Kawanatanga katoa > tino rangatiratanga

 

"'There’s no doubt that both Māori and Pākehā in 1840 understood tino rangatiratanga to be a bigger deal than kāwanatanga” [says an idiot called Hooton]. However whilst this is undoubtedly the modernist position on how we should interpret the Treaty, the historical evidence suggests something very different.
    "Article One of the Treaty states that the chiefs agreed to 'give absolutely to the Queen of England forever, the complete Government (Kāwanatanga katoa) over their land' ... 
    "[T]hat little word katoa ... is rarely mentioned. But it means complete, all-encompassing, totally, without exception. It’s no wonder [that in 1840] it focussed the minds of the chiefs on the issue of Crown authority. ...
    "Nowhere in the historical records do we find any indication that either the chiefs or the Pākehā protagonists understood anything other than that Kāwanatanga katoa meant the Crown was being established as the pre-eminent governing authority in the land. ...
    "'Te Kawenata Hou' (the 'Māori New Testament') ... would have had significant influence on how the chiefs understood the Treaty. ... In 'Te Kawenata Hou' the term rangatira is a general term for leadership. In contrast kawana is a very specific term used to denote governors who represent the authority of kings. To use [the] example of Pilate – as the kawana (governor) he represented the sovereignty of the Roman empire in Jerusalem. He had the authority to tax and to execute judgement. The local Jewish leaders who wanted Jesus crucified had to get his permission. Those leaders are described in Te Kawenata Hou as rangatira. From this the chiefs at Waitangi would have quickly understood what was being proposed in the Treaty. And it certainly did not involve them retaining 'absolute sovereignty'."

~ Ewen McQueen from his post 'Kāwanatanga katoa was the fundamental question at Waitangi'

'Colonialism: A Moral Reckoning'

 

"The suggestion that colonial systems are based on white supremacy is a generalisation that infects much of the debate about colonialism and colonisation. It suggests that 'white supremacy' ... was what motivated colonialism and colonisation. It did not, although there were times when, during the colonial experience, it manifested itself. ...
    "In 2017, [Nigel] Biggar initiated a five-year project at Oxford University ... to scrutinise critiques against the historical facts of empire. Historians and academics widely criticised the project ... 
    "Biggar’s book Colonialism: A Moral Reckoning, examines the morality of colonialism. ... conced[ing] in the Introduction to the book that the subject matter and his approach were both contentious. ...

"Many commentators of colonialism approach the topic from a critical theory perspective, seeking out any evidence to then suggest that all colonial activity was inherently evil. Biggar does not. His is a more nuanced approach and is that of an ethicist.  ...
    'Biggar’s argument is that the development of Empire and what is called colonialism was an institution that developed over centuries and no one could say that it was wholly good or wholly bad. Biggar cites examples from other imperial activities. The empire of Islam demonstrated examples of racism regarding those from Northern climes (it was too cold to be intelligent) or the tropics (it was too hot to be intelligent). ... 

"He commences with the proposition that empire is not an historical aberration or a departure from historical norms. It is part of the natural order of a world that, until recently, lacked stable frontiers formalised by an overarching scheme of international law. The armed migration of peoples in search of resources might serve to unlock the riches of the world and spread knowledge and technical competence, processes which potentially benefit all mankind.
    "Certainly colonialism severely disrupted existing patterns of indigenous life. It was often achieved or maintained through violence and injustice. In the final analysis, all states maintain themselves by force or the threat of it.
    "Governments, imperial or domestic, have always involved light and shade, achievement and failure, good and evil. Biggar’s point is that it falsifies history to collect together everything bad about an institution and serve it up as if it were the whole.

"There are three major points that Biggar makes by way of mitigation when it comes to the legacy of Empire.
    "To begin with many of the worst things that happened were not the result of an ideology or a preconceived and calculated policy. There were abuses. They were recognised and were addressed although not always with the greatest success.
    "Secondly, along with the disruption that was caused to communities there were also benefits. Practices such as slavery, cannibalism, sati and human sacrifice, which were by any standards barbarous, were eliminated. The ground was laid for an economic and social transformation that lifted much of the world out of extremes of poverty.
    "Thirdly and finally not only did colonialism bring disruption but it brought order. The British brought the Rule of Law, constitutional government, honest administration, economic development and modern educational and research facilities, all long before they would have been achieved without European intervention. ...

