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Falling Between Two Treaties: A Reply to Dr Emily Beausoleil.

THE “CONVERSATION” demanded on the meaning of the Treaty of Waitangi is likely to be short. Not because there is no need for a national debate on how Maori and Pakeha should live together in the twenty-first century, but because the current defenders of te Tiriti (as it is now advisable to call the Maori translation of Captain Hobson’s document) will be unable to present a convincing defence for their ahistorical interpretation of its undertakings.

The reason for this incapacity is a simple one. To make their proposed solutions work, the whole history of New Zealand subsequent to the signing of the Treaty must be set to one side, and New Zealanders living in 2021 must proceed as if they are living in 1840. This is necessary because in no other way can the terms employed to translate the English of the Treaty into the Maori of te Tiriti be infused with the required constitutional significance. What the promoters of a Tiriti-based constitution of Aotearoa are saying, in effect, is that everything which New Zealanders came to understand about their state must be cast aside, and that we must all begin again.

Is it reasonable to ask the five million human-beings inhabiting these islands in 2021 to agree to such a proposition? Dr Emily Beausoleil, senior lecturer in Political Science at Victoria University, writing for Newsroom,  insists that it is.

Working from the strongly contested conclusion of the Waitangi Tribunal that “the rangatira who signed te Tiriti o Waitangi in February 1840 did not cede sovereignty to the British Crown”, Dr Beausoleil dismisses dissenters’ objections as “misconceptions” born out of “conflicting translations” and “the greater airtime the English version has had in our schools, media and government.” She does, however, acknowledge that the Tribunal’s 2014rangatiratanga bombshell “also raises serious questions without any easy answers about what fulfilling these Articles [of te Tiriti] would require of us as a society today.”

Well, yes, it most certainly does.

Serious questions about the Treaty’s meaning have been raised before in New Zealand history. The most serious were arguably those raised by the leaders of the new settler state established by the New Zealand Constitution Act of 1852, whose first Parliament met in Auckland in 1854. A strong argument can be mounted that the Foreign and Colonial Office, in persuading the British parliament to grant its New Zealand colony a large measure of self-government, was effectively affirming the cynical view of the Treaty enunciated by one of the Governors of the land-grabbing New Zealand Company:

“We have always had very serious doubts whether the Treaty of Waitangi, made with naked savages by a consul invested with no plenipotentiary powers, without ratification by the Crown, could be treated by lawyers as anything but a praiseworthy device for amusing and pacifying savages for the moment.”

There is a logic to the Treaty, however, which is present in both the English and the Maori versions. A logic which asserted itself more and more forcefully as the settler government of New Zealand became ever more firmly established, and the number of Pakeha arriving in the country grew by leaps and bounds. The guarantees contained in Article 2 of the Treaty: that only the Crown could purchase Maori land; and that any decision to sell land had to conform with the customs and practices of chieftainship; were simply incompatible with the settler government’s vision of New Zealand’s future. The Maori King Movement, by refusing to sell any more land to the Crown, exposed the logic of the Treaty in a way that made a decisive settler response inevitable.

It came in 1863, when the settler government, aided by 12,000 imperial British troops, militarily overwhelmed the Maori Kingdom of the Waikato. Article 1, which, in the only version of the Treaty the settler government recognised, granted the Crown full and undivided sovereignty, was deemed to trump Article 2. This amounted to what the distinguished New Zealand legal scholar, Professor Jock Brookfield, described as a “revolutionary seizure of power”.

It was a revolution which resulted in the Treaty of Waitangi being dismissed as “a simple nullity”, and which led to the ruthless suppression of all Maori resistance to Pakeha rule. Built upon the expropriated resources of the autonomous Maori communities which preceded it, the New Zealand State has, with the passing of time, won both the de facto and the de jure right to dispose of these islands as it sees fit.

Dr Beausoleil’s arguments in favour of implementing the “Tiriti-led” recommendations of the controversial He Puapua Report would be a lot more convincing if she simply acknowledged that, for the logic of the Treaty to be successfully reasserted, then a similar “revolutionary seizure of power” will be necessary.

Significantly, the word “revolution” does not appear in Dr Beausoleil’s Newsroom post. The transition to a te Tiriti-based constitution is, instead, to be accomplished by education and persuasion. In her words:

“When we understand these commitments, objections that He Puapua is divisive and undemocratic […] begin to ring hollow. Changing our institutions to more fully realise the unceded authority of tangata whenua would not only fulfil our Tiriti and United Nations Declaration on the Rights of Indigenous Peoples obligations and thereby make our power arrangements more legitimate – it would also mean greater self-determination, equality and meaningful voice among Tiriti partners.”

