Paper presented at the 23rd Annual Australia and New Zealand Law and History Society Conference, Murdoch University, Western Australia (2-4th July, 2004)

Author:	David Williams BA, LLB (VUW), BCL, Dip Theol (Oxon), PhD Associate Professor, University of Auckland Faculty of Law
Subjects:	Common Law (Other articles) Law - history (Other articles) Treaty of Waitangi (1840) (Other articles)
Issue:	Volume 11, Number 4 (December 2004)
Category:	Refereed Articles

Contents

• Historiographical wars
• The foreshore and seabed decision, 2003 and the Orewa speech, 2004
• The academic debate intensifies
• He Waiata
• Te Hapua, December 1986
• The Tribunal's comments on its waiata
• The legacy of assimilation policies
• Do many New Zealanders wish the Government to return to assimilation policies?
• Biculturalism in one nation rather than dual sovereignties in one land
• Integration
• The Hunn Report 1960
• Towards bicultural development
• A subtle cultural repositioning?
• 1066 and all that
• 'The Common-law Mind'
• The full power of the Parliament of New Zealand
• Conclusion - where to with myths?
• Glossary
• Notes

Historiographical wars

1. On my way to the law and history conference in Perth at which this paper was delivered I read an Australian newspaper article by a University of Melbourne academic, Leslie Cannold, on the importance of history. The article began with a reference to 'the claims of participants in the recent wars about Aboriginal history that it is in the way we tell the creation story of modern Australia that we define ourselves as a nation'.[1] The phrase 'wars about Aboriginal history' stood out. On inquiry, a number of participants at the conference confirmed that the word 'war' was not inapt. They referred me to the work of Stuart Macintyre and Anna Clark on the topic of the wars in Australian historiography[2] and also to how the 'defence of history' was dealt with by counsel and judges in the 1997 Australian High Court decision Kruger v Commonwealth. In that case the Solicitor-General for the Commonwealth successfully argued that:[3]

   The removal and detention of Aboriginal children in the circumstances envisaged by the Aboriginals Ordinance, though contrary to contemporary standards of morality and social justice, was not unconstitutional. The terms of the Ordinance were premised on the prevailing view that Aboriginal people as a class stood in need of special care and assistance and were incapable of managing their affairs in the same way as the population generally.

   It is not surprising to me that fierce historiographical debates arose about that use or abuse of history.

2. In this paper I can report that in Aotearoa New Zealand[4] as well there have been similarly vigorous debates in the last few years on historiography and the history or histories of the indigenous Maori. The focus of scholars, politicians and commentators in this country has been on Treaty of Waitangi issues and, more especially, on the numerous historical reports written by the Waitangi Tribunal.[5] Over the period since 1987 it had become conventional and almost uncontroversial to state that the Treaty of Waitangi is 'the founding document of New Zealand'[6] 'a constitutional document'[7]; 'simply the most important document in New Zealand's history'[8] 'essential to the foundation of New Zealand' and 'part of the fabric of New Zealand society'[9] 'of the greatest constitutional importance to New Zealand.'[10] Dramatic responses by many citizens and news media commentators to two particular events in 2003 and 2004, however, have severely challenged the general political acceptability of such remarks that had built up over the preceding two decades.

