Previewing Waitangi Day

February 4th, 2009 at 1:00 pm by David Farrar

AUT History Professor previews Waitangi Day:

Few people will miss the bad old days, when our national day was punctured by protests, revealing one of the less edifying sides of our country’s character.

Much of the new calmness that has descended on can be attributed to who, as Prime Minister-in-waiting, allayed fears about how a National Government would deal with Maori issues in general and who, on being elected, followed through with his commitment to inclusion by inviting the Maori Party to have a role in his administration.

It is due to this expected calm, that Taiuni’s Maori King is attending for the first time.

So now that the new age of co-operation has dawned, what is the future for the Treaty? The Government has made it clear that it is dedicated to a deadline for resolving historical claims, and so it is time to start looking to a post-Waitangi Tribunal era for the Treaty.

There will be some losers in this. A coterie of lawyers – fleshy-lipped from years of sucking healthy fees from the claims process – will be left looking elsewhere for sources of income. But it is unlikely that many people will evince much sympathy at their plight.

Personally I think 2014 to settle all outstanding claims may be overly ambitious, and won’t be surprised if it stretches out a bit beyond that. But I do expect that finally all claims will be settled between say 1990 and 2020.

The next challenge will be in considering whether the Treaty belongs in some formal constitution that will no doubt be devised in the next few decades (can I hear the sound of lawyers again rubbing their hands?).

This is a much more complex issue than it sounds, though. The was an agreement between two sovereign nations, and was not initially intended to serve as an internal constitutional document.

This is a critical point. It was, well a Treaty, not a constitution designed to be supreme law.  A constitution has to be voted on (well maybe not in Fiji but here) and accepted by either a super-majority of Parliament or by the people at large.

Someone once suggested that if you look at the United States, our Treaty of Waitangi is more akin to the Declaration of Independence (which has no legal standing) than the Constutition and Bill of Rights. The Declaration of Independence is an important founding document, but there is no constitutional right to the pursuit of happiness :-)

Not that I am against any Constitution for NZ possibly having some recognition of the Treaty, but that is very different from just declaring the Treaty as part of the supreme law.

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25 Responses to “Previewing Waitangi Day”

  1. Graeme Edgeler (3,277 comments) says:

    there is no constitutional right to the pursuit of happiness

    You sure it’s not protected by the 9th amendment?

    :-)

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  2. CraigM (694 comments) says:

    I started to write a brilliant response full of balance, insight and positivity.

    Then I realised just how fucking sick I am of the whole treaty grievance industry so I deleted it.

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  3. gd (2,286 comments) says:

    We need to move on and get over it Unless we do NZ will be condemed to fighting the battles of 1840 for the next 100 years Its only those with a financial or other motive that give a rats arse anyway. Relitigating the rights and wrongs of the 1800s aint going to improve the lot of the Maori people.

    In fact some would say that Maori havent seen any benefit as a total group from the billions of dollars so far.

    Only the lawyers and the so called leaders appear to have anything out of it.

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  4. MyNameIsJack (2,415 comments) says:

    “The Treaty of Waitangi was an agreement between two sovereign nations, and was not initially intended to serve as an internal constitutional document.”

    One of the best arguments for NZ cutting ties with the Crown and becoming a republic – the treaty will then have no hold ove the New republic.

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  5. poneke (280 comments) says:

    our Treaty of Waitangi is more akin to the Declaration of Independence (which has no legal standing) than the Constutition and Bill of Rights.

    Our Declaration of Independence was promulgated in 1835, five years before the Treaty. In fact the Treaty had to be negotiated because the British Crown recognised the legal standing of the Declaration of Independence:

    Declaration of Independence of New Zealand

    1) We, the hereditary chiefs and heads of the tribes of the Northern parts of New Zealand, being assembled at Waitangi, in the Bay of Islands on this 28th day of October, 1835, declare the Independence of our country, which is hereby constituted and declared to be an Independent State, under the designation of The United Tribes of New Zealand.