That’s a nice vision of the future, but, as someone who lectures in Political Science ought to know, the efficacy of education and persuasion in the state’s application of political, economic, social and cultural power is – to put it mildly – limited. Such a host of interests; such an array of prejudices; such a collection of legal and constitutional objections stand in the way of securing majority consent for even a tenth of He Puapua’s recommendations that the chances of bringing any of them into force by democratic means are vanishingly small.

More to the point, if a majority of New Zealanders come to believe that their government is attempting to bring about a revolutionary change in New Zealand’s constitutional arrangements by stealth, then the opportunity for any of us – Maori or Pakeha – to participate in the creation of Dr Beausoleil’s “more just, more honourable, more inclusive Aotearoa” will disappear entirely.

When Britain’s soldiers, having executed the “revolutionary seizure of power” demanded of them by the settler government, departed, did they leave behind them a more just, more honourable and more inclusive New Zealand? Or, did they bid farewell to a state which, having secured these islands by force of arms, would surrender them to nothing else?


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  1. Do you have authority to say that, I mean, from your people?

    The short reply is this: Why do people make treaties after wars? There is your reason, your logic, your spirit, your past, present, and future. There is your translation, in any language, for any time, for any race, people, city, village, family.

    • “Do you have authority to say that, I mean, from your people?” Nope. I think a great many of us whities would not agree with Chris Trotters view of our world that must remain dictated too by the old white man. What’s good for Maori will be good for all of us. (but not every single thing of course.)

  2. The big difference between the Maori society that was crushed and marginalised and the British society that did the crushing and marginalising (via military hardware, survey pegs and rigged courts) is that the Maori [non-industrial] society was sustainable in the long term, whereas the British [industrial] society was not sustainable in the long terms and was (is) self-defeating.

    The bulk of the population is yet to realise that simple, fundamental fact, and many people (the majority?) still think there is a future for industrial societies -predicated on the use of fossil fuels and rapid degradation and disruption of both the local and global environment- when it is abundantly clear that there isn’t. Indeed, such is the damage done to natural systems by the technology and financial arrangements imposed by the settlers that there is now a compelling argument that no one has a future of more than a few decades as a direct consequence of the unsustainable systems imposed by the rapacious industrialists of the British Empire; and that future will be characterised by implosion of everything that many people caught the webs of deceit of the industrial system take for granted.

    Evidence is mounting that the ‘kicking the can along the gutter’ that has taken place since the energetic-and-financial crisis of 2007 to 2009 will be ineffective in 2021, and that much unravelling will commence this year via supply shocks, rapidly rising prices for essential goods (as well as dwellings) and collapse of overseas economies via drought, starvation, out-of-control diseases and conflict over resources.

    Just where that will leave academics, with no practical skills or knowledge, and people suffering from delusions of grandeur is uncertain, but very likely up a creek without a paddle.

    If, by some form of jiggery-pokery, the bankers can hold their system together for yet another year, it goes without saying that everything that matters will be made worse and the terminal crisis will be even greater when it does finally eventuate.


    • Afewknowthetruth: “….the Maori [non-industrial] society was sustainable in the long term….”

      No. It wasn’t. Not as it was as when the first European explorers (Tasman, then Cook) arrived. By then, Maori were running out of food. By about 200 years after the first arrivals, the large flightless birds had been hunted to extinction, and other food sources were under pressure. The Royal Society notes this:

      Moreover, it’s clear that Maori lacked the resources or the skills – or both – to enable them to return to the nearest Pacific Islands, either permanently, or to bring back food sources, such as pigs and chickens.

      The lives of Maori were ultimately saved by the arrival of European explorers such as Cook, who brought goats, pigs (Captain Cookers, remember) and chickens. And the whalers and sealers in the far south, who brought vegetables such as the potato, turnip, cabbage and carrot, which would grow in the colder NZ climate.

      Any notion that Maori society could have survived long-term without the resources brought by Europeans isn’t backed up by the evidence.

      The chiefs of the time understood this full well: hence the signing of the Treaty.

      • Her we have the great thinker, dester, exploring such topics as maori can’t survive with out great great white as we reach this final stage in history when Britian reaches its full maturity and strength. Speaking from these lofty heights dester explains maori was naked and powerless to have any influence over New Zealand’s developments and is 100% the cause of there own issues and more generally any issues that tarnish European superiority us clearly the fault of maori.

        Not only is dester an unemployed teacher but she is also an unemployed history professor. She’s easily confused about such things as collinisation, maori language bit has no problems articulating advanced theories in economics.

