Friday, November 14, 2014

There was no cession in New Zealand

The founding myth of New Zealand is that unlike other countries (such as Australia and the US), British governance was established here peacefully, by an act of voluntary cession. In 1840, via the Treaty of Waitangi, Māori gave up their sovereignty to Britain in exchange for citizenship and protection of their lands (which the government then proceeded to steal by fraud and a series of military campaigns, but as I said, founding myth).

The Waitangi Tribunal has just blown that out of the water:

The Tribunal today released its report on stage 1 of its inquiry into Te Paparahi o te Raki (the great land of the north) Treaty claims.

The report concerns the ‘meaning and effect’ of the Treaty in February 1840, when the first signings of te Tiriti took place in the Bay of Islands and the Hokianga. Stage 2 of the inquiry, which is under way, will consider events after February 1840.

‘Though Britain went into the treaty negotiation intending to acquire sovereignty, and therefore the power to make and enforce law over both Māori and Pākehā, it did not explain this to the rangatira’, the Tribunal said.

Rather, Britain’s representative William Hobson and his agents explained the Treaty as granting Britain ‘the power to control British subjects and thereby to protect Māori’, while rangatira were told that they would retain their ‘tino rangatiratanga’, their independence and full chiefly authority.

‘The rangatira who signed te Tiriti o Waitangi in February 1840 did not cede their sovereignty to Britain’, the Tribunal concluded. ‘That is, they did not cede authority to make and enforce law over their people or their territories.’

[Emphasis added]

The Tribunal has exclusive authority to determine the meaning and effect of the Treaty, so that's pretty definitive: as understood in 1840, the Treaty wsn't a cession of sovereignty, but a partnership agreement with a limited role for the foreign crown.

Note the important caveat: as understood in 1840. The Tribunal is at pains to say that they draw no conclusions about how the government acquired the sovereignty it de facto exercises today - only how it didn't acquire it. But by ruling out the central element of our founding myth, they've suddenly put our constitution on an uncertain basis.

What does it mean? Likely that certain acts in the 1840's and in the decades thereafter will be Treaty breaches (and we've got the issue of pre-1840 Treaty breaches, as the British violated a promise to investigate pre-1840 land transactions and return land which had not properly been acquired). The existing Treaty settlement system is perfectly capable of dealing with this. It does potentially raise the prospect of new claims, as those breaches may not have been included in past settlements - and that will put pressure on the government's claims deadline (which, insofar as it rules out just claims, can only be seen as a Texan-style bureaucratic barrier to prevent justice). It will raise questions about the legal effect of laws and ordinances passed in the pre-sovereignty period, and about their effect on Māori customary law (which, legally speaking, survives until over-ruled by Parliament). And its a clear steer to the Supreme Court in cases dealing with those laws.

But the biggest effect will be psychological. Pākehā are going to have to confront the fact that our history is a bit more complex and far less comfortable than we like to pretend. Or not. Given past practice, this is likely to result in a surge of racist anger at Māori for upsetting our myths, then a return to comfortable ignorance.