K R Bolton
With Waitangi Day looming we examine the much debated meaning of the word ‘sovereignty’, and how it was understood during the colonial era by many, perhaps most, Maori chiefs in regard to the relationship of Maori vis-à-vis the Crown.
One of the most contentious issues that has faced New Zealand, with an acceleration that gathers momentum each year over the past few decades, is the debate over the interpretation of the Treaty of Waitangi. This is now considered to be a ‘living document’, and the basis of New Zealand nationhood, to the extent of being considered New Zealand’s constitution. More recently, the Treaty of Waitangi has also been used to justify the implementation of the United Nations Declaration on the Rights of Indigenous People; and the document called He Puapua has been produced by the Government. The Treaty of Waitangi forms the basis of all New Zealand legislation, whether from national or local body governments. The Treaty has become the guiding principle for the news media, which has redefined itself as having a mission from one of imparting information to one of sustaining the Waitangi dogma. The Treaty is imposed on the way one is taught to be a nurse, a doctor, a teacher. The ‘new school histories curriculum’ is based around the Waitangi dogma that is required to pervade the education system, based on the denigration of the settler heritage and the elevation of Maori culture into something pure and perfect.
Even ‘Western science’, according to proposals from the Ministry of Education, will be taught in the context of having sustained colonialism and ‘white supremacy’; and ‘Maori knowledge’ will be taught as being on par with the Western empirical method. Indeed, when seven scientists from Auckland University recently objected in a letter to The Listener, they were overwhelmingly vilified by hundreds of fellow supposed ‘scholars’, all apparently eager to follow the party-line, and by the Royal Society,i whose own scholarly credibility might be discerned from its listing as New Zealand’s ‘first scientist’ a figure from Maori mythology.ii
Today it is no exaggeration to say that a fanciful, ongoing, ‘living’ reinterpretation of the Treaty is as total, dogmatic, and pervasive as Marxist ideology was in any Communist state. As in Communist states, furthermore, one is liable to prosecution for questioning the dogma. While New Zealand does not resort to concentration camps, firing squads and artificial famine to liquidate state enemies, it does have crippling fines and jail terms, and a compliant news media that smears the reputation of anyone who challenges the dogma. However, the toxic atmosphere is such that the state seldom needs to put the threats of smear, jail and pecuniary punishment into effect; the laws to sustain the dogma hang over the country like a Sword of Damocles. What happens to anyone who ventures to step out of line can be seen by the reaction to the seven scientists previously cited.
This ‘living document’ has been made into a growing tumour that is spreading throughout every public and private sector of society. Along with the myth of the Treaty as a ‘living document’, by which an apparently endless number of ‘principles’ can be concocted, have come the notions of it as the basis for ‘co-governance’; as enacting a ‘partnership’ between Maori and the Crown.
It is claimed that there is a discrepancy between the English and Maori translations of the Treaty, and in particular that the Maori and the Crown had different interpretations of what ‘sovereignty’ meant; that the Maori chiefs did not consider they were ceding their full chiefly authority to the Crown in return for the rights and protection of British law. Various linguistic and semantic ruses are used to make this narrative fit and to allege that Maori were duped into signing away their sovereignty and that the meaning of the Treaty had not been sufficiently, or even honestly, explained to them.
In 1860 Governor Thomas Gore Browne called a conference of Maori chiefs, to gather at Kohimarama, to forthrightly debate Maori issues, including the meaning of the Treaty of Waitangi, and the significance of the Kingite revolt. The proceedings were fully recorded in the bi-lingual newspaper The Maori Messenger, with Maori and English translations placed in parallel columns. The volume was sent to the Maori chiefs and otherwise widely distributed by the Government.
The importance of the Kohimarama conference is that it allows the context and the thought processes of the chiefs to come alive for us, rather than relying on present-day re-interpretations and assumptions. We are given insights into the perceptions of the chiefs as they were in 1860; when chiefs who had signed the Treaty were living; we are able to discern what the Treaty actually meant to them from their own words. Additionally, other factors that have shaped current interpretations of the Treaty and indeed of New Zealand history, such as the wars in Taranaki and the impact of the rebellion led by Wiremu Kingi, of the actual attitudes of the Maori towards British colonialism, and of the efforts of the colonial authorities to ensure that there were no misunderstandings between the Crown and the Maori, are all issues considered at the Kohimaramara conference.
Reaching directly back into history in this manner, without intermediary ‘activist’ academics, journalists, politicians and commentators reinterpreting events and thoughts, means that the principal players of that time are speaking to us directly with their honesty and candour.
Interpreting the Treaty by Presentist Methods
Presentism is the method used to presume to know what the Maori chiefs were thinking and what they understood and interpreted when they signed the Treaty of Waitangi in 1840. It is presumed that we can interpret what was being thought and understood in 1840 among Maori chiefs by projecting present-day Western liberal doctrines onto them, and stating that although they said one thing, they really meant another; that they would not or could not think that way, so that they must have thought in the way deemed acceptable to 20th and 21st academics, politicians and Treaty litigants.