        • Sam: “Her we have the great thinker, dester…”

          Poor Sam, fresh out of countervailing arguments and reduced to misspelling my nom de guerre.

          I seldom respond to your comments nowadays, because it’s usually difficult to figure out what you mean.

          Did you actually read anything I wrote? Looks as if you haven’t. I didn’t say any of what you claim, you know. Read it again.

          I rely on evidence. It’s a pity that you don’t do the same, instead of chucking insults around. Maybe it’s difficult to access resources online from Australia, where you’ve in the past said you are living.

      • The arrival of the European and trade as of benefit to Maori is not synomous with colonial government being necessary.

        Maori aware of the advantages gained, underestimated the consequences of using the Crown to suppress inter iwi conflict (more deadly with the new weapons).

        • SPC: “The arrival of the European and trade as of benefit to Maori is not synomous with colonial government being necessary.”

          This country wasn’t actually a colony for very long at all. It was, as Chris Trotter points out above, self-governing from: “….the new settler state established by the New Zealand Constitution Act of 1852, whose first Parliament met in Auckland in 1854.”

          When people, in particular, but not exclusively, Maori, talk about “colonisation/colonialism” in the local context, they’re talking about the influx of settlers and everything they brought with them.

          NZ is a very very long way from anywhere. Even trade entails some interaction, and given that Maori of the time lacked any of the wherewithal (either useable commodities or the means of transportation) for trade with other countries, it was inevitable that there’d have been a European presence here. Had the Portuguese arrived first, they may well have established an entrepôt, as they did in various locations in Asia. But they did not. Or if they did arrive first, they decided that what was available wasn’t worth the effort, and they didn’t stay.

          For better or worse, it was the British who arrived and stayed.

          “….underestimated the consequences of using the Crown to suppress inter iwi conflict…”

          You’ve put your finger on a significant reason (besides the desire to trade) why chiefs were willing to sign the Treaty. The musket wars had caused terrible damage. British law would not only control lawless Europeans already here, but also suppress the conflicts which had taken so many Maori lives.

          A relative has recently been researching the documented oral history of pre-European Maori habitation and conflict in the Auckland area. Prior to first European contact, NZ wasn’t a bucolic paradise: it was Hobbesian. Tribes were ruled by hereditary elites; slavery was the norm. Inter-tribal conflict was frequent and violent, cannibalism routinely practised.

          The Treaty brought a halt to that, introduced democracy (remember how early was the establishment of Maori seats) and gave freedom to slaves. Ordinary people gained a great deal from it.

          It seems to me that people now alive either forget what spurred the signing of the Treaty, or dismiss it as being of no consequence.

          It’s certainly true that Maori in 1840 could have refused to sign the Treaty and required all Europeans to leave. But it’s instructive to note that they did not.

          However. Had that happened, it’s very likely that this country would have been more like PNG, and much less like what it is now. Always assuming that the indigenes would have survived the enforced isolation. Remember how very far NZ is from anywhere at all. And remember the pressure on food resources at that time.

          In any event, there’s no going back, Emily Beausoleil’s earnest adjurations notwithstanding. NZ is now a modern, representative democracy, with citizens coming from all over the world (as has been the case from the earliest days, of course).

          Beausoleil is welcome to her views. But she’s Canadian – Québécoise, I’d say, judging by her name – and what applies there won’t necessarily apply here. Note that Québec remains part of Canada, despite off-and-on agitation for independence on the part of some of its citizens.

          Chris points out that Beausoleil’s faith in education and persuasion is misplaced. As anyone who’s actually read He Puapua can attest, it reads like a blueprint for a coup, the end result of which will be the destruction of the democratic system we now have. I doubt that anyone wants that.

  3. Kia ora Chris
    There is a conversation to be had about the legitimacy of the regime. As you well know claims to legitimacy take many forms, and in the final analysis it is the regime which provides for the needs of the people that is ipso facto deemed legitimate.
    When that is not the case – when a regime is struggling to keep society intact, secure and prosperous – it falls back on historical claims. That is happening now. Since the time of the fourth Labour government, there has been increased emphasis on the Treaties of Waitangi as the source of legitimacy for the Realm of New Zealand. The concept of partnership has been brought forward in response to the fact that one Treaty (the English version) gives sovereignty to the British monarch, and the other (the Maori version) reserves sovereignty to the people of Aotearoa. A “partnership” state is the illogical and unworkable proposed response to this unresolvable contradiction.
    However, whether or not a partnership state is established, the problem remains. The Realm of New Zealand is moving towards a social, political, and quite possibly economic crisis which will ultimately challenge its claim to legitimacy. When that happens, it will have no historical supports to rest upon other than Hobson’s two declarations of sovereignty and the successes of British and Australian regiments against the nationalist forces in the wars of the nineteenth century.
    As a result the regime will be powerless to deny the claim that it is the people of Aotearoa who rightly hold sovereign authority, rather than the monarch residing in London.
    So yes, there will be a revolution,which will sweep away much much that you hold dear in the present system of things, as well as much that you acknowledge we will be well rid of.
    Nga mihi
    Geoff Fischer

    • I believe the revolution will be triggered by collapse of the fraudulent financial system, which originated in Europe and was imposed on colonies by the colonialists. That and collapse of the gloobalised food system.

