If I was a lawyer—particularly a senior lawyer with the professional status of Gary Judd KC—I’d be bringing a High Court suit against FNDC as a private citizen, seeking a declaratory judgment that Council’s actions are unlawful.
Mr Judd should put his head together with Stephen Franks on this one.
These people are delusional in ascribing any present-day meaning to He Whakaputanga.
He Whakaputanga Deconstructed: No Māori Nation State in 1840
The Treaty of Waitangi was not with a collective “Maori,” but with tribes, most of whom signed it, some of whom didn’t.
In February 1840, New Zealand consisted of hundreds of “dispersed and petty tribes” in a constant state of war with one another, and lacking any concept of nationhood.
Some 512 chiefs signed the Treaty, while a substantial minority refused to, meaning there were probably around 600 of these individually insignificant groups.
Assertions that a Maori nation state existed when the Treaty was signed seem to rest upon claims of formal recognition by England’s King William IV in 1836 of the 1835 Declaration of Independence of the so-called “Confederation of United Tribes” (He Whakaputanga) and associated flag.
The He Tohu exhibition at the National Library in Wellington says this of the Declaration: “It was how rangatira (Maori leaders) told the world, back in 1835, that New Zealand was an independent Maori nation.”
An entirely false assertion.
The so-called "Maori Flag" (not the Maori sovereignty flag fudged up in the 1989) was adopted by Northland chiefs in 1834 at the behest of British Resident James Busby, after a NZ-built ship owned by resident Europeans in conjunction with a Hokianga Maori chief was impounded in Sydney for not flying the flag of a recognised nation state.
Busby presented the chiefs with a variety of designs. They chose a flag modelled on that of the Church Missionary Society, with which they were well-familiar.
This was not a Maori initiative, but a Pakeha-brokered expedient to protect New Zealand's pre-Treaty commerce.
Nor was the 1835 Declaration of Independence driven by the puny number of Maori chiefs who signed it.
This "paper pellet to fire at the French" was put together by Busby to head off Colonial Office fears of an impending takeover by French adventurer, Baron De Thierry.
It should be noted that Busby had no official standing, no plenipotentiary authority, and acted entirely on his own initiative in doing what he did.
Initially carrying the signatures (or rather the thumbprints) of 34 Northland chiefs, the Declaration was ultimately signed by just 52 chiefs, all but two residing in Northland.
Since these chiefs represented less than 10 percent of all the tribes of New Zealand, the Declaration can hardly be held up as evidence of a national consensus.
Assertions of prior Maori sovereignty are further undermined by the impotence of the handful of chiefs who signed the Declaration “to act or even deliberate in concert.”
It could not even be asserted that a sovereign consensus prevailed in Northland after He Whakaputanga was signed.
Signatories had pledged “to meet in Congress at Waitangi in the autumn of each year, for the purpose of framing laws for the dispensation of justice, the preservation of peace and good order, and the regulation of trade."
Inter-tribal animosities meant this body never met nor passed a single law. Indeed, within a year, many signatories were fighting one another.
The Declaration clearly falls way short of being what the Archives NZ website describes as “a bold and innovative declaration of Indigenous power.”
Even had the Declaration carried practical weight, almost all its handful of 1835 signatories (or their successors) signed the Treaty of Waitangi in 1840, thereby rendering it redundant.
Article I of James Busby’s final English language draft dated 4 February 1840 and translated into Maori by the missionary Henry Williams and his son (both fluent Maori speakers who’d lived in NZ for almost 20 years) for presentation to the Chiefs on 5 February reads:
“The chiefs of the Confederation of the United Tribes and the other chiefs who have not joined the confederation, cede to the Queen of England for ever the entire Sovreignty [sic] of their country.”
We have totally wiped out the ridiculous He Whakaputanga and the assertion that Maori had a sovereign nation state prior to 6 February 1840, am I right?
I see Whakaputanga as an exercise in leading Maori to understand their (potential?) Sovereign power.... and thus being able to cede that recognised power by signing The Treaty of Waitangi. A pre-cursor. There simply has never been a single ruling authority over all Maori with whom to negotiate with.
In 1986, the Lange Labour Government commissioned Professor Sir Hugh Kawharu, Professor of Maori Studies at the University of Auckland, to produce a contemporary back translation of Te Tiriti’s Maori text.
Kawharu had just been appointed to the Waitangi Tribunal, a highly influential role he would hold for 10 years from 1986.
At the time of this appointment, Kawharu was also a claimant on behalf of Ngati Whatua, working on his tribe’s various Treaty claims, and representing it in the Bastion Point land claim negotiations.
Hardly someone without an axe to grind. Many might also recognise several conflicts of interest.
We might also ask why a further back-translation was needed, when TE Young’s 1869 back-translation compiled for the Native Department long before radical activists politicised the Treaty, was already available.
Kawharu’s mischief-making 1986 back-translation was then accepted as definitive by the government of the day.
His radical reinterpretation of Te Tiriti soon morphed into the manifesto of the Maori Sovereignty movement.
Kawharu’s New Zealand Dictionary of Biography page describes “a man of quiet persuasion” noted for “persistent advocacy for the Maori right to exercise rangatiratanga (self-determination).”
“Rangatiratanga” or Māori self-determination lay at the core of Kawharu’s reinterpreted Treaty, complete with 11 footnotes radically redefining key words away from what was understood by all in 1840.
At footnote 7, he asserted that “rangatiratanga” in Article II of Te Tiriti meant “the unqualified exercise of their chieftainship.”