One might surely ask whether the real ‘white supremacy’ (sic) emanates from those mostly liberals and leftists who insist that the Maori of the colonial era thought like themselves – as deracinated bourgeoisie; imbued with an ideology that is supposedly of universal application regardless of race, culture or homeland; of the type one hears from the rostrums of the United Nations, churches, lecture rooms, and parliaments.
Of such methods that have come to dominate the social sciences, the president of the American Historical Association issued a warning that actual scholarship cannot be maintained when being subordinated to presentist methods:
There is a certain irony in the presentism of our current historical understanding: it threatens to put us out of business as historians. If the undergraduates flock to 20th-century courses and even PhD students take degrees mostly in 20th-century topics, then history risks turning into a kind of general social studies subject. It becomes the short-term history of various kinds of identity politics defined by present concerns and might therefore be better approached via sociology, political science, or ethnic studies.
Presentism, at its worst, encourages a kind of moral complacency and self-congratulation. Interpreting the past in terms of present concerns usually leads us to find ourselves morally superior; the Greeks had slavery, even David Hume was a racist, and European women endorsed imperial ventures. Our forbears constantly fail to measure up to our present-day standards.
Presentism admits of no ready solution; it turns out to be very difficult to exit from modernity or our modern Western historical consciousness. But it is possible to remind ourselves of the virtues of maintaining a fruitful tension between present concerns and respect for the past. Both are essential ingredients in good history.iii
Presentism denies us the ability to understand history in context and from an objective, scholarly perspective. But despite the warning from Professor Hunt and many other scholars, the presentist juggernaut has steamrolled its way across academia, and remains the current paradigm by which we are expected to ‘morally judge’ history’ and thereby ‘morally judge’ our forefathers. This becomes what is tantamount to an ‘admission of guilt’, and to paraphrase a Biblical quote, the ‘sins of the fathers are visited upon us’, for which we (New Zealand Europeans), must atone, do penance, and pay – literally – tribute. Thus, ‘white privilege’, together with ‘colonialism’ and ‘neo-colonialism’, becomes the foundation for this self-mortification of the New Zealand European, and a rationalisation for the continuing poor social indices among Maori, despite assets now reaching $69 billion, and counting,iv and the vast Maori support network that exists from hapu upward.
Questions of Translation
What was once a tattered and forgotten document has become Holy Writ for our national development and our national identity. That it was for several generations forgotten and dormant has given rise to questions as to how it was translated and understood.
The Waitangi Tribunal, premised on an interpretation of the Treaty that does not accept that the chiefs ceded their sovereignty to the Crown in 1840, dogmatically states: ‘The Government did not do what it said it would do in the Treaty of Waitangi, which was to let Māori own and control their lands and their lives’. Thus, the Tribunal makes no pretence at being an objective judicial body, but one committed to a prejudged agenda.
The Waitangi Tribunal, which has the authority to interpret the Treaty as it sees fit, states that it was a contract to enter into partnership between the Crown and the chiefs to protect the Maoris from the miscreance of British Settlers, who were a lawless bunch upsetting the sensibilities of the happy, carefree ‘noble savages’, as they were imagined to be among the liberal intelligentsia and their matrons in the drawing rooms of the 17th, 18th and 19th centuries. The Waitangi Tribunal asserts that the problems arise through the differences of interpretation between the English version of the Treaty, and its Maori translation:
In the English version of the Treaty of Waitangi, Māori give sovereignty to the British Queen. Sovereignty means absolute and total control of everything. So, in the English version, Māori gave the British total control of the country.
The Māori word ‘rangatiratanga’ is similar to ‘sovereignty’.
The Māori version of the Treaty did not say that Māori would give ‘rangatiratanga’ to the British. And it must be remembered that Māori signed the Māori version, not the English version.
The Māori version of the Treaty says that Māori give ‘kawanatanga’ to the British. This word in English means ‘governance’. The Māori who agreed to sign did so because they wanted the British to govern, which means to make laws about behaviour. Many people today believe that most Māori would not have signed the Treaty if the Māori version had used ‘rangatiratanga’ for ‘sovereignty’.
The Treaty promises that Māori would keep their rangatiratanga over their lands and everything else. The Māori who signed did so because this meant iwi would keep control over their land and everything else important to them.v
The opinion of a genuine Maori scholar and statesman, Sir Apirana Ngata in 1922 was that Maori should be cautious in what they start demanding under a bogus interpretation of the Treaty lest this backfire, as the Maori had been given certain privileges:
Various laws made it possible to sidestep many of the levies which should have affected our lands in accordance with the words of the treaty ‘all the rights and privileges of British subjects’. Could it be the laws were wrong and were contravening the Treaty? To all those who are agitating under the Treaty for remedies for our grievances, I say be careful lest you awaken the legal experts of the Pakeha people, who will say ‘Let them have what they are asking for’. Let the purport of the Treaty be exercised to the very end: Put the same levies on the Maori as are levied on the Pakeha’.vi
Had the Treaty been exercised to the letter, there would have been nothing in the way of legislation that gives Maori more than ‘all the rights and privileges of British subjects’. The Maori proceeded with privileges beyond that of other British subjects. If benefits have not accrued to Maori in general, despite the billions in monetary gain that Maori corporate entities now possess, and their unique grassroots support network under the auspices of the Maori Council, then perhaps there is need for self-assessment rather than scapegoating?
