By Anthony Willy

The notion of sovereignty describes the person or entity who, or which has the last say in all matters affecting the affairs of a state. It is as old as mankind. From the earliest times when wandering tribalism was replaced by  recognised territorial boundaries and a homogenous population a leader accepted by the populace either by fear or consent became a necessity. This for the simple reason that if a state is to survive it must have some person or institution which has the final say in making the laws by which it and its institutions are governed. History is replete with examples, and it gave us the Emperors, Kings and Queens and despots who became household names, that is when history was still taught in the schools: Ozymandias, Genghis Khan, the Chinese dynasties, the Roman Emperors and more latterly the Kings and Queens and Tsars of the various European nation states.

By the time Captain Hobson arrived on these shores in 1840 he was the representative of the British tradition of sovereignty which had its genesis in the eleventh century Norman Conquest of England and which apart from the short- lived revolution led by Oliver Cromwell, survives to this day in the person of King Charles the Third. Unlike most of the Continental Monarchs Britain from the time of the Magna Carta – issued in 1215 by the Barons who defied King John – placed limitations on the Royal power to govern. The British tradition became one of government by the monarch in a Parliament (a place of debate). The composition of that body changed over the centuries from that of the wealthy with the greatest stake in society to one of increasing participation by more and more ordinary people. All of this was highly relevant in 1840 because it was as recent as 1832 that the “Great Reform Act” was passed enfranchising the British urban middle classes. It can thus be said that Hobson brought with him governance by a “Monarch in Parliament.”

This, of course was utterly alien to the Maori inhabitants with whom Hobson was dealing at Waitangi. They had for an unknown period of time lived without any central authority or any notion of a  nation or a state with a sovereign system of government. Their history in so far as oral traditions reveal was one of unceasing warfare between the tribes coupled with cannibalism and slavery. Into this unhappy mix the British Crown offered to, in effect, end the bloodshed and protect the inhabitants and their tribally owned lands by offering the protection of the British Crown. This was coupled with the promise of the privileges of British citizenship. In return Britain required that the signatories to this agreement acknowledge the Sovereignty of the British Crown. That this was clearly understood by those chiefs present is evident from the fact that some rejected the “deal” out of hand not wanting to relinquish their tribal powers and privileges. Others such as Hone Heke  and Neo Neo and his brother  well understood that if they rejected the Crown’s offer, they faced a grim future of incessant tribal warfare and the spectre of armed colonisation by the French. On the second day these fears carried the day, and enough Chiefs signed the document to persuade the British that it was legitimate to assume sovereignty over what became New Zealand. An expectation later confirmed by the signings at Kohimarama and later Banks Peninsula. By 1842 the British Foreign Office considered that it was safe to allow groups such as the New Zealand Company to bring settlers to the country but on condition that all land acquired from native inhabitants would be in the name of the Crown who could ensure fair dealings before  selling it on to settlers. Immigration flourished and their numbers came to exceed those of the Maori inhabitants. The rest as they say is history. Maori participated fully in the emerging society at all levels including in its governance as Maori Members of Parliament. Intermarriage was the norm and there are now very few if any persons of exclusive Maori descent. The ”deal” had worked as intended irrespective of blood lines. All New Zealanders enjoyed the same rights and responsibilities under the law and our electoral system.

It was not until the 1970s when the first stirrings among a group of closet Marxist inspired Maori activists, that a debate emerged concerning the of the meaning of the “Treaty.” A document, which is not recognised at International Law as a treaty for the simple reason it was not made between sovereign states. The activists were encouraged by the recently created Waitangi Tribunal and a growing  group of academics. The unrest gathered momentum, encouraged by a mischievously false interpretation of the 1984 Court of Appeal decision in the Crown Lands Case which held no more than that at the time of signing the agreement and for as long as the terms of the agreement are relevant to society the parties owed each other a duty of good faith in its application. Violent acts of insurrection against the Crown by some tribes in breach of their duties of good faith are of course overlooked by most academics and the separatists. Coupled with this, generous settlements giving Maori tribes compensation for alleged breaches of the 1840 Agreement gave ample funding for the protest movement to gather momentum. It has since matured into the belated notion that somehow the 1840 document, or documents created a political system in New Zealand in which person of Maori descent can claim that they “in partnership with the Crown” have the right to exercise Sovereignty over all New Zealanders.

