DON BRASH: What partnership?

The following is a speech delivered by Don Brash, February 23rd, 2019. If anything, five years on, it has gained in relevance.

Earlier this month, something shocking happened at Waitangi.

And no, I’m not referring to my being shouted down at the Lower Marae. That was rude, but not shocking – indeed, perhaps I should have expected it.

No, I’m referring to the total inability of the Prime Minister to answer two very simple questions about the Treaty of Waitangi.

She was asked what the first Article of the Treaty provided. She admitted she hadn’t a clue.

She was asked what the second Article of the Treaty provided, and again she admitted she hadn’t a clue.

A few days ago, I asked a journalist if she could tell me what the first two Articles of the Treaty were, and she couldn’t, but knew that the Treaty was about partnership. I wasn’t asking her to recite the exact wording – though given how short the two Articles are it might not be unreasonable to expect many New Zealanders to be able to do that.

I was simply asking her, as the Prime Minister had been asked, what the first two Articles of the Treaty provided. And she didn’t know, talking instead about partnership.

I suspect that that ignorance is widespread, despite the fact that all political parties claim a commitment to the Treaty, and to its so-called principles. And fundamental to those so-called principles is partnership.

Several points to make.

First, the word “partnership” does not appear anywhere in the Treaty. Nor does any other word that might be regarded as a synonym of “partnership”. And that’s true whether we’re talking about the English-language draft from which the Treaty was translated into Maori, the Maori language version of the Treaty (the official version of the Treaty), or the so-called official English version of the Treaty. The word simply does not appear.

Second, the word “partnership” implies two or more distinct parties to a relationship. But almost 180 years after the Treaty was signed, there are no longer distinct parties. We and our ancestors have formed relationships and married without regard to racial distinctions. Nobody in New Zealand today has exclusively Maori ancestors. Most of those who have a Maori ancestor have more ancestors who are not Maori.

We have allowed people who have one Maori great-grandparent – and seven non Maori great-grandparents – to speak as if they are part of an oppressed minority, suffering still from what their non-Maori great-grandparents did to their one Maori great-grandparent.

Third, one of the most insidious implications of talk about “partnership” is the claim that in 1840 the Maori chiefs who signed the Treaty did not really cede sovereignty to the Crown at all. In an astonishing report issued in 2014, the Waitangi Tribunal claimed that the Maori chiefs who signed the Treaty agreed to share power and authority with Britain, but did not cede sovereignty – in other words, did not cede authority to make and enforce law over their people and territories.

But as historian and Treaty specialist Professor Paul Moon of AUT made clear at the time, the Tribunal’s conclusion was “manifestly wrong”.

Chris Finlayson, at that time Attorney General and Minister in Charge of Treaty Negotiations, and somebody well known for having considerable sympathy for Maori aspirations, said in reaction to the Tribunal’s report that there was “no question that the Crown has sovereignty in New Zealand”.

The wording of Article I of the Treaty is quite unambiguous. It makes it totally clear that the signatories ceded “to the Queen of England forever the entire sovereignty of their country”.

And it is abundantly clear from the speeches made by many chiefs at the time that they understood they were being asked to surrender to a higher authority. Several objected strongly, and said they would not accept that they would have less authority than Governor Hobson – but nevertheless eventually did sign, presumably because of the benefits they could see of a higher authority putting an end to inter-tribal warfare and fending off any French involvement.

One of the chiefs who signed, Tamati Waka Nene, was described on his tombstone as a “Chief of Ngapuhi, the first to welcome the Queen’s Sovereignty”.

Twenty years after the Treaty was signed in 1840, at a conference of many scores of chiefs at Kohimarama, speech after speech spoke of the benefit of having the Queen as the highest authority in the land.

Sir Apirana Ngata, writing about the Treaty in 1922, said that “the Treaty made one law for the Maori and Pakeha. If you think things are wrong and bad then blame our ancestors who gave away their rights in the days when they were very powerful”.

Moreover, with very rare exceptions, the overwhelming majority of New Zealanders with a Maori ancestor have behaved as if sovereignty was ceded in 1840:

• they’ve served in the Police and the Armed Forces;

• they’ve bought and sold assets, registering those transactions with an agency of the Crown;

• they’ve paid income taxes and GST;

• they’ve been employed by the Crown as teachers, nurses, and bureaucrats;

• they’ve accepted unemployment benefits, New Zealand Superannuation and other benefits;

• they’ve accepted treatment in public hospitals and from highly subsidized doctors;

• they’ve been educated in public schools and universities;

• they’ve travelled overseas on New Zealand passports;

• they’ve accepted large sums of money from the Crown in resolution of so-called historical grievances.

Very strange behaviour if Maori haven’t accepted the sovereignty of the Crown.

And yet we continue to get what I can only describe as willfully misleading stuff printed in our media. Just a week or so back, for example, the Sunday Star-Times carried an article about the Treaty by Hinemoa Elder. She correctly quoted the first Article of the Treaty as providing for Maori chiefs to cede to the Queen “absolutely and without reservation all the rights and powers of sovereignty” but then notes, astonishingly, that Article I “speaks to sharing power”. Of course it does no such thing.