While the contention is in regard to the allegedly misunderstood words rangatiratanga and kawanatanga, and how they supposedly conflict in regard to the nature of Crown authority, what was not misunderstood was the meaning of mana. This meaning of power was used in connection with the Crown’s authority over New Zealand. Hence, when Browne, the Governor who initiated the Kohimarama conference, issued his declaration in regard to the suppression of the Kingite revolt in Taranaki, he did so by authority of the Queen’s mana over New Zealand. This was published in Maori and English translations by the press:
Na Te Kawana Colonel Thomas Gore Browne, Tino Rangatira, aha, aha, na te Kawana o tenei Koroni o Niu Tireni tenei Panuitanga. Ko te mea, meake ka timata nga Hoia o le Kuini ta ratou mahi ki nga Maori i Taranaki, c tutu ana, c whawhai ana, ki to te Kuini mana — Na, ko ahau tenei ko te Kawana, te panui te whakapuaki nui nei i tenei kupu, Ko te Ture whawhai kia puta inaianei ki Taranaki, hei Ture tuturu tae noa ki te wa ka panuitia te whakarerenga. I tukua c taku ringa, i whakaputaia i raro iho i te Hiri Nui o te Koroni o Niu Tireni, i Akarana, i tenei ra i te ma tekau ma rima o Hanuere, i te tau o to tatou Ariki, kotahi mano ewaru rav e ono tekau. Thomas Gore Browne, Kawana. Na te Kawana i mea, E. W. Stafford, Kai tuhituhi o te Koroni. TOHUNGI E TE ATUA TE KUINI !
This Proclamation is from the Governor Colonel Thomas Gore Browne, His Excellency, etc., by the Governor of this Colony of New Zealand. In fact, the Queen’s Soldiers will soon begin to deal with the Maoris in Taranaki, who are rebelling and fighting against the Queen’s authority. Now, I am the Governor in this sense, The War Act should now be enacted in Taranaki, as a permanent law until the repeal is announced. Given by my hand, and issued under the Great Seal of the Colony of New Zealand, at Auckland, this fifteenth day of January, in the year of our Lord one thousand eight hundred and sixty. Thomas Gore Browne, Governor. Said the Governor, E. W. Stafford, Secretary of the Colony. GOD BLESS THE QUEEN!vii
Browne was exercising his authority as Governor; kawana, under the mana of the Queen. Are we to suppose that the mana of the Queen was understood to be the same as that of the Governor? Nowhere during the proceedings at Kohimarama do the chiefs seem to have referred to the Queen’s authority as that of the Governor’s – kawana, although both rangatiratanga and mana are referred to in that regard.
Two years previously, in 1858 addressing problems in Taranaki, Browne ended his proclamation:
Kua pai aTe Kawana me he mea luia wbai biahia pera nga maori inaianei, kia whakaputaim te mana o Te Kuini bei penei, bei mea boki e tan ai te pai kia ratou.
The Governor is well pleased that the Maoris should be treated as such now, that the Queen’s authority should be exercised in this way, in such a way as to secure their welfare.viii
Several months prior to the Kohimarama conference, a meeting was held between tribes, during which was discussed the need for Crown law to be maintained lest the benefits of European settlement depart. In discussing Crown authority and sovereignty ‘over New Zealand’, kawanatanga and rangatiratanga are not used for sovereignty and authority, but mana:
Na konei i meinga ai, be whakaaro kuware rawa tenei, kia whakahe kite mana oTe Kuini. Ko o ratou i rokohanga iho i te taenga mai o to te Te Kuini whakapumaulia ana e to Te Kuini mana, katahi ka pumau. Kite ala malauria e nga tangata Maori te tino tikanga o tenei kupu e kiia nei, ko te mana o Te Kuini kei runga o Nui Tirani, ka mea ratou, ko te rua tenei o nga atawhai nui a Te Atua …
For this reason, it is a very foolish idea to challenge the authority of the Queen. Those who were found with the arrival of the Queen were confirmed by the Queen’s authority, then became permanent. When the Maori people saw the true meaning of the word, the sovereignty of the Queen over New Zealand, they said that this was the second great bounty of God. …ix
During the Kohimarama conference Na Te Waka Te Ruki of Ngatiwhatua addressed a message to Governor Browne in which he expressed his loyalty to the Crown. He opens his message by referring to Browne as having assumed the governorship by ‘the authority of the Queen’, ‘te Kuini mana’.
Na Te Waka Te Ruki. Ki a Kawana raua ko Te Makarini, ko Te Mele. Na Ngatiwhatua . Orakei, Hurae 17,1860. E hoa, e te Kawana Paraone, — Kia rongo mai koe i la matou nei kupu, ita maiou nei likanga; he tikanga lawhito, be likanga pumau no Kawana Hopihona tuku iho ki a koe, i naianei, piri tonu ki a koe, ki to te Kuini mana.
