Other formats

    Adobe Portable Document Format file (facsimile images)   TEI XML file   ePub eBook file  

Connect

    mail icontwitter iconBlogspot iconrss icon

Te Tiriti o Waitangi, he karo whakaora mo nga tangata Maori he reo Maori me te reo Pakeha

The Treaty Of Waitangi: — A Defence For The Maori People

page break

The Treaty Of Waitangi:
A Defence For The Maori People.

Our politicians have hitherto viewed the native difficulty from an European point of view only. To arrive at a correct estimate of the ideas, motives, and impulses which are controlling the native mind, it is necessary to view the situation from a native point of view. It is unnecessary to dilate upon the light in which the Maori is viewed by the European. It is more to my purpose to show how the European is regarded by the Maori; and when we have impartially considered this subject, it perhaps will not appear very strange that the Maori aspires to establish for the Maori race a government free from the control of European usages. Government, which is the foundation of society, has with the Maories, from time immemorial, been founded on the tribal or patriarchal system, and which is indeed the most ancient form of government of which we have any account. To the Maori, therefore, our form.of government of universal suffrage, in which the vote of the vicious and worthless vagabond is of equal weight with that of the virtuous and honest citizen, is an anomalous absurdity. Not less contemptible to the native mind are the arts by which the vast majority of our politicians attain a voice in the parliament of the country; or once there, the motives which afterwards regulate their conduct. To free myself from the charge of asperity, I will simply refer to the palpably dishonest and unpatriotic spirit displayed by our New Zealand legislators in squandering millions of borrowed money on useless and unproductive works. If we glance at our Native Land Courts and at our other courts of civil and criminal jurisprudence, can we expect the Maori to be content in the atmosphere which he there breathes? As for our Native Land Courts, we well know the sentiments of distrust and aversion, of disgust and abhorrence, which intelligent natives have respecting them, and we know that they have the force of reason on their side. Can it be denied that our Civil Courts are too often mere engines of fraud, our Criminal Courts sometimes of oppression? But in them is almost daily illustrated the triumph of crime and vice over the barriers of justice. We boast of our advancement in civilization, in the arts and sciences, of our universal system of education; we boast of our freedom and our equal laws, whilst we are the mere slaves of ministers who squander our resources with the one hand whilst they impose the

page 2

galling yoke of excessive taxation with the other. By our secular system of education we place weapons in the hands of the masses, but we fail to protect the vital interests of society by the shield of religion and virtue. Hence daily, by foul perjuries in our courts, the arch-fiend himself is sapping slowly but surely the very foundations of justice, of government, of society itself. Perjury—what is it but a recognised weapon both of attack aud defence of our legal advocates—a weapon used with complacency by men of forensic skill and reputation, men who perchance consider themselves Christians? I affirm not that these advocates prompt the perjurer in his crime but that they use constantly and unhesitatingly this foul weapon of darkness, with a moral conviction of its existence, is only too palpable to the frequenter of our courts.

But it is also in the social vices of the European that the Maori sees a dread danger to the future of his race, especially in drunkenness and in that other terrific scourge of modern civilization, the social evil, which together have brought pain and anguish and sorrow to many a kainga. It is there fore not without powerful reasons that the Maori desires isolation and local self-government for his race. Can we wonder that he shrinks from a civilization which, far from saving, threatens the very existence of his race? We have given the Maoris to drink of that cup which to them is the cup of death and despair; shall it be said that against their struggles and their entreaties, against a solemn treaty ratified by the authority of the Empire, England has compelled them to drink that cup to the dregs? The Maori people are reduced to a mere remnant of their former strength and pride; unconquered by the arms of the European on the field of war, their forces have been shattered by the pernicious habits and vices inherent to modern civilization. Sweet flowers were planted by heroic labourers in the early mission field, but others followed after them sowing noxious plants, whose deadly poison has brought that race to the brink of destruction. Can we wonder then that the Maoris shrink from the contact of a civilization which, far from saving, threatens the very existence of their race?