"There can be no doubt that the British Empire contained evils and injustices but so does the history of any long-standing state. But the Empire was not essentially racist, exploitative or wantonly violent as a general proposition. It could correct errors and sins and importantly it prepared colonised peoples for liberal self-government.
    "What colonialism did bring to the table in the final analysis were liberal, humanitarian principles and endeavours that should be admired and carried into the future. Imaginary guilt should not cripple the self confidence of the British, Canadians, Australians and New Zealanders as pillars of the liberal international order."

~ A Halfling from his post 'Colonialism - A Moral Reckoning'

Land, the rights and wrongs of it

 "Although the Pakeha have progressively acquired land, they have always argued about the rights and wrongs of it. That remains true even today. Many Pakeha New Zealanders sympathise with the view (which is taught in schools) that the Maori have been shamefully dispossessed. They join Maori land marches and protests. The present Government declares itself sympathetic to the Māori case, and looks to compensate where past wrongs are clearly manifest. But Pakeha go on buying Māori land. And though Maori insist that for them the land has a spiritual value which the Pakeha does not understand they go on selling it. Their sense of its spiritual value is always sharpest once the material value has been realised — and that has always been the case."

~ C.K. Stead, from his review of Witi Ihimaera's 1986 novel The Matriarch

Ned Fletcher's book: "unsatisfactory" and "badly flawed"

 

New Zealand/Australian historian Bain Attwood reviews Ned Fletcher's English Text of the Treaty of Waitangi in the Australian Book Review. His conclusion: "unsatisfactory" and "badly flawed."

Attwood was raised in New Zealand and is a professor of history at Melbourne's Monash University, thus giving him both local knowledge and a less myopic perspective on Treaty issues than most locally-based historians. His most recent books (A Bloody Difficult Subject: Ruth Ross, te Tiriti o Waitangi and the Making of History and Empire and the Making of Native Title) also demonstrate he has put that wider perspective to good use.

Fletcher, he says, writes more as lawyer than historian, handling his material like a legal brief, with all the flaws evident without an opposing counsel to point out omissions and elisions. Fletcher, for example (emphases mine), "adduces practically all the relevant historical sources and [citing] at great length those parts of them that seem to support it" — he "painstakingly rebuts each and every argument contrary to his own, or at least those he finds useful to acknowledge" – if that's not bad enough, Attwood also accuses him of omitting "any thorough consideration of important points that tend to undermine the cogency of his argument" – and he also "neglects to discuss in any thoroughgoing way those parts of the historical record that draw his claims into question." Ouch! 

"By using these tricks," says Attwood, "he might well convince unwitting readers." He has. Many of them, as an Ockham book award and a quick Google search will indicate. (But as other more perceptive reviews or comments indicate — Philip Temple's, Braunias's, Brian Easton's my own [ahem]— you can't fool all the people all of the time.) Part of the reason, perhaps, is the imprimatur of the publisher, Bridget Williams Books. Part his own familial imprimatur – his mother being the former Chief Justice. And perhaps the major part is the ease with which Fletcher's interpretation melds with fashionable political interests.

Nonetheless, as Attwood makes clear, "Fletcher’s argument is badly flawed. In large part this is because it rests on a series of dubious assertions or assumptions that he does not seek to test and which obscure several awkward historical facts." These include:

Soon after making the Treaty, the British Crown claimed possession of New Zealand (or parts of it) on grounds other than the Treaty, including the legal doctrine of discovery. The imperial government sought to assume sovereignty by making an agreement with many local chiefs, even though it regarded them as neither fully sovereign nor owners of all the land. It did so for reasons that were as much diplomatic and political as they were legal and moral, and so were inherently pragmatic rather than simply principled in nature. It instructed its agent to make a treaty that only had two conditions: the Māori were to cede sovereignty to the British Crown as well as the pre-emptive (that is, sole) right to purchase land. There is no evidence to suggest that it envisaged the agreement that was subsequently made with some of the chiefs as one that was meant to provide the basis for the colony’s legal and political arrangements at the time, let alone in the future.

Fletcher's argument also rests, says, Attwood,  "on three especially problematic claims":

1. that the meaning of any text such as the Treaty of Waitangi can be discovered merely by considering the purpose or intent of those who are said to be its authors, rather than contemplating how that text was received, not least by Māori; 
2. that the meaning that might have been bestowed on the Treaty at the time it was made, rather than the discussion and debate that has taken place about it since, best accounts for its historical significance in the sense of both meaning and importance; and 
3. that the original (1840) understanding of the Treaty is more important than any later understandings of it, historically speaking. 

