Over the summer break, I made it my project to read and review a book I expect to become increasingly influential in coming years: Ned Fletcher's 2022 book 'The English Text of the Treaty of Waitangi.' You'll be happy to know that today I'm wrapping it all up with my Conclusion.
Over the last week I've posted on the books errors and omissions and the author's tendency to get slippery with his evidence as he heads for home; how he appears to ignore the simple fact that cultural change on the order called for would take time, and to misunderstand both the rights and the protection that the Treaty offers.
And did I say I'm wrapping it all up? That's not quite true. For those still interested, I'll post over at my much-neglected NZ History blog two or three Postscripts offering some supporting evidence and arguments -- on Rangatiratanga as Ownership, on how Protection and Guardianship were discussed at the 1860 Kohimarama Conference, and maybe one or two other morsels.
But there is one piece I'm posting today as a Postscript to this Conclusion since, as you'll see, it follows so neatly from my concluding argument. It's an excerpt from Ewen McQueen's excellent 2020 book 'One Sun in the Sky' that argues the Māori 'New Testament,' "'Te Kawenata Hou' influenced Māori understanding of Te Tiriti; it is worth noting that it ... used the term the term 'rangatiratanga' to convey being free ... "
Conclusion
IF THERE’S ONE BOOK I’VE enjoyed reading, pondering and debating with these last twelve months then it’s this one. I hope you’ve enjoyed the review.
Despite my criticisms above, despite its flaws, despite the errors and omissions, it is a mighty piece of work which I thoroughly recommend. Wrestle with it, debate it with yourself and others, above all make full use of the history therein and his re-casting and piecing together of The Final English Text. That is masterfully done. Enjoy it.
But it is flawed, most especially in its conclusions. Given the book’s obvious weight and stature, and what might be done with those conclusions, it’s important to point this out. That’s why I’ve spent so much time on this.
It could be said that it doesn’t really matter. That the book in fact proposes no major change from the current debate. After all, the book argues that if we rely upon the English text as reconstituted here, then British intervention in 1840 was to establish government only over British settlers, and to otherwise ensure the continuation of inter-tribal government and custom. A plurality of governance in one territorial area. Whereas the current mainstream interpretation, after decades of debate, is to rely upon the Māori-language version, which is already said to “split the powers of authority into two: kawanatanga (governorship), which was to be ceded to the British, and rangatiratanga which was to be retained by Māori.” [1] There seems little practical difference between the two.
 |
Law professor emeritus David Williams, one of Fletcher's thesis supervisors:
"The 'principles of the Treaty' were based on the assumption that
the two Treaty texts did not convey the same meaning.... We really
need to look at that again, because it's no longer acceptable
historically speaking to say that the Treaty texts are completely
different from each other." |
Except as David Williams, one of Fletcher’s thesis supervisors, points out, this present approach still “requires a set of extrapolated principles to resolve the problem of the English and Māori texts saying different things.” [2]
Court-written principles that have been much debated ever since – one of them in particular, “partnership,” empowering the recent push towards co-governance. Williams reckons Fletcher’s new interpretation of the English text will take away any grounds for debate at all because it confirms, he says, “that cession of sovereignty as understood in 1840 did not impose English law on Māori. Rather, it assumed that tikanga, as the law in operation for the Māori world, would continue.” [3]
So it is a more radical view. A conclusion that, I’ve argued here, is unsupported.
There were acquisitive eyes on these islands in the 1830s, and the Colonial Office eventually recognised that it might be their role to mediate between them – between those who wanted Māori’s souls for God, and those who wanted some of their land for colonisation. The Colonial Office essentially decided to transfer all responsibility for colonisation to themselves, and to outsource to missionaries the necessary cultural change of Māori while pledging to protect their rights in law.
That as time progressed this simple policy programme of Christianity and Law began to unravel was due to many things outside the scope of a book review, but was partly due to a breakdown in the understanding of the rights to be protected – and an increasing disrespect for and misunderstanding of the very concept of rights. If they were discussed at all, it was only in a very strict legalistic sense.
So I’ll close here by going back to the simple permissive legal maxim that Fletcher misunderstands, ie., that principle of English law sometimes called the “general power of competence,” or more simply: “Everything which is not forbidden is allowed.” It may seem strange to accuse a lawyer of such obvious acumen of not fully understanding a legal maxim, but that might be the best way to sum up.
