|Sheet 1: The Waitangi Sheet. [IA 9 9 Sheet 1]|
The following extract is from a chapter written by Moana Jackson in Justice, Ethics, and New Zealand Society (Oxford University Press Australia & New Zealand, 1992). There are one or two other chapters worth reading, but 'The Treaty and the Word: The Colonization of Maori Philosophy' stands out for its radical re-framing of the Treaty debate, its clear description of tikanga (Māori law), and its sweeping critique of colonization.
To take an extract out of its context is always problematic, especially when the text has been constructed in a concerted way. However, the part I've highlighted here really is worth highlighting.
The Māori philosophy of law, te māramatanga o ngā tikanga, was sourced in the beginning. From the kete of Tāne it was handed down through the precedent and practice of ancestors. Like an intricate tāniko pattern, it was interwoven with the reality of kinship relations and the ideal balance for those within such relationships. It provided sanctions against the commission of hara or wrongs which upset that balance, and it established rules for negotiation and agreement between whānau, hapū, and iwi. It formulated a clear set of rights which individuals could exercise in the context of their responsibility to the collective. It also laid down clear procedures for the mediation of disputes and for adaption to new and different circumstances.
This philosophy was a body of thought which acknowledged the potential for conflict in human relations, a conflict sourced in the beginning disputes of creation. Its wisdom lay in the ideas it developed to maintain balance in accordance with the notion of whakawhitiwhiti kōrero, or consensual mediation. Its efficacy was ensured through the exercise of political authority, mana, or rangatiratanga, which compelled compliance through ultimate sanctions such as muru or utu.
The effectiveness of sanctions was due to the fact that rangatiratanga was a total political authority. It was defined by Sir James Henare in 1987 as authority over the Māori way of life, and by Te Ataria a century earlier as the power to determine life and death. It was also, as the 1835 Declaration attests, a statement or philosophy of independence
This philosophy and the institutions which arose from it were, of course, quite different from those of the Pākehā law. they were also quite unacceptable in the context of the power structures which colonization sought to implement. They were, in fact, a source of independent sovereign authority incompatible with the givens of the colonial way. If colonization was to proceed, therefore, they needed to be dismissed, redefined, or subsumed within the alien institutions of the colonist. They were a part of the Māori soul, and the needed to be attacked by the Leviathan of Crown sovereignty.
The institutions of Māori law were to be replaced by a mythology of Pākehā law which sought to deny the reality of its cultural bias and its political servitude through a dishonest rhetoric of impartiality and equality. And they were to be supplanted by a Pākehā political authority which sought to justify its power through a rhetoric sourced in the mythology of that law.
In the realm of mythology, however, the ultimate reality is human interest, and the mask of mythology rarely hides the truth. In imposing their own myths, the fabric of their own word, Pākehā law and politics removed Māori rights and authority from their philosophical base. Colonization demanded, and still requires, that Māori no longer source their right to do anything in the rules of their own law. Rather they have to have their rights defined by Pākehā; they have to seek permission from an alien word to do those things which their philosophy had permitted for centuries.
Their rights as tangata whenua defined by Māori law have been replaced by a Pākehā concept of aboriginal rights exercised within, and limited by, the Pākehā law. Their political status, as determined by a shared whakapapa which underlay the exercise of rangatiratanga, has been replaced by a common subordination to a foreign sovereignty. The mythological right to impose that sovereignty is claimed by the Crown on several grounds. The imperial order of annexation issued by the Colonial Office in January 1840, the unilateral alleged conquest of Maāori in battle, and of course, the Treaty - these are all advanced as proof of the Crown's right to rule over Māori.
Yet such claims flow from an acceptance of the givens of the Pākehā word and a rejection of the Māori. At its most simplistic level they articulate what is almost a petulant position: that because the Crown has proclaimed sovereignty it has it. Like deLoria's bully, the Crown pouts and claims, "I have asserted my sovereignty, so of course I am sovereign."
Alternatively, in a slightly more refined petulance, it claims that because it now exercises de facto sovereignty, the Pākehā rule of law requires the rejection of any other sovereign claim. The validity of Māori rule of law is, of course, lost in the petulance. However, the mere assertion of authority or the passage of time can neither justify an imposed power, nor render meaningless the rights of those who have been subjected.
Yet the assurance and arrogance of the Pākehā word are such that it can make these claims: within its law they are valid. But according to the word of the people over whom the claims are made, they are not at all valid. They are merely symbols of oppression which no amount of legalistic righteousness can deny.
Under Māori law, it was impossible for any iwi to declare its authority over another except through absolute military conquest. It was equally impossible for any iwi to give away its sovereignty to another. The sovereign mana or rangatiratanga of an iwi was handed down from the ancestors to be nurtured by the living for the generations yet to be. It could not be granted to the descendants of a different ancestor, nor subordinated to the will of another.
This firm reality, however, was dismissed by the alien word - if in fact it was ever understood. It was merely part of a primitive political construct which needed to be civilized; and if, as the Black American writer LeRoi Jones has stated, 'in order to civilize you must first oppress', then so be it. And if that Māori construct was ever to be actually given written expression, as it was in the Treaty, then it needed to be redefined and made acceptable to the oppressor's word.
The story of this redefinition, and indeed the whole Pākehā analysis of the Treaty, is one of legal and political gymnastics performed behind a veil of apparently reasoned justification. As such it is a story that has more to do with a continuing but covert colonization than it does with acknowledging the truth; with creating ever-changing myths about the reality of power, rather than establishing honest relations between Māori and Pākehā.
The opening chapter of this story is always a debate about whether the Treaty is, in fact, a valid agreement under Pākehā law. The fact that it is valid in Māori law does not even merit a footnote.
The question of whether or not it is legal under Pākehā law does not prevent the second chapter beginning with the claim that the cession of Māori sovereignty in Article One of the English text is a clear and valid transfer of authority to the Crown. Because of this claim. the Pākehā word and its writ can run according to its law for the rest of the story. The attacks on Māori soul can hereafter be carried out in the name of Pākehā law.
Māori law and the Māori text of the Treaty, of course, allowed no such thing. Because it was impossible to give away the mana of the iwi under Māori law, no transfer of sovereignty could occur, hence no attack on the rights or soul of the Māori was permitted or even contemplated.
Thus, in Article One of the Māori text, the rangatira grant to the Crown a notion of kawangatanga - of authority to govern the settlers, the people our ancestors called 'ngā tangata whai muri' - 'those who came after'. For the Māori text to have done more would have been contrary to Māori law, and the rangatira would have been unable to sign.
The Māori version of the Treaty is a reflection of the ancestral precedents and rights which were defined by Māori law. If fulfilled the form of Māori law since it was discussed by the representatives of iwi, and it both recognised and preserved the authority which they had as rangatira to sign on behalf of their people. It was the text around which all the discussion at Waitangi was based, and to which most rangatira attached their moko. It did not, therefore, give the Crown the right to rule of Māori simply because within the philosophy of Māori life and law that was impossible. It did not even suggest such an option because the political realities of 1840 precluded it.
Article Two of the Māori text acknowledged both the political reality and Māori philosophy when it reaffirmed the rangatiratanga of iwi. In spite of that acknowledgment, however, the truths of Māori law and political control remained unacceptable to the colonizer's view of the new world they sought to create and the new word they sought to impose. The Māori text was therefore eventually dismissed, and the word of the English was elevated into an unchallengeable given.
- Moana Jackson