In Te Tiriti and Democracy Part 1, published in September 2021, Dame Anne Salmond argued a rewriting of history by our top judges in 1987 contributed to lasting issues over the Treaty of Waitangi and governance. Here, she outlines how NZ’s first chief justice foresaw the issues encountered today.

In reflecting on contemporary debates around the meaning of Te Tiriti o Waitangi, its salutary to explore how the treaty was legally understood shortly after its signing in 1840.

In 1841 William Martin, a lawyer and Cambridge graduate, was appointed New Zealand’s first Chief Justice. A gifted lawyer and linguist who became fluent in te reo, in 1845 he published a pamphlet Ko nga Tikanga a te Pakeha (The Customs of the Pakeha) which aimed to explain Pākehā ideas of justice in relation to land, property and personal rights, and the roles of judges and juries in dealing with these matters.

Two years later Martin wrote England and the New Zealanders, a closely argued, vehement protest against Earl Grey’s instruction that Governor George Grey should take over ‘waste lands’ in New Zealand. He demonstrated that this violated the promises in Te Tiriti, and colonial law, and in the end, the ‘waste lands’ were not taken.

In condemning Earl Grey’s despatch, Martin quoted Governor Grey’s 1846 letter to various rangatira, which summed up Te Tiriti as follows: ”Maories and Europeans shall be equally protected, and live alike under equal laws. The Maories shall be protected in all their properties and possessions, and no body shall be allowed to take anything from them, or to injure them. The Europeans shall be protected in all their properties and possessions, and no body shall be allowed to take anything from them, or to injure them.”

Martin’s most striking reflections on Te Tiriti, however, were published in an 1861 pamphlet The Taranaki Question, a devastating critique of Governor Gore-Brown’s invasion of the Waitara block that led to the outbreak of the New Zealand Wars.

For Martin, the main purpose of Te Tiriti was the introduction of a settled system of law in New Zealand. He argued that Ture (Article) 1 of Te Tiriti, an absolute gift in perpetuity by the rangatira to the Queen of all the kāwanatanga of their lands, was based on this promise:

“This unknown thing, [kāwanatanga] the ‘Governorship,’ was in some degree defined by its object. The object was expressed [in the Preamble to the Treaty] to be ‘to avert the evil consequences which must result from the absence of law.””

As spelled out in the Preamble, the scope of kāwanatanga was to be national – ‘over all parts of this country, and the islands.’ For Martin, it was vital that the exercise of kāwanatanga was based on justice and fair dealing, so that over time Māori, persuaded by the benefits arising from the peaceful settlement of disputes, would be content to handle these matters by legal means.

Instead, he noted, in the case of the Waitara ‘purchase’, the Governor took possession of the land ‘without proper inquiry and without lawful authority.’ Because this act was illegal, those who resisted the forcible seizure of their lands could not be considered ‘rebels’ under British law. From a (former) Chief Justice to the Governor, this was a startling rebuke.

In regard to Ture 2 in Te Tiriti, the Queen’s commitment to the rangatira, the hapu and all the tāngata (persons) of New Zealand to uphold the ‘tino rangatiratanga’ of their lands, dwelling places and all of their treasures, Martin emphasised the democratic nature of the hapū, the kin groups that controlled particular territories.

‘The Clansmen are equally free, and equally descended from the great Ancestor, the first planter or the first conqueror of the district. They all claim an interest and a voice in [important] matters.’ Under Ture 2, they were promised tino rangatiratanga at both the hapū and the personal level.

Under this guarantee, land could not be sold without the consent of the rangatira, the hapū and their members. As Martin insisted, the Governor had violated this principle at Waitara, rendering the ‘purchase’ invalid.

As for Ture 3, the Queen’s promise to care for all the indigenous (maori) inhabitants of New Zealand, and to give to them all the tikanga exactly equal to those of her subjects, the inhabitants of England, this was a promise to settlers and tāngata whenua alike. While it was national in scope, it was a guarantee of absolute equality at the personal level, with their tikanga.

Since the signing of the Treaty, however, Martin observed, new immigrants had been “led to believe that the only barrier between them and wealth is the Native population,’ and this ‘very unfriendly feeling’ had led to an abandonment of justice in the government’s dealings with land.

For Sir William Martin, the tragedy of Waitara was that by resorting to violence, the Governor had overturned all the progress that had been made in building trust in the law among Māori. Māori were wrongly defined as ‘rebels’, and their rights as British citizens were denied.

Martin saw this as a radical breach of trust: “We have covenanted with these people, and assured to them the full privileges of subjects of the Crown. To this undertaking, the faith of the nation is pledged. The compact is binding irrevocably. We cannot repudiate it so long as we enjoy the benefit which we gained by it.”

