 If Reality Check Radio enriches your day and life, support us to keep bringing you the content, voices, perspectives and dose of reality you won't get anywhere else. Visit www.realitycheck.radio forward slash donate. Historian Paul Moon is on the crunch next up. He's forgotten more than most people know about New Zealand history. And after the debacle's around Waitangi Day and the attacks on David Seymour's Treaty Principles Bill, I thought it might be a good idea to get Paul on to discuss the history of the treaty. Five myths about the treaty and what it is in terms of its standing constitutionally. Paul is on the line now. Welcome to the crunch, Paul. Good morning. I was reading an article that you wrote a few this year. It was about Waitangi Day, the five myths and misconceptions that confused the treaty debate. It was published on the Conversation website. And I read through that and I thought, I'm still confused. So I was wondering if you can help me. You want me to write another article? No, not a problem. Not a problem. No, let's just talk about this. You've made five points about myths and misconceptions that confuse the treaty debate. Mm-hmm. All right. The first one is the two versions. There's actually more than two versions, isn't there? Well, there's an English version to start off with, which is based on the instructions that Hobson got from London. And that was produced by Hobson and Busby and a few others, but mainly by those two. That was then translated into Te Reo by Henry Williams. And that's where we get the second version, the Maori version of the text. And these were taken around the country. Most chiefs signed the Maori version of the text. The argument is that they're separate versions because they mean different things. And it's been about 20 years now that we've known that that's not the case. They mean fundamentally the same thing, but these things, once they get into the bloodstream, they keep circulating. So it takes a long time to extract an idea and implant another one. Well, that's an interesting thought that you raised there because what David Seymour was wanting to do with the Treaty Principles Bill is have a conversation. And it seems there's a vast swathe of people on one particular side who say, no, we don't need to have a conversation at all about this. This has been settled. But there are no principles in the Treaty, are there? No, there's not. One of the problems with the Treaty is that it was written in 1840. Exactly. And it didn't foresee circumstances that took place afterwards. It's rather like a marriage. If you look at your wedding day and you say, well, look, this is my understanding of that relationship. On the day I got married, but years or decades later, you have a very different type of relationship. It's still a relationship, but it's evolved because a whole lot of stuff has happened in the interim. And most countries deal with constitutional challenges like this in a formal way. So if you look at the US Constitution, when things change, should we give women the vote? Yes, they have a formal amendment process to change that document. We don't. We have an informal process, which as well, situations have evolved. Let's apply a principle to it. And it's become a bit opaque in some cases. The principles aren't as defined as formal constitutional amendments are, say, in the US. And it's one of the challenges with it. And I think, and I'm not sure what Axe's particular bill says, but I think what they're trying to do... Hasn't been written yet. Yeah. Well, I suspect it has. But I think what they're trying to achieve is to say, look, we need to narrow down what these principles are and define them. And the problem with that will be that if you do define them a generation later, they'll need redefinition. And there doesn't seem to be a process in place for that. So we've had a very casual process since 1975, but arguably, it needs to be more formal and more clarity needs to be given to these principles. Whether or not this act bill will allow for ongoing principles to be added is uncertain. It seems that would be a sensible creation in the law to add that in to formalize some sort of ratification like they do in the United States. It gives clarity to everyone and I suspect in the future there may be more principles that need to be added or existing principles need to be clarified, but there needs to be a process for that. And I don't think Axe's planned legislation goes that far. This whole argument has really been ongoing since 1975 when the first idea of these principles of the treaty. I can remember growing up as a kid watching marches and hiccoys and various different things and we're told the treaty was a fraud and a whole lot of other specious statements about the treaty and how it was an appalling document and all of this. And yet somehow, since 1975, we've got to a position now in 2024 that the treaty is taken as gospel. It's no longer a fraud and it has a whole lot of things that it means that aren't actually in it, but we've got to honor the treaty for those imaginary things. Is that a bit simplistic? My viewer is certainly there was real division even in the 80s as to whether or not the treaty was a fraud or whether or not it should be honored. And this is among protest groups and the reason I think is because there was so little understanding of what it meant at the time in 1840. If you look at the number of books published on the treaty say since 1990, there's dozens of them. Quite a few of yours, too. Well, they're the important ones here. But if you go back to the 70s, there's next to nothing. There's very few significant published works in the 1970s dealing with what did this treaty mean? What's happened since is people have excavated as much evidence as they can and they've come up with what they think is the definitive meaning of the treaty as it applied in 1840. And increasingly, I think we'll see over the next few years, there's going to be agreement about that. Problem is that's what's known as an originalist approach, which is what did the people want at the time of the signing of the agreement? What was in their minds, what were the intentions and so on. Now, in again, going back to the US, there are major problems when you apply originalists, originalist interpretations of constitutional documents because firstly, you can never know what's going on in someone's mind. You can never know their motives. And also, it snap freezes a document. It says, well, this is in this case, this is what the document said in 1840. We will stick with that. And it doesn't allow for evolution. And for constitutional documents to function, they need to evolve. They need to apply to the site at a time. Otherwise, they have no relevance. And so the originalist approach, which is one that's being taken by some people now, isn't necessarily helpful in that. Because you could run the risk that you're seeing as you're seeing in the United States now, where various different states are applying an originalist view about a particular amendment. I think it's amendment 14 of the Constitution, which says that