Bill English: One sovereignty, one citizenship

National Party leader BILL ENGLISH argued in a speech this week that tino rangatiratanga was extinguished by the Treaty of Waitangi. This is an extract ...

Seven weeks ago, TV3 broadcast a documentary called 2050 What If . The premise was that by 2050 Maori sovereignty had been "restored".

So if you crossed Maori land in your car, for example, you might have to pay a toll. Crossing from one area to another, you might be required to show a passport. Te Reo could become compulsory in schools, and necessary for holding some jobs. That part of the programme was all good entertainment.

What was not so entertaining were the views expressed. Donna Hall said that separation of Pakeha from Maori, Maori from Pakeha would be "okay". Jane Kelsey assured viewers that "there is no question that we will have tino rangatiratanga. The question is how tauiwi will respond to that assertion".

This was just after Dr Ranginui Walker had again repeated that tino rangatiratanga was full and absolute chieftainship. The Treaty of Waitangi, in other words, is not what its words say it is.

There is little public debate on the meaning of the treaty. But there should be. Uncontested assertions are shaping Government policy, judicial thinking and political debate.

Today I will argue that the treaty created one sovereignty and so one common citizenship. I owe much to the work of my former colleague, Simon Upton, and adviser Bernard Cadogan for the historical material.

I say that unless New Zealanders accept Te Tiriti o Waitangi at something much closer to its face value, we could destroy something unique.

In the lead-up to New Zealand's creation in 1840, the Maori political and social environments had been devastated by more than two decades of musket wars. From 1817, warlords and their forces killed tens of thousands. Entire areas were ethnically cleansed.

It was likely that further slaughter could not be avoided by traditional means, nor could further violent dispossessions of hapu of their traditional homelands be prevented. An outside arbiter was thought to be absolutely necessary by an increasing number of Maori.

Many Maori began to seek law, either from the Bible or from the British. So they also began seeking a legislative sovereign power to make that law, and to enforce it.

On the British side, the political and intellectual environment at the time of New Zealand's creation was the principled libertarianism of Britain in the 1820s and 1830s. That age saw Britain's abolition of slavery and the emancipation of Catholics and other religious minorities.

New Zealand was to be an entirely new type of colony. Its people were supposed to "co-evolve". The new land's British subjects, of both founding races, were to intermarry.

It was expected in the 1830s and 1840s that upper-class Maori would intermarry with upper-class Europeans, the middle and the working classes likewise. The two peoples were to embrace. New Zealand was to become a racially homogenous community such as those that had emerged in Peru, Chile, Venezuela or Mexico, all recently liberated from Spain.

Both peoples would act. Both would shape the future. Each would assimilate the other, creating an entirely new people, their constitution and civilisation to be founded on that of Britain.

To establish this new sovereignty, the Colonial Secretary, Lord Normanby, instructed Captain Hobson that certain preconditions had to be satisfied before any treaty could be signed. Lord Normanby wrote that "we acknowledge New Zealand as a sovereign and independent state so far at least as it is possible to make that acknowledgement in favour of a people composed of numerous, dispersed and petty tribes, who possess few political relations to each other, and are incompetent to act, or even deliberate, in concert".

Even so, Normanby continued, "the admission of their rights, though inevitably qualified by this consideration, is binding on the faith of the British Crown. The Queen, in common with Her Majesty's immediate predecessor, disclaims for herself and for her subjects every pretension to seize on the islands of New Zealand, or to govern them as part of the Dominion of Great Britain, unless the free and intelligent consent of the natives, expressed according to their established usages, shall first be obtained."

In conclusion, Normanby told Hobson, "Her Majesty's Government have resolved to authorise you to treat with the aborigines of New Zealand for the recognition of Her Majesty's sovereign authority over the whole or any parts of those islands which they may be willing to place under Her Majesty's Dominion."

So why did the British negotiate to extend full British sovereignty over New Zealand? The option of establishing a protectorate was available.

Protectorate status for indigenous peoples was seen as an attractive remedy in many colonial situations. For one thing, protectorate status maintained a degree of sovereignty for those being protected.

The British had to reconcile the Maori desire to come under British law, and so become British subjects, with what further colonisation would demand. The treaty extinguished Maori sovereignty. The British would not have come into New Zealand unless it did.

Some argue that British intentions in signing the Treaty of Waitangi were and are irrelevant and that the meaning of rangatiratanga is what some Maori say it is, an unextinguished aboriginal right to self-government.

The United Nations 1969 Vienna Convention on the Law of Treaties, ratified by New Zealand in 1971, states: "When a comparison of authentic texts [in two or more languages] discloses a difference of meaning, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted."

Maori were indeed sovereign in 1840. But the Treaty of Waitangi fully conveyed that sovereignty. This was recognised by the other international maritime powers in the Pacific at that time - France, the United States and Russia in particular.

Maori were prepared to cede their sovereignty because of the expected benefits of a common, non-segregated polity in New Zealand.

* The speech was given at the Centre for Public Law, Wellington.