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.
RELATED POSTS:
Maori and Pakeha are Not Partners to the Treaty of Waitangi
Tags: Alan Donagan · Jurisprudence · Sovereignty · Treaty of Waitangi18 Comments
A common objection to belief in the God of the Bible is that a good, kind, and loving deity would never command the wholesale slaughter of nations. In the tradition of his popular Is God a Moral Monster?, Paul Copan teams up with Matthew Flannagan to tackle some of the most confusing and uncomfortable passages of Scripture. Together they help the Christian and nonbeliever alike understand the biblical, theological, philosophical, and ethical implications of Old Testament warfare passages.
Reasonable thoughts. One could say that if we cannot agree on the meaning then perhaps it should become void? Not that I am proposing this, rather are the disagreements such that there is no effectual contract?
2 other issues related to the Treaty I find interesting, but less to the substance of you post.
I found your post last year arguing for the Treaty binding the state not individuals most interesting given the status currently ascribed to the Treaty.
And I find the lack of agreement for what Maori word should be used to translate sovereignty at least suggestive that the actual word may have been somewhat appropriate; perhaps especially more so since the word (kawanatanga) was a neologism.
.-= My last blog-post ..The number of the beast =-.
Quite an interesting theoretical discussion on the subject. I believe you are right, unfortunately, regarding the question of violation of human rights.
I am not the first to note that you seem to have left out the bit where, having discovered that the parties to a contract have mutually exclusive understandings of it, some sort of resolution is required. Should it be unwound? Re-negotiated? How significant (morally) are “facts on the ground”?
I believe that this question undermines your assertion that “the question then of Maori sovereignty is not a question of the Treaty at all.” You are right that the Treaty itself lacks any clauses addressing this situation, but you are not justified in framing the ‘real question’ on the basis solely of the status quo without reference to its genesis. As if the loss of Maori sovereignty happened entirely independently of the Treaty.
Interesting article, Matt. Here are a few thoughts.
Sovereignty and property rights cannot be separated out as neatly as you imply. If soverignty includes the right to tax and pass laws, property rights are significantly diminished and can quickly disappear (That became the reality for Maori in NZ). Likewise, if the crown had allowed Maori full exclusive ownership of their land that was truely undisturbed, their soverignty would have been largely intact.
You said, “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.” The winning culture always believes that. Some Maori would argue that their have been gross abuses of human rights, so I am not sure that NZ meets your criterion.
Defacto sovereignty is not the same as legimate authority. If Maori did not intend to hand over sovereignty, then the crown’s seizure of it is not as legitimate as the crown usually claims. In practice, the crown was able to enforce, its interpretation of the treaty, because it had the biggest guns. That means that the crown has sovereignty in NZ by right of conquest, not the current myth that it was handed over by mutal consent. Gaining sovereignty by conquest is the normal way it is gained. Sovereignty by conquest eventually becomes defacto. Maybe we should just stop pretending that NZ is unique.
I regard much of the recent talk about sovereignty as a bit moot, since as far as I can tell the heads of the iwi did cede sovereignty to the crown as per article one of the Treaty.
I realise that I’m a little cynical, but I think what happened is this: The signers of the Treaty ceded sovereignty to the crown and they knew that this is what they were doing.
In more recent times a number of members of those Iwi have wished that sovereignty had not been thus ceded, and have set about reconstructing history to persuade peoople that in fact it was not ceded.
.-= My last blog-post ..Episode 033: In Search of the Soul, Part 5 =-.
[…] links: TVNZ OnDemand: Recent episodes of Marae M and M : Sovereignty and the Treaty of Waitangi M and M : View “Marae: The Great Waitangi Debate” here M and M : Tune in to Marae […]
Glen, I dont think you are correct in claiming that Maori intended to cede sovereignty. Certainly, Kawanatanga was the word used in the Maori version of the Treaty, the version that the Maori leaders understood, Had sovereignty been ceded with full knowledge, the word mana would have been used, not kawanatanga. But it would never happen as Maori would never cede mana.
.-= My last blog-post .. =-.
Dave, you will surely be aware that the argument about mana that you’ve alluded to is contentious. I think people are justified in suspecting that it is an afterthought in light of regrets about ceding sovereignty.
.-= My last blog-post ..Divine Command Ethics: When will sceptics update their arguments? =-.
Dave, if what you say is true then article two cannot promise maori soverignty as article two does not use the word mana either it uses the word “tino rangatiratanga”
But I am not sure what you say is correct Kawanatanga was after all the word used in the Maori bible for the position of Pontius Pilate and it was missionaries who had spent years teaching the bible stories to Maori who translated the treaty. It would be difficult to maintain ( as some defenders of Maori sovereignty try to) that Rome did not have sovereignty over Israel.
Second, though I have not checked the sources yet, I have heard that the records of the debate amongst Maori chiefs prior to the signing suggest they did understand themselves to be ceeding sovereignty, but this is something I have yet to check
.-= My last blog-post ..Guest Post: Tim Wikiriwhi Reviews The Great Waitangi Debate (Uncut) =-.
Matt, from the Maori perspective, the treaty cannot promise Maori sovereignty for reasons outlined.
If you have heard that the records of the debate amongst Maori chiefs prior to the signing suggest they did understand themselves to be ceding sovereignty, I’d be keen to see that, because I don’t think they exist.