In his account of the promises exchanged between the rangatira and the Queen in The Taranaki Question, Sir William Martin stayed close to the original text of Te Tiriti. This is not surprising, since he was a fluent speaker of te reo, knew many of the signatories of the Treaty of Waitangi, and often quoted various rangatira in his writings.

At the same time, it is fascinating to contrast Martin’s understandings of the Treaty of Waitangi with those of Sir Robin Cooke (later Lord Cooke of Thorndon) and his fellow judges in the 1987 ‘Lands Case,’ 126 years later, addressed in Part One of this article.

As noted above, Sir Robin and his colleagues had to rely on translations of Te Tiriti, and had a limited knowledge of tikanga Māori at the time that the Treaty was signed. Perhaps because of this, Sir Robin and his colleagues effectively rewrote Te Tiriti as a bilateral partnership between races at the national level, between ‘Pakeha and Maori’ or ‘the Crown and the Maori race.’

This racialised reframing is very different from Martin’s reading of Te Tiriti, which emphasised the national scope of kāwanatanga (Ture 1); the tino rangatiratanga of hapū, their rangatira and all the tāngata (persons) of New Zealand at the hapū and personal levels (Ture 2); and the absolute equality of indigenous (māori) and British tāngata (persons) at the personal level, with their tikanga alike informing how decisions are made (Ture 3).

The closest contemporary approach to this understanding of Te Tiriti is perhaps Te Awa Tupua: the Whanganui River Act, in which the rights of the river itself are placed above those of people, both hapū and other citizens, who nevertheless work together to care for it at a local level, within a legal framing informed by tikanga.

This works well with an ‘indigenously inspired’ democracy, to quote Charles Royal. If this reading is accurate, it is the 1987 neo-liberal rewriting of the Treaty of Waitangi as a ‘partnership between races’ that lies at the heart of current difficulties in reconciling Te Tiriti with democratic principles, not the original text.

In writing about Te Tiriti, William Martin was astute in observing that a sense of justice and fair dealing is vital to collective consent to the rule of law. In New Zealand at present, that is under significant pressure from a number of directions.

From the 1980s onwards, the neo-liberal revolution led to radical disparities in the distribution of wealth and power in this country, fostering a sense of entitlement among elites and at times, the pursuit of profit at all costs, and a fury of resentment among those who are left behind, including many Māori.

This may be expressed in disrespect for the law; in divisive politics, eg. the ‘Iwi vs. Kiwi’ debates; or in hatred of other groups, eg. attitudes of white supremacy. To take a lesson from history, the ‘very unfriendly attitude’ towards Māori noted by William Martin generated a spiralling anger and resentment that led to the New Zealand Wars.

In our own time, existential crises including a global pandemic, climate change and collapsing ecosystems require strong collective responses, but these can exacerbate existing disparities, and may seem heavy-handed or unfair. Again, respect for the rule of law is at risk, as we have recently seen on the steps of Parliament.

Since the 1970s, the Treaty settlement process has enjoyed strong public support in New Zealand, based on the recognition of grave historical injustices towards Māori kin groups. By and large it stays close to the text of Te Tiriti, except when it tries to resolve historical harms at the level of the iwi rather than the hapū, a process that has often been contentious.

In very recent times, Sir Robin Cooke’s rewriting of Te Tiriti as a binary ‘partnership between races’ has been interpreted as requiring a split in kāwanatanga, or governance at the national level. The division of populations into ‘races,’ however, is a colonial artefact that cuts across whakapapa and is scientifically obsolete. It is not a sound basis for constitutional arrangements in the 21st Century.

In these complex, challenging times, leaders need an acute sense of justice and fair play, and how this is understood by different groups in our small, intimate society.

The exchange of promises in Te Tiriti require fair and equal ways of living in which indigenous tikanga are respected, and ordinary persons as well as rangatira and hapū have tino rangatiratanga. At present, as the inequities within and among different groups increase, we are heading in the opposite direction.

As William Martin observed in 1861, a sense of injustice is likely to lead to ‘a lack of confidence in our honesty and good intentions. They listen quietly to our words and approve them, but watch and scrutinise our acts. This is the one original difficulty, ever reappearing: capable of being lulled and quieted, capable of being overcome and removed entirely; but capable also of being aggravated to the ruin of all concerned.’

Note: This article revisits reports commissioned by the Waitangi Tribunal and drawing on collaborative research with Dr. Merimeri Penfold and Dr. Cleve Barlow in 1992, and 2010 a, b and c.

Dame Anne Salmond is a Distinguished Professor in anthropology at the University of Auckland, and 2013 New Zealander of the Year.

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