Politicians as different as David Lange and Winston Peters have long rubbished the idea that the Treaty created a partnership between Maori and the Crown.

Interviewed on Australian television in 1990, when he was Attorney General, Mr Lange asked:

Did Queen Victoria for a moment think of forming a partnership with a number of signatures, a number of thumb prints and 500 people? Queen Victoria was not that sort of person.

In a major speech a decade later, in November 2000, he elaborated on this point and because of the huge importance of the issue, and because we now have a Labour-New Zealand First Coalition Government, it is worth quoting from this speech at some length:

Democratic government can accommodate Maori political aspiration in many ways. It can allocate resources in ways which reflect the particular interests of Maori people. It can delegate authority, and allow the exercise of degrees of Maori autonomy. What it cannot do is acknowledge the existence of a separate sovereignty. As soon as it does that, it isn’t a democracy. We can have a democratic form of government or we can have indigenous sovereignty. They can’t coexist and we can’t have them both….

Here I come to the dangers posed by the increasing entrenchment of the Treaty in statute. The Treaty itself contains no principles which can usefully guide government or courts….

The Treaty is a wonderful stick for activists to beat the rest of us with… It’s been the basis of a self-perpetuating industry in academic and legal circles. Many on the Left of politics who sympathize with Maori aspiration have identified with the cause of the Treaty, either not knowing or not caring that its implications are profoundly undemocratic.[1]

Winston Peters, now Deputy Prime Minister and Maori himself of course, speaking in Paihia a couple of years ago, described the idea that Queen Victoria would have entered into partnership with some 500 chiefs, many of whom were illiterate and none of whom she had met, as “absurd”.

Retired District Court Judge and Canterbury University law lecturer Anthony Willy noted a few years ago that “Maori and the Crown are not partners in any sense of the word. It is constitutionally impossible for the Crown to enter into partnership with any of its subjects. The true position is that the Crown is sovereign but owes duties of justice and good faith to the Maori descendants of those who signed the Treaty”, and of course to all New Zealanders.

But wait, Maori radicals will say. You’ve forgotten about Article II. On the contrary, under Article II “the Queen of England confirms and guarantees to the chiefs and tribes and to all the people of New Zealand the possession of their lands, dwellings and all their property”. The Treaty made it clear that the Queen was not proposing to dispossess the chiefs of their property rights, and made it clear that if and when they wished to sell their property they should do it through her agent – a way of protecting Maori from unscrupulous European buyers.

So there can be not the slightest objection to what the Treaty said, particularly given that the third Article guaranteed to all New Zealanders, “in return for the cession of sovereignty”, the “rights and privileges of British subjects”, in other words the same rights.

Despite that, successive Governments have behaved as if the Crown is in some kind of partnership with those who have a Maori ancestor. Indeed, the so-called “principles of the Treaty”, a concept dating back no more than three or four decades and invented initially by the [Third] Labour Government, routinely talk of partnership. Subsequent Governments have adopted the same approach.

When the National Party was in Opposition between 1999 and 2008, it talked boldly about a single standard of citizenship and promised to scrap separate Maori electorates – Bill English made that commitment, and so did John Key and I.

But in Government, the National Government not only made not the slightest attempt to scrap separate Maori electorates,

• they foisted co-governance on many local governments (including the Independent Maori Statutory Board in Auckland),

• passed the Marine and Coastal Area Act enabling Maori tribes to lodge claims for customary marine title over the entire coast (and promised generous taxpayer funding to cover the legal costs of these claims),

• continued favourable tax treatment of the businesses arising from Treaty settlements,

• amended the Resource Management Act to give a major role to Maori tribes in local government decision-making,

• allowed the Education Council to foist a radical interpretation of our history on our school system,

• signed the United Nations Declaration on the Rights of Indigenous People,

• and appeared to agree that Maori have rights and interests in water akin to ownership despite the longstanding common law position that nobody owns water.

And now we have a Government which has even established a separate ministerial portfolio of Crown-Maori Relations. The website of that department states that “the Crown and Maori will act reasonably, honourably, and in good faith towards each other as Treaty partners”. Other material issued by the Minister (Kelvin Davis) speaks of the need for a “true partnership”.

The consultation which the Minister had with Maori New Zealanders last year recorded many complaints that the Crown often acted without “Maori approval”, as if Maori New Zealanders had a special right to be consulted above the rights enjoyed by other New Zealanders and indeed had a right to veto Government decisions.

The 14 members of the Hobson’s Pledge council wrote to Kelvin Davis in May last year to express our grave concern at these developments. We copied the letter to the leaders of all the other political parties in Parliament. We received not a single reply.

And this is why the Prime Minister’s rather extraordinary ignorance of what the Treaty provides is so serious. She has been swept along by the nonsense that the chiefs did not cede sovereignty but instead entered into a partnership with the Crown. There is a serious danger that it is this nonsense which may be taught in our schools, under the guise of teaching New Zealand children our “true history”. True history? Bollocks. It is long past time for the majority of New Zealanders, Maori and non-Maori, to say “enough”.

[1] Bruce Jesson Memorial Lecture, 18 November 2000.

Don Brash, February 23, 2019