Kawanatanga means “governership. Pilate was governor of Judea. Finally, the word mana is closer to in meaning to tino rangitiratanga( Article II) than kawanatanga( article I). Mana actually personalises tino rangitiratanga, and was the word used in the 1835 Declaration of Independance( if I recall correctly).
.-= My last blog-post .. The PM and GST
Dave, like I said I have heard the records show this, I have not verfied it hence my unwillingness to make a clear statement either way. Though I note that Sir Hugh Kawharu refers to what was said in speeches at Waitangi in the footnotes of his translation.
“Kawanatanga means “governership. Pilate was governor of Judea. “
Yes, but people fail to see the implication of this, it suggests that Article I allows the queen to set up a governor over NZ in a manner analogous to the way Ceaser set up a governor over Judea and that entails a ceding of sovereignty.
mana is closer to in meaning to tino rangitiratanga than kawanatanga. Mana actually personalises tino rangitiratanga, and was the word used in the 1835 Declaration of Independance( if I recall correctly).
Sure tino rangitiratanga, is used in the declaration, the problem is in the Treaty, article one states
“The Chiefs of the Confederation and all the Chiefs who have not joined that Confederation give absolutely to the Queen of England for ever the complete government over their land.”
So article I would be ceding sovereignty over all their lands, and article II would be the crown promising to respect and protect the Chiefs unqualified sovereignty over the very same lands. It’s hard to understand how a reasonable person would agree to a fairly obvious contradiction like this. Article III moreover would state
For this agreed arrangement therefore concerning the Government of the Queen, the Queen of England will protect all the ordinary people of New Zealand and will give them the same rights and duties of citizenship as the people of England.
This suggests that Maori have the same duties of citizenship as the people of England and one duty is English citizens have is to obey the sovereignty of the crown. So again there would appear to be a contradiction.
.-= My last blog-post ..Freedom, Science and Christianity: A Response to James Valliant Part I =-.
What you are doing, I think, with your Ceasar point, is using kawanatanga and inserting it into the English version which has a different meaning to the Māori version.
You appear to be relying on Kawharu’s interpretation, particularly in Article I . The official English version uses sovereignty, Kawharu uses “ complete government” both are not the same as kawanatanga. The right to make laws was ceded but mana and sovereignty weren’t.
Likewise Article II is not about unqualified sovereignty, but undisturbed possession
I prefer the official English version in Article III that states “rights and privileges, not “ duties” because it appears closer to what was intended. Of course, from the perspective of indigeneity, some (not necessarily me) will maintain that Article III is breached as Māori individuals do not have equality of outcome..
I`d also add that by signing the Treaty, tribes gave way on any plans for a nation that would have been based exclusively on Māori law, and Māori administration of that law as per the Declarartion of Independence, but of course this does not mean sovereignty was ceded in 1840, either
.-= My last blog-post .. =-.
With the argument(s) raging, the Māori loosing and the lands are still being taken, when will the taking and talking stop and the Armed rebellion start! Look! The Pākehā wrote the Damn Treaty with no intent to honor any wit but to take till the indeginous of this land are iether fully, fully blended into the ākehā life forms (literally), or we eventually come a whisper in the pages of books nobody wants to read. Now tell me where we stand with Māori backs up against the wall in a small matchbox? SOMETHING HAS GOT TO GIVE!
“…when will the taking and talking stop and the Armed rebellion start!”
Scary stuff! I hope this is just some angst ridden teenager getting out his frustration…
whoa taiho, um in ur talk of article 2 ,it appear as if the poor old crown was duped by the crafty brown buggers,,,where is your head at.the document signed by 500 of the chiefs with the crown was the maori version ,you must be aware a paltry 39 signed the english version,are you aware,no bad feelings but we are living in 2010 ,you fella’s look young enuf to be aware ,it saddens me to think that sophisticated aucklanders hav somehow been caught in almost a timewarp,or mayb im mistaken and the photo of the two youngish people at the top is really old and you are nearer 100 yrs old.happy century old timers
hi, well im a high school student at 7th form and im on the internet trying to complete my history assignment due tomorrow and this question im mixed up on. List the views of at least 3 historiand surrounding the Maori/Pakeha interpretations of the treaty of waitangi. any help out there? im so cinfused i find this site very interesting and very helpful.
to whom it may concern
god save the queen fo she is my protector.
“ignorance of the law is no excuse for any offence committed”,
all lies are discoverable and a known trap can be avoided,
“every deed, whether or not affecting property, shall be signed by the party to be bound thereby”, PROPERTY LAW ACT, 1952, s4.
the law is factual, impersonal and objective,
designed to provide remedy, solution and answers to any question, dispute or claim,
do the due dilligence and seek out the accurate truth and it shall set you free (even from fear of the unknown).
riddle me this, which PERSON ‘owns’ your PERSON?
john ru
you people need to get your facts straight the true context is in maori and the maori back than didnt understand the many english words of what was interpretated in the treaty written in english was misinterpretated their for it is a nully i dont see what the problem is, our chiefs had put things in place for all peoples that may live in nz, but mainly its about greed since colonization you pakeha and your pakeha governments are the cause of all the things that are happening today which will soon all come to an end and our freedom to live as free people will end in slavery and thanks to yous our children dont have a future your laws since the 1840 and the 1902 flag are corrupt ,people will be begging and so will you and your families also its happening now and your worried about what the treaty means wake up and look around you check out prison planet.com by alex jones idiots