Ignoring the historical record of what the chiefs actually said on the lawn at Waitangi, Kawharu declared that this “would emphasise to a chief the Queen's intention to give them complete control according to their customs.”
In arriving at this conclusion, Kawharu completely ignored the fact that “rangatiratanga” as used in Te Tiriti at Article II narrows any broader meaning that might be attributed to it, to being a right to ownership and control of land and personal property.
He also ignored the fact that Te Tiriti’s guarantee of property rights applied to everyone here on 6 February 1840, both white and brown.
By redefining “rangatiratanga” as self-determination, Kawharu set up Te Tiriti to be used to justify Maori sovereignty aspirations.
His commentary around the word “kawanatanga” in Article 1 was a further re-write.
Kawharu asserted: “there could be no possibility of the Maori signatories having any understanding of government in the sense of ‘sovereignty’.”
Eyewitness accounts of the treaty debate on February 5, 1840 at Waitangi, certainly say otherwise.
CMS printer, William Colenso’s primary source account of proceedings shows the chiefs were well-aware their acceptance of Hobson would place him in authority over them, and that behind Hobson was Queen Victoria.
Kawharu’s claim at footnote 6, that the chiefs could not comprehend “sovereignty”, opened the way for the false claim that the chiefs never ceded it.
Kawharu’s Te Tiriti rewrite has allowed radical activists to glove-puppet politicians and jurists into adopting his political manifesto dressed up as a Treaty translation as the basis for judgments and policies.
Kawharu’s reinterpreted Treaty text was the one applied by Cooke CJ in the NZ Māori Council Court of Appeal case of 1987.
Kawharu was one of 20 radical activists submitting affidavits for that case along with New Zealand Maori Council chair Sir Graham Latimer, historian [sic] Claudia Orange, land march activist Whina Cooper, history lecturer and Ngai Tahu claimant Harry Evison, medical practitioner Mason Durie, and accountancy professor and later Maori Party chairman Whatarangi Winiata.
Legal Positivists apply the law according to law and precedent. Their commitment is to upholding the Rule of Law.
Judicial activists apply the law according to their own social and political opinions. Here, the rule of law is trumped by personal opinion filtered through the lens of social justice concerns.
The rise of judicial activism in New Zealand traces back to Lord Cooke of Thorndon (Robin Cooke), a bleeding heart liberal who should never have been allowed near a judicial appointment, let alone to preside over New Zealand’s highest Court of his time.
Lord Cooke had, during the course of his legal education, been heavily influenced by another judicial activist, Lord Denning, an outlier on
Britain’s Privy Council.
Here’s David Baragwanath, Counsel for the Appellants in the 1987 NZ Māori Council case from which the Treaty ‘partnership’ fiction derives, skiting about the outcome at a commemorative symposium held some 20 years later:
“I began to read [Dame Whina Cooper’s] affidavit [asserting land somehow had a special meaning to her as a part-Maori]. By the end of the first paragraph , the President’s familiar handkerchief was out. As it continued, his emotion was evident. By the end of the affidavit, Dame Whina had taken the case from his head to his heart, and we had captured him.”
Say goodbye to the rule of law.
Kawharu’s redefinition of “rangatiratanga” as “the unqualified exercise of their chieftainship” underpinned the Court of Appeal’s finding in the Māori Council case that Te Tiriti was “akin to a partnership.”
This reinterpretation soon made its way over to the Waitangi Tribunal, on which its author was already a key player.
The Kawharu rewrite later formed the basis of Sir Geoffrey Palmer’s five Principles for Crown Action on the Treaty of Waitangi.
These five principles, kawanatanga, or government; rangatiratanga, or self-management; equality; cooperation; and redress, were published on 4 July 1989.
Leftist academics, the Waitangi Tribunal, and ‘woke’ senior public servants, then amplified the ‘partnership’ fiction over succeeding decades, culminating in the Arden Labour Government setting up a Treaty Partnership Ministry in 2017.
This in turn blossomed into the He Puapua blueprint for two governments by 2040, one by Maori for Maori; the other a fully bicultural version of what we already have, subject to a tribal monitoring committee.
Behind these developments are wealthy tribal entities flush with ill-gotten pee from Treaty Settlements, greedy for political power over their non-Māori fellow-citizens.
In summary, the ‘Treaty Partnership’ ideology behind these developments traces back almost 40 years to Kawharu’s rewrite of Te Tiriti and the government’s adoption following the NZ Māori Council Court of Appeal decision, of Geoffrey Palmer’s Principles For Crown Action .
Bypassing Kawharu’s reinterpretation, ACT leader David Seymour has based his three brief principles on Te Tiriti’s actual black letter wording and the recorded contemporary understanding of its meaning and intent in 1840.
ACT’s proposed Treaty Principles Bill would provide that:
1. The government has the right to govern and there is one government for all New Zealanders.
2. We all have rights within the law to “tino rangatiratanga”, or self-determination, and to ownership and control of our lawfully acquired property.
3. We all have “nga tikanga katoa rite tahi” or the same rights and duties.
For brown supremacist part-Māori to argue against Seymour’s Bill is to deny and dishonour the selfsame Te Tiriti that their tupuna signed up to in 1840.
In 1922, Sir Apirana Ngata summarised the effect of the Treaty of Waitangi with considerable clarity, finality, and certainty: “Article I of the Treaty transfers all chiefly authority to the Queen forever, and the embodiment of that authority is now the New Zealand Parliament. For that reason, all demands for absolute Maori authorities are nothing more than wishful thinking.”