which was designed to stop actual insurrectionists like Confederate generals and people like that from holding public office in the aftermath of the Civil War, it was punitive for the losers. And so that's now being applied by various democratic states that are saying that Donald Trump shouldn't be on the ballot because he participated in an insurrection. Never mind, he hasn't been convicted of any such thing, but they're taking that originalist view to try and stop him being the next president again, which is precisely the problem. And what it does, and you've basically illustrated that point, is by freezing a document in a certain time and going back to that interpretation, you're denying everything that's happened afterwards historically. You're saying there was no history after that document, so we have to go back to how it applied at the time. And that's always going to be a problem because obviously history keeps rolling on. The key sticking point in today's debate seems to be hinged around this word sovereignty and reading the English version. And then I've got no way of reading that. I don't understand Maori. I haven't learnt it. I was born in Fiji, so Fijian is more relevant to me than Maori is. But the English version, it doesn't mention the word sovereignty really, but it kind of does because it's saying that from now on, once you've signed this, from now on, the rules and regulations of the British Empire apply. The Queen is the head of the British Empire, and we're going to run the government and we're going to do a whole lot of other things. And we're going to protect all of these rights that you have. Now, interestingly, this was signed in 1840, eight years after emancipation of slaves in the United Kingdom. But the property of the chiefs was retained under the treaty, which also included slaves. So it was kind of weird for the British to agree to that without actually specifying that out. Am I wrong on this? Well, firstly, it's interesting you mentioned slavery because the person who wrote the instructions for the treaty, Sir James Stephen, was also the person who drafted the legislation abolishing slavery in Britain and the Empire. Right, exactly. So it had a very strong abolitionist background to that policy. The instructions, I don't think for a moment they would support slavery quite the opposite. They talk about what they called at the time civilising Maori. There'd be a government department set up under the treaty called the Office of Protective Aborigines, which would educate and civilise Maori and so on, bring them into the realm of European life. So there certainly wasn't any support for anything like slavery or anything else that the British found unfavourable. What happened, though, is that these instructions then filtered through the minds of people like Hobson and Busby, who weren't particularly well educated. I think Hobson left school at the age of 12, joined the Navy. I think Busby stayed at school to the age of 15 or 16. So it's in their sort of outlook of the world. They took these instructions and said, we'll apply them this way. Article one English version says that all sovereignty goes to the crown and it's really strident. It says the phrase I think is absolutely and without reservation or rights and powers of sovereignty go to the crown. Now, that's pretty clear. You can't misinterpret it. The problem is it's also almost impossible to imagine happening in reality. You've got to believe that 542 chiefs on mass said, yes, we don't want sovereignty any more over our people. We'll just hand it over to the crown. It seems almost impossible. And these are chiefs who would fight to the death just for minor incursions of their sovereignty. So something's odd there. But if you go back through British policy in 1838, 1839, it's really clear. There's no documents which contradict this. There's a number that confirm it. Britain wanted complete sovereignty over all the territory of New Zealand, but over the basic British subjects living in that territory. So there's one document from, I think, May or June 1839 with the colonial office says, we want a treaty to govern Anglo-Saxons who have gone to live in New Zealand. In other words, we want a treaty to give us the right to have jurisdiction over our people and will allow Maori sovereignty to remain intact because not for any altruistic purpose, but just because it's cost-effective. The British government could barely afford an administration to govern the roughly 2,000 settlers in the country. Certainly couldn't govern the indigenous population. So and they let let those two systems go side by side until about 1843. Yeah. And even in fact, even as late as 1843, Lord Stanley says something to the effect of a part from serious crimes like murder, the two sovereign systems will remain separate in the country. Yeah, it's interesting because on the other hand, they're also saying everybody who's in New Zealand at the time of the treaty is now a British subject. Not quite Article 3. And that's one of the poorly worded parts of it. But Article 3. So if you take Article 1, if you believe that Britain has asserted sovereignty over everyone in the country, or everyone would be a British subject, you wouldn't need Article 3. But then you look at Article 3 and it says, it doesn't say that everyone will become British subjects. It talks about Maori in particular, natives, New Zealand says they'll have the same rights and privileges of British subjects. So either they're subject to British rule under Article 1 or they're not. They're the same rights and privileges. And so the argument is that, for example, in 1842, in a young teenager, Maketu killed a settler family, he would have the same rights and privileges of British subjects when it came to a trial. And it was the first case 40 years after the treaty was signed where British justice applied in a major case to someone who's Maori. And so he had the same rights and privileges of British subjects. But apart from cases like murder, they weren't subject to British rule after the treaty. And that that was a process that changed later on. But it wasn't Britain's intention in 1839, 1840. What about the argument that a large number of the Maori chiefs signed because they wanted essentially law and order? I mean, this is only a few short years after Hongi Heka obtained muskets, the ability to war. He had been to the United Kingdom. He had been to the House of Parliament. He had been talking to generals who had just been involved in the battles against Napoleon Bonaparte. He understood and learned the art of warfare with firearms and then proceeded to go on a marauding expedition down the coast of New Zealand down into the Coromandel across into the Bay of Plenty and reportedly took over 2000 slaves and marched them all back up north. All of those communities were ravaged by Hongi Heka. Now, the other thing about Hongi Heka, which is very interesting, too, is that he helped create the first Maori English dictionary. So and his daughter, who married Hongi Heki, spoke fluent English and, in fact, founded a school in Kerekei to teach Maori