      Until that collapse occurs, the government and its agents continue to pretend that what they are operating is not a Ponzi scheme and continue to pretend that their Ponzi scheme is not ruining everything that matters -from land, rivers and lakes to the atmosphere and the oceans.

      Much of what we are now witnessing amounts to a war on many fronts; the continuing war on nature that went into hyper-drive after WW2; a war on the populace in general, which went into hyper-drive after the ‘reforms’ of the mid-1980s; a war on the children of the nation via out-of-control CO2 (and other) emissions the government absolutely refuses to address.

      These various wars are accompanied, as all wars are, by blatant propaganda consisting of half-truths, lies, and mutually exclusive statements that the general populace has been carefully conditioned to accept as truth.

      I have just commenced a review of my local council’s so-called plans for the next decade, and, unsurprisingly, it contains all the same kind of nonsense we have been subjected to over many decades, including ‘sustainable development’ …which is an oxymoron, since no development is sustainable, as it is all predicated on use of fossil fuels and is predicated the future capacity to emit CO2 into the atmosphere. That capacity is already zero, of course.

      That is where the really clever component of the system kicks in, because wage slaves and debt slaves will demand that the slave-masters be allowed to continue operating the slave camp, and these same wage and debt slaves will demand that they be allowed to continue destroying their own futures and their progeny’s futures via the burning of fossil fuels.

      Thus, complete, catastrophic collapse of the system is guaranteed. It has bee guaranteed for a long time, but now that we are so much further donw the line, the questions “When will it occur this year or next year?”

      Everything I’ve been reading, every graph I have examined indicates later this year.

    • Hi Geoff
      From https://teara.govt.nz/en/self-government-and-independence .
      “For his part, Governor George Grey was all too aware of such a possibility from his earlier experiences in Australia. Governing a colonial population of little more than 13,000 living amid some 100,000 Māori, Grey regarded the 1846 constitution as impractical. He had detected growing nationalist sentiment among northern Māori and believed implementing the scheme would exacerbate this feeling. He also believed it would allow Pākehā to exercise undue power over Māori. Grey said of Māori: ‘no people that I am acquainted with are less likely to sit down quietly under what they may regard as an injustice.’ While he did not think Māori were ‘ready to take a share in representative government’, he also thought it would not be long before they were ‘more fitted to do so.’5 He therefore secured a postponement of self-government for five years in 1848.
      “no people that I am acquainted with are less likely to sit down quietly under what they may regard as an injustice.”
      It doesn’t seem likely that Grey thought the maori chiefs would have signed away their sovereignty does it.
      But perhaps the point where he was wrong is this later quote… “Grey expected that rapid colonisation combined with peace and prosperity would soon fuse the ‘two races into one nation’.”
      He was manifestly correct in the assessment of “fusion “as he anticipated that intermarriage would make us almost all an amalgam of the two races , which it has genetically , but he mistakenly imagined that that would resolve racial property right and historical grievances. How wrong could he be? Almost everyone in the country can now choose which part however minute of their genetic makeup they want to identify with to take a side. It’s just like the choice of gender we have now acquired.
      I would be interested to know what regime would be appropriate for NZ in the future , and who will be the revolutionaries , and who will be swept away.
      What proportion of Maori ancestry would be required to retain New Zealand citizenship. And where should we who have none go to?
      Cheers D J S

      • Kia ora David
        The current regime trades on distinctions of race – even of the most miniscule kind as you note. To me it goes without saying that what replaces the current regime must make no such distinctions. Whakapapa has a place, but it should not intrude into the political life of the nation. That relegation of whakapapa to the private sphere starts and finishes with the whakapapa that gives the British royal family its status at the Head of the colonialist state.
        I don’t think it helpful to talk about who will be swept away. Rather what will be swept away (there is quite a list), what will be retained, and what will be restored. That will be subject to the will of all our people – not that of any particular class, group or individual.