By Te Waka Te Ruki. To the Governor and Mr. McLean, Mr. Mele. By Ngatiwhatua. Orakei, July 17,1860. Friend, Governor Browne, – Hear our words, our words; it is a long-standing and permanent custom of Governor Hobson passed down to you, and now, attached to you, to the authority of the Queen.x
The final resolutions adopted by the chiefs at the conference on 10 August, 1860 referred to ‘their declared recognition of the Queen’s sovereignty’: whakapuakina nuitia mo te mana o te Kuini.
And so it was throughout the proceedings of the conference, with the most common word used for the Crown’s authority being mana.
The authority of the Crown was (and is) neither that of the Governor, her representative, kawanatanga, nor the chiefs, rangitiratanga, but that which stands above all others – mana. It is the authority of the parent towards a child, a nourisher and protector, whose authority is not shared in ‘partnership’ or ‘co-governance’. That is the message that was clearly stated time and again by the chiefs at Kohimarama, and it is the way the Crown’s authority was described in published records and articles of the time. This is evident throughout the entirety of the proceedings at Kohimarama, and clearly affirms how Maoris understood the Treaty.
However, Rev. Henry Williams is regarded as villainous because he allegedly deliberately misrepresented the meaning of the Treaty in his translation into Maori, to give the chiefs the impression that they were not ceding their sovereignty to the Crown, but were – I suppose – getting something (Crown protection) for nothing, or perhaps for the sake of some notion of ‘partnership’ between the Queen and hundreds of chiefs.
Paul Moon and Sabine Fenton, for example, call this a ‘deliberate mistranslation’.xi It is contended that Rev. Williams in coining the word kawanatanga sought to give the impression that the Crown would have some vague type of limited ‘governorship, otherwise he would have referred to the ceding of mana. Moon and Fenton cite Williams as recording that,
On the 4th of February, about 4 o’clock p.m., Captain Hobson came to me with the Treaty of Waitangi in English, for me to translate into Maori, saying that he would meet me in the morning at the house of the British Resident, Mr. Busby; when it must be read to the chiefs assembled at 10 o’clock. In this translation, it was necessary to avoid all expressions of the English for which there was no expressive term in the Maori, preserving entire the spirit and tenor of the treaty….xii
Moon and Fenton discern dishonest intent in the last sentence of the Williams quote, stating:
The language in the final part of this extract is ambiguous, and can easily be misread. The common interpretation seems to be that Williams was ignorant of the Maori words that could have rendered a more accurate translation. However, such a reading does not pay close enough attention to what Williams actually wrote. He did not deny that the English text of the Treaty could be translated into Maori. Instead, he deliberately stated that ‘…it was necessary to avoid all expressions of the English’, for which he suggested there was ‘…no expressive term’ in Maori. It is these two segments that cast doubt on Williams’ sincerity and intention to translate the English text of the Treaty into a Maori text equivalent in meaning and function to the original, and suggest that there were other germane considerations. …xiii
To prove their contention Moon and Fenton refer to Williams having used the word mana in his translation of the 1835 Declaration of Independence, and state that had he aimed to accurately interpret the Treaty of Waitangi he would have again used the word mana to make plain to the chiefs that they were ceding their chiefly sovereignty (although even here they suggest limitations as to the implications):
In the Declaration, Williams used the word ‘mana’ to signify ‘sovereignty’. This term manifestly conjured up many of the elements of sovereignty for Maori, and there was never any subsequent expression of dissatisfaction arising from this part of the translation of the Declaration…xiv
Moon and Fenton contend that Williams had a ‘translation strategy’ which was to avoid ‘direct equivalents in the Maori language’, and that, ‘The salient feature in Williams’ mistranslation of the Treaty revolves around the central element in the agreement: the cession of Maori sovereignty to the Crown’.xv
The ‘missionary neologism’ kawanatanga, for ‘sovereignty’ was, they allege, deceptive in describing what was intended:
The more appropriate word would have been mana, as used in the 1835 Declaration of Independence. Mana defies easy translation, but can include power, prestige, authority and sovereignty. However, Williams bypassed this obvious choice, one with which he was familiar, and employed a far more ambiguous term. Even the handful of chiefs who might have been familiar with the Biblical concept of governor could never have equated ceding this unknown extent of authority to the Crown with a surrender of their mana.xvi
The allegation of deception is buttressed by the allusion to the Treaty stating, ‘The Queen of England agrees to protect the chiefs… of New Zealand in the unqualified exercise of their chieftainship over their lands, villages, and all their treasures’.xvii Moon and Fenton assert that, ‘Had the word mana been used instead of kawanatanga, no chief would have consented to the Treaty’. xviii
One of the primary purposes of the Kohimarama conference was to assure that the meaning of the Treaty was unambiguous among the chiefs. Browne and Native Secretary, Donald McLean, were at pains to continually ask the chiefs to carefully consider what was being discussed at the conference, (as Williams had also asked the chiefs when he was reading to them the Treaty of Waitangi twenty years previously).