English. And so the argument that Maori didn't understand the English version especially as the first signatory was Hongi Heki kind of doesn't hold water when you understand the relationship between Hongi Heka and Hongi Heki via his wife. Yeah, well, I think there's probably a spectrum of understanding. There's I mean, certainly at Waitangi, there's the day of the next the meeting, which was the fifth of February, the day before the signing. There were four hours of straight discussion. Henry Williams is translator. So you've got a group of chiefs sitting there, hobs an answer in questions and it goes on for four hours. So I think you'd be fairly safe to say those chiefs understood. Yeah. In general terms, what the treaty was about. But then you look at what happens around the rest of the country, where you get missionary or an official going somewhere, giving a really scant explanation of what this is. And and maybe saying, look, if you sign this, we'll protect you from your neighbouring hapu that keeps attacking you. That sort of inducement. So there's very little understanding of the treaty. And that problem was compounded by the fact that no chiefs were given a copy of the agreement. So even if they could read English or read Te Reo, either way, it was read out to them. But read out with other promises as well. So it's rather like, you know, you go to buy a used car and someone says, oh, it's got air conditioning. It's got electric windows, central locking, all this sort of stuff. But it's not put in writing and you remember those promises. But then you get the car and it's got none of those. Now, your oral history says, well, no, I was told that. But then the seller says, well, no, there's no documentation for that. Just the ownership papers. So what people were told and what they were actually later given, and I mean later, I mean, decades later, given a copy of the treaty can be quite different things. So there's a vast spectrum of understanding. And unfortunately, we'll never know what all those are, because they just aren't the records where each signature was accompanied by a detailed explanation of what was explained to that chief that doesn't exist. So it's just speculation as to who understood what at the time. It's interesting you raised the car analogy that kind of makes it sound like it's a contract, but the treaty is not a contract, is it? No, and it's one of those misused terms. Contracts apply or they provide for under domestic law. So you're in a country and it has a law that specifies what contracts are and how they apply and so on. Contracts are very detailed in terms of performance. So if you have a higher purchase agreement, it'll be pages of very small print covering every eventuality. And if you breach them, it's very simple, straightforward, prescribed process for enforcement. Treaties aren't like that at all. Firstly, they're between sovereign states, not within a sovereign state. Secondly, they don't have provision for enforcement. And thirdly, they're not written like contracts. They don't have precise requirements for performance. Penalties or performance indicators or anything like that. No, and the precision isn't there in the wording either because they really do rely on mutual goodwill. They're kind of motherhood and apple pie statements, aren't they? We're going to be nice to you and protect you and you're going to do this and we're going to do this thing together and we'll all be happily, live happily ever after. That's kind of what it is, isn't it? Well, in a way, I mean, the analogy is often being used. It's rather like wedding vows that, you know, you don't have, you know, when you get married, you don't have, I promise to do the ironing every Thursday night. Yeah, in hindsight, maybe you should. Put meals on alternate days or... That's right. You don't have the details of that relationship because they'll be worked out in the course of the relationship. But you do have some general statements of intent that both parties agree to. And the only thing that binds that relationship together is the intent of both parties to be part of it. So it's not both parties, though, is it? What it is, is that there was no sovereign nation of Maori. I mean, Maori just means people. So that's not how the British saw it in 1839. And that's a crucial point because treaties are between sovereign states, these sorts of treaties. So in 1839 in August, August the 14th, the British government said, we formally recognised Maori sovereignty as a precursor to getting this treaty signed. They did say, though, they qualify that and said, it's not a single sovereignty as we have in Britain. It's fractured among many different tribes. I mean, yeah, I mean, Britain had got to the point by 1840. There was a single sovereign nation. And obviously the history of Britain before that, there was many different Saxon kingdoms. There was West Saxon, Sussexon. There was Northumbria and Mercia and all of those Saxon things. Of course, they all replaced the Roman rule that was in there. And before that, the various different British tribes like the Kantei, et cetera, you know, the UK has evolved into a single sovereign nation. Right. And in 1840, it saw itself quite rightly as a single sovereign state. It saw Maori sovereignty as fractured, but nonetheless sovereign. And so they said different tribes. They called them petty tribes governing themselves. But they're very clear this is an agreement between two sovereign entities. Yeah, or between one sovereign entity and multiple sovereign entities. Yes, but they they bundled those multiple ones together. And that that was, I think, a necessary thing to do, because as I say, these agreements had to be between sovereign states. And if they hadn't done that with whom is the agreement, then that would be a problem. There's some thought that Honey Hecky prompted the treaty because he was doing deals with American interests at the time. What's your view on that? No, not at all. There's there's a very clear sort of paternity when it comes to how that treaty came about. I mean, he was unknown to the British in the 1830s in terms of officials in London. He obviously rose to prominence in 1844, 45. But in the 1830s, when the policy was being developed, he was largely unknown. And look, there were American interests in New Zealand. There were French ships occasionally coming here, ships from all over the place. Britain was doing its best not to get involved in New Zealand. And there's a bit of a myth that Britain had this avaricious appetite to consume as many colonies as possible and to just enlarge its empire for the sake of it. That's not true. If you look at what Britain was trying to do from really the 1810s through to 1839, they did everything in their power not to get officially involved in New Zealand because it would involve commitment and cost for not much benefit. A very financial mercenary decision. Why bother? But they were dragged into it because there were problems with lawlessness and humanitarian concerns in Britain that Britain had a responsibility for its subjects around the world. Yeah, I