What if the Treaty had been honoured?

There’ve been recent calls from the political right for a referendum on the Treaty of Waitangi, at the same time as other politicians show they barely even know what’s in our founding document.

This isn’t a new development. It’s an echo of the calls and the ignorance that have been around for decades.

In 1990, Paul Temm responded to a similar climate of fear and ignorance in a short book he wrote about the Waitangi Tribunal. Paul was a Queen’s Counsel and a member of the Tribunal, sitting alongside Ed Taihakurei Durie and Graham Latimer in the 1980s. He went on to lead Ngāi Tahu’s successful Treaty claim. 

In his book The Waitangi Tribunal: the conscience of the nation, he sets out a plain history of what the Treaty intended to achieve, how it was broken, and what might’ve happened if colonisers had kept their word.

The excerpt below is Chapter 2: The Treaty.

 

The Treaty of Waitangi has mana. It is an agreement made by the forebears of today’s generation of Māori New Zealanders, who venerate it as the act and deed of their tūpuna.

Respect and reverence of ancestors is close to the heart of Māori culture. But it is not only the memory of the ancestors that is sacred; their deeds, their wisdom and their promises are likewise revered. For this reason, the Treaty is not just another contract as Europeans might look upon it. It is a solemn ancestral promise to be observed, and thus it has mana.

The tensions in race relations in New Zealand have their origins partly in the differing value systems of the two cultures — Māori and European. But they arise also from the way the Treaty has been regarded since the Land Wars. Europeans have treated it as a historical curiosity; Māori have respected it and called for it to be observed punctiliously. For a long time, those calls have not been heard. Now they are becoming too strident to be ignored.

Any understanding of the need for the Waitangi Tribunal can only come with an understanding of three important background factors: what happened after the Treaty was signed, what should have happened, and what will happen now.

What happened after the Treaty was signed?

The Treaty was a solemn contract. The Crown of England and the Māori people of New Zealand promised each other to grant sovereignty over the country (in the case of the Māori) and to protect the rights of the New Zealanders and to make them British citizens (in the case of the Crown).

The Treaty is short and simply expressed. There are three articles: the first gives the Crown sovereignty over New Zealand; the third gives Māori New Zealanders the full rights of British citizenship. The second article is the most far-reaching. It assures Māori New Zealanders that the Crown will protect all their cultural and property rights — and this is no mere protection; it is an explicit guarantee of those rights.

Her Majesty the Queen of England . . . guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands, Estates, Forests, Fisheries and other properties which they may collectively and individually possess so long as it is their wish and desire to retain the same in their possession . . .

The British Government did not take the Treaty lightly. It insisted that its representatives, the governors under the naval governors Hobson and Fitzroy, should observe the terms and conditions to the letter, and for a time, this was done. One of Hobson’s first acts was to create the Office of Protector of the Aborigines — a paid public official whose duty it was to be present at all land sales to ensure that a fair price was paid and that the transaction was lawful and reasonable.

One of Captain George Grey’s first acts as governor of the colony was to abolish this office and to replace it with another called the Commissioner for the Extinguishment of Native Title. The change in emphasis is obvious.

Grey asked the Colonial Secretary how far he had to abide by the Treaty. The reply was utterly uncompromising. Lord Stanley wrote:

I repudiate with the utmost possible earnestness, the doctrine maintained by some, that the treaties which we have entered into with (the Maori people) are to be considered as a mere blind to amuse and deceive ignorant savages. In the name of the Queen I utterly deny that any treaty entered into and ratified by Her Majesty’s command, was or could have been made in a spirit thus disingenuous, or for a purpose thus unworthy. You will honourably and scrupulously fulfil the conditions of the Treaty of Waitangi . . .

Any doubt about the validity and force of the Treaty was settled (so it seemed) in 1847 by the case of The Queen v Symonds, when the Chief Justice, Sir William Martin, and Mr Justice Chapman together declared in ringing tones that the Treaty was valid and binding. Their judgments on the legal relationship created by treaties between the Crown and native people are still much quoted in North America today. But, as we shall see, in New Zealand the aftermath of the Land Wars changed all that.