“The Treaty … made the one law for the Maori and the Pakeha. If you think these things are wrong and bad then blame our ancestors who gave away their rights in the days when they were powerful.”
So let’s have and be accepting no more of this nonsense that David Seymour is “rewriting the Treaty.”
Outrage over ACT’s proposed Treaty Principles Bill boils down to this: the fear that brown supremacist part-Māori who have turned their white ancestors into a toilet bowl to identify monoculturally as ‘Māori, might lose their unearned ethnocentric privilege.
As black American political economist, Thomas Sowell, reminds us: “When people become used to special treatment, equal treatment seems like discrimination.”
Thanks for your presentation of important material, Reuben.
I doubt the correctness of "He also ignored the fact that Te Tiriti’s guarantee of property rights applied to everyone here on 6 February 1840, both white and brown." That's because in these early days "ki tangata katoa o Nu Tirani", all the people of New Zealand, meant the Maori people. This appears from contemporary writings such as Letters from the Bay of Islands, a collection of letters and other material, primarily from Henry Williams' wife, Marianne, to her English relatives. Throughout the book, Marianne and the others whose writings are collected distinguish Maori from themselves by referring to the former as New Zealanders. In the very first letter, dated 7 August 1823 (p 54), Maryanne says, "Next morning Mr Marsden put into our cabin a pretty little naked Newzealand boy, about 2 years old....." Another example towards the end of the book concerns an account of an attack on James Busby (p 223). "Shortly afterwards it was discovered who was the aggressor; and a general meeting of the chiefs was convened to consider the case. It was considered by the New Zealanders as very atrocious, inasmuch as it was a night attack ...." The non-Maori are never referred to as New Zealanders, but as missionaries, Europeans or British subjects. It follows that when Henry Williams wrote ""ki tangata katoa o Nu Tirani", he was referring to Maori, not to everyone.
As the Treaty was between the Maori chiefs and the British Crown, and the missionaries and settlers were not party to it, conferring rights on them would be out of order. British subjects already had the benefit of British law.
Apart from that and some of the material about Hugh Kawharu of which I have insufficient knowledge, the great deal of reading I have done concerning these matters leads me to be entirely in agreement with your account.
SOVEREIGNTY CEDED, PROPERTY AND CITIZENSHIP RIGHTS GUARANTEED FOR ALL
Article II of Te Tiriti grants “tino rangatiratanga” not just to brown supremacist part-Maori racists, but to ALL New Zealanders.
ARTICLE I of James Busby’s final English language draft dated 4 February 1840 and translated into Maori by the missionary Henry Williams and his son (both fluent Maori speakers who’d lived in NZ for almost 20 years) for presentation to the Chiefs on 5 February reads:
“The chiefs of the Confederation of the United Tribes AND THE CHIEFS WHO HAVE NOT JOINED THE CONFEDERATION [emphasis added] cede to the Queen of England for ever the entire Sovreignty [sic] of their country.”
That wipes out the ridiculous Declaration of Independence of the Confederation of the United Tribe [He Whakaputanga] and the assertion that Maori had a sovereign nation state prior to 6 February 1840.
ARTICLE II reads:
“The Queen of England confirms and guarantees to the chiefs and the tribes [the natives] and to all the people of New Zealand [the white pre-Treaty settlers holding land according to tikanga, meaning for as long as 'their' tribe could defend the locality against outsiders], the possession of their lands, dwellings and all their property.”
Everybody needed the same assurance from the incoming sovereign: that existing private property rights would be upheld and protected.
If ‘Tino Rangatiratanga’ means in its broadest sense “the unqualified exercise of their chieftainship” as claimed today based on Sir Hugh Kawharu’s bogus back translation, it was certainly not being used that way in Te Tiriti in 1840.
In the context of Te Tiriti, the words narrow in their meaning to be a guarantee of property rights in land and other property [the correct translation of ‘taonga’ in 1840] to both the natives and pre-Treaty settlers alike.
It is thus impossible to construe Article I as having been drafted to provide for the Crown to govern the settlers and for the chiefs to continue governing their tribes according to Article II.
If Te Tiriti was intended to be a Constitutional document providing for spheres of co-governance as asserted today, there would have been no mention of the white pre-Treaty settlers in Article II.
An open-ended co-governance arrangement would surely have been worded at Article II; “the Queen of England HER HEIRS AND SUCCESSORS [emphasis added to additional wording] and “the chiefs THEIR HEIRS AND SUCCESSORS [emphasis added to additional wording]; and “Tino Rangatiratanga” would have been used in an entirely unrestricted manner, not narrowed as it was to being a guarantee of property rights to EVERYONE.
The recorded words of the chiefs on the lawn at Waitangi and elsewhere make it clear they were well-aware that their acceptance of Hobson would place him in authority over them, and that behind Hobson was Queen Victoria.
ARTICLE III reads:
“In return for the cession of their Sovreignty [sic] to the Queen, the people of New Zealand shall be protected by the Queen of England and the rights and privileges of British subjects will be granted to them.”
In signing Te Tiriti, all the natives – including the chiefs – became not ‘partners’ but EQUAL SUBJECTS of the Crown in a nation state the white settlers would henceforth create where none had existed before.
Equal Subjects means individual rights of citizenship — nothing more and nothing less.
Te Tirit cannot possibly be construed as a guarantee of perpetual group rights to brown supremacist part-Maori (with an ever-declining Maori blood quantum).
It is ludicrous and intellectually incoherent to propose that the cession of sovereignty in Article I, restated in Article III, would be countermanded by a reservation of chiefly authority in Article II.