mean, they had their colony in New South Wales with our busily exporting petty criminals to and it was causing no end to problems over there. They kind of didn't want to get into a similar situation in New Zealand. Yeah, and they couldn't even afford it. I mean, look, when they appointed Busby as resident in 1833, they couldn't afford to send anyone to support him, a secretary or a police constable or anyone. They just didn't have the funds. And so the idea that, you know, Britain was chomping at the bit to try to get into New Zealand and take it over, that that couldn't be further from the truth. Well, at that time, they're still busily paying for a war against France and only in Bonaparte, which consumed vast sums of money. You know, it's started in the Peninsula Wars, obviously, and then graduated to the final confrontation at Waterloo. And it's only a few years after that, that we've we're seeing the Treaty of Waitangi being signed and Britain was probably somewhat impoverished from having that large standing army in operation for such a length of time. It's only a matter of months after the treaties signed that the British government is saying to Hobson, you've got to become self-supporting financially because we're going to pull the plug on funding. So things were that bad, absolutely. And Hobson almost drove the country to bankruptcy. It was government. His successor, Fitzroy, likewise, was bordering on bankruptcy. I mean, it was really, really a shortage of funds. Which which then leads to why you'd have a treaty in the first place because you want to stabilize society so that you can have amenable trade situations occurring. Yeah, although to be fair to New Zealand, there was a lot of trade going on for decades before the treaty. And Britain was very happy with that. You know, if you sat down for a Sunday roast in Sydney in the 1830s, the chances are the pork and potatoes were produced in New Zealand and exported there. So great, great trade before the treaty. But Britain did feel it had an obligation. When you're getting to 1500, 2000 of your subjects in the country and they're lawless and they are causing problems, you do have a sort of moral obligation. And this was a period in British colonial history where moral concerns were more important. Yes. So the motive is for the British is to limit their expenditure, gain some dominion of some sort over the British subjects that were living in in New Zealand at the time. Maori motives are, you know, we don't really know other than what was said at the time and what was subsequently said again at Kaui Marama some 20 years later. And now it's evolved into this scrap over sovereignty. And it seems that there's an argument that we will should have some sort of power sharing arrangement but I find it difficult to grasp that concept and people might say I'm stupid. But, you know, you've got Queen Victoria who eventually became the Empress of India, but was the was the head of the British Empire, a primary in the world, really, a military power. Obviously, they had lost the American colonies by this time, but they were still forced to be reckoned with. They had the Royal Navy and all of its might and firepower and all of that. And the modern interpretation is that that Queen and the representatives signed an agreement on an equal footing with, as you said, was around 500 disparate groupings represented by signatories to the treaty. It doesn't kind of make sense either. Well, it does in the sense that what Britain wanted was to say to regulate its unruly settlers and it needed formal permission to extend its jurisdiction into the country. Not an interesting. They didn't do this in Australia and New South Wales. They just they just walked in. They had a very different view of the indigenous population there to just to clear that they didn't exist. Well, that's it. Yeah. No, no, no, no, that's it. And very, very different situation here. And so Britain said, look, we need some sort of arrangement to allow our jurisdiction to extend to New Zealand. And the treaty was a vehicle to achieve that. Then you can look at the rest of the 19th century and say, well, it's a history of that sovereignty spreading to encompass everyone in the country, by and large, through acquiescence, sometimes through force. But by the end of the 19th century, that sovereignty is singular. There's no alternative in the country. Well, that occurred in 1852 with the New Zealand Constitution Act, didn't it, effectively, legally? Legally, yeah, that's right. And that pushed aside the treaty as far as the British were concerned. I mean, that makes no mention of the treaty in that act. And it created a form of representative government. But obviously, a lot of Marys still felt, well, you know, we're not covered by this. And there were a number of tribes, don't forget, who didn't sign the treaty. So as far as they were concerned, their sovereignty was still absolutely intact. But they got their handouts for treaty settlements, though. Well, that was that was under the 75 Act. And the problem is, if you fuck up up a two different hapu and iwi, some of whom signed, some didn't. The complexities are enormous. That you can't unravel that tangle. So the government decided it would be simpler to consider that all Marys covered by the treaty, even if their ancestors didn't sign it, just makes it a more straightforward process for dealing with treaty claims. What about the myths of a real treaty in the fourth article? You know, the Littlewood Treaty, I think you call. OK, yeah, well, the Littlewood Treaty, that's a bit of a conspiracy theory. Really, there's been a lot of research done on this. And it's it's a document. It's a copy of one of the texts. Yeah. And it's and there were dozens of copies probably made in that period, because you can imagine it. You didn't have photocopies, did they? So you had to handwrite them. Especially if you want to if you want to know what's going to happen to the only thing you own in the world, which is your plot of land. Yeah, so you'll you'll get a copy of someone's copies and you know the problems that happen with that. It's called a treaty and the wording slightly different from the actual treaty. It's not a treaty and you can test this very simply. No one signed it. I mean, that's the first major hurdle. So for a treaty to be a treaty, you need some names attached to it. But there are other problems with it as well. But it's something that people have latched on to that. The fourth article is it's another odd emergence. This came about, I think, in the 1990s and the Catholic Church was really responsible for this. I think they were trying to gain some foothold in the whole treaty thing. So they they said, Bishop Pompeya, the Catholic Bishop who arrived here in 1838. He was concerned, allegedly, that Catholic chiefs, those chiefs that converted Catholicism, wouldn't be covered by the treaty. And he asked Hobson, would they be covered? And Hobson said, look, basically Catholic chiefs, Protestant chiefs, chiefs who retain their original beliefs, they'll all be covered by the treaty. There's no discrimination