   The foreshore and seabed decision, 2003 and the Orewa speech, 2004

3. The first event was the release of a long awaited decision of the Court of Appeal on common law aboriginal title and customary law entitlements of Maori tribes to the lands beneath the foreshore and seabed. In June 2003 the Court of Appeal decided that the Maori Land Court had jurisdiction to inquire into customary entitlements to foreshore and seabed lands. The Court of Appeal media release stressed that the Court's 'decision is a preliminary one about the ability of the iwi to bring their claims. The validity and extent of the customary claims in issue have yet to be decided by the Maori Land Court. The impact of other legislation controlling the management and use of the resources of maritime areas also remains to be considered.'[11] The court's decision in Attorney-General v Ngati Apa was a modest procedural victory for seven tribes from the north of the South Island.[12] They had resorted to litigation after years of unresolved difficulties over procedures to obtain permission to engage in commercial aquaculture activities on the foreshore and seabed lands of the Marlborough Sounds. The court decision did not define their customary rights, if any, but merely enabled the plaintiffs to adduce evidence to the Land Court as there has been no explicit statutory extinguishment of those rights. Nevertheless, the court ruling created a storm of controversy. The fierce debates on talkback radio, letters to editors, opposition political party rallies and the like went on about "public access to beaches" being threatened by Maori claims to exclusive rights. This rhetoric had little or no connection to the narrow findings of the Court of Appeal and none at all to the actual practical claims of the tribal plaintiffs.[13]

4. A second noteworthy event in reshaping national debate on Treaty issues was a speech by the Leader of the Opposition, Dr Brash, to the Orewa Rotary Club on 'Nationhood' in January 2004.[14] His notion of nationhood involved staunch criticisms of what he named as Maori 'racial privileges', 'two standards of citizenship' for Maori and non-Maori, and biculturalism policies based on the supposed Treaty principle of a partnership between the Crown and Maori. His message evidently struck a deep chord of resonance judging from the delighted responses of many New Zealanders. The Government did not stand up for its Treaty-based initiatives in partnership with Maori. Rather, ministers rapidly reframed some of the health, education and capacity enhancement policies focussed on Maori as if they had always been 'needs-based' and not 'race-based'. Aspects of the 'Nationhood' speech are discussed in more detail below.

   The academic debate intensifies

5. Meanwhile, debates on the Treaty and the historiography employed by the Waitangi Tribunal had become much more intense within academic circles as well. For a long time there were very few voices raised against the government moves away from assimilation and integration policies of the pre-1970s.[15] As will be discussed later, biculturalism came to be in vogue from the 1970s. Then in the 1980s came the invention by the courts and the Tribunal of the meaning of 'the principles of the Treaty'. Incidentally, I use the term 'invention' in a non-pejorative manner.[16] Parliament had not defined what it meant by 'the principles of the Treaty of Waitangi' so the courts as a matter of statutory interpretation necessarily had to invent appropriate meanings consistent with the purposes of the enactments. These decisions on the principles of the Treaty dramatically raised the status of the Treaty itself from being discarded as a 'simple nullity' to a quasi-constitutional document in the life of the nation. In a rather optimistic moment of reverie, sitting in the Codrington Library at All Souls College, Oxford, in 1990 Sir Robin Cooke (Lord Cooke of Thorndon, as he now is) imagined William Blackstone saying to him:[17]

   And if the parliament and the judges are forever mindful of the restraint on the part of either which is fitting to preserve equilibrium in society, these questions may safely remain unagitated. I do not doubt but that your Treaty of Waitangi has become in some sense a grand constitutional compact akin to our Magna Charta.

6. If Cooke's dreams were not taken very seriously in official circles in the 1990s, neither, on the other hand, was any attention at all paid to the harsh attacks on the Treaty by a few fierce critics, such as Stuart Scott. Scott was so extreme in his fulminations against the Treaty of Waitangi and so shallow in his research that his views were given little or no credence.[18] McHugh, for example, called Scott's work 'a popular book almost entirely bereft of any scholarship.'[19] There was only one serious and credible academic analysis of possible flaws in Treaty-based thinking. This came from the acute writings of an Auckland political philosopher, Andrew Sharp. He started with a detailed dissection of Maori claims to justice and reparation and then turned to questioning of the thrust of 'juridical history' as practised by the Tribunal.[20]