By 1849, Grey had been in office for a little over three years. He lacked adequate military support, and the troubles in the North were far from over. He feared that another uprising could lead to a massacre of the Auckland settlers if the Ngāpuhi came down to repeat what they had done in the early 1820s. To protect the settlers, he turned to a famous Waikato warrior, Te Wherowhero, and persuaded him to provide a garrison. Auckland was an important market for the Waikato and Bay of Plenty tribes, and Te Wherowhero agreed. He stationed 80 of his best warriors and their families on land given to him by Grey at the southern end of what is now the Māngere motorway bridge, and he warned Hone Heke that the infant settlement was under his protection. For the next 10 years or so until his death, Auckland remained safe from attack.

In 1852, the British Parliament passed the New Zealand Constitution Act by which settlers were granted representative government. Section 71 of that statute provided for districts to be defined where Māori law and custom would prevail, but the power was never exercised. This section remained in force until 1986, when it was repealed.

The English attitude to the Treaty did not change. In 1859, the Colonial Secretary refused to sanction a bill proposed by the New Zealand Legislature to repeal the Crown’s right of pre-emption in the Treaty. The official view was bluntly expressed: namely, that the Treaty was a contract to be solemnly maintained, and the New Zealand colonists were not to change it to suit their fancy.

In 1861, Grey was brought back from South Africa, where he had been sent in 1853, and reappointed as governor. He found that Te Wherowhero, the guardian of Auckland, had become Pōtatau, the first Māori King, in 1858, and that on his death, just before Grey’s return, he had been succeeded by his son Tāwhiao. The Waikato people had prospered under Pōtatau and were rich and well-to-do from their trade with the settlers of Auckland.

Lady Martin, the wife of the Chief Justice, travelled through the Waikato in 1858 and wrote later of her journey:

Our path lay across a wide plain, and our eyes were gladdened on all sides by sights of peaceful industry. For miles we saw one great wheat field. The blade was just showing, of a vivid green, and all along the way, on either side, were peach trees in full blossom. Carts were driven to and from the mill by their native owners, the women sat under trees sewing flour bags and babies swarmed around . . . We little dreamed that in ten years the peaceful industry of the whole district would cease and the land become a desert through our unhappy war.

At about the same time, the Austrian geologist Ferdinand von Hochstetter passed through the same district:

At 5 p.m. we reached Rangiowahia, situated in the fertile plain of the Waikato and Waipa. Extensive wheat, maize, and potatoe-plantings surround the place, broad carriage-roads run in different directions, numerous horses and herds of well-fed cattle bear testimony to the wealthy condition of the natives; and the huts scattered over a large area are entirely concealed among fruit trees. A separate race-course is laid out, here is a court-house, there a store, further on a mill on a mill-pond, and high above the luxuriant fruit-trees rise the tapering spires of the Catholic and Protestant churches . . . Such is Rangiowahia — the only Maori settlement, among those I have seen which might be called a town — a place, which by its central position in the most fertile district of the North Island, and as the central point of the corn trade, bids fair to rise ere long to the rank and size of a staple-town.

Rangiaowhia was put to the torch by British troops in the Land Wars and burned to the ground. It used to lie in a valley between Cambridge and Kihikihi.

The first Attorney-General, William Swainson, offered some interesting figures about Māori commerce in 1857:

They had upwards of 3,000 acres of land in wheat, 3,000 acres in potatoes, nearly 2,000 acres in maize and upwards of 1,000 acres planted in kumaras. They owned nearly 100 horses, 200 head of cattle and 5,000 pigs, four water mills and 96 ploughs. They were also the owners of 43 small coastal vessels, averaging 20 tons each, and upwards of 900 canoes.

A little earlier, speaking of trade with the Auckland settlement, he said:

From a distance of nearly a hundred miles, the natives supply the markets of Auckland with the produce of their industry; brought partly by land carriage, partly by small coasting craft, and partly by canoes. In the course of the year 1852, one thousand seven hundred and ninety-two canoes entered the harbour of Auckland, bringing to market by this means alone two hundred tons of potatoes, fourteen hundred baskets of onions, seventeen hundred baskets of maize, twelve hundred baskets of peaches, twelve hundred tons of firewood, forty-five tons of fish, and thirteen hundred pigs, besides flax, poultry, vegetables. They are the owners also of numerous small coasting craft . . .