against anyone. And that's just in a sense, common sense, because there's nothing in the treaty that excludes you on the basis of religion. It wasn't even a consideration. And that was it. It was it was privately, of course, Pompeya was encouraging chiefs not to sign it. He was quite subversive about this, but probably he was French and Catholic. So there you go. Yes. But even so, it was what he was saying to chiefs, if you sign this, you'll become a slave. That's what he was telling them. Yeah. I think most. Of course, is the most heinous thing that you could be if you're a chief to be didn't turned into a slave. That would be you'd be appalled at such a prospect. Exactly. Most of them had the good sense to ignore him. So he made that he made. He asked that question, the reply came from Hobson. What the Catholic Church did in the nineties is say, this is a promise made at the time of a signing of a treaty and under international law, verbal promises made at the time of a signing constitute part of the treaty. They constitute as much as a written promise does. So if you can't prove a verbal promise, can you? It becomes probably a hundred years later. Well, there's there's certainly recording, you know, a rough transcript. Let's call it one of the missionaries recorded what Pompeya said. There are a whole lot of problems with this. Firstly, international law in this area is not retroactive. So it doesn't apply to treaties signed in the 19th century that verbal promises were made. That's a general international law principle where it stumbles, but it stumbles for a whole lot of other reasons. Secondly, at most, perhaps eight or nine percent of the signatories of the treaty heard that comment over 90 percent never did because it was only made at Waitangi. It wasn't made at any of the other signings. So the vast majority of chiefs never heard that comment. Thirdly, there were all sorts of other comments made. There were four hours of commitments and promises and clarifications so we could have dozens and hundreds, perhaps of these so-called articles added. It's just a mischievous claim and it has no substance. And what's interesting is in the early 21st century, the government, the tribunal, have quietly dropped it. So there's I mean, when I read your article, that was kind of the first I'd heard about it. So it's not a it's a conspiracy theory that's kind of waning, isn't it? Yeah, I think it'd be I don't know if it's conspiracy there. I think it's just an act of desperation that people are clutching at something and say, well, it means this. And there's another element to it as well, which is taking contemporary values that society has and projecting them back into 1840. So what was pronounced by this so-called fourth article is that, ah, look, the treaty guarantees religious freedom, freedom of expression and so on. What doesn't do that? It manifestly doesn't. But people are saying these are our values now. How do we work them into that 1840 text? We'll do it this way. We'll hijack it, we'll smuggle it in through a mythical article. And it was a lot of bogus and international law arguments used. And it was quite embarrassing. But as I say, it's fallen from view now. We're to now, then, you know, there's a lot of anger, misconception on both sides. But but I saw a lot of the speeches at Waitangi at Ratana this year. We're saying that David Seymour's Treaty Principles Bill is seeking to rewrite the treaty. But it's not, is it? Well, again, it hasn't been released, but absolutely not. But all the discussion so far is about addressing the principles to narrow them down to give them some sort of slightly clear, illegal definition. It's not really dealing with the text itself. However, so many of the settlements are based on treaty principles. So in a sense, it it's challenging the basis on which some of those settlements were made. So the treaty is the text plus the principles. And then the principles aren't defined. So we've got settlements on principles that have been defined by activist judges or or the Waitangi Tribunal or or whatever, which seems to be now expanding its purview to cover anything it feels like. Well, the tribunal is legally charged to determine the meaning of the treaty by applying principles to it. There's all sorts of principles that could be added. You can imagine just about anything they could say, well, this is a principle based on the treaty. So the tribunal lately has had a lack of rigor in that respect, historical rigor. And I'm not alone in saying this, a number of historians have summoned more subtly, but said this is a problem. The tribunal hasn't got a particularly good grip, even on some of the history it produces it. And that's that's unfortunate. The standard isn't what it ought to be. Well, you could argue that the standard of jurisprudence in New Zealand is not the standard it should be either. Well, I'm not a lawyer, so I couldn't comment. Now, you wrote an article in August 2023 about our system of governance. It was entitled far from perfect, but still better than the alternatives. And I guess that's kind of prescient given the arguments or the discussions that we're having now in in that legally and effectively the New Zealand Constitution Act in 1852 superseded the treaty and applied sovereignty over everybody in New Zealand. We only had a population of 90,000 at that time. But then subsequent to that, we've had a number of changes. The most significant, of course, being the change from First Pass to Post to MMP. And it could be argued that. That also superseded the treaty. If you look at what the treaty was intended to do, as I say, was to allow British jurisdiction to apply the British subjects in the country, but implicit in treaties and not very finely tuned, but very in a very general sense implicit is that circumstances will change and we will evolve with those changes. And that's why the treaty is fairly loosely written. And yes, in 1852, the British decided, well, we've had enough of it. It served its purpose. Remember, the treaty introduced a system of government which was basically a dictatorship where you had a governor appointed by London who was not voted in. There were no elections in the country, no representatives, so the governor could make laws as he chose. That was the system that the treaty ushered in and Britain replaced that with a democratic system in 1952. Here's the problem, though. Britain completely negated the treaty effectively through the Constitution Act, but the other party wasn't consulted in this. So as far as they were concerned, there are reviewers that, look, we signed the treaty. Now, these people are going around playing with it or saying it doesn't exist or doesn't apply. Well, no one's asked us, well, as far as we're concerned, it still does. This is the only agreement we gave our consent to. So you've got a gap opening up in 1852, 53 onwards. And that gap's exacerbated a bit by some of the restrictions on voting. So obviously, only men could vote. But you had to own land. There's Maori men, too, though. Well, in 1853, it did, if you own land. The problem is most Maori