7. In the early years of the twenty-first century, however, a significant divide has opened up between 'Treaty industry' historians and lawyers on the one hand and a number of academic historians on the other hand. To Sharp's criticisms of the Waitangi Tribunal's 'juridical history' has been added some stringent attacks by eminent historian Bill Oliver on the 'ahistorical' methodology of the Tribunal's report-writing with its reliance on 'counterfactual' assumptions to criticise Crown policy, acts and omissions. The Tribunal's common law style of history is said to provide a 'retrospective reconstruction' of a 'millennialist' history that has 'a utopian character' with 'elements of the religion of the oppressed and the promise of delivery from bondage to a promised land'.[21] In mid-2004 a former Tribunal historian turned academic, Giselle Byrnes, brought out a book suggesting that the Tribunal's attempts to write history have been a 'noble, but ultimately flawed experiment' owing to the Tribunal's political bent towards advocating Maori causes.[22] Now even an historian writing a biography of the Wakefield family, many of whom came to live in New Zealand, introduces his book with the statement that it seeks to be a 'dispassionate biography'. According to this author: 'I decide to do the Wakefields the courtesy of attempting to treat them within the context of their own times.'[23] The obvious implication is that it is seriously discourteous to view the actors of the past from a presentist perspective, but that is certainly what the Waitangi Tribunal does in its reports.

8. The flow of the debate is not in one direction only. Successive chairpersons of the Tribunal, Eddie Durie and Joe Williams, have sought to inform the public debate with careful comments on the importance of Treaty jurisprudence in modern New Zealand law.[24] Some lawyers, including Paul McHugh and Richard Boast, have been prepared to defend the common law mode of reasoning and the 'presentism' of Tribunal reports.[25] The distinguished expatriate historian, J G A Pocock, more cautiously writes of 'the histories in Aotearoa New Zealand' and urges all the peoples of the land to engage in 'recounting histories in one another's hearing.'[26] There are a number of balanced essays in a 2004 review of the Tribunal's place in contemporary New Zealand edited by Janine Hayward and Nicola Wheen.[27]

   He Waiata

9. If we are to recount our histories and listen to them, then it is important to see how it is that the Waitangi Tribunal has positioned itself, especially in the period after the Treaty of Waitangi (Amendment) Act 1985 granted it the power to inquire retrospectively into historical claims of Maori against the Crown going right back to the inception of colonial rule in 1840. Set out below are the words of 'he waiata' - a sung chant - composed by Sir Monita Delamere, a Tribunal member, respected elder and spiritual leader of the indigenous Ringatu church. It was first sung by the members of the Waitangi Tribunal, and their accompanying group, in response to the powhiri, the formal customary welcome, to the northernmost settlement of New Zealand, Te Hapua, in December 1986. In accordance with the respective customs of each tribe, it is Maori custom for there to be a formal powhiri at each marae the Tribunal visits prior to the hearing of evidence from Maori claimants and their expert witnesses. A Tribunal member will speak in response to the words of formal challenge (as to the peaceful intent of the arriving group) and the welcome from the home people. When that speech is concluded, the accompanying group will support the speech with a waiata. Although the words of this waiata originally were specific to the first of the Muriwhenua claims hearings, to this day it continues to be regularly chosen by Tribunal members and staff when standing to support the speech given by their main speaker at powhiri in all parts of the country.

10. Australians and other overseas readers may wonder at the frequent use of Maori words in my text - translated in the glossary at the end of the paper - and the space I am giving to the words of a Maori language song. I must emphasise that this focus is reflective of the impact of the bicultural developments in contemporary New Zealand of which the Waitangi Tribunal is an important part. It is a major reason, in my view, that will ensure that New Zealand remains an independent nation state however plainly economic rationality points towards closer political integration with Australia. The Maori cultural renaissance since the 1970s is so pervasive that it must be reported on at least in part in its own terms and in its own language.

11. The Tribunal's own rendering from Maori into English of the words of the waiata (with some of my own interpolations in parentheses of the reasons for the inclusion of those named and other references) is as follows:[28]

    Karanga ra, e Rata The clarion voice of Rata calls
    [Matiu Rata was a former Minister of Maori Affairs in the Third Labour Government. In 1986 he was a leader of the claimant umbrella group, Te Runanga o Muriwhenua, whose claims the Tribunal was about to address.]

