How to think about the Treaty of Waitangi

What is the basis for political legitimacy in New Zealand, and what does that mean for Crown-Māori relations?

Imagine if all the world’s historians met and agreed that William the Conqueror's claim to England was comprehensively disproved. Would it follow that everything built upon the foundation of the Norman Conquest is devoid of legitimacy? The castles, the cathedrals, the legal structures, the very fabric of the English and then British state – are they all tainted by the original sin of an illegitimate claim to rule?

As far as I know nobody has ever seriously proposed replacing the modern British state, including Parliament, cabinet government and the common law with a Witenagemot that also appointed the king from among the noble Anglo-Saxon families to administer justice according to the Danelagh and other customary laws. Too much water has passed under the bridge for that and, however shaky the nature of William’s claim, it is not the basis on which the British state today draws its legitimacy.

The same applies to the Treaty of Waitangi. It was a definitive step in a process that ultimately led to Britain establishing sovereignty over the entirety of New Zealand. But it has not been the thing that has sustained that sovereignty since 1840.

The intentions of the parties to the Treaty are inescapably murky

Quite what the Brits intended when Captain Hobson was commissioned can be debated. It is somewhat clearer that the indigenous chiefs did not expect that they were signing away their own authority. It is incontestable that a consequence was the eventual extension of British sovereignty over the islands of New Zealand.

I do not think anybody disputes that the chiefs understood that the Treaty would be integrated into the British Empire in some form. Being brought into the fold does not mean the cession of all traditional authority, however. And the words used in the Māori version of the Treaty did not suggest they would lose their chiefly status (the opposite, actually).

The authority of the government does not depend on the Treaty

It does not follow, however, that the Crown has no true sovereignty or that the New Zealand government is somehow not the sole legitimate authority for the making and enforcement of law.  That’s not how sovereignty or legitimacy works as an accepted reality. Sovereignty does not flow from historical or legal documents but exists as a matter of social consensus and collective acceptance.

Sovereignty is, therefore, an applied principle. It is founded on routine practice and the factual exercise of power. It requires more than the mere existence of a written document for its establishment or transfer and the existence of a written document is not sufficient for its maintenance.

Political orders evolve without conscious design

In "The Origins of Political Order," the scholar Francis Fukuyama traces the shift from kinship-based societies to impersonal, state-run institutions. This kind of order, Fukuyama shows, is not a legal construct. It is a fact that emerges from practice, history and the shifting balance of power within a society. This transition does not occur because of some overarching legal mandate or external imposition. It is a practical response to real needs.

So even if the original intentions of the chiefs for the Treaty differed from the Treaty’s ultimate consequences, the reality is that the Crown has sovereignty. It been exercising sovereign power over New Zealand for more than a century. This practice-based establishment of sovereignty is a reality shaped by history and practice, not by the terms of the Treaty of Waitangi.

A new reality set in after 1840

After the Treaty was signed, the Crown's de facto authority spread rapidly across the islands. This practical reality was underscored by the Kohimārama Conference of 1860. This assembly, convened by the governor to counter the Māori King movement, was attended by over 200 chiefs. In contemporary discourse, the conference is often polarised by political narratives: right-wing commentators highlight the conference as evidence of express Māori acceptance of British sovereignty, in particular noting that the proceedings ended with an express affirmation of Queen Victoria’s sovereignty. Left-wing perspectives tend to diminish the significance of these aspects of the proceedings. That reflects the political nature of recent historiography.

Irrespective of these contrasting interpretations and what was meant by the parties, the Kohimārama Conference unmistakably illustrates the practical reality of Crown sovereignty and the widespread engagement of many Māori with the new political order that had been kicked off just twenty years earlier.

Why do we obey the law?

When the New Zealand Police, operating under the authority of the Crown, arrest and charge individuals for crimes, it is an exercise of this sovereign power. Similarly, when New Zealand courts, also operating under the authority of the Crown, adjudicate disputes and deliver judgments, they are exercising this sovereign authority. When the Crown demands taxes from us, we obey because we recognise this sovereignty, whether we like it or not, at least in practice.

None of this is contingent upon any particular interpretation of the Treaty of Waitangi. The Crown's authority was realised through the continuous exercise of power and the subsequent recognition of this authority by the people against whom the power was exercised, Historical interpretations of the Treaty do not alter this reality.

Sovereignty follows the fact, not the other way around

The claims of sovereign citizens - individuals who declare personal sovereignty and reject the Crown's authority - provides a good example of this practical nature. Despite their assertions, these individuals cannot establish their sovereignty in a manner that opposes the Crown's power to govern them. They do not as a matter of substantive reality have the power to exercise control of a territory and to have that control recognised by others.