land then was still communally owned, so almost no Maori could vote in 53 for elections. So basically, you get only Europeans voting. That, again, widens the breach. Maori said, look, we gave our consent for this through a treaty. Now, you've introduced a system for governing where we're effectively excluded. Now, that changed later on, but so there were all these sort of problems wedging the relationship apart from that time. And Britain didn't give due consideration to the treaty when it passed the 52 Act. I think it just thought, well, look, the treaty is something way back in 1840 that doesn't apply anymore. The situation in New Zealand has outgrown it. I think that was the British view then. Maori view was quite different. I mean, it's a truism now that there were breaches of the treaty, some minor, and some rather major. You just have to look at a map of the roads in the Waikato to understand that. And a lot of people might not realize this, but in the Waikato, when it came to building roads under the law, it said that you have to compensate the owners for the land that you took to build the road, except if you're married, you didn't have to compensate them at all for taking the land. And so you'll see long straight roads in the Waikato that all of a sudden start meandering for no apparent reason until you find out that, well, actually that's where the Maori land was and they made the road as much as possible on the Maori land to minimize the cost to building the road. Yep. So there's terrible breaches, terrible occurrences of bad faith. And we've had a treaty process, treaty reconciliation or treaty settlement process that by and large, apart from Ngāpuhi really, has settled most of those things. But we seem to be opening up this, well picking the scab of this wound again with the Treaty Principles Bill, but should we just not have it, have the discussion? Should we just ignore that? Should we do what a large number of Maori are suggesting in academics and particularly the media suggesting that we don't need to have this debate or should we have the debate? If you go back to the marriage analogy how would you deal with a problem? Well, you could not... Yeah, well you could not talk about it. But then it leads to divorce and this is where it gets interesting. So we talk about settling claims, but there's a difference between settling them and resolving them. So if you get divorced, for example, you can settle that relationship and financially, you split it however it split and that's it, you go separate ways. It's settled but it's not resolved and most people who are divorced do carry around some degree of baggage about the experience. And that resolution can, for some people, burn them up completely. And I think we're reasonably good at settling treaty claims in this country. We're not good at dealing with the resolution part of it. And I don't know if that's even possible because I don't think any country has really dealt with that particularly well with any sort of conflict. So how do you resolve these things? How do you actually get to the point where you can put them behind you and you can see in other parts of the world, the Middle East and the Balkans, people carry around things for centuries and they just keep flaring up and keep flaring up. Oh, we're looking at that right now, aren't we, in Gaza? Yeah. Centuries, in fact, millennial grudges being held and not even being settled. No. Much less resolved. That's it. And the example you gave of Britain was interesting because if you look at the angles and the Saxons and the Picts and all the other groups, I don't think there's anyone really in Britain now who gets aggrieved by that. No one says, look, my ancestors were Saxons and I have a real grievance about this. I'm really concerned about it. What's happened is that the society evolves over time to the point in some cases where these things get left in the past but other societies don't. And it's part of the transmission mechanism of concern that some cultures have a system where, well, that's what it is. Other cultures have a thing, look, this has caused us problems, we remember it. And that's a very simplistic way of putting it and it's an extreme way, but there are cultural differences that affect how these things are dealt with. It may be that part of the problem in New Zealand is we actually haven't had a decent war to settle these things once and for all with conquest, right? If you look at the UK, at the history of that, you had multiple tribes, disparate tribes, the Romans come swanning in and have a regimented system and swamp every single one of those tribes, apply Roman rule to the whole country, which eventually wanes after three or 400 years, leaving a vacuum for the Germanic tribes, the Angles, the Saxons, the Jutes, to come in. Nobody wanted Scotland, not even the Vikings wanted Scotland. When they came marauding, it was like if barren wasteland, let the Picts have it. You know, you've even got, then you've got, you know, Dane law and all of those sorts of things where communities were conquered, displaced, ravaged, et cetera, over a number of years. Obviously, you've got William the Conqueror coming in. Again, that was, you know, your Vikings that had settled in Normandy, who then came back to the UK to apply Norman law and you know, that's all just absorbed over hundreds of years. We're trying to do the same sort of thing, but inside 200 years, which is a blink of the eye, you know, really. Well, it is, except that it doesn't always, and again, it's a cultural thing. If you look at the Ottoman empires, a very good example, you know, the Turks and the Balkans, they were there for 500 years and they imposed their system of rule, their system of taxation and so on. And 500 years afterwards, people still would go back to say the 1300s and say, well, look, you did this then. And that became the cause of a whole lot of wars at the end of the 20th century, for goodness' sake. So in some cases, people have longer memories and cultures keep things alive better than others. And maybe that enforced forgetfulness has something to it, I don't know. But going back to a personal approach to it, how do you deal with these things with bad experiences in the past? Do you allow them to brew inside you? Do you cast them aside or what? And that's- Well, we all know that personally, brewing things inside you doesn't lead to anywhere good. But can you help it? This is the thing. I mean, that's true, but for some people, there's no alternative. They simply, that's how they are. They're wired that way. I mean, that's why I think we should have these discussions in a reasonable and considered manner. I mean, we don't agree 100% on elements of history for whatever reason. It might be upbringing could be, we've read different books or whatever. It doesn't mean that I'm right and you're wrong or that you're right and I'm wrong. We have a discussion, maybe you learn something from each other and then we come to a shared view of where we can go. And I don't subscribe to shutting down a debate because it might be uncomfortable. I think we need to