    2) All sovereign power and authority within the territories of the United Tribes of New Zealand is hereby declared to reside entirely and exclusively in the hereditary chiefs and heads of tribes in their collective capacity, who also declare that they will not permit any legislative authority separate from themselves in their collective capacity to exist, nor any function of government to be exercised within the said territories, unless by persons appointed by them, and acting under the authority of laws regularly enacted by them in Congress assembled.

    3) The hereditary chiefs and heads of tribes agree 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; and they cordially invite the Southern tribes to lay aside their private animosities and to consult the safety and welfare of our common country, by joining the Confederation of the United Tribes.

    4) They also agree to send a copy of this Declaration to His Majesty, the King of England, to thank him for his acknowledgement of their flag, and in return for the friendship and protection they have shown, are prepared to show, to such of his subjects as have settled in their country, or resorted to its shores for the purposes of trade, they entreat that he will continue to be the parent of their infant State, and that he will become its Protector from all attempts upon its independence.
    Agreed to unanimously on this 28 day of October, 1835, in the presence of His Britannic Majesty’s Resident.

    (Here follow the signatures and marks of thirty-four hereditary chiefs or Heads of tribes, which form a fair representation of the tribes of New Zealand from the North Cape to the latitude of the River Thames.)
    English witnesses:
    (Signed) Henry Williams, Missionary CMS
    George Clarke, CMS
    James Clendon, Merchant
    Gilbert Mair, Merchant

    I certify that the above is a correct copy of the Declaration of the Chiefs, according to the translation of Missionaries who have resided ten years and upwards in the country; and it is transmitted to His Most Gracious Majesty the King of England, at the unanimous request of the Chiefs.

    (Signed) JAMES BUSBY, British Resident at New Zealand.

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  6. dimmocrazy (286 comments) says:

    This history professor got his facts wrong: the treaty was NOT an agreement between two sovereign nations. Neither is the statement that “a constitution must be voted on” correct, that is but one of the conceivable mechanisms, and the ‘revolutionary’ process is just as valid. The ultimate criterion is acceptance, be that by way of formalized process or practical operation.
    The treaty can never be validly turned into ‘supreme law’, although it contains premises that may need to be integrated into supreme law if and when NZ wishes to develop a real constitution. Personally I am a strong proponent of a serious constitution, together with a serious constitutional court.

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  7. poneke (280 comments) says:

    the treaty was NOT an agreement between two sovereign nations.

    Er, it was, actually.

    The British Crown recognised the sovereign status of New Zealand following the 1835 Declaration of Independence (which I have posted above) and thus accepted that under international law it needed to negotiate a legal agreement with the chiefs in New Zealand in order for colonisation to be legal.

    The fact that you do not recognise the legal status of this process in no way negates its legal status under international law.

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  8. getstaffed (9,189 comments) says:

    …under international law…

    What, pray, is international law and what did it look like in 1835?

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  9. dimmocrazy (286 comments) says:

    Poneke, so you are saying that it was up to the British Crown to determine whether the NZ islands as we now define them were a sovereign nation at the time the treaty was entered into, and on the basis of this declaration of independence?

    Quite apart from the legal status of the treaty of Waitangi process (and I have not in fact said whether I recognize that or not), there is no international law that supports the creation of sovereignty by the fact of apparent acceptance by one treaty partner (the one that has an advantage of the presumption).

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  10. Graeme Edgeler (3,277 comments) says:

    getstaffed – international law as we’ve come to understand it first arose in 1648, with what is sometimes known (erroneously) as the Treaty of Westphalia (it was actually two differently-named treaties). Other major activities in international law before 1835 include the results of the 1814-5 Congress of Vienna.

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  11. getstaffed (9,189 comments) says:

    Graeme – thanks. I’m intrigued by what appears, to a layman at least, to be a conflict between the right of a sovereign nation to do as they see fit, and their obligation to comply with any externally imposed obligations. Surely international law consists of treaties, accords and understandings which are electively complied with. Way out of my depth here as you can probably tell!

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  12. poneke (280 comments) says:

    I’m intrigued by what appears, to a layman at least, to be a conflict between the right of a sovereign nation to do as they see fit, and their obligation to comply with any externally imposed obligations.