McLean asked the chiefs at the Kohimarama conference whether they considered those who had signed the Treaty as being of lesser intelligence than themselves? There were chiefs at Kohimarama who had been signatories to the Treaty two decades earlier. Throughout the proceedings the word mana was used, and it was used in reference to the Crown’s sovereignty over New Zealand and over the chiefs. There was no misunderstanding as to what the Queen’s mana meant, nor what kawanatanga meant. Should we assume that these chiefs had reinterpreted the Treaty to mean something other than what had been understood by the chiefs in 1840? Furthermore, the translations in The Maori Messenger, which was sent to every attendee, were clear on the matter. For the chiefs the Kohimarama conference meant a ‘ratification’ of the Treaty, and the emphasis was always on the Queen and the Governor as their ‘parents’ and ‘protectors’. Of governance over their own lands and tribes, there was no question. However, the Crown’s mana stretched over the entirety of New Zealand as a nourishing ‘shadow’. This is how the chiefs expressed their understanding of the Crown’s sovereignty, and they were zealous in their loyalty, indeed, love, for it.
The Nature of Sovereignty
If there was misunderstanding as to the meaning of the Treaty and the position of the chiefs vis-à-vis the Crown, Browne wanted the issues discussed at the conference. While the Treaty and other grievances by Maori are based around the supposition that the Treaty ensured that absolute chiefly sovereignty would remain intact – with the phrase tino rangatiratanga coined for the purpose– it is clear that this was not what the British thought they were contracting with the chiefs. Paterson is of the view that tino rangatiratanga guaranteed chiefly sovereignty, stating that the Crown was redefining the terms of the Treaty. He writes:
Thus Governor Browne, whose opening address framed subsequent discussion that followed on the Treaty, while expounding the property rights Māori derived from the Treaty (based on the English-language version of the Treaty) also explained those benefits as the price they had to pay for the Treaty.
4. In return for these advantages the Chiefs who signed the Treaty of Waitangi ceded for themselves and their people to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of sovereignty which they collectively or individually possessed or might be supposed to exercise or possess.
McLean’s translation in Māori can be back-translated as:
4. So, the chiefs who signed their names to that document, the Covenant of Waitangi, were intending it as the price for those benefits they received. That was a resolution [ritenga] for themselves and their tribes, that they give up completely to the Queen of England all the rights [tikanga] and power [mana] of government from them all, and from each of them and all things like that considered to be theirs.xix
How much clearer was the Crown supposed to be? How much semantic jugglery is necessary until we get an interpretation in accord with present-day agendas at the expense of the New Zealand European and the denigration of the Settler heritage?
Browne pointed out that the Kingite rebellion was in breach of the Treaty, and that if Maori reneged on the Treaty then the rights and privileges granted to them as British subjects under the Treaty would be nullified. Browne stated that the consequences to Maori would likely be that they would ‘disappear’. That is precisely what was occurring prior to British annexation, and was the reason why Maori appealed to Britain to intervene and establish law and order. As Dr. John Robinson shows in Unrestrained Slaughter, pre-colonial Maori were well on their way to self-obliteration, with a concept of war and revenge that assured eternal bloodshed.
In Paterson’s view, what was transpiring in the Taranaki war was the fault of the Crown, which he claims had little concern for the Maori other than in purchasing land. Within the context of the times, this is simply not the case. While presentist interpretations of history allege that the era was dominated by ‘racism’ and ‘white supremacy’, buttressing colonialism and imperialism, rather, this was the epoch of the ‘Enlightenment’, where liberal notions permeated the ruling classes up to the Queen. While the attitudes towards ‘natives’, especially Polynesians, and the Maori more than any other, were often patronising and condescending, and remained so until recently, callous they were not, even in the midst of Maori uprisings and the spilling of Settler blood. The doctrine of the ‘noble savage’ that had taken hold of the intelligentsia and ruling classes romanticised the Maori and other indigenes. When representatives of native races appeared in the European cities, they were accorded celebrity status, as in the example of Omai, the Tahitian who was brought to England by James Cook in 1777. Poets, novelists, high society dilettantes, and portrait painters gushed over Omai, giving him ‘star’ treatment.
When in 1863 fourteen Maori women from five tribes landed in London with a party of Nelson settlers, they were feted by the British press, nobility, and ‘several members of the royal family’, while scant attention was given to the settlers. They ‘completed a hectic round of social engagements, including an audience with the Prince and Princess of Wales’. At an audience with Queen Victoria, Hare and Hariata Pomare were singled out for Royal attention, Hariata being pregnant. Victoria was delighted that the progeny of so distinguished a couple would be born in England. The boy was named Albert, and Victoria became his godmother.xx
By contrast Victoria regarded her Afrikaner subjects with contempt. The press was full of false accusations and malignancy against this maligned folk. Unlike the Maori who pleaded for British intervention, the Afrikaner did not ask for pax Britannica, but asked only to be left alone. Afrikaners were not engaged in fratricidal warfare to the point of self-annihilation, but in settling new lands, and forming a new folk.
While Stuff media claims that after extensive research they found that the press has treated the Maori badly for 160 years, and a craven apology was forthcoming, with a commitment to henceforth skewer reporting with a pro-Maori bias,xxi a perusal of the colonial press does not show widespread anti-Maori sentiment; indeed it was often pro-Maori at the expense of Settler interests. Moreover, in the motherland, the British press lambasted and lampooned their fellow Britons struggling to tame a land, to the extent that one notable settler, Charles Hursthouse, who had farmed here since the 1840s, felt obliged to write to the London Times to repudiate the anti-Settler slurs.xxii
While native peoples are no longer called ‘noble savages’, the notion that they lived in an idyll prior to the ravages of European colonisation and civilisation, remains and is perpetrated with fanaticism, as evidenced by the idealised and idolised notions of pre-colonial Maori society taught from kindergarten to university.
