Sovereignty and The Treaty of Waitangi
In the Theory of Morality, Alan Donagan has a concise discussion of the morality of contracts. At one point he makes the following plausible argument,
Obviously, the normal conditions of the existence of a contract are not fulfilled if the promisee misunderstands what the promiser intends. … a promiser is morally bound to perform whatever he believed his promisee to have understood him to promise. He cannot reasonably do less; for he should have corrected any misunderstanding he was aware of. And not even his promisee can fairly claim that he has knowingly bound himself to do more.[1]
Donagan here notes that when two parties enter into a contract they are bound by the terms of the contract because they agreed to them. Given this, they are only bound to do what they agreed to do, or what it is reasonable to assume that they agreed to do, given the circumstances. They cannot be required to do more than this as they did not agree to do more and could not reasonably have been expected to forsee needing to do more.
I think these points are fairly obvious; however, they have implications that are often less obvious. Today is Waitangi Day in New Zealand. One common argument proposed in the debate around the Treaty of Waitangi is that in the Maori translation, under Article 2, the Crown promised,
… to protect the chiefs, the subtribes and all the people of New Zealand in the unqualified exercise of their chieftainship over their lands, villages and all their treasures.[2]
Now there is some debate about whether the phrase translated “chieftainship” (tino rangatiratanga) entails the idea of sovereignty or self-determination in this context or whether it simply conveys an idea of property rights.
Suppose, for the sake of argument, that the former is correct. The fact that the Maori translation promises Maori sovereignty does not mean that the Crown promised this. In order for the Crown to be bound in this manner, the Crown would have to have believed (or been in a position where it was reasonable for them to have believed) that they were promising various Iwi (tribes) “sovereignty” in this sense. This clearly was not the case. The crown thought that they were merely promising what the English translation affirms they were:
Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession;[3]
It is clear that, under the English version, the Crown intended to guarantee Maori property rights in their land and it promised to protect these rights. Any promise of sovereignty was due to a translation error or not speaking Maori fluently. The representatives of the Crown could not have reasonably believed they were doing anything else. They relied in good faith on a translator to put their terms accurately into Maori and had no reason for thinking he had done anything other than this; hence, the Crown did not agree to provide Maori sovereignty and so did not promise it under the Treaty. It may be that some leaders mistakenly thought they did, but they were mistaken. Whatever the Maori version says, the Crown is not bound by it.
I can think of two objections to this line of argument. The first, as Madeleine tells me, is the contention that the majority of Iwi signed the Maori version and under international treaty jurisprudence, where there is a conflict in translation the version that the majority of the parties signed is the valid one.
This argument, however, misses the point. It is not that I am claiming that the English version is valid and the Maori one is not. I am quite willing to grant that the Maori version is valid, the point is that the Crown is morally bound only to do what they reasonably believed they were agreeing to do when they accepted the terms of the Treaty and the terms they believed they were agreeing to were those contained in the English version of the Treaty.
Moreover, this argument appeals to international law. International law recognises that the Crown is the legal sovereign of New Zealand as it has been a stable de-facto government, recognised as such, by the majority of its citizens.
A second objection is to note reciprocity; just as the Crown was not bound by what it reasonably believed it was agreeing to, so too the various Iwi are only bound by what they reasonably believed they were agreeing to. If one grants for the sake of argument that “tino rangatiratanga” means sovereignty, then Iwi were not bound to relinquish this sovereignty over to the Crown. They believed, quite reasonably given the translation they had, that they were not promising to relinquish sovereignty to the Crown but rather to maintain it.
If this were the case the problem still arises that today in New Zealand, in 2010, the Crown is Sovereign. We do not have independent tribal nations that hold sovereign political power over their lands. All land in New Zealand is under the sovereignty of parliament and is subject to English common law and NZ statutes. Hence, the question is not whether Iwi are required to relinquish sovereignty to the Crown under the Treaty as, for better or worse, justly or unjustly, they have done so. The question today becomes, whether, after 170 years of the Crown being sovereign, Iwi should attempt to gain this sovereignty back? On this issue the Treaty is silent. It says nothing about what various parties are entitled to if another party misunderstood the agreement.
The question then of Maori sovereignty is not a question of the Treaty at all. It is simply a question of morality in general. The real question is this, if one lives under a de-facto government that has been sovereign in practise for 170 years and if this government is relatively just then should one continue to defer to its sovereignty?
I think the answer to this question is yes. I believe that when a stable de-facto government exists and has existed for over a century and when there is an absence of gross abuses of human rights then its sovereignty should be recognised as legitimate by the citizens of that nation. I will not further advance this argument here but I will simply note that whatever the answer to this question it seems reasonable to say that the Crown never promised sovereignty to Maori and claims that it did are based on the mistaken idea that a person can be bound by the terms of a contract which he or she both did not agree to and could not reasonably have been expected to have agreed to – to expect anything else is nonsense.
[1] Alan Donagan The Theory of Morality (Chicago: University of Chicago Press, 1977) 91.
[2] “Treaty of Waitangi” Kawharu Translation Article 2.
[3] “Treaty of Waitangi” English Version Article 2.
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