In New Zealand and its Inhabitants (1855), Richard Taylor wrote in similar vein:

The trade of Auckland is perfectly surprising; the number of small coasters, most of which belong to the natives, and are laden with their produce, cannot fail striking the stranger who visits the port with astonishment.

Speaking of Wanganui Māori, he said:

Already is their trade of such value as to have chiefly contributed to the prosperity of the town; besides several small vessels, which constantly trade with neighbouring provinces, it has two large ones which sail direct to Sydney, and other Australian ports.

In its finding on the Manukau Harbour, the Waitangi Tribunal used this and similar information to report:

The Europeans also brought schools and trade. Much land was gifted by the Waikato people for the endowment of missionary schools. Large areas of Waikato were cultivated for wheat, potatoes, maize and kumara. With missionary help the Waikato Maoris built and operated several flour mills. It is recorded that in 1858 in the Port of Auckland 53 small vessels were registered as being in native ownership and the annual total of native canoes entering the harbour was more than 1,700. At about that time the Waikato Maoris established their own trading bank. This was the golden age of Maori agriculture and  growth. Peace and prosperity seemed assured. In fact it was short lived . . .

It was short lived because, in 1863, Grey ordered the invasion of the Waikato and so started the Land Wars that lasted until 1872. The Waikato Māori were insisting on their rights under the Treaty and would not sell the fertile plains on which they were prospering. The colonial settler government was in no mood to be thwarted by “uppity natives”, and the bloodshed began. A part-time Māori militia was no match for a full-time professional army, and although the British suffered grievous losses of a kind that were totally unexpected, the result was probably inevitable.

The Suppression of Rebellion Act and the Land Settlement Act of 1863 were quickly passed and led to huge confiscations of land in the Waikato, the Bay of Plenty and elsewhere, inflicted as punishment “for a rebellion that never took place”. It is clear beyond doubt that the Māori tribes fought in defence of hearth and home, and that the Land Wars were a deliberate violation of Article Il of the Treaty.

This was the beginning of the long debilitation of Māoridom because, deprived of their capital — the land — on which they had already built such prosperity, they were reduced to poverty, living in shacks and eking out a living as best they could. Sickness and disease were rampant. With no financial resources in the new cash economy in which they had to live, they became wage labourers and, for many, the poorest of the poor.

Their mistake was in believing that the colonial government would keep its part of the bargain that was the Treaty of Waitangi. The colonists had gained the benefit of the Treaty by being allowed to emigrate to this country under the British flag, but they were not willing to accept the burden of the bargain from which they had gained so much.

For our Māori fellow citizens, things went from bad to worse. In 1877 Prendergast, Chief Justice, solemnly ruled in the case of Wi Parata v The Bishop of Wellington that the Treaty was “a simple nullity”. He based his judgment on international law, which had no application to the matter, instead of following two centuries and more of colonial law which governed the legal relationship between the Crown and its native subjects.

A policy of passive resistance was adopted by Māori tribes in many parts of the country. They followed the principles that Mahatma Gandhi made famous half a century later. When their lands were taken against their will, they refused to budge and were then arrested for disorderly behaviour or for committing a breach of the peace. So many were detained that the Maori Prisoners Act was passed in 1880 authorising the Governor to keep them in custody. The chilling recitals to this Act should be made known to every adult New Zealander. One reads: “And whereas as it not deemed necessary to try the said natives for the purpose of inflicting punishment”! In other words, “Just lock them up.”

Hundreds were imprisoned without any investigation or trial. A prison in those days enforced discipline with chains, the truncheon and the lash. Māori prisoners came to know all three.

The people of Parihaka were arrested on what is known in Māoridom as Parihaka Day, 5 November 1881, and a large party was sent to be held in a cave on the shores of Anderson’s Bay at Port Chalmers. The entrance to the cave was covered by an iron grille, and although the local Māori people at Otakou gave such assistance as they could, many died of exposure.  They were all British subjects and our fellow citizens — men, women and children alike.