Nobody in their right mind could believe that the Crown would offer hundreds of small bands of subhuman cannibal savages full citizenship and protection, yet allow their leaders and those whom they represented to remain completely outside British rule of law.
The Treaty does not describe a partnership. This is just people making things up.
“Sovereignty” means “the supreme power or authority.”
It is thus Constitutionally impossible for a sovereign to be in ‘partnership’ with a subject or group of subjects.
On 6 February 1840, one party [the Crown] absorbed and digested the parties of the other side [the chiefs and those whom they represented].
This rendered Te Tiriti from the moment it was signed analogous to a used table napkin after a meal, and other than as a historical artefact, about as relevant.
Very good! Another 'anomaly' of the modern thinking of Chiefly authority is that the Treaty overnight freed some 40% of the Maori population and delivered them from slavery to become the equal of any man as a British subject. Slavery disappeared BECAUSE the Chiefs lost their Chiefly authority.
Well presented Gary. I note extended comments here debating the legality of how many Maori appointees can squeeze on to the head of a pin with the angels (there’s a territorial conflict for you!), but with respect, they miss the point. This act of appointing anyone on the pure basis of race is simply bollox. Using ‘Iwi’ as a grouping instead is fine for generally targeted consultation on Council matters, but NO more so than should be extended to any other community group. Iwi are just a club. A group of folk who share an interest. The SAME as the rest of us. Any legal avenue providing otherwise is immoral & agin the Treaty. Stacking a committee with those numbers is next level taking the piss & needs urgent Govt action to fix it.
Thanks, Boris. It is well recognised that good governance may sometimes require co-opting someone with special skills to assist a committee in its deliberations. Co-opting an accounting expert to a company's audit committee is an obvious example. But what FNDC has done is completely different.
I think your point raises two separate issues, and the distinction matters even more in light of how some councils are now structuring these appointments.
On the first, the statute sets a relatively light threshold. It does not require proof that a person objectively has the relevant skills, attributes or knowledge. It requires only that the local authority forms that opinion. So there is no strict evidential test in the sense of having to demonstrate competence to some external standard.
But the second issue is how that opinion is formed. Even though it is subjective, it must still be genuinely and lawfully arrived at. The Council has to turn its mind to the function of the committee, consider what capabilities would assist that function, and then form a view about whether the proposed appointee meets that need. That thinking has to be traceable in some way.
What is interesting in the Far North agenda is that Council has expressly moved away from any internal assessment of nominees and instead relies on iwi and hapū nomination processes. That may be entirely appropriate from a partnership perspective, but it creates a legal tension. Clause 31 still requires the opinion to be that of the Council. If Council simply accepts nominations without showing how it has connected those nominees to the committee’s needs, it risks substituting someone else’s judgment for its own.
So I would put it this way. The bar is opinion, not proof, but even an opinion must be formed. And where the material does not show any link between committee function, committee need, and the appointee’s capability, it becomes difficult to say that the statutory opinion has actually been exercised, rather than assumed.
What a role model to the rest of us.Most of the country - including the Nats- are appalled at the irregularity of much in local government but it takes this one brave woman to stand for the truth. Let's get behind her.
Love your ref to Daniel. I am a strong supporter of Ms Smoulders.
Given that the mayor of FNDC and the members of its governing body, apart from Ms Smolders, have engaged in processes which corrupt the purposes and principles of local government, what can I do about it? Welcome your thoughts.
Just keep on calling it out, encouraging people like Davina Smolders, and hope the politicians get the message that firm and resolute leadership and action is required to remove from New Zealand society the cancerous tumours spawned by deceit and the desire for unearned power and wealth.
Your points about the broad terms of reference seem valid. But your claim that appointment of committee members was illegitimate and unlawful seems like a stretch.
Seems to me that if the committee is to enable Council to have better relationships with Iwi and hapu then
the "requisite skills, attributes or knowledge" are, more or less, that the person on the committee is known and trusted by at least one Iwi or hapu, and that therefore the appointment of any representative is fine.
Look up what capacity building is, before you decide whether that is a legitimate use of taxpayer funds for an unelected body of unnamed unelected representatives not of all the ratepayers, only nominated for their placeholding of special character or membership of a group. The Mayor has exempted any checks and balances to avoid scrutiny. And is it really fine if this is the one committee that gives birth to a perpetual Independent Maori Statutory Board for the Far North, completely autonomous, with its own budget/Maori Outcomes, unaccountable to election and written into forever legislation like Auckland.
"It is therefore obvious that in the first place the governing body cannot lawfully let someone else choose committee members. But that’s what the April 15 meeting did when it appointed “another eight to be … from iwi and hapū that have an existing memorandums of understanding [sic] with the council.”
If a Council delegates a task to "someone" to bring a recommendation to full Council then surely there is no impediment to those Councilors present voting in favour of or against recommendation. In the corporate world candidate selection often involves the advice of specialist consultants.
Can I just ask as a ratepayer -
“ what is the purpose of FNDC CEO Guy Holroyd in all this debacle. He’s paid a S**t load of money- for what???!!!
Just WOW! This needs to be decisively nipped in the bud by Govt! Wield the big stick and show who controls the Country before it is lost!
If I was a lawyer—particularly a senior lawyer with the professional status of Gary Judd KC—I’d be bringing a High Court suit against FNDC as a private citizen, seeking a declaratory judgment that Council’s actions are unlawful.
Mr Judd should put his head together with Stephen Franks on this one.