        • Hi Geoff
          I like your answer.
          “The current regime trades on distinctions of race – even of the most miniscule kind as you note. To me it goes without saying that what replaces the current regime must make no such distinctions. ”
          But do you really think the current regime trades on the distinctions , or is it just trying to deal as fairly as possible with the distinctions that our society presents?
          I concur with your initial …” Since the time of the fourth Labour government, there has been increased emphasis on the Treaties of Waitangi as the source of legitimacy for the Realm of New Zealand. The concept of partnership has been brought forward in response to the fact that one Treaty (the English version) gives sovereignty to the British monarch, and the other (the Maori version) reserves sovereignty to the people of Aotearoa. A “partnership” state is the illogical and unworkable proposed response to this unresolvable contradiction.”
          It was the neoliberal ideas abandoning the concept our governments had always had of full employment as the bottom line , including everyone in society’s economy, providing everyone with the opportunity to contribute and thus be a part instead of having to accept a bare maintenance handout and exclusion, that ended the trend to amalgamation into one big happy family.
          If it goes without saying that what replaces it must make no such distinctions, while I do agree with that , it is a statement that got Don Brash into a load of trouble.
          If racism is swept away and neoliberalism wont we all be happy!
          Cheers … good talk
          D J S

          • Don Brash said that, but did he really mean it?
            He doesn’t show respect for Maori and he has shown no willingness to do away, for example, with the whakapapa privileges accorded to the British royal family in the New Zealand constitution.
            I am confident that the vast majority of Maori will accept a regime in which they and their culture enjoy genuine equality and respect. But there must be none of the glaring exceptions which characterize the current colonial regime.
            We don’t need to tolerate racism or neo-liberalism, but we should recognize that New Zealand is currently subject to a regime which has given us both racism and neo-liberalism in spades.

  4. ‘Everything which New Zealanders came to understand about their state must be cast aside, and that we must all begin again’. We just need to tell the truth Chris and give a more balanced version of the TOW. As who had the most to gain and did gain the most and who had the most to lose and did lose the most.

  5. It all sounds a bit ‘wokey’ and ‘white’ with a slight christian flavour?

    The Crown needs to removed from been the head of state first. Then a Republic is formed with an upper House of Parliament removing the need for the Prime Ministers Cabinet. And the PM becoming the Head of State and a Figurehead as PM too with no veto or voting rights.

    Reduce the number of MP’s to 100 and have 20 seats in the upper house.

    And if ‘were’ really clever, should make the parliament one party. 🙂

    • I don’t believe in separatism at all because without the government, private capital can exploit maori and its resources unopposed. Obviously no one wants that.

      • I didn’t mention anything about separatism? But anyway, if you’re referring to the corporate brown table well yeah. They’ve learned very well from their masters.

    • Reform can occur in stages (as did the system we inherited as a Crown colony).

      Part 1 Replace the GG of a foreign royal as our Crown sovereign with a Crown Governor acting for the New Zealand Aotearoa Crown (of the peoples sovereignty).

      There would be no need to replace the word Crown in legislation. The Crown Governor would be appointed as now.

      This is a small reform, yet because of the cultural attachment dependency of so many Pakeha this has yet to be realised – in part because of the fear of this leading to Maori sovereignty.

      One small step that so many fear to make.

      Under such a regime, progress is made till there is confidence between the two partners, Crown government (democratic majority) and Maori (indigenous people) – more empowered in self governnace (delivery of services) (albeit not on their iwi lands as intended back in 1840).

      Part 2

      Parliament of the common people and a Maori parliament (with the capacity to delay legislation, as the House of Lords did in the UK, and or refer a matter to the Supreme Court).

      Part 3

      Directly elected head of state, as head of exective government – Cabinet Ministers.

      • SPC: ” …till there is confidence between the two partners, Crown government (democratic majority) and Maori (indigenous people) – more empowered in self governnace (delivery of services) (albeit not on their iwi lands as intended back in 1840).”

        In the first instance, the Treaty contains nothing about partnership. That’s true of both versions. The notion of “partnership” comes from a court decision in the 80s (in which the judge said that the Crown has obligations “akin” to a partnership, not a partnership per se). All of this is 1980s revisionism, for which Geoff Palmer is responsible.

        In the second instance, I suggest that you read He Puapua, if you haven’t already. That document talks about Maori having authority over their traditional territories, with boundaries re-established. There is no part of NZ which wasn’t at one time part of some tribal area or other. Chris Trotter has pointed out that individual title to our properties would be very unlikely to survive such a radical change.

        We have evidence that the current government is implementing the recommendations of He Puapua, without coming right out and admitting to it.

        None of this bears any resemblance at all to democracy.

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