In Māoridom, Parihaka Day is as well known as Anzac Day is to Pākehā New Zealanders.

It might be thought that with the rise of the Liberal Party in 1891, more liberal measures would have been applied. But that was not to be. There was still much land held by Māori owners, so the Native Land Acquisition and Settlement Act was passed in 1893. By this statute, the Governor was given power to take any native land for settlement, whether the owners wanted to sell it or not. Compensation was to be paid, but as Simpson records in A Vision Betrayed, the average rate of payment was five shillings per acre (the same rate paid by the New Zealand Company for land in Wellington 50 years before) when the “going rate”, as he says, was 30 pounds per acre — in modern terms, compensation at 50 cents per acre when the land was sold for 60 dollars per acre. Simpson also records how well some politicians did at this time. One minister acquired 227,000 acres. By 1900, more than three million acres of native land were confiscated under this Act.

In 1901, the Privy Council was asked to reconsider Prendergast’s ruling in Wi Parata v Bishop of Wellington. In the case of Nireaha Tamaki v Baker, the Judicial Committee overruled the finding that the Treaty was “a simple nullity” but it did the Māori cause no good. The settlers promptly passed the Land Titles Protection Act 1902, which nullified the Privy Council finding, and Māori aspirations were quashed yet again.

Six years later, in 1908, the first Public Works Act was passed. This authorised the taking of land for public works — roads, railways, etc — and gave to the owners of land rights of objection and of compensation if the objection was unsuccessful. That, however, applied only to Europeans. No notice was required for taking Māori land. That requirement did not come into force until 1974.

By contrast, the Native Land Act 1909 was very explicit.

Part XX of that Act authorised the Governor-General to take Māori land for roads or railways, and expressly provided that in doing so, “no compensation shall be paid”.

It is difficult to understand how this legislation was ever justified. The four Māori Members all protested at the provision, but as had so often been the case with other protests they had made, their four votes were useless in a Parliament determined to pass the bill.

These statutes are no more than a selection of legislation that was passed in violation of the Treaty. It can simply be said that although the Treaty was honoured while the Colonial Office supervised New Zealand affairs, it was set to one side from the time of the Land Wars and after the settlers held the reins of government.

For those who may think that matters of Māori complaint are confined to the last century or the first few years of this one, may I point out that events have occurred in our lifetime which have been or will become subject to scrutiny. When Māori soldiers from the Raglan district came home from the war, they found that their marae had been taken for defence purposes. But instead of being an aerodrome as was planned, the land was given to the Raglan Golf Club.

Another event that is much more recent is the matter of Bastion Point. Anyone who has seen pictures of the convoy of army vehicles transporting hundreds of police to remove Māori protesters from that prominence overlooking Auckland Harbour might now have misgivings in the light of the Waitangi Tribunal finding recently published. And that sad series of events took place only 10 years ago.

The bitterness that exists today has been engendered by a melancholy catalogue of conduct that any fair-minded person could only describe as dishonourable.

What should have happened?

It is always easier to see clearly in retrospect; it is much harder to look forward into the future.  The first thing to remember about the past is that it was widely believed at the turn of the century that the Māori race was dying out. The future of New Zealand was seen then by many reasonable people as being one in which there would be assimilation of the Māori by the Pakeha. We would, it was thought, all become one people.

As we approach the next century, assimilation seems to be the ultimate result, but not the way our grandparents foresaw it. It is likely that instead of the Pākehā assimilating the Māori, it will turn out to be the Māori assimilating the Pākehā.

At the census of 1896, the Māori population of New Zealand had fallen to about 49,000, less than half what it was when the Treaty was signed. By 1981, Māori numbers had increased nearly eight times to an estimated 385,000. In the 1986 census, the Māori population has been estimated by the Government statistician at over 400,000.

If the Treaty had been honoured, there would have been no Land Wars, with their resulting casualties, in the Waikato and Bay of Plenty. Perhaps more importantly, the Māori economic development would have continued, and the prosperity that was clearly evident in the 1840s and 1850s would have advanced as the rest of the economy moved forward.

