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Wednesday, 11 February 2009

Maori and Pakeha are Not Partners to the Treaty of Waitangi

[For the benefit of our international readership: Maori are the indigenous people of New Zealand; Pakeha is a term used to describe Caucasian New Zealanders; The Treaty of Waitangi is a significant founding document of our nation over which many historical and current differences have arisen around its role, interpretation and application.]

Recently I read a document that stated, “This institution seeks to honour the partnership between Pakeha and Maori that is laid down in The Treaty of Waitangi.” I have seen this type of statement numerous times before in the mission statements of many different kinds of New Zealand institutions. I think this claim is nonsense. Below I will argue why.

At the heart of this kind of statement is the notion that The Treaty of Waitangi (The Treaty) constitutes a partnership between Maori and Pakeha; Maori and Pakeha apparently entered into an agreement which contains mutual obligations.

The problem with this claim is that only persons can enter into contracts. Persons are either rational self-conscious agents, such as adult human beings or legal persons which are an organisation of rational agents into an institutional structure of some sort. One cannot enter into a contract with concrete objects that are not persons such as rocks or trees; nor can one enter into contracts with abstract objects such as the colour blue. One would have thought this was an obvious point which did not need pointing out.

‘Maori’ and ‘Pakeha,’ however, are not persons. Individual Maori people and individual Pakeha people are persons, and individuals of either race can organise themselves into an institution which will have a legal personhood separate from their own individual personhood, but the racial groups ‘Maori’ and ‘Pakeha are not persons.

The term Pakeha is an abstraction, it is simply a reference to an aggregate of individuals who share a particular genetic trait. It is false that everyone who has these genetic traits signed The Treaty. In fact, as The Treaty was signed in 1840, no individual alive today signed The Treaty. It is equally false that simply because someone with the same genetic traits as me at some point in history signed a treaty that it follows that all members of my race signed a treaty.

What is accurate is to say is that two institutions entered into an agreement, the Crown and various Maori tribes. No Pakeha individual can be identified as the crown and no Maori individual can be identified as a tribal group unless the individuals are acting in an official capacity as the agent of these institutions. Hence, no Maori or Pakeha individual is bound by The Treaty; no individual is responsible or culpable for breeches of The Treaty.

Someone might object that the Crown being the head of a representative government acts on behalf of all Pakeha and hence, Pakeha can be said to have entered into a partnership via The Treaty. I think this claim is mistaken. It assumes that whenever a government performs an action one can attribute the actions of the government to any and all private citizens of that government.

This error is precisely the error we condemn when terrorists target a civilian population. When terrorists target non-combatants they assume that because a government has unjustifiably committed aggression against them that it follows that the citizens of that government can be attacked. The principles of non-combatant immunity, however, deny this. If a state engages in aggression then the military personal who act as the state’s agents can be attacked but citizens who are not acting as agents for the state cannot be. They are innocent third parties.

Maori and Pakeha, therefore, did not enter into a partnership at the time of The Treaty was signed, and private individuals from either race have no obligations to each other under The Treaty. To suggest they do is to commit the error of attributing personhood to racial groups as opposed to individual members of that group. It suggests that the actions of one person who has a particular genetic trait can be attributed to everyone who has that trait. The implication of this is that whenever a Maori gang member commits a crime one could justly claim that ‘Maori’ committed the crime. This is of course racist and would justifiably be condemned in any other context. It should equally be condemned in the context of discussions over The Treaty of Waitangi.

Of course this is not to say that Pakeha and Maori individuals do not have duties to each other. The normal duties to not steal from each other or vandalise each others property, to refrain from rape and assault, etc still apply. These apply because these are general duties laid down by God. I am not bound to fulfil them because some other person signed a contract with a third party. Moreover these have nothing to do with race. I have a duty to not steal from a Maori individual because I have a duty to not steal from any human being. The duty would hold whether the person in question was Maori, Chinese, Persian or Tongan. The duty has nothing to do with a historical event in 1840.

Nor are my comments meant to deny that one party to The Treaty was treated unjustly and unfairly by the other. There is probably good historical evidence that they were. My comments simply point out who the parties in question are. They are not Maori and Pakeha. They were the Crown and certain Maori groups.

By all means let’s have a discussion about what the Crown should do to honour its obligations under The Treaty. I have no problem with the idea that a state should keep its obligations to other states and parties. I have no problem with the idea that government should both protect and respect the property rights of its citizens regardless of their race. I also have no problem with courts demanding the state compensate its victims if it can be proven in a court of law that the state has not done these things - one of the insidious features of the former government was its continual rejection of these principles. But stop suggesting that Maori and Pakeha are “partners” under The Treaty and that they and private individuals have obligations under it. They do not. As Dr Martin Luther King said, individuals should be judged by the content of their character not the colour of their skin.