    Te hiku o te ika e, Whakaripo ake nei e The movement in the tail of the fish responds
    [The peoples living at the tail of the fish of Maui (ie the far north of North Island) have responded - ie Te Runanga o Muriwhenua has lodged a claim to be heard by the Tribunal.]

    Tenei a Tai In our midst we now have Tai
    [Tai is Taihakurei, referring to a tribally significant middle name of Chief Judge (now Justice) Eddie Durie, who was the Tribunal chairperson from 1980 to 2001.]

    Whakamana te tiriti e Now is the time to give strength to the Treaty.
    [In line with these sentiments, the Tribunal since 1986 often has been referred to in Maori as 'Te Ropu Whakamana i Te Tiriti o Waitangi' - the body formed to give strength and authority to the Treaty of Waitangi.]

    Te ope nei e Here too is the ope, all members of the Tribunal.
    [The ope is the entire group of people accompanying the tribunal at the welcome.]

    Tainui e Tainui
    [Tainui is the tribal affiliation of Koro Wetere, Member of Parliament for Western Maori, and the Minister of Maori Affairs responsible for Tribunal appointments at that time.]

    E tama Rawiri Rawiri
    [Rawiri is the Maori spelling of David. This is a fond reference to the then young David Lange, Prime Minister of the Fourth Labour Government that enacted the Treaty of Waitangi (Amendment) Act 1985 to enhance the jurisdiction of the tribunal.]

    Paora e Paora
    [Paora is the Maori spelling of Paul, a reference to Most Rev Sir Paul Reeves, a former Archbishop of New Zealand, who was the Governor-General who assented on behalf of the Queen to the enactment of the 1985 act.]

    Whaterehia ra Through you, this fish can swim.
    [As a result of the contributions of all those named above, the Tribunal now has the powers to hear historical grievances throughout the entire country]

    Maranga mai, Te iwi ohoake ra Maori people rise and be vigilant;
    

    Tauiwi tahuri mai e Tau-iwi (Pakeha and others) The time is now to face each other.
    [The Tribunal's work is intended to encourage Maori to bring their claims forward and for other New Zealanders to respond positively to the issues raised.]

    Whatungarongaro, Toitu te whenua e As the light of the eye and the life of things living fade from sight, Only the land is seen to remain, constant and enduring.
    [The last two lines of the waiata are a pithy reference to a well-known proverbial saying on the utmost importance, in Maori cultural knowledge systems and beliefs, of land as constant and enduring. The tribunal's translation is a fuller rendering of the saying.]

    Te Hapua, December 1986

12. The commencement of the Te Hapua hearings was a momentous occasion in a great number of respects. As the waiata acknowledged, the tangata whenua were calling the Tribunal onto a marae at the birthplace of Matiu Rata. Rata was present that day as one of the leaders of his tribe, Ngati Kuri, and as a lead claimant in the claims brought by the hapu and iwi of the far north region under the umbrella of a council known as Te Runanga o Muriwhenua. Their claims were registered with the tribunal under the claim designation of Wai 22 for fishing claims and Wai 45 for land and other claims. It was Rata who as Minister of Maori Affairs in the Third Labour Government had introduced the Treaty of Waitangi Bill to the House of Representatives in 1974 and he had overseen that Bill's enactment as the Treaty of Waitangi Act 1975. The 1975 act established the Waitangi Tribunal and statutorily recognised the original Maori language text of the Treaty, along with an English language text, as part of New Zealand law.[29] The long title of the act included a reference to 'the principles of the Treaty of Waitangi'. This was the first time that Parliament had responded positively to calls by Maori groups and movements for the 'ratification' of the Treaty, or at least, for acknowledgement of the relevance of the wairua or spirit of the Treaty to contemporary conditions in the latter part of the twentieth century. That deceptively simple phrase, 'the principles of the Treaty of Waitangi', would in time become the focus of much attention in legal discourse and in government policy formation. The genesis of regular statutory incantations incorporating 'the principles of the Treaty' into New Zealand legislation may be traced to that December 1986 hearing at Te Hapua. Within a week of the powhiri, the tail end of the fish was indeed causing a commotion in the seat of parliament in Wellington. A tribunal memorandum of 9 December included an urgent recommendation to Ministers of the Crown concerning the provisions of the State-Owned Enterprises Bill then before the House of Representatives.[30]