Not one of these propositions, he concludes, can withstand critical scrutiny. "They reveal a loss of perspective about the making of the Treaty in 1840 that characterises much of the historical discussion and debate about it." A loss of perspective that it is probably easier to see from across the Tasman.

In my own review I suggested Fletcher was slippery. Attwood also suggests that Fletcher simply fails to "engage with and thus alert lay readers to the most important historical scholarship of the last twenty or so years." Especially so to scholarship   with views at odds with his own. This 

draws his argument into question and/or undermines his publisher’s claim that this book is a ground-breaking scholarly contribution to understanding of the Treaty of Waitangi.

Among that scholarship that Fletcher either 'overlooks' or fails to adequately engage (cited in Attwood's book on Ruth Ross's seminal 1972 article) is

•  J.G.A. Pocock's 'The treaty between histories' (2002), 
• Andrew Sharp's 'Recent Juridical and Constitutional Histories of Māori' (2001), 
• Alan Ward's 'Historical Method and Waitangi Tribunal Claims' (1996) [in Miles Fairburn, W. H. Oliver & Peter Munz (eds.), The Certainty of Doubt: Tributes to Peter Munz] 
• Paul McHugh's 'Law, History and the Treaty of Waitangi, (NZJH, 1997), 
• Lyndsay Head's 'The Pursuit of Modernity in Māori Society' (2001), 
• Michael Belgrave's Historical Frictions: Māori Claims and Invented Histories (2005), 
• Mark Hickford's Lords of the Land: Indigenous Property Rights and the Jurisprudence of Empire (2011), and 
• Stuart Banner's Possessing the Pacific: Land, Settlers, and Indigenous People from Australia to Alaska (2007).

 A lot of careful scholarship to ignore.

Attwood concludes:

This tome is undoubtedly a prodigious piece of research, but in seeking to account for the British government’s purpose in making the Treaty, its author is unwilling or unable to distinguish the wood from the trees. The result is a remarkably turgid work, the publication of which is somewhat puzzling, given its publisher has an enviable reputation for presenting a good deal of New Zealand’s finest historical scholarship to lay audiences.

When was sovereignty properly established here?

  

So here's a quiz question for you: When did Britain legally acquire sovereignty over the New Zealand isles? (Supplementary questions: What IS sovereignty? And was it EVER ceded by the locals?)

• Was it when Cook first planted his flag in 1760 and 1770?
• Or in 1787, when Captain Phillips was installed as governor of NSW "and adjacent isles"?
• Perhaps in 1813, when NSW Governor Macquarie issued his General Order "purporting to bring the natives of certain Pacific islands, including New Zealand, under the protection of His Majesty" — followed by the appointment here of magistrates in 1814 and 1819?
• Maybe in 1823, when the jurisdiction of Australian courts was extended here to deal with miscreant British subjects?

All this activity reveals there was already a great deal of legalistic British engagement with the place loooong before Hobson landed here for the first time in 1837. (No, not a typo.) But none really convey sovereignty as we understand it, i..e, the exercise of legitimate power by a recognised state. 

In that respect, some argue that 14 January 1840 is the important date, marking the day when NSW Governor Gipps proclaimed the extension of NSW's boundaries to NZ,  English laws applying here for the first time. Or 30 January of that year when Hobson landed and proclaimed himself Lieutenant-Governor.

Even after Hobson re-landed here in January 1840, he and his ship's captain reckoned on the one hand that sovereignty was acquired peacemeal -- the northern parts after the northern signings (Hobson issued a proclamation on 17 Feb 1840 on that basis), and thence from Auckland north after a signing there on 4 March, 1840 ("thus confirming to Her Majesty the Sovereignty of this Island to this Parallel," wrote his ship's captain.)

On the other hand, Hobson also reckoned that "the Treaty which forms the base of all my proceedings was signed at Waitangi on the 6th February 1840 ... This instrument I consider to be de facto the Treaty, and all  the signatures that are subsequently obtained are merely testimonials of adherence to the terms of the original document." 

This looks contradictory. Yet the two views can be easily reconciled: in Hobson's mind, it was not the Treaty that confirmed sovereignty, but his proclamations largely on the basis of those signatures-- the most important being on 21 May 1840 when he proclaimed sovereignty over the whole place (and clumsily claimed the Treaty's signing date to be 5 February).

It's all a bit of a mess.