The notion is so bizarre that it barely rates discussion, based as it is on some mendacious reinterpretation of a document signed 184 years ago. No such agreement can outlive the circumstances in which it came into being, but the proponents of this recently discovered gem are undeterred by that simple proposition. Coupled with this is the fact that such a system of government exists nowhere else in the civilised world and this for the simple reason that it is a logical and practical oxymoron which defies thousands of years of human history, not to mention the clear provisions of our Constitution Act which provide that the Sovereign power in New Zealand is the British Monarch acting with the advice and consent of our democratically elected Parliament. Certainly, such a notion of shared governance cannot exist in the modern  highly sophisticated society in which we all live and are bound by the laws by which we are all governed.

It is this ongoing turmoil orchestrated by a small group of separatists, which the ACT Party Bill wants to end. It seeks to do this by defining what principles can be drawn from the 1840 agreement. Some with a grasp of history and public affairs, such as a Chief Justice Prendergast in the 1870s, and more recently former Labour Party Prime Minister David Lange would say there are none, that historic agreements do not contain “principles” merely promises to be acted on in the circumstances in which the agreement was struck and that the document  should be long since relegated to the archives of history as being of no further relevance to New Zealand Society. But the political will for such an obvious solution is almost certainly lacking and it may be that the ACT bill is the second- best option. In promoting the Bill David Seymour has presented as calm and measured against the apathy of his coalition partners and the biased, at times vicious attacks by the state media and  the opposition. The only mistake he makes is to continue referring to the 1984 judgments of the Court of Appeal in the Crown Lands case as deciding there is a “partnership” arising from the 1840 agreement, they did not. He would do his case much good by reading the judgments and consigning that canard to history.

We are a common Law country and if the law is applied there are as a matter of law two insuperable difficulties which the separatists face. The first is if one accepts what the Maori radicals and their academic camp followers are correct in saying that at no time did the Maori signatories intend to surrender Sovereignty to the Crown then there was no agreement on this crucial issue or indeed any part of the agreement because the clauses are all interdependent. Clearly the Crown representative understood the English wording of the document was an unambiguous surrender of Sovereignty to the British Crown and emigration and all that has followed proceeded on that basis. If on the other hand the separatists are correct, then the parties to the agreement were not of the same mind or in the legal Latin ad idem. In those circumstances no binding agreement emerges from the negotiations and there is nothing to enforce or for either party to rely on.

Secondly, If we let history be our guide it is clear that the parties did accept a surrender of Sovereignty to the Crown and acted on that understanding for  the life of  non Maori settlement in New Zealand. This gives rise to the application of the legal doctrine of “estopple.” It provides that if having entered into a legally binding relationship the terms of which both parties act on, the law will not permit any party in those circumstances to have a change of heart and later seek to repudiate the agreement. These legal principles are so ingrained and simple to understand that one would have thought that the Crown advisors would have long since drawn attention to them, and the Crown acted on them.

Given that the Common law position is clear it is surprising that a group of 44 Kings Counsel, who are meant to be the most senior and learned lawyers in the Profession have publicly taken sides in the debate over the Treaty Principles Bill. Whereas any individual irrespective of their calling is entitled to speak publicly for or against the bill, it is wrong to politicise their important status by intervening as a collective. James Farmer our most senior KC understood this and although he has an opinion on the Bill he declined the join this bandwagon. He is supported in this by a number of other senior Kings Counsel. This intervention should be dismissed as adding nothing to the merits of the debate.

Parliament’s failure to assert Sovereignty on behalf of the people and put an end to this separatist race- based movement is the primary cause of the recent riot in Parliament by members of the Maori Party and their had picked acolytes in the Public Gallery. There can be no better illustration of the intent of the separatists to undermine our Parliamentary democracy and present us to the wider world as no more than a group of warring tribes who have learned nothing from their history. It is extraordinary that in these circumstances the Leaders of the National Party and New Zealand First do not support ACT’s initiative for a public referendum to decide whether or not we are a democracy in which all citizens are equal under the Rule of Law, but prefer to confront piecemeal the damage done by Arden in infesting so much legislation with loose references to the 1840 document. This to invite mounting disharmony as Parliament seeks to confront each item. The referendum may fail but there can be no more important question to put to the public. To quail in the face of the threat of violent opposition and social unrest, is appeasement and anybody with a passing knowledge of the history which played out on the beaches of Dunkirk and Normandy knows where that will lead. New Zealand for the first time in its history is at a Constitutional crossroad. Which route it takes will decide our future.

Anthony Willy is a Barrister and Solicitor, who served as a Judge on four Courts: District, Environment, Tax and Valuation. He is a former Lecturer in Law at Canterbury University. He presently acts as an Arbitrator, a Commercial mediator, a Resource Management Act Commissioner, and is a Director of several companies.

Originally published on NZCPR