13. The Tribunal as originally established had been granted jurisdiction only prospectively. It had jurisdiction only to consider matters arising after the Act came into force on 1 January 1976. Just over a decade later Rata was in the political wilderness. He had resigned from the Labour Party in 1979 to form and become the leader of a Maori political party, the Mana Motuhake Movement, but in the subsequent by-election and later general elections he failed to win his way back into parliament as the member for Northern Maori. Meanwhile, his erstwhile colleagues in the Fourth Labour Government had now granted the tribunal retrospective jurisdiction to inquire into and report on prejudices affecting Maori as a result of Crown actions or omissions going back to the date the Treaty was first signed at Waitangi: 6 February 1840.[31]

14. The Muriwhenua claims were the first new set of hearings to be conducted by the tribunal under its newly enhanced jurisdiction.[32] Claimants and their counsel immediately drew the tribunal's attention to the fact that the State-Owned Enterprises Bill, scheduled to be enacted before the House rose for the Christmas recess at the end of 1986, would transfer out of strictly Crown ownership many of the assets that the claimants hoped would be available for return to them as part of any remedies for proven breaches of the Treaty by the Crown in the past. The overwhelming preference of claimants was that if land had been wrongly taken by the Crown, then land should be returned by way of redress. It was assumed, quite rightly as it has turned out, that the Crown would be unwilling to permit the settlement of Treaty claims from land subject to private interests and that state-owned enterprises might well be privatised. In the event, the tribunal addressed an urgent memorandum to ministers of the government containing recommendations that led to the enactment of section 9 of the State-Owned Enterprises Act 1986. At the very last minute, in what is usually the purely formal third reading stage of the Bill, the government proposed the inclusion of these words:

    Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.

15. The extensive interpretation by the Court of Appeal of section 9's meaning and effect in the first New Zealand Maori Council v. Attorney-General case in 1987 came to have a quasi-constitutional significance even though the doctrine of parliamentary supremacy has been regularly re-affirmed.[33] The principles of the Treaty have unfolded into a large body of contemporary Treaty jurisprudence within the New Zealand legal system. According to research published by Te Puni Kokiri, the Ministry of Maori Development, in 2001 there were thirty two Acts of Parliament on a diverse range of subjects that incorporate a direct reference to the Treaty and/or its principles, twenty-four relevant Waitangi Tribunal reports and forty pertinent court cases in the ordinary courts and in specialist jurisdictions decided between 1988 and 2000 and a host of books, journal articles and government reports, circulars and opinions.[34] In a very real sense, much of this body of jurisprudence began from that marae hearing at Te Hapua in 1986.