From the Treaty of Waitangi to the year 1865 the Imperial Government affirmed that it could not consistently with honourable engagements hand over the natives to the management of the colonists. From the foundation of the colony to that time native affairs were under the control of the Imperial Government. At present the Governor of the colony, the sole representative of the Imperial Government, is bound to accept the counsel of his responsible advisers, the New Zealand Ministry, and thus the voice of the Imperial Government is reduced to a nonentity. The Crown in fact gives to others that of which it cannot dispossess itself without abrogating the Treaty of Waitangi.

I contend that the rights conceded to the Maoris by the Treaty of Waitangi must be exercised wholly free from the restraints and regulations of the statutes of New Zealand; for local legislation or administration may not interfere in any way with rights ceded directly by the central authority

page 3

of the empire. It has been contended by some British statesmen, to their shame be it said, that the Treaty of Waitangi is no longer binding upon the Imperial Government; and it is contended that so far as England is concerned, her rights and duties belonging to that Treaty have been transferred to the Colonial Government of New Zealand. To admit this were to admit that New Zealand is no longer a British possession. But were New Zealand to-day as free and independent from the control of England, in her internal affairs, as are the United States of America, the Treaty of Waitangi would still be as binding upon England as it was at the first moment of its existence. It is impossible for England to voluntarily transfer the duties imposed upon her by that Treaty to any other Government or Power, colonial or foreign. Nothing can free her from those duties but the absolute conquest of the country from her by force of arms, a contingency which it is impossible to contemplate can ever occur. The Imperial Government, therefore, not only has a right to interfere as between the Government of New Zealand and the Maoris, but duty and the honourable fulfilment of the Treaty on its part may so compel it to interfere. It therefore follows that "Her Majesty may properly be invited to provide by letters patent that the laws enacted by the legislature of the colony should not extend to the native territory; and that the native laws, customs, and usages, modified as might be thought desirable, should prevail therein, to the exclusion of all other law." In other words, that the powers granted to the Queen by section 71 of the New Zealand Constitution Act, 15 and 16 Vict., cap. 72, are still in full force.

By the Treaty of Waitangi the Maoris were solemnly guaranteed the "full, exclusive, and undisturbed possession" of their lands. But these lands have ruthlessly, in very many instances, been taken from them by force of arms, under pretence of their owners being guilty of high treason, although not a single Maori has ever been convicted of that crime by a competent court of law.

Not less effective, perhaps not less cruel, have been the Native Land Courts in dispossessing the natives of their lands. I contend that the entire system of Native Land Courts is a contravention of the Treaty of Waitangi, and as such, ought to be abolished by the Imperial Government.

I ask, is it any part of the Treaty of Waitangi that the claims of individuals, of hapus, or of tribes, should be submitted to an European court to test their validity? To compel a native to prove his claim in a Land Court was clearly never contemplated by the Treaty, and it is mere sophistry to urge that it is optional with the natives to take advantage of these courts, seeing that a native who neglects to prosecute his claim in these courts is certainly liable to be placed in the false position of a counter-claimant, nay, even to entirely lose his land through the artifices of a mere pretender. Reason and justice alike proclaim that the tribes themselves are the true arbiters of ownership. The "full, exclusive, and undisturbed" possession of their lands, guaranteed by the Treaty of Waitangi to the Maoris, cannot be

page 4

disturbed by any ex post facto legislative enactments of the Imperial Government itself, much less of any Colonial Legislature.

To show how completely this doctrine was once understood by the legislators of New Zealand I will quote a sentence from the "Native Territorial Rights Act, 1858," (an Act sanctioned by the General Assembly of New Zealand, although disallowed by the Queen)—"No court of law or equity within the colony hath or ought to have any cognizance of any question of, or affecting the title or right of occupancy of the aboriginal natives as amongst themselves." And to show that this doctrine has been upheld by the law officers of the Crown in England I will make the following quotation from Sir William Martin's pamphlet on the Taranaki War of 1860:—"In December, 1859, the opinion of the law officers of the Crown in England was obtained upon the question whether the aboriginal natives of New Zealand were entitled to the electoral franchise under the Constitution Act. In that opinion the following passage occurs: 'Could he (one native) bring an action for trespass in the Queen's Court in New Zealand? Does the Court exercise any jurisdiction over real property in a native district? We presume these questions must be answered in the negative.' It appears then that the law officers hold that the colonial courts have no cognizance of questions of native title or occupancy in any case."

