I have been following the recent Ngapuhi case in NZ, and have made a few comments on this blog about the matter here, here and here. I admit that I have been stabbing in the dark quite a bit, and unsurprisingly, I have made a few errors in my coverage.

An experienced Maori lawyer, Joshua Hitchcock, was recently kind enough to offer some of his personal insights into the proceedings. These, along with a brief Q+A we shared, are reproduced here on the settler colonial studies blog with his permission, for the benefit of its readers and the wider media.

JH: The claim is not that He Whakaputanga (the declaration of independence) removes Ngapuhi from the scope of Te Tiriti o Waitangi, but rather that the two documents need to be read together.  He Whakaputanga did not create a Maori state, or a Ngapuhi state – it affirmed the independence of Maori from all other sovereign powers and put the world on notice that sovereignty over New Zealand belonged to Maori.  The British recognised our declaration of sovereignty in 1835.  Te Tiriti o Waitangi still extends over Ngapuhi regardless of the existence of He Whakaputanga – the common misconception is that Maori ceded sovereignty to the British under Te Tiriti.  This is not true.  What was ceded was kawanatanga – literally, the powers of governship over white settlers in New Zealand.  Maori retained the same sovereign rights that were declared in He Whakaputanga.  While this claim is being taken by the hapu of Ngapuhi, its implications will extend and cover all of Maoridom.  It is generally accepted that He Whakaputanga was an affirmation of an existing state – other iwi/hapu do not have a written document as such but they still exist in the same state.

EC: Is He Whakaputanga an exclusively Ngapuhi document?

JH: It is, and it is not.  The early contact between Maori and Pakeha predominately occured in the Northland region where Ngapuhi live, so it makes sense that the British sought to engage with the local Maori there – He Whakaputanga and Te Tiriti are a consequence of this.  He Whakaputanga was prepared and signed by Ngapuhi chiefs (with two notable exceptions – one chief in the Waikato region and one in Hawkes Bay also signed).  The document itself, therefore, could be considered a Ngapuhi document – the point is, however, that the sentiment it expresses were those of Maori throughout New Zealand.

EC: How might the claim affect all Maori? Is there a chance, as I suspect there might be, that other iwi and hapu in NZ may regard the case as something of a bit of Ngapuhi separatism?

JH: At its core, He Whakaputanga declares to the world the authority of Maori over New Zealand.  It does not create this authority – Maori authority over New Zealand flows from time immemorial.  He Whakaputanga and Te Tiriti are seen as important expressions of Maori rights, autonomy and authority and have almost universal acceptance amongst Maori.  A successful result for Ngapuhi will be welcomed by all Maori because it would amount to a recognition of the authority of Maori over all of New Zealand.

EC: You write that ‘It is generally accepted that He Whakaputanga was an affirmation of an existing state’, but you also write that ‘He Whakaputanga did not create a Maori state, or a Ngapuhi state’. Can you clear this up for me? It seems that this document offers solid proof of the ‘sovereign rights’ of a Maori polity (or polities affiliated). And if a historic, political community had sovereignty at one time in the past (like the Ngapuhi clearly did), and are lucky to possess a document which proves that these sovereign rights were recognised by the invaders (like the Ngapuhi now do), then shouldn’t we talk about the diplomacy of a legitimate Maori state with a claim to legitimate Maori rights? If it smells like a state, and looks like a state…

JH: Then it is a state.  The British recognised Maori as a sovereign people prior to the signing of Te Tiriti o Waitangi in 1840.  Every indication I have seen in the historical record is that the British considered that Maori were/are a legitimate state with legitimate rights (albeit a less ‘civilised’ state then the British).  Te Tiriti o Waitangi itself was between Queen Victoria and the Confederation of the United Tribes of New Zealand (or, the chiefs of the hapu (tribes) of New Zealand acting in confederation).

EC: I guess what I find surprising is the divorce we sometimes make between state and sovereignty.

