Tribunal’s enabling legislation allows the Crown to test the evidence presented to it by cross-examining witnesses and by introducing evidence of its own. It may also commission professional historians to assess evidence presented in support of radically revisionist interpretations of New Zealand history.

 

Did the Crown take full advantage of its interrogative powers in this case? Did it seize the opportunity to open up the vital constitutional issues under consideration to wider public scrutiny and debate? Apparently not. The strongly held beliefs of those bringing the claim were accorded a decisive credibility. The settled view of more than 150 years of historical research? Not so much.

 

A crucial element of the settled view is that the Maori chieftains who signed the Treaty, many of whom had enjoyed long and mutually beneficial relationships with the Europeans who had taken up residence in New Zealand since Cook’s exploratory voyages of the late eighteenth century, knew exactly what they were agreeing to at Waitangi on 6 February 1840.

 

Captain William Hobson was guaranteeing them the inviolability of their traditional territories and the safety of their people. In the light of what had befallen the iwi and hapu of Niu Tirani (New Zealand) between 1769 and 1840, the existential value of these guarantees is readily appreciated.

 

The indigenous population of these islands at the time of first European contact is estimated at 100,000. Between 1800 and 1830 as many as 30,000 Maori were killed and/or driven from their traditional lands by enemy iwi and hapu armed with the devastating military technology of the Pakeha. The protection of Queen Victoria (symbolising the world’s most powerful nation) was what they needed. Hobson offered it. The chiefs grabbed it with both hands.

 

So, in the sense that New Zealand was gazetted as a possession of the British Crown by virtue of a treaty of cession, rather than by outright military conquest, the Prime Minister’s assertion that “New Zealand was one of the very few countries in the world that were settled peacefully” is not only historically uncontroversial but also, in general terms, correct.

 

That correctness is bolstered when we compare the wholesale slaughter, land seizure and population displacement that accompanied the so-called “Musket Wars”, with the death-toll of the Land Wars of 1845-1872. Over the course of those three tumultuous decades roughly 2,000 Maori and 2,000 Pakeha fell victim to fatal violence. On the Maori side of the ledger, a significant proportion of those fatalities were inflicted by Maori fighting for the Crown. And, if we divide the total number of fatalities by the 28 years the conflict lasted, then the average fatality rate is 143 deaths per annum – less than the 2013 road toll.

 

Even the relatively large-scale conflict encompassing Taranaki, the Waikato and the Bay of Plenty between 1860 and 1863 was more of a civil war than a war of conquest. The Kingitanga’s brave attempt to re-define the terms of Hobson’s deal, by proposing a two crowns/one flag formula, was deemed to be unacceptable by Governor Grey; antagonistic to the fast-expanding settler interest; and a doomed attempt to wind back the clock by those Maori leaders who knew that, for better or worse, the Pakeha had come to stay.

 

In the smaller flare-ups of the late-1860s and early-1870s, it was these “Loyal Maoris” who played a crucial role in extinguishing the isolated bush-fires of iwi and hapu resistance. That the Waitangi Tribunal masks their participation by subsuming their contribution under the all-encompassing rubric of “The Crown” says it all really.

 

Accordingly, I will not be participating in the condescension and derision of the Twitter handle #johnkeyhistory.

 

Is the history of Maori-Pakeha relations entirely free of violence and injustice? Of course not. There’s blood in the foundations of every state. But, if John Key’s saying there’s a lot less in ours than most, then I, for one, agree.

 

This essay was originally published in The Press of Tuesday, 25 November 2014.