Expert: Treaty ruling 'distorts NZ history'

A 1940 re-enactment of the Treaty of Waitangi at the 100 year celebrations at Waitangi. Photo / NZ Herald archives

A history professor has criticised a Waitangi Tribunal decision that Maori chiefs who signed the Treaty of Waitangi did not cede sovereignty as "distorting New Zealand history".

Treaty specialist Paul Moon said the Tribunal's inquiry got basic historical aspects wrong.

"I was shocked by some of the statements contained in the report," says the Auckland University of Technology professor.

"This is not a concern about some trivial detail, but over the fundamental history of our country, which the Tribunal has got manifestly wrong."

"In particular, the Tribunal alleges that 'Britain went into the treaty negotiation intending to acquire sovereignty, and therefore the power to make and enforce law over both Maori and Pakeha'. This is simply not true," says Professor Moon, "and there is an overwhelming body of evidence which proves precisely the opposite. I cannot understand how the Tribunal got this so wrong."

The tribunal today released its report on stage one of its inquiry into Te Paparahi o te Raki (the great land of the north) treaty claims.

"Though Britain went into the Treaty negotiation intending to acquire sovereignty, and therefore the power to make and enforce law over both Maori and Pakeha, it did not explain this to the rangatira (chiefs)," the tribunal said.

Rather, Britain's representative William Hobson and his agents explained the treaty as granting Britain "the power to control British subjects and thereby to protect Maori", while rangatira were told that they would retain their "tino rangatiratanga", their independence and full chiefly authority.

"The rangatira who signed te Tiriti o Waitangi (the Treaty of Waitangi) in February 1840 did not cede their sovereignty to Britain," the tribunal said.

"That is, they did not cede authority to make and enforce law over their people or their territories."

Professor Moon is also critical of the way which the Tribunal elevates the importance of the 1835 Declaration of Independence: "The Tribunal sees the Declaration as some profound assertion of Maori Sovereignty. However, the Declaration had no international status, and was regarded by British officials at the time as 'a silly as well as an unauthorised act'. For some inexplicable reason, the Tribunal has again ignored all this evidence."

Professor Moon said the most concerning aspect of the report was the way the Tribunal seemed to be re-writing history with little apparent regard for evidence.

"This report may serve the interests of some groups," he says, "but it distorts New Zealand history in the process, and seriously undermines the Tribunal's credibility".

Treaty Negotiations Minister Chris Finlayson said the Tribunal's finding did not change the fact the Crown has sovereignty in New Zealand.

"There is no question that the Crown has sovereignty in New Zealand. This report doesn't change that fact."

Mr Finlayson said the report drew together existing scholarship on the Declaration of Independence and Treaty of Waitangi and that the tribunal noted that its report "represents continuity rather than dramatic change in current Treaty scholarship".

"The Tribunal doesn't reach any conclusion regarding the sovereignty the Crown exercises in New Zealand. Nor does it address the other events considered part of the Crown's acquisition of sovereignty, or how the Treaty relationship should operate today."

Mr Finlayson said the Government would consider the report as it would any other Tribunal report.

"The Crown is focused on the future and on developing and maintaining the Crown-Maori relationship as a Treaty partner. That's why we are so focused on completing Treaty settlements in a just and durable manner."

The report notes chiefs did agree "to share power and authority with Britain".

"They agreed to the Governor having authority to control British subjects in New Zealand, and thereby keep the peace and protect Maori interests," the tribunal said.

"The rangatira consented to the treaty on the basis that they and the Governor were to be equals, though they were to have different roles and different spheres of influence."

The detail of how this relationship would work in practice, especially where the Maori and European populations intermingled, remained to be negotiated over time on a case-by-case basis.

"Having considered all of the evidence available to the tribunal, the conclusion that Maori did not cede sovereignty in February 1840 was inescapable," it said.

The tribunal said nothing about how and when the Crown acquired the sovereignty that it exercises today.

However, it said, the Crown "did not acquire that sovereignty through an informed cession by the rangatira who signed te Tiriti at Waitangi, Waimate, and Mangungu".

The question of whether the agreement that was reached in February 1840 was honoured in subsequent interactions between the Crown and Maori would be considered during stage two of the inquiry.