JH: Especially when we are talking 1800s society.  Even in Europe notions of ‘statehood’ were not clearly defined.  It was not until the rise of positivism in the late 19th century that the concept of a nation state as it know it today started to form.

EC: So the sooner we identify and weed out (de-codify?) all of the hidden Eurocentrism(s) embodied in legal-political concepts like ‘state’ and ‘sovereignty’ – in the courtroom and in the history books – I say, the better.

Getting back to the Ngapuhi case: It is well known that the Tiriti o Waitangi was crucially and regularly misinterpreted by lawyers and the settler state from the latter-nineteenth century right up to quite recently. Just to clarify: in law, relating specifically to the Ngapuhi, all the Treaty should have done was make the key amendment to their mandate of kawanatanga (i.e. the definitive removal of Pakeha subjects from their imperium). But this is not what happened in reality, was it? Can you summarise for me what the Tiriti o Waitangi, and subsequent (mis)interpretations, have actually done to Ngapuhi stateliness and sovereignty?

JH: You are correct, that is not what happened.  The key to answering your question is to understanding that Te Tiriti o Waitangi and the Treaty of Waitangi are two separate documents.  Te Tiriti is a Maori text, signed by Maori and informed by comments made by representatives of the British Crown at Waitangi and elsewhere when Te Tiriti was signed.  The Treaty is the English language text that Te Tiriti was supposed to have been translated from.  However, The Treaty clearly stated that Maori ceded their sovereignty to the British – and it was under this misinterpretation of Te Tiriti that the British acted.  Maori action post-1840 demonstrate that they did not intend to cede sovereignty, yet the British acted as if they had acquired it.  In the end, the sheer weight of British settlers served to reinforce the imposition of British ‘sovereignty’.  Because of this, Maori (and this applies equally to Ngapuhi as every other hapu and iwi in New Zealand) lost our land and our ability to exercise our autonomy and authority over our people and our territory.

None of this, however, has done anything to destroy the Ngapuhi state or Ngapuhi sovereignty.  Despite the misinterpretations, and the continued assertion of Her Majesty’s Government that they (or She) are Sovereign, Ngapuhi continue to assert their sovereign rights.  In a strict Westminster legal analysis Ngapuhi are no longer sovereign – but there is more than one legal system operating in New Zealand.  Maori tikanga (law) will continue to exist as long as Maori exist and are part of this land.

EC: Then I guess the heart of the problem is the presence of co-existent (and unequal) sovereignties in the settler polity; or, more specifically, the trajectory of each in their voyage from the moment of contact towards present-day New Zealand society. Which brings me to my final question/comment. As with all Commonwealth native/aboriginal title claims, I am struck by the reference to Crown authority. Settler sovereignty, according to the courts, starts with the activity of Crown representatives: whether in Treaty, in conquest, or in total ignorance, it is the Crown who starts the contest, it is the Crown who makes sovereignty a zero-sum thing, and Indigenous sovereignty is changed forevermore. But surely the Crown is one player in this; the settler polity another altogether. And, historically (though here I generalise), as the sovereignty of the settler polity expands and becomes more formidable (and more destructive of indigenous sovereignty), the Crown gradually loses much of its authority over the organic politics and legal culture of settler society. I guess I am just surprised about the difference between law and history in this matter. It is not really the content of the Tiriti o Waitangi and the He Whakaputanga (and, potentially, countless other documents signed off by British administrators) that matter in the history of Maori rights so much as it is the fatal misreading and institutionalisation of these by the settler state; and yet, in law, in the jurisprudence of Maori rights, which follows a selective paper trail and becomes handcuffed into indicting (or supporting) only those sovereign entities that are cognisable (by precedents of legal interaction), it is so very, very different.

JH: Correct.  All the evidence indicates that the British Crown play only a minor role in the history of New Zealand.  The settlers very quickly took over and they were only interested in one thing – land.

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Many thanks to Joshua Hitchcock, and I hope to hear back from him as the case progresses.

I wish him all the best.