A two-headed lawyer? Really?
These people are delusional in ascribing any present-day meaning to He Whakaputanga.
He Whakaputanga Deconstructed: No Māori Nation State in 1840
The Treaty of Waitangi was not with a collective “Maori,” but with tribes, most of whom signed it, some of whom didn’t.
In February 1840, New Zealand consisted of hundreds of “dispersed and petty tribes” in a constant state of war with one another, and lacking any concept of nationhood.
Some 512 chiefs signed the Treaty, while a substantial minority refused to, meaning there were probably around 600 of these individually insignificant groups.
Assertions that a Maori nation state existed when the Treaty was signed seem to rest upon claims of formal recognition by England’s King William IV in 1836 of the 1835 Declaration of Independence of the so-called “Confederation of United Tribes” (He Whakaputanga) and associated flag.
The He Tohu exhibition at the National Library in Wellington says this of the Declaration: “It was how rangatira (Maori leaders) told the world, back in 1835, that New Zealand was an independent Maori nation.”
An entirely false assertion.
The so-called "Maori Flag" (not the Maori sovereignty flag fudged up in the 1989) was adopted by Northland chiefs in 1834 at the behest of British Resident James Busby, after a NZ-built ship owned by resident Europeans in conjunction with a Hokianga Maori chief was impounded in Sydney for not flying the flag of a recognised nation state.
Busby presented the chiefs with a variety of designs. They chose a flag modelled on that of the Church Missionary Society, with which they were well-familiar.
This was not a Maori initiative, but a Pakeha-brokered expedient to protect New Zealand's pre-Treaty commerce.
Nor was the 1835 Declaration of Independence driven by the puny number of Maori chiefs who signed it.
This "paper pellet to fire at the French" was put together by Busby to head off Colonial Office fears of an impending takeover by French adventurer, Baron De Thierry.
It should be noted that Busby had no official standing, no plenipotentiary authority, and acted entirely on his own initiative in doing what he did.
Initially carrying the signatures (or rather the thumbprints) of 34 Northland chiefs, the Declaration was ultimately signed by just 52 chiefs, all but two residing in Northland.
Since these chiefs represented less than 10 percent of all the tribes of New Zealand, the Declaration can hardly be held up as evidence of a national consensus.
Assertions of prior Maori sovereignty are further undermined by the impotence of the handful of chiefs who signed the Declaration “to act or even deliberate in concert.”
It could not even be asserted that a sovereign consensus prevailed in Northland after He Whakaputanga was signed.
Signatories had pledged “to meet in Congress at Waitangi in the autumn of each year, for the purpose of framing laws for the dispensation of justice, the preservation of peace and good order, and the regulation of trade."
Inter-tribal animosities meant this body never met nor passed a single law. Indeed, within a year, many signatories were fighting one another.
The Declaration clearly falls way short of being what the Archives NZ website describes as “a bold and innovative declaration of Indigenous power.”
Even had the Declaration carried practical weight, almost all its handful of 1835 signatories (or their successors) signed the Treaty of Waitangi in 1840, thereby rendering it redundant.
Article I of James Busby’s final English language draft dated 4 February 1840 and translated into Maori by the missionary Henry Williams and his son (both fluent Maori speakers who’d lived in NZ for almost 20 years) for presentation to the Chiefs on 5 February reads:
“The chiefs of the Confederation of the United Tribes and the other chiefs who have not joined the confederation, cede to the Queen of England for ever the entire Sovreignty [sic] of their country.”
We have totally wiped out the ridiculous He Whakaputanga and the assertion that Maori had a sovereign nation state prior to 6 February 1840, am I right?
I see Whakaputanga as an exercise in leading Maori to understand their (potential?) Sovereign power.... and thus being able to cede that recognised power by signing The Treaty of Waitangi. A pre-cursor. There simply has never been a single ruling authority over all Maori with whom to negotiate with.
Yes, you are right. Whatever status may have had, it was replaced by the Treaty.
KAWHARU’S RE-WRITTEN TREATY
In 1986, the Lange Labour Government commissioned Professor Sir Hugh Kawharu, Professor of Maori Studies at the University of Auckland, to produce a contemporary back translation of Te Tiriti’s Maori text.
Kawharu had just been appointed to the Waitangi Tribunal, a highly influential role he would hold for 10 years from 1986.
At the time of this appointment, Kawharu was also a claimant on behalf of Ngati Whatua, working on his tribe’s various Treaty claims, and representing it in the Bastion Point land claim negotiations.
Hardly someone without an axe to grind. Many might also recognise several conflicts of interest.
We might also ask why a further back-translation was needed, when TE Young’s 1869 back-translation compiled for the Native Department long before radical activists politicised the Treaty, was already available.
Kawharu’s mischief-making 1986 back-translation was then accepted as definitive by the government of the day.
His radical reinterpretation of Te Tiriti soon morphed into the manifesto of the Maori Sovereignty movement.
Kawharu’s New Zealand Dictionary of Biography page describes “a man of quiet persuasion” noted for “persistent advocacy for the Maori right to exercise rangatiratanga (self-determination).”
“Rangatiratanga” or Māori self-determination lay at the core of Kawharu’s reinterpreted Treaty, complete with 11 footnotes radically redefining key words away from what was understood by all in 1840.
At footnote 7, he asserted that “rangatiratanga” in Article II of Te Tiriti meant “the unqualified exercise of their chieftainship.”
Ignoring the historical record of what the chiefs actually said on the lawn at Waitangi, Kawharu declared that this “would emphasise to a chief the Queen's intention to give them complete control according to their customs.”
