Upton-on-line: Diaspora Edition 23rd May 2002

Upton-on-line - Diaspora Edition

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”; Finlay 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:

1. 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;

2. 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;

3. 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;

4. 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;

5. 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;

6. 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.”

FOOTNOTES
1. Tamati Waka Nene, for example, said on 5.2.1840 on Te Tii Marae, that Hobson should be a “father, a judge, a peacemaker’. Reported on p. 50 of The Treaty of Waitangi, Claudia Orange, Allen & Unwin, 1987.

2. For example, the letter quoted on p.27, Ch. 3, A Show of Justice, Alan Ward, AUP, 1974, from GBPP 1838, 680, p. 272.

3. Lord Curzon of Kedleston, from the 1907 Romanes Lecture, Frontiers, http://www-ibru-dur.ac.uk/docs/curzon4.html

4. As the CA decision in Mighell v. the Sultan of Johore in 1884 declared, the relations between Queen Victoria and the Sultan were those “of alliance and not of suzerainty and dependence”. CA 1893, Nov. 4, 27, 28, 29. (Mighell v. the Sultan of Johore is a breach of promise case, resulting from the Sultan’s philanderings as one “Albert Baker”.) Moreover, a British Protectorate did not make British subjects out of the inhabitants of the territory in question. They remained subjects of, to use specific historical examples, the Kings of Tonga or Swaziland. The only ‘space’, then, for indigenous sovereignty was either within a protectorate or as a domestic dependent nation.

5. The key passage in the Jones v Meehan decision is as follows:

“In construing any Treaty between the United States and an Indian tribe, it must always … be borne in mind that the negotiations for the Treaty are conducted, on the part of the United States, and enlightened and powerful nation, by representatives skilled in diplomacy, masters of a written language, understanding the modes and forms of creating the various technical estates known to their law, and assisted by an interpreter employed by themselves; that the Treaty is drawn up by them and in their own language; that the Indians, on the other hand, are a weak and dependent people, who have no written language and are wholly unfamiliar with all forms of legal expression, and whose only knowledge of the term in which the Treaty is framed is that imported to them by the interpreter employed by the United States; and that the Treaty must therefore be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by Indians.”

6. Claudia Orange correctly notes (on p. 41 of The Treaty of Waitangi) that the word “kawana” in the Treaty text, would have reminded Maori of Pontius Pilate, the Roman Governor who acquiesced in the execution of Christ. This most valuable insight should be pursued. All four gospel accounts of the arrest, trial and execution of Christ, offered Maori a working model of the disposition of sovereignty, and of indigenous governance, in Roman Palestine. Both Herod Antipas as a client king, and Pontius Pilate, served at Caesar’s, i.e., the sovereign’s, pleasure.

7. “LXXI. And whereas it may be expedient that the Laws, Customs, and Usages of the aboriginal or native Inhabitants of New Zealand, so far as they are not repugnant to the general Principles of Humanity, should for the present be maintained for the Government of themselves, in all their Relations to and Dealings with each other, and that particular Districts should be set apart within which such Laws, Customs, or Usages should be so observed:

8. It shall be lawful for Her Majesty, by any Letters Patent to be issued under the Great Seal of the United Kingdom, from Time to Time to make Provision for the Purposes aforesaid, any Repugnancy of any such native Laws, Customs, or Usages to the Law of England, or to any Law, Statue, or Usage in force in New Zealand, or in any part thereof, in anywise notwithstanding.”

9. CO 209/63, quoted on p. 197 of The Colonial Office: A History, Henry L Hall, Longmans, 1937.

10. Mortmain: A term applied to denote the alienation of lands or tenements to any corporation, sole or aggregate, ecclesiastical or temporal. These purchases having been chiefly made by religious houses, in consequence of which lands become perpetually inherent in one “dead hand”, this occasioned the general appellation of mortmain to be applied to such alienations. Black’s Law Dictionary, 1990.

11. Pakeha men got a secret ballot in 1870, all Maori gained the secret ballot only in 1937, and Maori only gained the freedom to select their electoral roll in 1975. Maori of more than half Maori ethnicity were only allowed to stand as candidates for general seats from 1967, although they were not allowed to register as general electors until 1975.

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