That the right of alienation of land properly vests in the tribes and chiefs has been repeatedly recognised by the representatives of the Queen. Thus we find in a despatch of Governor Gore Browne to the Duke of Newcastle, dated December 4, 1860: "The Ngapuhi in the North and the Waikato and Ngatimaniapotu in the centre and West Coast held their ancient inheritance still, and in our dealings with them since the Treaty of Waitangi we have generally recognised not only their tribal rights in cases of sale, but the influence of their principal men in assenting to or preventing sales."

In the same despatch we find the following words: "The title to the land among the natives of this country was a tribal rather than an individual title. The individual right to possess whatever portion of the land was subdued by the labour of each member was undoubtedly recognised and transmitted from generation to generation; but the right to alienate land so held was one the exercise of which was restricted by the obvious necessity of maintaining the unity of the tribe, of securing the right to service from each member, and of preserving its land from going into the hands of strangers."

I contend therefore that in assuming to individualise the native title to land, i.e., to divide a block of land amongst the individual members of the tribe, the Native Land Courts, even were they constitutionally created, would still be acting beyond their powers, because, as we have seen, the essence of the native title to land is tribal.

The Treaty of Waitangi was made as between the Queen and the chiefs of New Zealand. To the Imperial Govern-

page 5

ment, the central authority of the empire, therefore, do the chiefs of New Zealand appeal for relief from the many illegal acts committed by the Colonial Government of New Zealand, and which acts constitute of themselves breaches of that treaty which England is by her honour and by the law of nations bound to uphold with all her might.

These acts relate to illegal and unjustifiable confiscation of extensive tracts of land by force of arms and by illegal acts of the New Zealand Legislature; as, for instance, the confiscation in September, 1865, of the whole coast from Whanganui to the White Cliffs under the powers of the "New Zealand Settlement Act;" to illegal purchases and illegal divisions of land under the Native Land Court system, which, as I have shown, are illegal, not only according to Maori customs and tenure, but illegal according to the common law of England, as expressed in the opinion of the law officers of the Crown in England—purchases so called, but which are in reality mere acts of spoliation.

But besides question of land the Maoris complain of other arbitrary and unconstitutional acts of the Government of New Zealand; such as prohibiting the natives in times of profound peace from holding public meetings, the imprisonment of natives for ejecting illegal trespassers from their lands, the illegal imprisonment of Te Whiti and of large numbers of his followers—men who were torn from the bosoms of their families and detained many months in prison, and finally discharged without ever having been brought to trial—men who in reality were guilty of no crime known to the law, for none was, or could be, preferred against them. These men were imprisoned under the plea of political necessity—"Necessity the tyrant's plea," under which also millions of acres of land have been robbed from the Maoris—"Necessity," for which has been sacrificed every principle of good faith, of honour, of public morality, every principle of justice, and of the old landmarks of the common law of England.

Where is the honour and courage which once made the British nation the envy and admiration of the world? Let England reject the righteous prayer of the Maoris, let her repudiate the Treaty of Waitangi, and she will brand herself with an infamy which she can never erase.

The Maoris ask, with the force of reason and with the majesty of justice, that the Treaty of Waitangi be honourably kept by the Imperial Government of England.

Whither beyond the ocean vast came ye,
O race heroic! whence your lineage sprung?
Nor this nor that ye ken. Yet as a dream,
A reminiscence dim as clouded night,
A secret something whispers that ye be
Descended from the stock of Israel's race.
And is this but an idle, baseless dream?
Your ancient sacred customs answer give,
Wherein analogy and parallel
To those of Israel's hallowed rites are found.

O race ennobled by high intellect
And God like attributes which men adore,
'Midst shadows, clouds, and darkness whither flee,
No more is heard the horrid voice of war,

page 6

Yet o'er your kaingas hover grief and death.
Down what dark river glideth your canoe,
Upon what swift and direful waters borne?
No gleam of sun or star to light the gloom,
But all is blackness desolate and dread!
No voice, save mournful echoes of despair,
Of melancholy pale, and dread funereal dirge.

O God! stretch forth Thy mighty arm to save
From cruel grave this forlorn Maori race,
Exert Thy power, exalt and reinstate
This people to that height whence Israel fell.