Many years ago, Auckland University's senior history professor James Rutherford had a crack at answering that question: When exactly did Britain acquire sovereignty over the New Zealand isles?

Turns out there's not exactly a straightforward answer.

Rutherford dismisses all those early dates with ease.

• Cook's flag-planting was never ratified by the British Parliament, and not followed up by occupation.
• Both Phillip and Macquarie probably overstepped themselves here, and once again their declarations were not followed up by immediate occupation.
• The 1823 ordnances only applied to British subjects (and only if caught)
• Gipps himself said his 1840 Proclamation was "only intended to give warning" that Hobson and pens and parchment were on their way to New Zealand, not to suggest he was already ruling here. It was "anticipatory" of sovereignty; it did not establish it.

So when Hobson arrived here in January 1840 to "treat with the Aborigines of New Zealand for the recognition of Her Majesty's Sovereign authority" he arrived only as Consul, no matter what he read out when he landed. 

He would only legally become Lieutenant-Governor when or if sovereignty could be properly established.

And when was that?

Well, it's complicated because of the confused legal status of the Treaty/Tiriti. As of 1949, when Rutherford was giving his opinion, even the date of 6 February 1840 could not be admitted:

Thus we come to Hobson's proclamations of 21 May 1840. He issued two:

Rutherford:

The first proclamation (a) recites that Hobson was authorised to proclaim sovereignty over the South Island on the grounds of Discovery [although Hobson did not know, on 21 May, that a number of South Island chiefs had signed the Treaty. Their signatures imply that the Treaty applies to the South Island as well as the North Island], and that the North Island had been ceded in sovereignty to Her Majesty. The second (b) recites more fully that by the Treaty of Waitangi the chiefs have ceded all rights and powers of sovereignty to the Queen absolutely and without reservation. 
    Hobson's action in issuing these proclamations is clearly one of the important definitive acts of State for which we are looking. For the first time during the period of transactions under review, an accredited government agent, acting, it may be said, reasonably in accordance with instructions received, proclaims British sovereignty over the whole of New Zealand. 
    His action is still subject to the approval of the Crown. 
    In event of such approval being given, it will be reasonable and, I think, correct to date back the acquisition of British sovereignty over the whole of New Zealand to this date. ...
    Whereas the first proclamation clearly implies that sovereignty is asserted over the South Island on and as from 21 May 1840, sovereignty over the North Island is specifically asserted 'from and after the Date of the above-mentioned Treaty.' ... 

Hobson regarded the treaty proper as that which was signed at Waitangi on 6 February, the later signatures being merely supplementary. It is doubtful how far such a view can be taken as correct. If accepted, however, it has the effect of dating back the assertion of British sovereignty over the North Island to 6 February 1840.

Alternatively, it is possibly correct to consider that, as the chiefs signed the Treaty, they were recognising the sovereignty of the Queen over their tribal lands and were thereby fulfilling that political condition which H.M. Government had laid down to their consul, Hobson, as a prerequisite to his assertion of British sovereignty, which he could then proclaim at his convenience. 

Which he did.

However, we're still not there yet. (Did I say it was complicated?)

By 21 May around 400 chiefly signatures had been acquired on Hobson's various sheets of parchment, although not all had signed, and not all those signatures were yet in his kitbag. (The mail was awfully slow back then.) He acted quickly, before he was truly ready, because Wakefield's settlers at Port Nicholson were starting to make noises about republicanism.

So two things must at once be admitted, says Rutherford, about Hobson's assertion of sovereignty over the North Island in May 1840: 

(1) that it was premature, in the sense that the process of treaty-making was still incomplete; and (2) that in extending sovereignty over the whole of the North Island, as well as the South, Hobson was probably exceeding both what the strict letter of his instructions authorised, and what the Treaty, even in its finished state in October, warranted.

And then on June 5, in the South Island, having acquired several chiefly signatures, but spying many foreign vessels sunning themselves in Port Underwood, claimed the South Island on the basis of cession, and Stewart Island (being empty) on the basis of discovery. (Adding nothing to what Hobson had already claimed on 21 May but at least bolstering it.)

But as Rutherford points out, "Sovereignty could, in the last resort, be established only by the sanction of the Crown, and the form that Crown sanction took was approval of the terms of Hobson's May proclamations. ... The essential political condition of the assertion of British sovereignty was the 'free and intelligent' consent thereto of the Maori chiefs of the North Island. This was obtained in a considerable measure by means of the Treaty of Waitangi (February-October 1840)."