When these individuals violate the Crown's laws, they face arrest and punishment by the Crown's constabulary. The community accepts this punishment and does not come to their aid because the Crown is perceived to have the legitimate authority to mete out punishment for those who transgress its laws. Power lies with where the people, as a whole, believe it to lie.

Some things just can’t be undone

Another example is the so-called Glorious Revolution of the late 17th century. This event saw the overthrow of King James II of England by an alliance of Parliamentarians and the Dutch stadtholder William III. As a matter of law, James II and his successors possessed a superior claim to the throne based on hereditary right. But the reality of the situation was different.

William III was able to establish effective control in cooperation with Parliament. He addressed the grievances that had led to the Revolution in the first place. Because of that, his regime became more strongly entrenched over time.

While the Stuarts continued to press their claims to the throne, they were unable to overcome this new political reality. The lawful nature of the new order was established as a consequence of its control and not the other way around. Legitimacy arose as a result of this de facto exercise of power and the acceptance of these changes by key elements within society.

Before long, the new order became impossible to reverse. Once baked, a cake can't be separated back into its original ingredients. Similarly, once sovereignty is established and ingrained into the fabric of a nation, it's near impossible to revert back to the original state of affairs.

The practical reality of government in New Zealand

So it is here. One might well argue that the Crown in New Zealand usurped the sovereignty of indigenous chiefs. Such usurpation having occurred; however, its authority has been engrained in the fabric of the nation, making the idea of returning to the pre-Treaty dynamics not only too complex but practically unfeasible.

Which is why no serious person argues for this.

But even if it was possible to turn back the clock, the Crown has over time become the mechanism by which liberal democracy occurs in these islands. It’s not as if we are the subjects of a distant tyrant who rules over us without regard to our own interests and with no popular support. Instead, the Crown is the guarantor of individual freedom, equality, universal suffrage, the rule of law and even the acknowledgement and redress of historical grievances. To the extent these are not upheld – and let’s face it they are only ever imperfectly upheld - it’s the Crown we hold accountable.

There is now an overlay of democratic consent

Reverting to an earlier understanding of the Treaty of Waitangi would mean a significant step back in terms of liberal government. Had the Treaty been more faithfully implemented, much of the country would be governed based on hereditary or customary right. This would not be consistent with the democratic values that most people consider to be of universal value.

As a person born and raised in New Zealand, my birthright and personal connection to the land is not diminished or questioned due to historical events that transpired long before my existence. And personally, I would not recognise or support any system or regime that seeks to position my children as less “at home” in New Zealand than others due to events that happened before the memory of any living human being. This is simply non-negotiable, irrespective of what occurred in 1840 or any other point in history.

This is the sentiment of the vast majority of New Zealanders. There is a small minority of self-abasing liberals who may think otherwise, but most of the people living here believe all citizens should feel equally at home in his country.  This shared conviction, more than anything else, sustains our continued support for the current form of government.

That’s no excuse for not recognising and making amends

This, however, doesn't mean that the Treaty of Waitangi is merely a relic of the past with no ongoing political value. The Crown made commitments to Māori, which were not fully upheld. The Crown that made these promises is the same Crown that exists today, and the iwi and hapū to whom the promises were made still exist.

Māori are not akin to the Anglo-Saxons. Despite enormous pressure, they have maintained their distinct identity and culture, setting them apart from the historical experience of those whose separate identities have been too diluted by the passage of time. That is why the Crown can still – and must – make reparation and redress.

The Crown can't renounce its responsibility to all who inhabit these islands, including their rights to live in a liberal democracy. It can make amends to the extent that this does not infringe upon the liberal democratic rights of other New Zealanders. Like a debtor negotiating a settlement with creditors, it can take practical steps towards fulfilling its obligations as much as possible.

And the good news for Māori (and bad news for the Hobson’s Pledge people) is that the extent to which recompense can be made, while not unlimited, is considerable.

Who guarantees freedom in this country?

What is simply not true, however, is that the terms of the Treaty provide the foundation of sovereignty in New Zealand as it exists today. That authority is instead a product of historical processes, practical realities, and the exercise of and acquiescence to power over time. It is not the outcome of a literal or legalistic interpretation of a historical document.

Those who claim otherwise are burdening the Treaty with a weight it cannot carry given subsequent history and the evolution of our democratic system. So, while the Treaty remains an essential instrument for understanding the historical relationship between the Crown and the Māori people, and for addressing historical grievances, it should not be misinterpreted as the definitive foundation of New Zealand's current political structure and sovereignty.