  1. Madeleine
    I agree with your general position that abstractions like races cannot make commitments and enter partnerships, but a couple of qualifications are relevant.

    First, people can be affected by the commitments and actions taken by their parents and forefathers. Curses and blessings both seem to be able to pass through generations. We cannot repent on behalf of people in a previous generation, as they are/were accountable for their own actions, but we can stand apart from decisions they made or actions that they took, to be free from the consequences.

    Second, when people submit to a government (or other institution) they take on the consequences and share in responsibility for the actions taken by that government. Therefore, we should be careful about voting for political parties that are the best of a bad bunch, because in doing so, we submit to their government and commit to sharing in the consequences.

    I have written more on under the Treaty of Waitangi. It is interesting how the people of Israel expereinced the consequences of Saul's actions after he was dead.

  2. You're argument is very compelling Matt.It makes logical sense.From what I know about the treaty it's basic intentions were honorable.England had gone through the uncivilized world with little regard to the indigenous people of the lands. With New Zealand Queen Victoria wanted to do what was right.The signing of the treaty ended up being hap-hazard and rushed.The crown did not live up to their obligation at that time.The effects of that were devastating and still have had a flow on effect even today.I believe that the crown has a moral duty to do what is right but we can choose whether to agree or disagree with that decision because New Zealand is a free country. Realizing that saying sorry can help to heal a nation so that it can look forward to a brighter future.

  3. Hi Madeleine,

    From what I can see of your legal argument I agree with it. But historically the waters are muddied. As a matter of history, I'm pretty sure that, especially from the 1850s on, "the Crown" acted on the advice of private citizens, inside and outside the nascent Parliament. While it's a fine principle that the citizens aren't responsible for the government's actions, it gets a bit stretched when the government only acted the way it did because of strong popular pressure.

    A second problem is that, with respect to land in particular (I can't speak about other taonga, which, I gather, are sometimes seen differently between British law and Maori custom), many Pakeha continue to own and/or live on land which was, at some stage in its history, unjustly (and often illegally, cf. the pre-emption clause in the Treaty) "purchased", or maybe even seized, from Maori. To put it bluntly, many New Zealanders are in possession of stolen goods*.

    Obviously, that line of thought would lead to a large and smelly can of worms. But while we can certainly say none of us alive today were responsible for the misdeeds of the 19th century, and also that handing our land back is impractical (not to mention "over our dead bodies" most likely), what do we do with the outstanding questions of justice and responsibility?

    * I'm no lawyer, and I suspect a different term applies to land, where good title can be shown. But I picked that phrase because it nicely captures the concept I'm after.

  4. Interesting post. You seem to, if I read this correctly, maintain that just iwi are Treaty partners with the Crown, but this is not the case anymore as non tribal groups such as Urban Maori Authorities - are also deemed partners under the Treaty.

  5. We have a fault on our phone line so until it is fixed on Monday (GRR more reasons to switch back to Telecom) we are reduced to borrowing internet connections...

    Very briefly then, at law, the responsibility for decisions made by the Crown rests solely on the Crown and not on those who influenced or pressured them to make these decisions.Regardless, even if it could be brought home to those who did pressure the Crown to make this decision and even if this turned out to be the majority, it still does not follow, in terms of legal theory, that the minority were responsible or that future generations were responsible or that anyone happening to share your race is responsible. The people responsible are the parties to the contract; in this case the Crown.

    As far as the confiscated land issue goes, title to New Zealand land is granted under the Torrens system which perfects (renders good) any fault in the title such as fraud, for any purchaser who purchases land in good faith without any actual knowledge of any fraud associated with the land. Registration of the title means that any fraud associated with the land is wiped away and cannot be revisted against the new owner. This system of indefeasibility of title is guaranteed by the crown. Obviously sometimes it creates an unjust outcome but the crown recognises this and is obligated at law to provide compensation in situations where this happens. Again, this shows that the issue is between the Crown and various Iwi or other Maori entity who can demonstrate at law that they meet the criteria to be considered a party to the Treaty.

    Problems of course arise in addressing many of these claims due to the lapse of time and the Maori concept of land ownership v the common law concept. Nevertheless there is a body of Maori jurisprudence that helps the courts ascertain legitimate claims so these things can be worked out, the problem is the speed at which they go at, government interference, the availability and access to justice. All things I support the Crown sorting out, speedily, but again I still do not see how it is the responsibility of individual citizens to personally ensure this happens.


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