There was debate at Kohimarama of the contestation of ownership among those who were eager to sell land to the Crown. It seems that such interpretations of history are intent on absolving the ‘noble savage’ of any responsibility, including the widespread chaos of claims to land ownership, which had caused the Crown to establish itself as the sole intermediary for land purchase between Maori and Settlers. We see even today how much contention their remains among multiple Maori claimants to the same land. It was with remarkable forbearance that European purchasers paid multiple rival claimants for the same tracts of land. In other circumstances it would surely be regarded as a big con-game of wily Maori at the expense of gullible Europeans, yet the tables are invariably turned, the European is labelled the ‘cheat’, ‘the swindler’, and moreover the New Zealand European is still paying out for generations of repeated ‘full and final settlements’ in the name of the Treaty.
Consensus ad Idem
It is assumed that Governor Browne’s motivates were duplicitous and manipulative. Naturally, all manner of things concerning the Crown must be portrayed as such to maintain and enhance the narrative of the swindling British and the hapless Maori.
However, it is notable that Browne was insistent that the chiefs reiterated their understanding of the Treaty; of what it meant especially in terms of sovereignty. Claudia Orange, while portraying Browne’s motives as manipulative and coercive, nonetheless states that he was eager to access Maori understanding of the Treaty and have it clarified where there was confusion. She writes that other than the Ngaphui,
More generally amongst the Maoris, however, understanding of the treaty was very limited. By the end of the first week of the conference this must have been obvious to the government, since McLean presented the governor’s opening address to the assembly once more. This time he took care to emphasize the protective nature of the treaty and its relevance to all the tribes. […] Some two weeks later, when Waitangi was still being raised in debate, McLean again offered to explain any aspect of the treaty that was not understood. On this occasion he read the Maori text of the treaty to the assembly. […]xxiii
Orange seems to almost stumble upon the concept of consensus ad idem, without referring to the term, when she states:
Since McLean was attempting to confirm the Treaty of Waitangi as the foundation of sovereignty and government authority, he was naturally unwilling to concede a lack of understanding in 1840, such as Tuhaere was suggesting. He reminded the Maoris that they themselves had taken the initiative in applying to the ‘King of England’ for protection, the result being the treaty. He chided the chiefs for under-rating the ability of the signatories in 1840: ‘It is folly to accuse your chiefs of the past generation of ignorance. Do not imagine that you are intellectually superior to them, or that they were less competent than yourselves to form a judgment as to what would benefit their people. Had they not the same faculties as you? And were they not quite as capable of using them? You should not impugn the wisdom of those chiefs who signed this Treaty.’ On the other hand, McLean was quite in accord with Tuhaere’s other proposal, that the treaty could be endorsed by the Kohimarama conference. McLean referred to the conference as ‘a fuller ratification’.xxiv
The chiefs understood the implications, since the Crown explained to them that the Treaty risked being nullified if there was division as to its meaning. This was not a ‘threat’ by Browne; it was simply stating where the matter stood in terms of the laws under which the Crown assumed the sovereignty of New Zealand and the protection of the Maori as British subjects: ‘This idea’, states Orange,
was first voiced by Tamihana Te Rauparaha, however, and others repeated it: ‘Let this meeting be joined to the Treaty of Waitangi’. Thus the proposal was incorporated in a major resolution passed unanimously at the final session: ‘That this Conference takes cognizance of the fact that the several Chiefs, members thereof, are pledged to each other to do nothing inconsistent with their declared recognition of the Queen’s sovereignty, and of the union of the two races, also to discountenance all proceedings tending to a breach of the covenant here solemnly entered into by them’.xxv
The purpose of the conference had been achieved: there was consensus ad idem in regard to the meaning of the Treaty and the chiefs’ commitment to it. That the chiefs understood the meaning of having fully ceded sovereignty to the Crown is implicit in the reference to the ‘union of the two races’. Such a ‘union’ refers to the Maori as British subjects, enjoying the same rights and privileges as all other British subjects, under Crown protection as stipulated by the Treaty. No British subject receives the ‘protection of the Crown’ and enjoys the ‘rights and privileges’ of this on the basis of wheeler-dealer trade-offs about ‘power-sharing’, ‘co-governance’, and ‘partnership’. As Browne insisted, the Maori chiefs who had signed the Treaty in 1840 knew perfectly well what they were ceding, and the Kohimarama conference unanimously ‘ratified’ this.
If consensus ad idem was in question that would make the Treaty a nullity. Hence, Browne wanted to be clear that there was a consensus of understanding on what the Treaty meant.