And thus by October 1840 the British Government could be sufficiently satisfied that its instructions to Hobson had been successfully carried out, and was able to give official approval. And so, Rutherford concludes, 

Not until they were satisfied that there was a general measure of native consent to British sovereignty did the British Government take any definitive legal step to assert or confirm sovereignty. Prior to the formal approval of 2 October of Hobson's May proclamations, all their actions were of a  preparatory sort. 
    The decision to assert sovereignty was based (i) upon the political facts that Hobson had secured a considerable measure of native consent by the Treaty; (il) in respect of the South Island and Stewart Island, partly upon native consent, partly upon rights of discovery, and partly on the fact of settlement; and (iii) in the North Island, in so far as native consent was withheld, upon rights of settlement or occupation. 
.   The Treaty of Waitangi is not recognisable as a treaty in international law, and is not part of municipal law; therefore the legal position is that New Zealand was acquired by an act of State, and falls in the category of colonies acquired by occupation. The definitive acts of State are Hobson's proclamations of 21 May 1840, and H.M. Government's approval of 2 October 1840.

Maybe we should make 2 October the National Day?

Ned Fletcher's 'Slippery' Treaty

 

 

I'm happy to say that Part One of my abridged review of Ned Fletcher's book became the second-most popular piece yesterday at the Newsroom site.

Check that out here: Ned's 'Slippery' Treaty. Some snippets:

**"Fletcher’s will quickly become the favoured mainstream interpretation of the Treaty. But this doesn’t mean it’s correct."

**" It was in Chapter 19 that I began making notations under the heading “Slippery.” 

**" Pumuka, chief of the Roroa Tribe, says: 'I wish to have two fathers – thou and Busby, and the missionaries.' From the latter two he and his colleagues have already learned 'Christianity and the Law'…It’s this that these smart fellows, eager for modern learning, are asking for more of. For the protection of law, not for a bag of sweets and a paternalistic pat on the head. 

**"Fletcher has his work cut out for him in making words seem what they’re not. He admits himself on page 526, as he nears his work’s end, that '[t]he English draft of the Treaty contains no explicit recognition of Maori self-government and custom.' Which is true, but it’s the opposite of the conclusion he has been labouring for the previous 525 pages to prove."

And now, on Waitangi Day, Newsroom has just posted Part Two of the abridged review: Ned's 'Puzzling' Treaty. Let's see if we can get this one to Number One! Some snippets from Part 2:

** "Ned argues the Treaty, the English version, promises eternal self-government to Maori... The entire scaffolding of Fletcher’s argument for separate Māori jurisdiction or law as a permanent thing falls to the ground however when one realises that Stephen, and the Colonial Office, did not intend such a state of affairs to be permanent. They expected continual progress towards their end goal of full equality."

** "In the Treaty’s only written references to protection, it never appears without the word 'rights.'... So what does the written word tell us then about the nature of the protection being offered in the Treaty?"

** "If the Treaty is about 'protection' of Māori, as Fletcher concludes, then as the Preamble makes very plain that was to manifest as 'Protect[ion of] their just Rights and Property.' Which seems vastly different to Fletcher’s conclusion that it must lead to inter-tribal self-government."

** That said, if there is a right to permanent self-government in the Treaty, then it is that of which John Locke spoke: which is the individual right to govern oneself free of let or hindrance by others – this self-governance being the source of all freedom. In libertarian terms, all one requires from a legal authority for this self-governance to function is to be protected in one’s genuine rights, for coercion to be outlawed and to be otherwise left alone by that authority. Thereafter, all human interaction becomes voluntary.
    "Would that this were the meaning one could draw from either Treaty, or Tiriti. Or from today’s lawmakers."

PS: If you'd like the full review of Ned Fletcher's book, The English Text of the Treaty of Waitangi, you can download it here.

'The English Text of the Treaty of Waitangi' - BOOK REVIEW [PDF]

 

Click to download the full PDF version

Welcome to readers of Newsroom, where a condensed version of this review has just appeared:

For the full book review of Ned Fletcher's 'English Text of the Treaty of Waitangi' — the complete "17,000 word opus" including footnotes and more history, along with an extended discussion of rights and rangitiratanga and more books to write — I invite you to download the full PDF version here.

Or to read it online, and comment, beginning here.

And of course, feel free to stay and look around. You could start over there on the right, with the 'Popular Posts' of the recent (and not-so-recent) past ...