    At its most basic, your sovereign nation does not have the right under international law to invade another without just cause and take control of it. This is why the British sent Hobson to Waitangi all those years ago, and why Hitler’s invasion of his neighbours was illegal under international law, as was Dubya’s invasion of Iraq (but not his father’s driving of Saddam out of Kuwait).

    Surely international law consists of treaties, accords and understandings which are electively complied with.

    Er, yes. And virtually every nation on this planet has signed up to the various international instruments and most obey them. It is how we all mostly get along with one another on this crowded planet. They are not some abstract academic ideal.

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  13. big bruv (13,571 comments) says:

    Bruv’s Preview of Waitangi day.

    * A never ending line of self important elders and assorted apologists will continue to blame colonisation for everything wrong in the Maori world.

    * Nobody will take ownership of the seemingly never ending line of Maori child killings.

    * Maori will demand yet more money from the tax payer.

    * John Key will be at his sickening arse kissing best as he seeks support for his alliance with the racist apartheid party.

    * Radicals will deny the media access to public areas and our gutless press will do as they are told.

    * At least 50% of the attendees will be welfare beneficiaries.

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  14. poneke (280 comments) says:

    John Key will be at his sickening arse kissing best as he seeks support for his alliance with the racist apartheid party.

    Hey Bruv, but wasn’t apartheid great in Sud Afrika? Don’t you reckon it’s all gone to the dogs since it ended?

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  15. big bruv (13,571 comments) says:

    poneke

    Don’t you have a bus to catch or get excited about?.

    But anyway, are you suggesting that the Maori party are not racist?

    [DPF: In the sense that they believe one race is superior or inferior to another, no. ]

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  16. poneke (280 comments) says:

    Don’t you have a bus to catch or get excited about?

    Nah, so I thought it’d be more fun to wind up a few raving bigots, and it never fails.

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  17. big bruv (13,571 comments) says:

    “Nah, so I thought it’d be more fun to wind up a few raving bigots, and it never fails”

    Don’t flatter yourself Poneke, you lefties fall over yourself to make excuses for the apartheid party and Maori in general, this is one of the main reasons we continue to see their people fail.
    The very mention of personal responsibility is enough to make the likes of you break out in a cold sweat.

    Why are you so afraid of somebody telling it like it is?

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  18. grumpyoldhori (2,416 comments) says:

    big bruv, you self employed, an employer, a wage slave , or a so called public servant ?

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  19. bringbackthebiff (106 comments) says:

    Its easy to see why you are all so wrong when it comes to Waitangi Day. You are all looking backwards. You will never see the possibilities of the future that way. Besides you can all bitch about the treaty and stuff for the other 364 days of the year. With respect to maori non maori relations we are miles ahead of the aussies. Maybe its because they aren’t tied up in it, they celebrate Australia Day. Its about celbrating being an Aussie (as annoying as that can be, Aussie Aussie Aussie Oi Oi Oi, being a case in point).

    Personally, I’m feeling ill on Friday the sixth, which is a day of no significance here in Oz, and will spending Waitangi Day with other kiwis having a few beers and a feed.

    I suggest the 4 million or so still in motherland, learn to do the same. Enjoy not having to go to work, and celebrate being a kiwi FFS.

    You can get back to the important task of arguing who does or does not deserve what on Monday.

    Cheers
    BBTB

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  20. clintheine (1,568 comments) says:

    Ahhh Poneke, in true leftie form by throwing statements like “raving bigots” to get attention to himself. I’m interested Poneke on your analysis of how much better South Africa has got for everybody since the end of apartheid. The shining example of inclusiveness and progress…. yeah right.

    I will be spending my Waitangi Day in London again, with 14,000 Kiwis doing the pub crawl again. We’ll open our event up to our Aussie, South African, English and European brothers and sisters and have a great day out celebrating being Kiwi. I know that upsets you Poneke, especially as we will forsake public transport on the day :)

    Oh and I’ll be on RNZ Thursday after 5pm talking about the pub crawl here in London if anybody is interested!

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  21. Komata (1,142 comments) says:

    In my naivety, I thought that John Key would be welcomed onto the Ti Itti Marae at Waitangi in a spirit of recociliation and togetherness and that for once, just for once, things would be peaceful. After all, all the former ‘advocates of protest’ were now on his side and walking with him as he made his entrance.