Consensus ad idem is a necessary element in both contract law and treaties. Since the United Nations Organisation has become a significant factor in having the reinterpretation of the Treaty imposed on New Zealand through such measures as He Puapua, intended to implement the United Nations Declaration on the Rights of Indigenous People,xxvi it is of relevance that the United Nations explains the necessity of consensus ad idem in the legitimacy of Treaties:
Article 12. Error and lack of consensus ad idem (effects) 1. Provided the conditions set out in paragraph 2 below are satisfied, error, if of the kind specified in paragraph 1 of article 11, will: (a) In cases coming within the scope of head (a) (i) of paragraph 2 of article 11, invalidate the treaty; (b) In cases coming within the scope of head (a) (ii), invalidate the treaty, provided the errors are such as to lead to a lack of consensus ad idem sufficient to preclude any common basis of agreement; (c) In cases coming within the scope of head (b), invalidate the treaty only if the error was induced or contributed to by the fraud, fraudulent misrepresentation, concealment or non-disclosure, or culpable negligence of the other party, but not otherwise.xxvii
According to the narrative of the Treaty activists whether on marae, in the streets, in the press offices, parliament, courts, at the Waitangi Tribunal, or academia, there are differences in English and Maori translations of the Treaty, particularly in regard to the meanings of governance, governorship and sovereignty as understood by the Crown and by Maori. If that is the case then this means there is no consensus ad idem between Maori and Crown. Therefore the Treaty is a nullity.
Additionally, if there was deliberate misrepresentation or fraud by the Crown, then the Treaty also ‘lacks validity’.
1. Subject to the provisions of paragraphs 2 to 4 below, fraud or misrepresentation by one party to a treaty, provided it relates to a material particular and has induced, or contributed to inducing, the other party to conclude or participate in the treaty, in such a way that that party would not otherwise have done so, is a circumstance vitiating the treaty, or the participation of the other party, as the case may be.
[Alternative method of drafting paragraph 1 (no change of substance) Subject to the provisions of paragraphs 2 to 4 below, if the participation of a party to a treaty has been brought about by the fraud or misrepresentation of the other, in a material particular, and in such a way as to induce or contribute to that participation, there is no true consent and the treaty or the participation, as the case may be, lacks essential validity.]xxviii
The legal principles are of traditional origin at the root of English Common Law, and not some recent contrivance by the United Nations, Waitangi Tribunal, Human Rights Commission, New Zealand Government, or suchlike. Consider the following and how it is applicable to the Treaty:
Consensus ad idem in contract law means there has been a meeting of the minds of all parties involved and everyone involved has accepted the offered contractual obligations of each party. Consensus ad idem is a Latin term that means, simply, agreement. This is the first principle that’s the foundation of enforceable contracts because for contracts to be enforceable, agreement or a meeting of the minds of all involved parties, is required.xxix
The next point is particularly relevant to the recently contrived notion of supposed ‘Treaty principles’ that enable the intent of the Treaty to be expanded indefinitely to mean anything according to the requirements of some agenda:
Complete and Not Based on Potential Future Agreements
The second and third things contracts need to be enforceable are they must be complete and not based on a plan to renegotiate at some point in the future. To be complete, all the essential terms of the contract must be included and understood. A contract is promissory in nature, but it can’t be built on the idea that it’s conditional based on a potential future agreement. The basics required to enter into an enforceable contract include:
- Some form of consideration to be exchanged
- An offer
- An acceptance of the offer
- No Consensus Ad Idem Equals No Contract
A meeting of the minds, or agreement, is a required element in order for a contract to be enforceable. So, all terms of the offer must be accepted or there is no consensus ad idem and there is, because of that, no contract. If there is an obvious vagueness or uncertainty in the contract’s terms, it isn’t possible to get an objective agreement. Sometimes, a contract may appear to be valid, but it’s actually the result of an error by one party or even both parties. The mistakes can rest in the contract’s terms or the nature of the contract’s subject matter.
Establishing a Meeting of the Minds
Consensus ad idem isn’t established by a lone clause in a contract. Examining the full scope of the agreement to find out whether the parties each fully understand enough about the contract for a court to enforce it is how a meeting of the minds is established, or proven not to exist in some cases. Each investigation of contract terms and understanding is unique to its contract. No single test decides whether both parties understood the terms of the contract when making the agreement.xxx
Consensus ad idem has been invoked as an important element of Common Law, as for example by the Rt. Hon. Lord Justice Alfred Thesiger in 1879 on an English contract law case:
Now, whatever in abstract discussion may be said as to the legal notion of its being necessary, in order to the effecting of a valid and binding contract, that the minds of the parties should be brought together at one and the same moment, that notion is practically the foundation of English law upon the subject of the formation of contracts.xxxi
A scholarly study of contract law and English Common Law emphasises:
In the eighteenth and early nineteenth centuries, the common law accepted the so-called theory of absolute contractual obligation. Come hell or high water, a contractual undertaking had to be performed exactly in accordance with the literal meaning of the terms in which it had been pronounced.xxxii
Given the importance of literal interpretation and exactitude in a contractual agreement between Maori chiefs and the Crown, one might wonder to what extent we are expected to believe that the Crown was trying to be duplicitous and fraudulent in regard to the Treaty translations? Browne was enacting his duties as one might expect at a time of revolts against the Crown, in trying to ascertain whether there was consensus ad idem regarding the Treaty, given the formation of the King movement, and the revolt of Wiremu Kingi. To assume that Browne was trying to coerce Maori by implying that he would withdraw the protection of the Crown under the Treaty if the chiefs were not compliant is to miss the mark on why Browne regarded agreement and clarity on the Treaty as essential, and hence the raison d’etre of the Kohimarama conference.