have uncomfortable discussions. And these are very uncomfortable discussions. But I think we should have them. Yeah, I don't know if they're necessarily uncomfortable. I mean, if your goal is to- Well, for some people, well, they have to examine why that is because if your goal is to move towards the truth and you're right, we'll never agree. We'll never get an absolute truth. It's the nature of history because you can put, again, go back to the divorce thing. You talk to one party in the divorce, what's their version of why the relationship broke up and talk to the other party. Totally different views of exactly the same events using the same evidence. So you'll never get full agreement. But the idea is to try to approximate the truth, to try to inch our way towards what actually is true. And I don't know why anyone would find that uncomfortable. Well, it seems there are some people who find it uncomfortable. They don't want to have a debate about what the treaty principles are. I mean, David Seymour is very brave in putting that up, but I don't think he's actually fully elucidated his thinking behind that. And maybe that's a problem too. Maybe that vacuum of clarity is something that will agitate people and say, well, what is at risk here? We don't know because nothing's been specified about that. Well, and also I think the by and large, the vast bulk of the media in New Zealand don't want to have that debate either. They've made their mind up that David Seymour is evil for even producing such an idea. And therefore we should shut down the debate and we're not going to have that debate. And I'm adamant that we actually should have the debate. It might not clear the air, but at least gets people talking. Because right now we seem to have these implacable forces that are butting up against each other. And that only leads somewhere terrible as does the creation of an ethno state. And we're running the risk of doing that too. And we've seen it never works. It's never worked anywhere in the world. There needs to be a shared vision. And whilst we've got these groups of people that don't want to share a vision, then we're going to have conflict over this, whether it's argy badgy words or actually worse. And I'm worried that it'll go worse. I think one of the challenges with a debate is obviously you need goodwill. But you also need to be clear about, are you prepared to be wrong? And this is something I sort of deal with every day. When I research something, I always go into it knowing I could be wrong. And so I pressure test what I do. And in this one case, for example, I got other people to say, look, I want you to find faults with this. I want you to, you know, and if they do, great. I mean, I really welcome that. And you can debate that point and see. Yeah, or just say, you know, I was wrong. You know, I stuffed up here, I put too much emphasis on this document or I ignored this one and yes, I apologize. And that's that's how it should be. Unfortunately, I think in some cases on this treaty debate, people are already digging big trenches to say, we're not moving. We're in here for the long haul. This is our view. No amount of evidence fired at us is going to shift us from our position. And this is probably on all sides of the argument. To some extent, you'll find people like that. So we can have all the debate we want, but it won't budge that front line. It'll be stuck there because people have decided this is what I think in advance. And no amount of evidence will convince me otherwise. And particularly people wrapped up in certain ideologies, the ideology trumps the evidence. And that's a big concern too, because you're not arguing on points of fact. You're arguing on, well, this is my worldview. Yeah, it's belief. It's arguing on beliefs, not facts. Yeah, and that's very difficult. So a debate in that environment becomes complex. And then you multiply it by thousands of different views and dozens of different ideological standpoints, and it becomes a tangle. Yeah, I mean, that's the reason why I got you on the show is to look at those viewpoints. David Rankin will have another viewpoint. Margaret Mutu has another viewpoint. Elizabeth Rata has another viewpoint. Somewhere in all of that, if we just talk, we should be able to find some points of agreement. Although I'm pretty certain that Margaret Mutu is implacable and it's not going to move. It's just the feeling that I get. But hey, maybe I'll get her on the show and we'll have a discussion around that too. But I think it's important that we do have a debate about this because it all started because somebody wrote a law that said we must honour the principles of the treaty. That's it. Yeah, well, I mean, the law is actually a lot subtler. It really said when we're trying to work out how to resolve grievances under this treaty. And remember at the time in the 70s, the text was very little understood. How do we do this? Well, we'll establish principles based on the text to help us resolve those claims. And that was where the idea of the principles came from because the text was not adequate to cover current situations. And remember when the Act was passed in 1975, it only applied to grievances for events that took place after the passage of the Act. So only breaches the treaty after 1975. And it wasn't until 1985 that they amended the law under the Longi regime to apply to grievances going back to 1840. So for the first 10 years of its life, the tribunal only considered current breaches of the treaty. Do you agree with Shane Jones's position that the Waitangi Tribunal has become slanted? I think it's fallen victim to some substandard research. And the concern with that is that there isn't a mechanism to correct what they do. And as I said, there are a lot of historians who come across this when they're doing their research. They'll look at a tribunal report and go, oh, gosh, they've missed out this or they've misinterpreted this. And these are quite severe misinterpretations in some cases. The treatment of evidence is unusual. It's not the sort you would expect. There's no mechanism for correction. It's the final arbiter, though, isn't it? There's no ability to go to the Supreme Court, for example, to say that the Waitangi Tribunal got this wrong. To a point, the tribunal can't make decisions apart from one tiny exception. The tribunal has the power to make recommendations and it's up to the crown to act on those recommendations. But in the absence of any other body or any check and balance beyond the tribunal, those recommendations carry quite a bit of weight. But again, it's inflicted by what politicians of the day think about it. And there's a funny relationship there. The tribunal may be inclined to moderate its recommendations in order to make them more likely to go through or they might emphasise certain recommendations to say, well, this is what we think regardless and put our stake in the ground. So is that sort of dynamic that inevitably affects how the final recommendations are shaped? I guess the debate is not settled. You would agree it's not settled. Clearly not. And it's not resolved