DON BRASH: WAS SOVEREIGNTY CEDED IN 1840?

I watched Tuesday night’s debate between David Seymour, Leader of the ACT Party, and Helmut Modlik, an iwi leader, with dismay.

On the one hand, David Seymour argued with compelling logic the need to resolve once and for all whether New Zealanders enjoy equal political rights or whether, as Helmut Modlik argued, those with some Maori ancestry (always now with other ancestry as well, German in Mr Modlik’s case) have different political rights to those enjoyed by other New Zealanders by virtue of the Treaty of Waitangi.

It was depressing enough to see Mr Modlik argue the case that Maori New Zealanders have different political rights by virtue of the Treaty but it was even more depressing to read a poll conducted by the Curia polling company the following day.  That poll, of 1000 people, revealed that only 35% of New Zealanders believe that Maori chiefs ceded sovereignty in 1840, 27% argued that they had not ceded sovereignty, with the balance being undecided.  It is obvious why there needs to be a lengthy period to submit on the Treaty Principles Bill.

The argument which Mr Modlik advanced for why Maori chiefs had not ceded sovereignty in 1840 seemed to be based on the notion that it would have been ridiculous to expect some hundreds of chiefs, representing perhaps 100,000 people, to have surrendered ultimate authority to a couple of British officers and a handful of missionaries.  No, they had agreed to allow the British to have authority over the British settlers but Maori were to be free to continue as before.  At most, there was to be shared authority, a partnership between the chiefs on the one hand and British authorities on the other.  And indeed, that argument, taken in isolation, sounds plausible.

But the argument runs up against some very awkward facts.

For a start, the wording of the Treaty.  Article 1 in the official English-language version of the Treaty makes it unambiguously clear that in signing the Treaty the chiefs were accepting the sovereignty of the British Crown.  Ah yes, it is argued, but the Maori language version of the Treaty is the one that must take precedence because it was that version of the Treaty that the great majority of Maori chiefs signed.  Quite so, but we have known since its discovery in 1989 what the English text given to Henry Williams to translate into te reo Maori required, and while that text differs somewhat from the official English text (for example it makes no mention of fisheries or forests) it is absolutely consistent with the official text in making it unambiguously clear that Maori chiefs were being asked to surrender ultimate authority to the British Crown.

And we know, from the many speeches made by the chiefs on 5 February 1840 and recorded by Colenso at the time, that they understood they were being asked to surrender to a higher authority.  Many objected strongly, pointing out that signing implied that the British authorities would be entitled to hang them. 

And speeches made by chiefs at the very large meeting of chiefs at Kohimarama in 1860 again made it clear that they knew that Queen Victoria was sovereign and had authority above them.

When one of the greatest of the Ngapuhi chiefs who signed the Treaty in 1840 died in 1871, his gravestone carried the words “In memory of Tamati Waka Nene, Chief of Ngapuhi, the first to welcome the Queen’s sovereignty in New Zealand”.

Is it plausible that the chiefs who heavily outnumbered the British in 1840 would have been willing to surrender to some distant authority?  Yes, when it is recalled that the previous four decades had seen almost unbelievable inter-tribal warfare, with tens of thousands of men, women and children slaughtered – more dead, it is believed, than all the New Zealand deaths in all the wars since 1840, including the First and Second World Wars.  The chiefs would have seen British authority as a way of ending that inter-tribal slaughter (and perhaps protecting them from French forces which some tribes believed, with some justification, were out for revenge of an earlier massacre of the crew of a French vessel). 

Many of those who signed would also have been aware of how advanced Britain was at that time, and how powerful its naval vessels.

Plausible or not, the great Maori leaders of the past, like Sir Apirana Ngata, clearly accepted that in signing the Treaty the chiefs had effectively handed authority to the British Crown.

And it is surely significant that the most recent authoritative translation of the Maori language version of the Treaty, that by Sir Hugh Kawharu in 1989, translates the first article of the Treaty as “the chiefs of the Confederation and all the Chiefs who have not joined the Confederation give absolutely to the Queen of England forever the complete government over their land.”

In one sense, debating what the Treaty provided in 1840 is an interesting academic exercise.  The reality is that for some 180 years all of us have behaved as if the Crown is sovereign.  We’ve paid taxes, been employed by the state, received benefits from the state, carried passports issued by the state, obeyed laws made by the state.  In other words, we have accepted that the Government has the right to govern all of us, Maori and all other New Zealanders.

Chris Hipkins, Leader of the Labour Party, claims to believe that Maori chiefs did not cede sovereignty in 1840, but he totally accepts that the Crown is sovereign now, over all New Zealanders.  Frankly, there is no other peaceful way forward.

Don Brash

9 October 2024