Fletcher argues that the Treaty promises to Māori self-government and protection in law. As he nears his own conclusion, Fletcher falls down repeatedly on his understanding of what exactly the Treaty means by protection, and by what “self-government” would look like if fulfilled. As mentioned above, the permissive legal maxim of “everything not forbidden is allowed” is a guide here.
The problem is exposed in his last few pages, as he brings his argument for a “pluralistic government” to a close – this being, he says, “not inconsistent with” English law [4]. (If he means it is consistent, then why doesn’t he just say that?) In support of being “not inconsistent with” he has us running after a cluster of “textual pointers” that he wants to say something different than they do, before arresting himself to say that the Treaty’s promise of “‘full, exclusive and undisturbed possession’ recognises that Māori society was to be left free to regulate itself.” In his view this would “leave inter-tribal government undisturbed.” [5]
This is puzzling indeed. Not least because the promise to protect in law an individual’s ‘full, exclusive and undisturbed possession’ of property is a claim of property rights -- it is not a never-ending pledge for the continuing existence of an “inter-tribal government” that never existed and never would. [6] Moreover, as Richard Epstein has pointed out, "The whole quid pro quo in theTreaty was the guarantee of property in exchange for sovereignty and protection. If [this] interpretation is, in fact, the correct one, I find it hard to see how the Treaty makes internal sense or why anyone would sign it." [7]
But it’s especially puzzling because, in the context of this legal maxim, all that is meant by self-regulation and undisturbed possession here is that “everything not forbidden is allowed,” under law. That law being for the protection of property rights, and forbidding physical coercion by others. It is not an assertion of pluralistic government: it is a commitment to the protection in law of one’s own moral space – one’s turangawae, a place to stand – a place in which one is free to act by right because one is protected in law from physical coercion by others;
The confusion occurs, I think, because of the Treaty’s (and Fletcher’s) frequent confusion between collective and individual rights – seemingly recognising individual property rights at one moment while promising at the next moment protection for (contradictory) ‘collectivised’ rights – ‘rights’ that still vested tribal land and decision-making over it (and others) in the hands of chiefs. (Why oh why did it take so long to begin breaking this knot by implementing something as simple even as ‘tenancies in common,’ so all individual rights could be seen to be protected.)
And in further part it is blindness to the idea that implementing unfamiliar law on a "new frontier" takes time – especially so with folk unfamiliar with, and sometime even hostile to, the very idea of a “rule of law.” It takes time, a gradual process – and even though the Colonial Office themselves understood this pretty clearly, Fletcher seems unable to see even the plain words in which they so often state them. Instead, he claims that what they promised was a permanent and ongoing state of tribal self-governance. This is not supported even by his own evidence.
That said, if there is a right to permanent self-government in the Treaty, then it is that of which John Locke spoke: which is the individual right to govern oneself free of let or hindrance by others – this self-governance being the source of all freedom. In libertarian terms, all one requires from a legal authority for this self-governance to function is to be protected in one’s genuine rights, for coercion to be outlawed and to be otherwise left alone by that authority. Thereafter, all human interaction becomes voluntary,
Would that this were the meaning one could draw from either Treaty, or Tiriti. Or from today’s lawmakers.
THE END
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POSTSCRIPT 1: Rangatiratanga as LibertyIt might surprise you to know, since so much hangs upon it, that the term “tino rangatiratanga” is “a missionary neologism”—one of many. [8] Its root word is ‘rangatira,’ which was of course an original te reo word meaning ‘chief.’ This new word coined by Williams then stresses the power, authority, and agency of the chief.
Ewen McQueen makes a fascinating argument that while rangatiratanga can mean many things, including ownership [see Postscript 2], there is a sense that it also means liberty – and in the same way referred to above in my conclusion. That sense comes from the New Testament, which is where most Māori would have encountered this new word …
By 1840 here reading “had come to stay.” [9] Before 1830, missionaries were prized most for bringing bullets. [10] But from 1830 on, they were prized more for bringing books. “Between 1835 and 1839 almost everybody, young and old, wanted to read and write their own language. Many self-appointed teachers began village schools [11] and all over the Island Māoris learned to read and write. For a time, their enthusiasm seemed limitless.” [12]
It had already extended into transforming Māori into a written language – as it had to if missionaries were to distribute Bibles. Because the book about which they quickly became most enthusiastic was the New Testament.
“The Māori New Testament, Te Kawenata Hou, had been first printed in full in 1837 [writes McQueen [13]]. It quickly became a highly prized possession among Māori. Tens of thousands of copies were printed, circulated and read. [14] As Claudia Orange acknowledges, many Māori were familiar with biblical texts and the nuances of meaning, which they debated exhaustively…. “Te Kawenata Hou … provided another cue for … Māori understanding of the Treaty.