In arriving at this conclusion, Kawharu completely ignored the fact that “rangatiratanga” as used in Te Tiriti at Article II narrows any broader meaning that might be attributed to it, to being a right to ownership and control of land and personal property.
He also ignored the fact that Te Tiriti’s guarantee of property rights applied to everyone here on 6 February 1840, both white and brown.
By redefining “rangatiratanga” as self-determination, Kawharu set up Te Tiriti to be used to justify Maori sovereignty aspirations.
His commentary around the word “kawanatanga” in Article 1 was a further re-write.
Kawharu asserted: “there could be no possibility of the Maori signatories having any understanding of government in the sense of ‘sovereignty’.”
Eyewitness accounts of the treaty debate on February 5, 1840 at Waitangi, certainly say otherwise.
CMS printer, William Colenso’s primary source account of proceedings shows the chiefs were well-aware their acceptance of Hobson would place him in authority over them, and that behind Hobson was Queen Victoria.
Kawharu’s claim at footnote 6, that the chiefs could not comprehend “sovereignty”, opened the way for the false claim that the chiefs never ceded it.
Kawharu’s Te Tiriti rewrite has allowed radical activists to glove-puppet politicians and jurists into adopting his political manifesto dressed up as a Treaty translation as the basis for judgments and policies.
Kawharu’s reinterpreted Treaty text was the one applied by Cooke CJ in the NZ Māori Council Court of Appeal case of 1987.
Kawharu was one of 20 radical activists submitting affidavits for that case along with New Zealand Maori Council chair Sir Graham Latimer, historian [sic] Claudia Orange, land march activist Whina Cooper, history lecturer and Ngai Tahu claimant Harry Evison, medical practitioner Mason Durie, and accountancy professor and later Maori Party chairman Whatarangi Winiata.
Legal Positivists apply the law according to law and precedent. Their commitment is to upholding the Rule of Law.
Judicial activists apply the law according to their own social and political opinions. Here, the rule of law is trumped by personal opinion filtered through the lens of social justice concerns.
The rise of judicial activism in New Zealand traces back to Lord Cooke of Thorndon (Robin Cooke), a bleeding heart liberal who should never have been allowed near a judicial appointment, let alone to preside over New Zealand’s highest Court of his time.
Lord Cooke had, during the course of his legal education, been heavily influenced by another judicial activist, Lord Denning, an outlier on
Britain’s Privy Council.
Here’s David Baragwanath, Counsel for the Appellants in the 1987 NZ Māori Council case from which the Treaty ‘partnership’ fiction derives, skiting about the outcome at a commemorative symposium held some 20 years later:
“I began to read [Dame Whina Cooper’s] affidavit [asserting land somehow had a special meaning to her as a part-Maori]. By the end of the first paragraph , the President’s familiar handkerchief was out. As it continued, his emotion was evident. By the end of the affidavit, Dame Whina had taken the case from his head to his heart, and we had captured him.”
Say goodbye to the rule of law.
Kawharu’s redefinition of “rangatiratanga” as “the unqualified exercise of their chieftainship” underpinned the Court of Appeal’s finding in the Māori Council case that Te Tiriti was “akin to a partnership.”
This reinterpretation soon made its way over to the Waitangi Tribunal, on which its author was already a key player.
The Kawharu rewrite later formed the basis of Sir Geoffrey Palmer’s five Principles for Crown Action on the Treaty of Waitangi.
These five principles, kawanatanga, or government; rangatiratanga, or self-management; equality; cooperation; and redress, were published on 4 July 1989.
Leftist academics, the Waitangi Tribunal, and ‘woke’ senior public servants, then amplified the ‘partnership’ fiction over succeeding decades, culminating in the Arden Labour Government setting up a Treaty Partnership Ministry in 2017.
This in turn blossomed into the He Puapua blueprint for two governments by 2040, one by Maori for Maori; the other a fully bicultural version of what we already have, subject to a tribal monitoring committee.
Behind these developments are wealthy tribal entities flush with ill-gotten pee from Treaty Settlements, greedy for political power over their non-Māori fellow-citizens.
In summary, the ‘Treaty Partnership’ ideology behind these developments traces back almost 40 years to Kawharu’s rewrite of Te Tiriti and the government’s adoption following the NZ Māori Council Court of Appeal decision, of Geoffrey Palmer’s Principles For Crown Action .
Bypassing Kawharu’s reinterpretation, ACT leader David Seymour has based his three brief principles on Te Tiriti’s actual black letter wording and the recorded contemporary understanding of its meaning and intent in 1840.
ACT’s proposed Treaty Principles Bill would provide that:
1. The government has the right to govern and there is one government for all New Zealanders.
2. We all have rights within the law to “tino rangatiratanga”, or self-determination, and to ownership and control of our lawfully acquired property.
3. We all have “nga tikanga katoa rite tahi” or the same rights and duties.
For brown supremacist part-Māori to argue against Seymour’s Bill is to deny and dishonour the selfsame Te Tiriti that their tupuna signed up to in 1840.
In 1922, Sir Apirana Ngata summarised the effect of the Treaty of Waitangi with considerable clarity, finality, and certainty: “Article I of the Treaty transfers all chiefly authority to the Queen forever, and the embodiment of that authority is now the New Zealand Parliament. For that reason, all demands for absolute Maori authorities are nothing more than wishful thinking.”
“The Treaty … made the one law for the Maori and the Pakeha. If you think these things are wrong and bad then blame our ancestors who gave away their rights in the days when they were powerful.”
