A REVIEW [PART 2] - Who Ceded What in the Treaty of Waitangi? (November 2024) | Paul Moon

Brennan Rigby

Rights | constitutions

Here is a link to Paul Moon's text. I don't know how LinkedIn works, or the internet really, so if that link doesn't work you can find it on his profile or in the first part of my review published last week (or where ever you get your stuff from).

REVIEW, PART 2

The link above takes you to a note recently published by Historian Paul Moon. This is the second part of my review.

The note, for me, steers eerily clear of the subject in the title. This second part of my review will sort through the contents of the texts (which are freely available) and identify what is said about that subject.

The Treaty of Waitangi and te Tiriti o Waitangi

In this note Moon refers to something called the Treaty of Waitangi, abbreviated as 'the treaty' in the text. Moon does not refer to te Tiriti o Waitangi in this note.

The Treaty of Waitangi and te Tiriti o Waitangi say different things, and cede (promise, name, protect, retain etc) different things. So it is important (in my opinion) to consider both carefully, and clearly, when attempting to understand or articulate any answer to the question Who Ceded What in the Treaty of Waitangi?

There are a range of meaningful reasons for treating the Treaty and te Tiriti as separate and different, alongside the extensive differences in meaning.

Treating them as the same tends to inherently promote the English text - the Treaty of Waitangi, especially if the words used to refer to them are 'the Treaty' or 'the Treaty of Waitangi'. This is also especially likely among people whose first language is English, and among people who do not confidently speak te Reo. This is problematic and will in turn support confusion rather than clarity. This particularly the case for those who have heard about te Tiriti and that it says different things, but have not had the opportunity to explore those lines of enquiry, and embed knowledge in regard to them.

So, Who Ceded What in the Treaty of Waitangi (and/or te Tiriti)?

Cutting to the chase I'm going to set out an answer to this core question Moon asks, but in my opinion, avoids answering.

Reading Moon's note I comprehend that this avoidance might be because he concerns himself primarily with making an argument about the legitimisation of Crown sovereignty over time. This represents a subtle shift away from the question of who ceded what in the Treaty of Waitangi, to something more like how should we view the position of the Crown and Māori in relation to sovereignty through the passage of time.

My idea here though, in this part of my review, is to illustrate how quickly and simply this question can be answered.

Te Tiriti o Waitangi is quite straight forward. Principle elements of the text include (set out in articles):

• "Ko nga Rangatira o te wakaminenga me nga Rangatira katoa hoki ki hai i uru ki taua wakaminenga ka tuku rawa atu ki te Kuini o Ingarani ake tonu atu - te Kawanatanga katoa o o ratou wenua"; the Rangatira offer to the Crown the full kawanatanga of their land;
• "Ko te Kuini o Ingarani ka wakarite ka wakaae ki nga Rangatira ki nga hapu - ki nga tangata katoa o Nu Tirani te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa"; the Queen recognises and accepts (promises to the Rangatira) the tino Rangatiratanga of their land, of their homes and all they treasure; and
• "Hei wakaritenga mai hoki tenei mo te wakaaetanga ki te Kawanatanga o te Kuini?– Ka tiakina e te Kuini o Ingarani nga tangata maori katoa o Nu Tirani ka tukua ki a ratou nga tikanga katoa rite tahi ki ana mea ki nga tangata o Ingarani"; the Queen promises to protect Māori people and offers them the same position in law as people of England.

The Treaty of Waitangi is very straight forward. Principle elements of the text include (set out in articles):

• "The Chiefs of the Confederation of the United Tribes of New Zealand and the separate and independent Chiefs who have not become members of the Confederation cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty which the said Confederation or Individual Chiefs respectively exercise or possess..." - The Crown promises sovereignty to itself (the Crown drafted the document - hence this involved literally writing a promise for itself. In addition, and of particular importance, because a very small proportion of Rangatira signed the English text the idea of a ceding or promise made by Māori to the Crown in the Treaty of Waitangi is really quite weak and vulnerable at best. In the same vein the idea that things exchanged in te Tiriti can much more robustly be referred as a ceding or promise between the parties);
• The Queen "confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same..." - The Crown promises to Rangatira a substantive and specific, clear and logical set of rights, for so long as it is their wish and desire to retain them; and in the course of this exchange the Crown promises for itself a right of Preemption over such land;
• "In consideration thereof Her Majesty the Queen of England extends to the Natives of New Zealand Her royal protection and imparts to them all the Rights and Privileges of British Subjects."