This missionary neologism “rangatiratanga” was used in several ways by translators. As historian Paul Moon notes, “[t]he relevant portion of the Māori Lord’s Prayer reads: ‘…kia tai mai tou rangatiratanga’—‘…thy kingdom come’.” [15]
But as Ewen McQueen notes, there is one important sense in which it is also used: to convey agency. And most importantly: liberty.
“It is worth noting that [Te Kawenata Hou] also used the term rangatira to convey being free. Likewise rangatiratanga was used to express liberty or freedom. However it was not liberty exercised independently, or in defiance of sovereign authority. It was liberty fostered in submission to, and under the protection of, governing authorities.
“The concept was both spiritual and temporal. Christians submitted to the sovereignty of the Kingship of Jesus Christ. But in doing so they found true freedom. As the Apostle John noted – if the Son makes you free, you will be free indeed (tino rangatira). [16] Likewise, in a secular context, we find a Roman captain telling the Apostle Paul of how he had purchased his freedom (rangatiratanga) for a large sum of money. Paul responds that as a citizen under the sovereignty of Rome, he was born free (wanau rangatira mai). [17]
“This Biblical context of rangatiratanga as freedom or liberty throws a new light on understanding this term in the Treaty. Not only are we dealing with a chieftainship over land and resources [see Postscript 2 below], we are dealing with the idea of a political freedom or liberty. However, it is not liberty against the sovereignty of the Crown or independent from its authority. Rather, it is the freedom guaranteed by that sovereignty to every citizen of the British Empire. It is the liberty enjoyed by all citizens of Her Majesty’s realm that allowed them to live as free men and women.
“This concept of ‘freedom via submission’ is difficult for modern thinkers to grasp. [In the words I’ve used in the main post above, it means that since it is the ‘rule of law’ that protects your “moral space,” understanding and ‘submitting’ to this rule of law enlarges and secures it] It runs counter to the spirit of the age … As such, some activists today bristle at the suggestion that Māori agreed to come under Crown sovereignty. Instead, the seem to believe the old accusation of the American traders [here] who in 1840 tried to dissuade Māori from th Treaty. According to these traders, signing would mean the country was ‘gone to the Queen,’ and Māori would become ‘taurekareka’ or slaves in their own land. The traders’ insidious message was clear – you can have the Queen’s sovereignty or you can’t have your liberty – but you can’t have both.
“Ironically, the chiefs in 1840 were not so easily deceived. Strongly influenced by the spread of Christianity in the preceding decade perhapos the better understood the concept of ‘freedom in submission.’ As we will see [in the debates accompanying the Treaty signings] they certainly could see the benefits of one overarching authority to establish law and order.
“It was the stability provided by such government that would allow them to work, trade and prospers. In so doing they would enjoy the unqualified exercise of their rangatiratanga – their freedom. It was submission to Crown sovereignty that would truly enable them to live as rangatira – free men.
“This vision of loyal subjects prospering and doing well and enjoying liberty was completely in line with what Māori would have understood from the Bible. The writings of the Apostle Peter in Te Kawenata Hou sum it up very well, and are worth repeating here in full:
“In Māori understanding of Te Tiriti there is no doubt that these words would have been influential.
“First, they confirm that governors (nga kāwanatanga) are sent by the king (te kingi) whose authority is supreme (runga rawa). Once again [18], this confirms the status and source of the governors’ authority. The kāwanatanga they exercise is pre-eminent and sourced in kingitanga. The apostle makes clear that such authority is to be honoured.
“Second, this passage illustrated the concept of rangatiratanga as liberty or freedom. Crucially however, it is liberty arising under the authority of the governor. It is not independent of the authority or alongside it in some form of partnership. Rangatiratanga is about living as free people under the authority of the governor, the king’s representative. [Readers will have already noted the connection with Locke’s notion of “individual self-government” discussed above in the Conclusion. – Ed.]
“The importance of this passage in Te Kawenate Hou cannot be over-stated. This is because the two key Treaty concepts of kāwanatanga and rangatiratanga are brought together here. And the relationship between them is addressed with some straightforward pastoral advice. Honour the authority of kings and governors, and enjoy living as free men. It is a simple message with a clear meaning. Its significance would most certainly have been grasped by Māori."
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This excerpt from One Sun in the Sky appears here by permission.
You can purchase your copy directly from the publisher: Galatas Press Ltd.