    But no, true to form, two Maori individuals jostled him as he started to enter the Marae this morning, to the extent that the Boys in Blue became involved. and that as the two miscreants were escorted away one yelled out ‘Don’t think that the Maori Party will protect you Bro!’.

    Why does this NOT surprise me and why does it reinforce the widely-held view that Maori simply cannot be trusted, that that their word is probably worthless, and that they will go out of their way to sabotage any efforts that are made in the name of unity and reconciliation?

    Sadly, Waitangi-eve of 2009 will NOT be remembered for the reconcilaition-attempt by John Key.

    But it WILL be remebered for the attempt on his person by two Maori, which will once again reinforce the sterotype!

    Have others had this reaction? I simply couldn’t believe it – a chance for reconciliation and they blew it.

    (And I notice that, as at 1600, there was no loud protest and round-condemnation of these two’s actions from their own! If you don’t condemn something like this IMMEDIATELY and by any means possible, it could be construed that you tacitly agree with it – just a thought)

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  22. big bruv (13,571 comments) says:

    * A never ending line of self important elders and assorted apologists will continue to blame colonisation for everything wrong in the Maori world………..Check.

    * Radicals will deny the media access to public areas and our gutless press will do as they are told…….Check

    Actually the last one is even worse than I thought, apparently these thugs have “denied the police access to the lower marae”

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  23. Komata (1,142 comments) says:

    Oh, and I forgot the most obvious and saddest stereotype – that Maori will inevitably, invariably, use VIOLENCE in preference to talking.

    ‘Hit first, than talk afterwards (so long as you’ve beaten the daylights out of your supposed enemy)’ seems to be the mantra of preference for a lot of these people.

    Sadly, today’s little effort does nothing to dispute the stereotype!

    One day, perhaps one day, they might get their act together (Yes. even their leaders) but quite frankly I (and probably most of New Zealand) am not holding my breath.

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  24. wikiriwhis business (3,883 comments) says:

    “‘Hit first, than talk afterwards (so long as you’ve beaten the daylights out of your supposed enemy)’ seems to be the mantra of preference for a lot of these people.”

    I’m afraid you’re only too correct.

    Most protestors are uneducated and the educated ones don’t educate them.
    I don’t think there is a desire to be educated. There is a desire to be heard above all else which is a volatile attitude inspiring violence just under the surface. Not for no reason protestors appear as gangsters with covered faces.

    Peaceful protest has proven itself and in no way has it provoked police violence as at the spring boks confrontations.
    Therefore protestors cannot say they have not been heard and do themselves and their reputations irreputable damage resorting to the base instincts.

    But let us also understand that the reason there are still unsatisfied elements in Maori is simply because they are unsatisfied. The rau patu settlements haven’t filtered down and only the hierarchy and trust board members seem to have the desired voice and even more desired benefits.
    There have been employment strategems; Tainui esp. As well of course as Ngai Tahu with Sea Lords.

    Now we get to the bud. Who are the protestors at Waitangi. Underpriviliged Maori. And where do they come from.

    You got it…… Nga Puhi. No employment. Poor housing, health, education. and they’re making it known every year.

    A hint was put out that the King is descended from Nga Puhi. This was a tactic to take Nga Puhi minds off Tainui wealth. Directly inputted from Rau Patu settlements the average nga Puhi never sees. If Tainui were too keep remindiong Nga Puhi of the Kings links, questions would certainly arise about those payments. You can be guaranteed those kingly links won’t be repeated in Ngapuhi ears consistently.

    The King keeps Nga Puhi links because his father was from there. A coupling with the Queen Tainui elders were firmly against. The stronger he makes those links, the more anticipated benefits Nga Puhi will expect. In fact, we could well surmise the man handling of the PM was for the benefit of the King.

    “You are here, we grow impatient,” could be the interpretation between Nga Puhi to Tainui.

    Covert to European eyes, Overtly obvious to Maori eyes I’m thinking.

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  25. Dirty Rat (504 comments) says:

    I love Waitangi Day.

    I get a day off, and get paid for it. Stat days rock

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