So let’s have and be accepting no more of this nonsense that David Seymour is “rewriting the Treaty.”
Outrage over ACT’s proposed Treaty Principles Bill boils down to this: the fear that brown supremacist part-Māori who have turned their white ancestors into a toilet bowl to identify monoculturally as ‘Māori, might lose their unearned ethnocentric privilege.
As black American political economist, Thomas Sowell, reminds us: “When people become used to special treatment, equal treatment seems like discrimination.”
ENDS
Reuben, I cannot find a source for your Baragwanath quote. Can you provide one, please.
Thanks for your presentation of important material, Reuben.
I doubt the correctness of "He also ignored the fact that Te Tiriti’s guarantee of property rights applied to everyone here on 6 February 1840, both white and brown." That's because in these early days "ki tangata katoa o Nu Tirani", all the people of New Zealand, meant the Maori people. This appears from contemporary writings such as Letters from the Bay of Islands, a collection of letters and other material, primarily from Henry Williams' wife, Marianne, to her English relatives. Throughout the book, Marianne and the others whose writings are collected distinguish Maori from themselves by referring to the former as New Zealanders. In the very first letter, dated 7 August 1823 (p 54), Maryanne says, "Next morning Mr Marsden put into our cabin a pretty little naked Newzealand boy, about 2 years old....." Another example towards the end of the book concerns an account of an attack on James Busby (p 223). "Shortly afterwards it was discovered who was the aggressor; and a general meeting of the chiefs was convened to consider the case. It was considered by the New Zealanders as very atrocious, inasmuch as it was a night attack ...." The non-Maori are never referred to as New Zealanders, but as missionaries, Europeans or British subjects. It follows that when Henry Williams wrote ""ki tangata katoa o Nu Tirani", he was referring to Maori, not to everyone.
As the Treaty was between the Maori chiefs and the British Crown, and the missionaries and settlers were not party to it, conferring rights on them would be out of order. British subjects already had the benefit of British law.
Apart from that and some of the material about Hugh Kawharu of which I have insufficient knowledge, the great deal of reading I have done concerning these matters leads me to be entirely in agreement with your account.
SOVEREIGNTY CEDED, PROPERTY AND CITIZENSHIP RIGHTS GUARANTEED FOR ALL
Article II of Te Tiriti grants “tino rangatiratanga” not just to brown supremacist part-Maori racists, but to ALL New Zealanders.
ARTICLE I of James Busby’s final English language draft dated 4 February 1840 and translated into Maori by the missionary Henry Williams and his son (both fluent Maori speakers who’d lived in NZ for almost 20 years) for presentation to the Chiefs on 5 February reads:
“The chiefs of the Confederation of the United Tribes AND THE CHIEFS WHO HAVE NOT JOINED THE CONFEDERATION [emphasis added] cede to the Queen of England for ever the entire Sovreignty [sic] of their country.”
That wipes out the ridiculous Declaration of Independence of the Confederation of the United Tribe [He Whakaputanga] and the assertion that Maori had a sovereign nation state prior to 6 February 1840.
ARTICLE II reads:
“The Queen of England confirms and guarantees to the chiefs and the tribes [the natives] and to all the people of New Zealand [the white pre-Treaty settlers holding land according to tikanga, meaning for as long as 'their' tribe could defend the locality against outsiders], the possession of their lands, dwellings and all their property.”
Everybody needed the same assurance from the incoming sovereign: that existing private property rights would be upheld and protected.
If ‘Tino Rangatiratanga’ means in its broadest sense “the unqualified exercise of their chieftainship” as claimed today based on Sir Hugh Kawharu’s bogus back translation, it was certainly not being used that way in Te Tiriti in 1840.
In the context of Te Tiriti, the words narrow in their meaning to be a guarantee of property rights in land and other property [the correct translation of ‘taonga’ in 1840] to both the natives and pre-Treaty settlers alike.
It is thus impossible to construe Article I as having been drafted to provide for the Crown to govern the settlers and for the chiefs to continue governing their tribes according to Article II.
If Te Tiriti was intended to be a Constitutional document providing for spheres of co-governance as asserted today, there would have been no mention of the white pre-Treaty settlers in Article II.
An open-ended co-governance arrangement would surely have been worded at Article II; “the Queen of England HER HEIRS AND SUCCESSORS [emphasis added to additional wording] and “the chiefs THEIR HEIRS AND SUCCESSORS [emphasis added to additional wording]; and “Tino Rangatiratanga” would have been used in an entirely unrestricted manner, not narrowed as it was to being a guarantee of property rights to EVERYONE.
The recorded words of the chiefs on the lawn at Waitangi and elsewhere make it clear they were well-aware that their acceptance of Hobson would place him in authority over them, and that behind Hobson was Queen Victoria.
ARTICLE III reads:
“In return for the cession of their Sovreignty [sic] to the Queen, the people of New Zealand shall be protected by the Queen of England and the rights and privileges of British subjects will be granted to them.”
In signing Te Tiriti, all the natives – including the chiefs – became not ‘partners’ but EQUAL SUBJECTS of the Crown in a nation state the white settlers would henceforth create where none had existed before.
Equal Subjects means individual rights of citizenship — nothing more and nothing less.
Te Tirit cannot possibly be construed as a guarantee of perpetual group rights to brown supremacist part-Maori (with an ever-declining Maori blood quantum).
It is ludicrous and intellectually incoherent to propose that the cession of sovereignty in Article I, restated in Article III, would be countermanded by a reservation of chiefly authority in Article II.