With a strong economic capital base — in the land, and the profitable earnings from supplying the needs of the settlers — the Māori population would have moved through the nineteenth century and into the twentieth in a prosperous condition.

Money would not have prevented the onset of diseases introduced to this country by European migrants; the ravages brought about by those maladies would still have taken place, but the breadth of the effect might have been much less devastating. People who had money could afford to buy medical attention in Victorian times; those who lacked money could not. The poverty of Māori people by the 1880s was clearly evident all over New Zealand, and most of them could not afford the medical advice and attention they needed.

If the Treaty had been observed, and if Māori prosperity had continued, Māori farmers and Māori orchardists would have made up a much bigger proportion of our agricultural community, and Māori fishermen and Māori seamen would have become more numerous in the second half of the nineteenth century. With their own financial resources to draw upon, their coastal and trans-Tasman shipping fleet would have grown, and their share of the economic sinews of the country would have increased as that growth took place.

On the political scene, a very different picture would have come into focus. The franchise in New Zealand was based, at first, on property as it was in England. Adult suffrage (and later universal suffrage) did not become accepted until the later part of the century. With this property-owning requirement, the first parliament could and should have included those British subjects who owned land in New Zealand, which would have meant a significant Māori representation. If this had been the case, when adult suffrage and later universal suffrage were introduced, Māori New Zealanders would have had a much greater influence on political life than the token establishment of four Māori seats. The general attitude to Māori voting rights in the mid-nineteenth century was put clearly by one member of the House, who said: “The natives have no right to vote; they only have the right to be well governed.”

There is not much to be gained by a detailed speculation of what might have been, except that it can provide a glimpse of a very different society from what we know today.

But this much can be said: If the Treaty had been observed and its promises fulfilled, Māori New Zealanders would now be found throughout all levels of society in significant numbers.

Their economic welfare would probably have kept pace with the rest of the population, and instead of being mostly wage labourers or unemployed as they are today, they would have acquired the management and technical skills that so many of them lack in our modern world.

The discontent of many young Māori New Zealanders is everywhere apparent. Whatever be the true cause of the place in life that they now occupy, they say that the origin of their misfortunes is in having no economic base and, in many cases, no educational base either. They say too that, knowing what happened in this country and knowing what should have happened in this country, they will not allow what has happened to go on happening any longer.

What will happen now?

I do not share the forebodings of doom and gloom that some Cassandras see fit to spread. I acknowledge that we have lessons to learn from Northern Ireland and Cyprus, from the Gaza Strip and the West Bank, from Sri Lanka and the Punjab; perhaps more pointedly from New Caledonia, Fiji and, maybe in time to come, Tahiti. In each of these places the consequences for a community of ignoring or repressing a minority that laboured under a sense of injustice are plain for all to see. But while it is foolish to say, “That cannot happen here”, it is not foolish to say, “That need not happen here.”

Two vital attributes of our society are the extraordinary patience of Māori New Zealanders and the tremendous sense of fairness of Pākehā New Zealanders. Māori have shown patience down the years to a remarkable degree and have, generation after generation, relied upon lawful means of protest about matters that needed redress. The number of petitions to Parliament and applications of one kind or another to the courts run well into four figures. Consistently and persistently, our fellow citizens have refused to resort to violence and have always followed the law. For most of our history, they have had little success. The establishment of the Waitangi Tribunal and the breadth of its jurisdiction have provided almost for the first time a forum for Māori to make their claims. They have lodged many applications before that body, and there are many more yet to be filed. Māori patience is not yet exhausted, although one must add to that the caveat that exasperation can work its own poison.

On the other hand, I argue that there has long been a broad stream of fairness running throughout our society, and that the desire for fairness has given rise to a national characteristic illustrated by the saying, “Give the man a fair go!” It is reasonable to say that when New Zealanders know what the facts are, they always try to do what is fair.

These two factors — Māori patience and Pākehā fairness — can save our grandchildren from much trouble, even perhaps from disaster.

