When Governor Hobson on the 6th of February 1840 at the signing of the document between the Crown and some Maori Chiefs uttered the words “now we are one” he was embarking New Zealand on a journey which was without precedent in the history of colonialism. The background is well known. These islands and their peoples had been discovered by Able Tasman on the 13th of December 1642. Such voyages of discovery had become increasingly common throughout the Pacific and were generally followed by further incursions of troops determined to extract as much wealth from the invaded country as possible – for example the Spanish and Portuguese colonisation of much of South America and the Dutch incursion into the East Indies. This had not been the British way. Essentially their incursions into other countries were to conduct mutually beneficial trade – for example the East India Company founded in 1600 was a privately own joint stock company which sought to trade with other countries. The jewel in the crown was its wish to buy and sell spices and silks from a small part of India blossoming over the next 200 years into the integration of India into the British Empire. It was this intent to help and trade which the British Parliament brought to New Zealand in the early 19th Century.
Lord Normanby who managed the process was faced with the unenviable fact that increasing numbers of convicts had escaped from Australia and settled in New Zealand. In addition, whalers plying New Zealand waters added to the non maori population and in both cases numbers of them married local maori women. Added to this was growing interest in more structured emigration from Britain to these shores. It was known that there was no constitutional structure to the tribes inhabiting the country and that they were involved in unceasing warfare, slavery and cannibalism. Many thousand died in these wars prior to the arrival of Captain Hobson. Faced with these undeniable facts, the British Parliament deputed Hobson to make what was an unprecedented offer to the tribes that if they accepted the sovereignty of the British monarch (Queen Victoria) they would acquire all of the rights of British subjects and their rights over property would be respected. Some 43 chiefs signed the document, and its tattered remains are to be found preserved to this day. He was required to approach his task with the “upmost good faith” and although some of the chiefs present at Waitangi rejected the notion of signing away their rights to a foreign woman it is clear from those who caried the day that they regarded the British approach as a means of ending their perpetual wars and the promise of a better life. And so it has proved to be. In the words of Dame Whina Cooper, the integration of maori and non maori was decided in the bedroom. We deal with each other on a daily basis largely ignorant of what are our bloodlines. We conduct our social interactions irrespective of where our grandparents originated from – be it Scotland or Waitangi – and of course most people have not the slightest inkling of our heritage. We, who live and work, and play here, are all New Zealanders.
Given this is the reality for most of us, what is the role of Governor Hobson’s promise today? To understand that it is necessary to examine the key values which underpin our society today, not those obtained in 1840.
Democracy
We are now a democracy with universal suffrage. Each citizen of qualifying age gets a vote in the election of those who will govern the country for the next three years. That was not so in 1840. Women and those not holding property did not get a vote. But even then the government of the day enacted four Maori seats to ensure that Maoris had a voice in parliament. Since the 1987 case dealing with disposition of crown land this simple and eminently fair constitutional norm has become confused with notions of a partnership between the Crown and those claiming to be Maori. There is nothing in the 1840 agreement which can possibly justify this, and it is a position arrived at in wilful ignorance of what the Court of Appeal actually said, which was a single judge who considered that the 1840 document ensured that the relationship between maori and non maori is akin to a partnership. “Akin” means “similar to, but different from.” Hence the court decided that there is no “partnership” created by the document. That said we are daily treated to assertions that those with some maori blood are in partnership with the rest of us. It slips off the tongue, but the fact is in a democracy there are no partners. It has become the mantra for the greedies to get their hands on increasing amounts of the wealth created by the work of others, and is utterly destructive of our democracy for the simple reason that Parliament cannot govern without first seeking and obtaining the approval of the greedies – usually granted by the exchange of increasingly large sums of money backed by threats to delay projects in Councils and the Courts. Examples are too numerous to list but the interference with the consenting of the Port of Tauranga for the past six years and the extraction of large sums of money from an energy company because the hydro dams use “maori owned water” – not to mention the demand that the entire foreshore and sea bed together with its precious minerals be handed over to maori tribes – illustrates the extent of these practices. It has become a very satisfactory state of affairs for the greedies because it excuses them from the hard work of government and private enterprise while achieving their ends which is money or land without working for it. It has become no more than bare faced corruption which if practiced by any other social group would end up in a Criminal Court. In the result Hobson’s promise has been no guarantee of our democracy.