either. You made the distinction between settled and resolved. We've settled a whole lot of treaty grievances with claims in the process, but the resolution hasn't occurred. There was a thought, and I know Doug Graham pretty well and I remember having long discussions with him back in the 90s. And he was saying, no, no, if we do all of this then all the problems will go away. Well, they haven't. Because there's a disconnect between settlement and resolution. Yeah, and it's exacerbated by the size of the settlement. So let's say a married couple been together five, six years, you bought a house and you divorced to get half each. That's settlement. Now, there'll still be a sense of lack of resolution because he or she has taken away my future and I only got half a house and whatever. And that's natural. So it can be settled, but it's not resolved. But what happens on this scale? What happens if the settlement represents half of 1% of what you're entitled to? Which is what the average treaty settlement is for historical claims. So you walk away from the whole relationship as it were or that terminates. You get half of 1% of the value of what you're entitled to. So one of the arguments is the settlements themselves are a source of grievance. Then you compound that. Who gets the settlement? Well, it's made in the name, save a tribe. Yeah, and that's what I was thinking about. What we've been discussing is how, you know, we've got the settlement process and it's done by Iwi and devolving down to Haapu, et cetera. Well, that's meant to, doesn't. But it kind of doesn't accept and now probably that's where the problems lie. But yeah, the average Maori New Zealander is not seeing any benefit of the settlement process. Here's what's happening in a couple of cases at the moment, that there are some people who are preparing claims to the tribunal. Now you can't put any more historical claims in. It's well over a decade now that the government said no more historical claims. But there are some people preparing claims now, one or two, saying that the settlements themselves are breaches of the treaty because the crown settled with Iwi. But not one Iwi signed the treaty. It was a Haapu. No chief said, I'm signing this on behalf of the whole Iwi. They said, I'm signing on behalf of my Haapu. And so the crown should have settled with a party it made the agreement with, but it hasn't. It's settled with these big conglomerations because it's convenient and much faster. So they're arguing that the settlements themselves breach the treaty and therefore need to be relitigated. And there's some substance in that argument that the crown has taken a shortcut in some cases and gone for a settling whole big areas of land. So I think it can turn around and say, look, we've sorted this out, we've sorted that out. Not taking into account the fact that we're settled with the wrong people. Now that's an argument. There are good arguments to say that they can settle with Iwi, but it's not quite as clear-cut. No, but if we haven't got settlement and we haven't got resolution, then we shouldn't be shutting down debate, should we? No, we need. And this really is, the whole system is kept alive by that debate sort of flowing through it. Because if you say, this is it, you will get no more. Just be quiet, you've got your settlement. Shut up, be grateful. Well, if you don't feel there's a sense of resolution there, that doesn't go away. It's just gonna belch to the surface somewhere else. And that isn't being dealt with, that there's a sense of a lack of resolution. Yeah, I mean, there's a large swath of New Zealand society that believes that we've had a settlement process, there's payments being made, it's settled exactly. Why are you complaining even more? I mean, obviously the system, in order to get the first settlement underway, which is Tainui, included the ability for them to upgrade based on things. So it goes on and on and on, and that's creating even more. Every time Tainui gets a top up, everyone goes, oh my God, this never ends. Well, it probably isn't even gonna end, is it? That's a proportionality thing. So remember, Tainui accepted that settlement on the basis that it was a total pool of X amount of dollars, and they got a share of that. The government then, and this was inevitable, they said, well, we're gonna actually increase the pool. So they settled on the idea that this many dollars, there's actually more, so they've been worse off. So a lot of claimants have put that proportionality provision into their agreements. Once all historical claims have been resolved, that will be it, because there won't be any other ones for the government to add more money to, it's all done. So it has got a limited tenure, it will stop at some point. But there are, obviously, the big one, as you say, is Ngapui, and that's quite complicated. And I think Ngapui's probably looked south and said, well, we can see some of the problems that have emerged. We can see the scale of what we're entitled to. We can see issues of who's entitled to it, representation, and so on. How do we deal with that? And they haven't come up with a satisfactory response. And the fact is there isn't one. Now, there isn't the right way to do this. It's just what's the most expedient or possible way of doing it. So it's more affordable. Yeah. Well, Paul, it's been a real pleasure talking to you about this. It's certainly given me a few more insights and answered a few questions that I had when I read your article about the myths. It's clarified a few things in my mind. Hopefully, the listeners will have clarified a few things in their mind, too, by listening to you talking about those things and the historicity of it. And it's something I've always argued about in politics, is that you have to look at context and you have to look at historicity. I mean, I argue about this in church, too, when people are saying that, oh, the Bible says this, so yeah, but you need to understand the politics of the era when that was written. And they will look at me and go, well, but you do. You kind of do. And so that's why I want to talk to historians and people who have studied this in depth and kind of made it their life to do that, because not enough people are well-informed. And I see it as our role to inform people. Yes, and that's all we can hope for, yeah. Yeah, exactly. And I appreciate you coming on the show and talking about those things. It's fantastic. Thanks very much. No problem. Thanks, Paul. We ignore our history at our peril. Paul mean knows his stuff. And I found that discussion very interesting, especially about the relevance of the treaty to our constitutional framework. Tell me your thoughts on what Paul Moon had to say by emailing inbox at realitycheck.radio or text to 2057. Thank you for tuning in to RCR Reality Check Radio. If you like what you're listening to, just like what you're listening to, either way, we want to hear from you. Get in touch with us now. You can text us with your message to 2057. That's 2057. Or email us at inbox at realitycheck.radio. 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