Over the summer, I have been
reading the tribunal’s recent reports and doing my own research.
The Treaty is clear. It is a preamble and three articles. We also have the instructions to Governor Hobson.
The Crown offered its protection, guaranteed property rights and extended the rights of British citizenship.
In return, Māori ceded sovereignty, agreed to the Crown having a right of pre-emption and accepted the duties of citizenship.
The Treaty helped end 30 years of the devastating Musket Wars that had killed, enslaved or displaced a third of the Māori population.
The Waitangi Tribunal has declared it is not bound by previous tribunal rulings that sovereignty was ceded or by decisions of the courts.
The tribunal now says there are two Treaties, one in English and another in te reo, that are not translations of each other.
Accordingly, the tribunal has turned the Treaty upside down and ruled:
- Sovereignty was not ceded.
- The Crown pledged to enhance the chiefs’ authority.
- Queen Victoria agreed to govern in partnership with 650 chiefs.
- It is for Māori to decide what is to be decided by Māori.
- Māori were promised economic equality.
- Māori only agreed that the Crown could control settlers.
The tribunal reached these decisions by textual analysis rather than looking at the intent of the parties. Like Humpty Dumpty, the tribunal says words mean what they say they mean.
There were chiefs who had been to Australia and England. Chiefs who signed the English text. Chiefs who did not sign because they said they would not cede sovereignty.
No chief, including Hone Heke, who may have regretted signing, ever said that sovereignty had not been ceded.
Letters written by chiefs who signed the Treaty to governors complaining the Treaty was not being honoured never denied that sovereignty had been ceded.
Partnership is a 20th-century invention.
Having a tribunal that does not follow court rulings or its own previous findings is politically destabilising and unsustainable.
Article Three, which granted the rights and privileges of being British subjects, has been reinterpreted to be a promise that successive governments will ensure equality, the socialist dream.
Governments can deliver equality before the law, the right of British citizens.
No government ever, anywhere, has delivered economic equality.
As we will never have economic equality, the tribunal has created an endless grievance that can never be met.
I recently received a copy of the tribunal’s proposed 10-year strategic plan. The tribunal is going to be very busy hearing claims that inequality is a breach of the Treaty.
Māori Land Court judges, who head the tribunal, are well equipped to adjudicate on competing hapū and iwi claims, a significant proportion of the tribunal’s work.
The judges are people of integrity and sincerity but their background is land law, not the constitution.
Parliament, by empowering the tribunal to make recommendations based on the principles of the Treaty, has allowed the tribunal to create Treaty principles.
The tribunal’s rulings only have legal effect when the Crown adopts them. The Labour Government and now National have failed to respond to the tribunal’s radical ruling.
The Minister of Justice should have upheld earlier tribunal decisions that sovereignty was ceded.
The Economist magazine’s Democracy Index, which was published last week, says New Zealand is the second-most democratic country in the world. This is, in part, because the Treaty gave everyone citizenship. Today, sovereignty is held by us all when we elect our government.
In the absence of political leadership, the civil service has adopted the tribunal’s invented Treaty principles.
In the coalition agreement, National and New Zealand First agreed: “Amend the Waitangi Tribunal legislation to refocus the scope, purpose and nature of its inquiries back to the original intent of that legislation.”
In my letter of resignation, I have recommended the Government implement its coalition agreement and upgrade the tribunal by appointing a senior High Court judge, as was done when the tribunal was first set up.
The tribunal insults the chiefs when it says the chiefs did not mean to accept the Crown’s protection, create a nation, protect their property rights and extend citizenship to all Māori.
I will not participate in turning the Treaty into a socialist manifesto.
Ignoring the issue is not the answer. It is time for the Prime Minister to lead and uphold that there is one Treaty, one country and one citizenship.
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