The Waitangi Tribunal can safely be left to deal with the past. If it is given the financial and human resources it needs, it will gradually deal with those genuine grievances that need redress. But that relates to the past. What of the future?

In 1987, the Court of Appeal was required to consider the Treaty. The case arose out of the passing of the State Owned Enterprises Act 1986. Five judges convened for the purpose — a special Full Court — and each delivered a separate judgment. The Act expressly provided that the Crown was not to act “in a manner that is inconsistent with the principles of the Treaty of Waitangi.”

Speaking of this, Mr Justice Cooke said:

What is now our responsibility is to say clearly that the Act of Parliament restricts the Crown to acting under it in accordance with the principles of the Treaty. It becomes the duty of the Court to check, when called on to do so in any case that arises, whether that restriction has been observed and, if not, to grant a remedy. Any other answer to the question of interpretation would go close to treating the declaration made by Parliament about the Treaty as a dead letter. That would be unhappily and unacceptably reminiscent of an attitude, now past, that the Treaty itself is of no true value to the Māori people . . .

Later Mr Justice Richardson touched on the same matter of the true nature of the Treaty. After speaking of the need for rational dialogue, careful research and generosity of spirit, he said:

It is not necessary for the purpose of this case to attempt to write a general treatise on the subject . . . There is however one overarching principle — to which I shall return — which in its application here is sufficient to answer the present case. It is that considered in the context of the SOE Act, the Treaty of Waitangi must be viewed as a solemn compact between two identified parties, the Crown and the Māori, through which the colonisation of New Zealand was to become possible. For its part the Crown sought legitimacy from the indigenous people for its acquisition of sovereignty and in return it gave certain guarantees. That basis for the compact requires each party to act reasonably and in good faith towards the other . . .

Each of the other three judges spoke in similar terms of “partnership” and the duty of the partners to act fairly and reasonably towards each other.

The question now confronting us is how to spell out this concept of partnership between Māori and Pākehā so as to give proper recognition to Māori New Zealanders and their rights under the Treaty.

Some say that a referendum should be held to decide whether the Treaty is to be ratified or abolished. As to ratification, it has already been ratified, when the Queen proclaimed sovereignty over New Zealand on the authority of the Treaty, as Lord Stanley made so plain in his instructions to Governor Grey.

As to abolishing the Treaty, I observe firstly that to rescind a contract one usually needs the agreement of both parties to that contract. The parties to the Treaty are the Crown on the one hand and the Māori people on the other. There is no possibility whatever that Māoridom would agree to its abolition.

Secondly, if a referendum is intended to be the vehicle to abolish the Treaty by weight of numbers — in a sense the domination of the minority by the majority — then, as a solution to the discomfort some people feel about Māori aspirations, it would, I predict, be no solution at all. Rather, it would be like clamping the lid on a boiling kettle, leaving the pressure to continue building up until the inevitable explosion occurs.

I have mentioned already the great increase in the Māori population throughout this century. Demographers suggest that that increase will continue partly because more than half the Māori population today is under 30 years of age, partly because the Māori birth rate is much higher than that of the non-Māori population, and, of course, when a Māori marries a non-Māori, the children of that union are all Māori because they are descended from a Māori.

I suggest that the reasonable way to spell out the concept of partnership is not to act out of fear and apprehension but in a way that is based on justice and on fairness, so that each partner acts reasonably and in good faith towards the other.

As the Court of Appeal has said, this calls for “careful research, rational positive dialogue, and above all, for generosity of spirit”.

All the facts of the matter show a need for the honour of the Pākehā to be restored. But if you would restore the honour of the Pākehā, you must first restore the mana of the Māori.

 

This excerpt from The Waitangi Tribunal: the conscience of the nation is published here with permission from Paul Temm’s whānau.

Paul Temm QC was appointed to the Waitangi Tribunal in 1982. He was involved in landmark hearings including the Manukau Harbour claim and the Kaituna Pipeline case. He led Ngāi Tahu’s successful Treaty claim.

He practised as a barrister in Auckland for 30 years, taking six cases to the Privy Council in London, and was a High Court Justice from 1991 until his death in 1997, aged 66.