Nobody in their right mind could believe that the Crown would offer hundreds of small bands of subhuman cannibal savages full citizenship and protection, yet allow their leaders and those whom they represented to remain completely outside British rule of law.
The Treaty does not describe a partnership. This is just people making things up.
“Sovereignty” means “the supreme power or authority.”
It is thus Constitutionally impossible for a sovereign to be in ‘partnership’ with a subject or group of subjects.
On 6 February 1840, one party [the Crown] absorbed and digested the parties of the other side [the chiefs and those whom they represented].
This rendered Te Tiriti from the moment it was signed analogous to a used table napkin after a meal, and other than as a historical artefact, about as relevant.
https://sites.google.com/site/treaty4dummies/home/the-littlewood-treaty
ENDS
Very good! Another 'anomaly' of the modern thinking of Chiefly authority is that the Treaty overnight freed some 40% of the Maori population and delivered them from slavery to become the equal of any man as a British subject. Slavery disappeared BECAUSE the Chiefs lost their Chiefly authority.
Well presented Gary. I note extended comments here debating the legality of how many Maori appointees can squeeze on to the head of a pin with the angels (there’s a territorial conflict for you!), but with respect, they miss the point. This act of appointing anyone on the pure basis of race is simply bollox. Using ‘Iwi’ as a grouping instead is fine for generally targeted consultation on Council matters, but NO more so than should be extended to any other community group. Iwi are just a club. A group of folk who share an interest. The SAME as the rest of us. Any legal avenue providing otherwise is immoral & agin the Treaty. Stacking a committee with those numbers is next level taking the piss & needs urgent Govt action to fix it.
Thanks, Boris. It is well recognised that good governance may sometimes require co-opting someone with special skills to assist a committee in its deliberations. Co-opting an accounting expert to a company's audit committee is an obvious example. But what FNDC has done is completely different.
Gary, well presented, thank you.
I think your point raises two separate issues, and the distinction matters even more in light of how some councils are now structuring these appointments.
On the first, the statute sets a relatively light threshold. It does not require proof that a person objectively has the relevant skills, attributes or knowledge. It requires only that the local authority forms that opinion. So there is no strict evidential test in the sense of having to demonstrate competence to some external standard.
But the second issue is how that opinion is formed. Even though it is subjective, it must still be genuinely and lawfully arrived at. The Council has to turn its mind to the function of the committee, consider what capabilities would assist that function, and then form a view about whether the proposed appointee meets that need. That thinking has to be traceable in some way.
What is interesting in the Far North agenda is that Council has expressly moved away from any internal assessment of nominees and instead relies on iwi and hapū nomination processes. That may be entirely appropriate from a partnership perspective, but it creates a legal tension. Clause 31 still requires the opinion to be that of the Council. If Council simply accepts nominations without showing how it has connected those nominees to the committee’s needs, it risks substituting someone else’s judgment for its own.
So I would put it this way. The bar is opinion, not proof, but even an opinion must be formed. And where the material does not show any link between committee function, committee need, and the appointee’s capability, it becomes difficult to say that the statutory opinion has actually been exercised, rather than assumed.
Absolutely correct. Thanks.
What a role model to the rest of us.Most of the country - including the Nats- are appalled at the irregularity of much in local government but it takes this one brave woman to stand for the truth. Let's get behind her.
Love your ref to Daniel. I am a strong supporter of Ms Smoulders.
Given that the mayor of FNDC and the members of its governing body, apart from Ms Smolders, have engaged in processes which corrupt the purposes and principles of local government, what can I do about it? Welcome your thoughts.
Just keep on calling it out, encouraging people like Davina Smolders, and hope the politicians get the message that firm and resolute leadership and action is required to remove from New Zealand society the cancerous tumours spawned by deceit and the desire for unearned power and wealth.
Thank you for your thoughtful, thorough and bang on article! Cr Davina Smolders
Courage often begets courage. Here's hoping it has a ripple effect not only in the Far North but in other councils!
Thanks very much, Davina, for your stand.
Thank you for your courage & resolve.
Your points about the broad terms of reference seem valid. But your claim that appointment of committee members was illegitimate and unlawful seems like a stretch.
Seems to me that if the committee is to enable Council to have better relationships with Iwi and hapu then
the "requisite skills, attributes or knowledge" are, more or less, that the person on the committee is known and trusted by at least one Iwi or hapu, and that therefore the appointment of any representative is fine.
Look up what capacity building is, before you decide whether that is a legitimate use of taxpayer funds for an unelected body of unnamed unelected representatives not of all the ratepayers, only nominated for their placeholding of special character or membership of a group. The Mayor has exempted any checks and balances to avoid scrutiny. And is it really fine if this is the one committee that gives birth to a perpetual Independent Maori Statutory Board for the Far North, completely autonomous, with its own budget/Maori Outcomes, unaccountable to election and written into forever legislation like Auckland.
"It is therefore obvious that in the first place the governing body cannot lawfully let someone else choose committee members. But that’s what the April 15 meeting did when it appointed “another eight to be … from iwi and hapū that have an existing memorandums of understanding [sic] with the council.”
If a Council delegates a task to "someone" to bring a recommendation to full Council then surely there is no impediment to those Councilors present voting in favour of or against recommendation. In the corporate world candidate selection often involves the advice of specialist consultants.
If they never ask full council then their delegated decision making powers mean their decision goes through
Not even slightly democratic
Put the full farce to a ratepayers referendum