The Kohimarama conference a mere twenty years after the signing of the Treaty of Waitangi, grants us an insight into the way Maori chiefs actually thought and debated during the colonial era. Had the Treaty been misunderstood, mistranslated, or dishonestly portrayed, then it is null and void on the basis of consensus ad idem. Additionally, there is no basis for now asserting that the Treaty is a ‘living document’ which can be added to and changed at whim.
For all that, it is clear that the Treaty as a means of ‘nation-building’, was based on the liberal notion of the ‘social contract’, and that is amplified in the oft-quoted remark by Governor Hobson to each of the Maori signatories that ‘we are one people’, meaning that through the shake of the hand and the signing of a legal contract a nation – ‘one nation’ or ‘one New Zealand’, as it is at times called, is formed, regardless of differences in history, culture, and character, that exist among divergent peoples.
i Mani Dunlop, ‘University academics’ claim mātauranga Māori ‘not science’ sparks controversy’, Radio New Zealand, 28 July, 2021; https://www.rnz.co.nz/news/te-manu-korihi/447898/university-academics-claim-matauranga-maori-not-science-sparks-controversy
ii Whakaotirangi, whose name means ‘completion from the sky’, is said in Te Arawa and Tainui traditions to have introduced the kumara, and experimented with plants. See: ‘Pre-1400 experimental gardener’, Royal Society; https://www.royalsociety.org.nz/150th-anniversary/150-women-in-150-words/whakaotirangi/
The legends of other tribes are not in agreement with this account.
iii Lynn Hunt, ‘Against Presentism’, Perspectives on History, American Historical Association, 1 May 2002, https://www.historians.org/publications-and-directories/perspectives-on-history/may-2002/against-presentism
iv ‘Kimihia te mea ngaro – Māori access to capital’, Reserve Bank of New Zealand; https://www.rbnz.govt.nz/financial-stability/financial-stability-report/fsr-may-2021/kimihia-te-mea-ngaro-maori-access-to-capital
v Waitangi Tribunal, Section 3: Difference between the Maori and English versions’, https://waitangitribunal.govt.nz/publications-and-resources/school-resources/treaty-past-and-present/section-3/
vi Apirana Ngata, The Treaty of Waitangi (Maori Purposes Fund Board, 1922), p. 13 (3).
vii He Panuitanga, Wellington Independent, 3 March 1860, p. 1.
viii The Maori Messenger, Vol. V, No. 3, 15 February 1858, p. 1.
ix Te Hui Maori Ki Waiuku, The Maori Messenger, 15 March 1860, p. 6.
x Nga Mahi a te Runanga ki Kohimarama, The Maori Messenger, Vol. VII, No. 18, 30 November 1860, p. 8.
xi Paul Moon and Sabine Fenton, ‘Bound into a Fateful Union: Henry Williams’ Translation of the Treaty of Waitangi in Maori in February 1840’, The Journal of the Polynesian Society, Vol. 111, No. 1, 2002, p. 55.
xiv Ibid., p. 56.
xv Ibid., p. 58.
xvii Ibid., p. 59.
xviii Ibid., p. 61.
xix Lachy Paterson, ‘The Kohimarama Conference in 1860: A Contextual Reading’, Journal of New Zealand Studies (2011), file:///C:/Users/New%20User/Downloads/723%20(1).pdfPaterson, p. 32.
xx ‘Queen Victoria’s Maori Godson’, New Zealand Women’s Weekly, 21 November 2017.
xxi ‘Stuff issues apology of racist portrayal of Maori in its first editions’, One News, 30 November 2020.
xxii C. F. Hursthouse, ‘New Zealand’s War’, London Times, February 1865; http://nzetc.victoria.ac.nz/tm/scholarly/tei-Stout10-t14-body-d1-d1.html
xxiii Claudia Orange, p. 68.
xxiv Ibid., p. 69.
xxvi John Robinson, Unrestrained Slaughter (Wellington: Tross,2021).
xxvii G. G. Fitzmaurice, Special Rapporteur, Third Report on the Law of Treaties (A/CN.4/115 and Corr.1), United Nations, Yearbook of the International Law Commission, Vol. II, 1958, p. 25; Article 12. Error and lack of consensus ad idem (effects).
xxviii Ibid., Article 13. Fraud or misrepresentation, pp. 25-26.
xxix ‘Consensus ad idem: what you need to know’, https://www.upcounsel.com/consensus-ad-idem-in-contract-law.
xxx ‘Consensus ad idem: what you need to know’, ibid.
xxxi ‘Household Fire and Carriage Accident Insurance Co Ltd v Grant’ (1879) 4 Ex D 216.
xxxii Horst Lucke, ‘Consus ad idem: Essay in the law of contract in honour of Guenter Treitel’, p. 258; http://classic.austlii.edu.au/au/journals/AdelLawRw/1997/13.pdf