If te Tiriti was (recognised as) our constitution (that's not a claim that it is, just a 'what if'), we might all know the text (we might even recite it in school!). If te Tiriti and the treaty were recognised as such, the same might be true. Instead, a broad swathe of our society remain largely ignorant of them. Why is this? This is a rhetorical question, but even though we might not agree on the meaning of the terms, or how the various promises, offers, and cessions, might be reconciled, we might at least be starting on the same page.

In reality, some people come to this by reading the text, others come from an interpretative position based on 1840, and some from a contemporary perspective, and others sitting somewhere in between. And another group come informed primarily, if not exclusively by media!

What we can see by reading the texts is that if we are dealing with the English text alone, the very notion of dispute over sovereignty seems almost impossible - this is precisely the position that creates lots of confusion for many people. But even if we are dealing with the English text alone, the very real constitutional dimensions of the authority ceded to Māori - full, exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties - must be recognised - what does this mean 'constitutionally'; what kind of power and authority is this. Doesn't it include an implied right to exclude others - isn't that what this Crown drafting means? Historically, it seems those dimensions can only really be truly recognised in the gratuitous breach, but read objectively today they are full of powerful constitutional particulars.

If we read only te Tiriti we find that a much more constitutional and realistic balance is struck between two forms of constitutional authority: tino Rangatiratanga (sovereignty) and Kāwanatanga. What do these terms mean? Moon himself argues (I think) that the authority the Crown bargained for was a power to control and protect its own people. A real life balance needed to emerge between these terms. Elsewhere, Moon has said the Crown's treaty promises were merely temporal at any rate, and the Crown superceded those agreements and promises with the Constitutional Act of 1852. In this he relies on the implications of treaty practice at the time, and the Vienna Convention.

His argument (in my view) boils down to the notion that the supremacy of British and international law over Māori was established by the Treaty, and despite that being a temporary agreement according to the British (though this is not mentioned in the Treaty), the notion of the legitimacy of that legal supremacy is enough to uphold the legitimacy of subsequent laws that breached the Treaty's terms.

The further we delved into international law on this the further we got from the texts, and so I felt the discussion circling back to the title of Moon's note, which remained unanswered. Who Ceded What in the Treaty of Waitangi? While that might be argued to be a part of the constitutional sovereignty exercised by the Crown, the constitutional arrangements of tikanga and te Ao Māori were likely to bring a different set of ideas to that discussion. We can only rely on the Crown's view of its constitutional sovereignty if we are willing to discard the constitutional sovereignty of the other party. To do so places us in a position where we risk underestimating the constitutional sovereignty Māori brought to the treaty, and this in turn places us at risk of making assumptions or claims elevating an inherent supremacy of British law (and other British things).

To ignore te Tiriti o Waitangi is problematic. At best, it seems to avoid that very dynamic that makes the title of Moon's note interesting - that sovereignty was both bargained for by the Crown, and promised by the Crown to Māori. At worst it wipes the te Reo text from the question of who ceded what in the Treaty of Waitangi, along with the associated aspirations and understandings that go along with te Tiriti for Māori and for many other New Zealanders.

So what was ceded (and by who?) by the Crown in article 2 of the Treaty of Waitangi? And what about te Tiriti? To be continued...

I'm going to keep each part of this review brief in the spirit of Moon's brevity. To find out more tune in for part three of my review of Paul Moon's Who Ceded What in the Treaty of Waitangi?: coming soon.