The Legal System
When the Chiefs signed the Treaty in 1840 they understood that they were conferring sovereignty over New Zealand on the British Monarch. A crucial ingredient of the exercise of the Monarch’s powers is the Common Law, as it was in 1840. From that time, it became the law of New Zealand applicable to all citizens and changeable only at the behest of Parliament or in restricted cases by the Courts. It is written for all to see, and ignorance of the law is no excuse. Maori people have availed themselves extensively of this system of dispute resolution over the years and continue to do so but more latterly they seek to change it to their advantage by the introduction of unwritten customs and social values which they assert emerge from their pre 1840 society. This notion first arose in October 2022 when the Supreme Court quashed an earlier conviction for child molestation allegations. As a postscript to the judgment one of the judges, Justice Williams, essayed the view that the same result could be obtained by invoking Tikanga which on the facts of the case would have allowed the appeal to proceed after Ellis’s death because it involved his “mana.” Three of the judges adopted this suggestion – it was no more because the case was decided – while two refused on the grounds that this was not a case for such obiter suggestions. Of the three who adopted Tikanga, neither the Chief Justice nor Justice Glazebrook had much grounding in the Common law. One specialised in patent law and the other in tax law. The third was Justice Williams, who was a small town conveyancer and former member of the Waitangi Tribunal. From this shaky start the notion of maori myths and legends forming part of the common law has mushroomed to the point where a recently appointed Court of Appeal judge has proposed it be formally adopted for use in all cases. That of course spells the end of the “common law” and we will have an unwritten system for those with maori blood and another for the non maori. In an aside three judges have knocked away a crucial pillar of our sovereignty and clearly, we are not one people before the law. How this plays out in Parliament remains to be seen, but thus far there has been no move to remove Tikanga from the common law.
Language
Probably nothing is more important to Hobson’s promise than, while preserving the maori language for those who wish to use it among themselves, we ensure there is a common language available and utilised by all citizens. This has been so since 1840 and until recently it was taken for granted by maori and non maori. It happens that the language which accompanied the 1840 document was English, already a lingua franca in many parts of the world but In the recent past there has been growing noise for the adoption of “maori” to replace English usage wherever possible. It has become a requirement in schools and universities that the maori language become a compulsory subject in a range of disciplines. This government has recognised the stupidity of this by restricting the compulsory teaching in some subjects, but it remains necessary for a bizarre range of subjects including for example engineering.
This is bad enough, but the fact remains that it is an invented language as it must be to deal with the world today. The few thousand or so words which possibly existed are hopelessly inadequate to encompass the world as it has become. The solution adopted by advocates for the use of maori language is to make up words to approximate to the subject matter. (My favourite is “motoka” – you guess!) This is dishonest and unnecessary. It must be plain to any thinking person that if there is a word in the English language which meets the need it should be used without masking it in some maori noises. Hobson’s pledge is losing relevance to the language we speak.
The Media
The radio and television media is vital to our wellbeing and understanding of current and past events. As a result of a decision of the Privy Council Maori secured its place in the media with the introduction of a maori programme which is available to all listeners. This honoured Hobson’s pledge in this important area of public knowledge and debate. But not content with their own channel, maori activists are increasingly infiltrating the hitherto English spoken programmes with a clutter of words which almost certainly have no meaning or relevance to most listeners and viewers. Accompanying this is the renaming of our country and major towns and cities with invented maori names. To my knowledge people have abandoned the mainstream media and increasingly rely on facebook and the like for their information with the result that we are no longer one country in this crucial area of our social interaction.
What Hope?
Not much for any revival of the promise. The Ardern government saw to that in its deliberate undermining of democracy and the rule of law. It requires government intervention across a range of activities only some of which have been mentioned in this essay. There have been some hesitant steps, such as the Customary Marine Title question, but the word Tikanga remains in the legislation and is an open invitation to activist judges to subvert the intention of Parliament. Minister Goldsmith, against noisy maori opposition, is pottering with legislation which removes or modifies references to “the principles of the treaty” in some legislation, but on the other hand is toying with the idea of “agreeing to disagree” whether or not Ngapuhi actually ceded sovereignty to the Crown. Any talk of changing the structure of the Conservation legislation again rousing vociferous maori opposition. This piecemeal tampering with the Ardern legacy particularly in an election year is unlikely to deter the greedies. They continue to assert rights which are not found in the 1840 agreement. The list is long but includes: the corrupt demand of the energy sector for the use of “their fresh water”; the millions sought from the Port of Tauranga to enable its port development to proceed; the blatant attempts to corrupt the local body democratic procedures by allowing non elected persons to vote on Council proposals; the language and maori custom rituals as a way to promotion in the armed forces, government departments, and private activities such as qualification to practice as a real estate agent. The list goes on and is no longer to be described as insidious – it is now rampant on many fronts.
What can be done to save our democracy and the rule of law. What is required is legislation declaring that the Treaty of Waitangi (and Te Tiriti o Waitangi) has no legislative significance either in Parliament or the Courts. In doing this Parliament would implement Chief Justice Prendergast’s dictum given in 1878 that the document is a “simple nullity.” The Constitution Act and the Courts legislation should be amended to provide that maori customary practices have no place in the Common Law, the Maori seats in Parliament should be abolished, and the Waitangi Tribunal should be wound up. Perhaps then Hobson’s pledge “now we are one” would be honoured, and we can live together as one people in one country.