    The Tribunal's comments on its waiata

16. The Tribunal members being welcomed by Ngati Kuri and other northern tribes at Te Hapua were a highly qualified group of men and women appointed in 1986 by the Governor General on the recommendation of the Minister of Maori Affairs to a tribunal whose bicultural membership was explicitly designed to reflect the Treaty relationship in its composition.[35] The panel of members present on that occasion were the Chief Judge of the Maori Land Court, Eddie T J Durie (now a justice of the High Court); Monita Delamere, a kaumatua of Whakatohea and Pou of the Ringatu Church; Manuhuia Bennett, the Anglican Church's kaumatua bishop of Aotearoa; Bill Wilson, a leading barrister and solicitor from the Bell Gully law firm in Wellington; Keith Sorrenson, a professor of history specialising in colonial history; and Georgina Te Heu Heu, a barrister who would become a National Party cabinet minister in the government during the late 1990s. Their waiata reflected the energy and enthusiasm of the tribunal members for the work ahead of them and their intentions to take a proactive role in asking Maori and Pakeha to turn towards each other and listen to the histories. In the preface to their Report of the Waitangi Tribunal on the Muriwhenua Fishing Claim in 1988, the tribunal commented on it as follows in a manner that asks non-Maori readers to understand the world view and perspectives of Maori:[36]

    Waiata have a cultural function, to preserve the stories of great events and noble people in tribal history and lore.

    The first visit of this Tribunal to the people of the North was an occasion of special significance, not just for us or the claimant tribes but for all Maori. We sought then, for this generation, a waiata that would do what others have done for the people of more ancient times.

    Our waiata pays tribute to the Honourable Matiu Rata, principal claimant, son of Te Hapua and father of the Tribunal. From his distant village he was to become Minister of Maori Affairs, and while he was in office, the Tribunal was established and its current chairman, Taihakurei (Chief Judge Durie), was appointed to the Maori Land Court. In the time honoured way, we acknowledge Matiu, our chairman, ourselves, and then our task to uphold the Treaty. We acknowledge too, Matiu's ancestral lands, representing as they do the tail of the fish.

    North is south in the Maori world view. The North Island is a fish, the fish of Maui, and the people of Muriwhenua occupy the nether end of the fish's tail. They look 'up' to the rest of the fish, its lateral fins spreading to East Cape on one side, Taranaki on the other, its dorsal spine of rugged ranges tracing a line to the head, Te Upoko o te Ika. There, at Wellington, the seat of Government now resides.

    The waiata builds upon the traditional image of the fish. As we looked to the harbour beside the marae, we were reminded that the tranquil setting belied the major claim soon to follow
    . . . . Whakaripo ake nei e . . .

    Look to the surface of a placid sea. A ripple that breaks an otherwise calm, tells of a movement below.

    One elder of that place then referred to an ancient saying

    Kia timata ra ano te hiku o te ika i te akiaki, i te upoko o te ika katahi ano ka tika te haere.

    We knew then why the first major fishing claim had to come from the North; for as he said, when the tail of the fish moves, the rest of the fish is not lacking for direction.

    So the song is taken to the head of the fish, and to those of that place with important roles in responding to this movement; and recognises the two main parties from their respective ends of the fish.

    Still, unity of movement is important in any creature, and so our waiata calls upon the people of our country to face one another, not to turn away, or to stand apart, remembering our own short time on earth, and that while we pass on, it is the land that endures.

17. The Tribunal's published reports since this period have reflected the call that 'the people of our country' should 'face one another, not to turn away' with a cover design by an artist, Cliff Whiting, that invokes the signing of the Treaty of Waitangi and the consequent interwoven development of Maori and Pakeha history in New Zealand. This development continuously unfolds in a pattern not yet completely known. In the design, and in the hopes of the tribunal members, Maori and Crown figures have turned to face each other as the interwoven development of our future together unfolds.

    The legacy of assimilation policies

18. The Tribunal's waiata and cover design, and its advocacy for a tolerance of diversity in its explanations of those symbols, unashamedly proclaim a different world-view from that which dominated in the governing discourse of government administration in previous era. Successive government policies of racial amalgamation, assimilation, and integration from 1840 right through to the early 1970s all assumed that civilisation and integration were a one-way process.[37] Maori learned from the Pakeha; Pakeha had little or nothing to learn from Maori. For reasons thought by governments at the time to be beneficial for Maori, much of our history since 1840 has included the denigration of Maori language and of Maori tribal and cultural knowledge systems. These were considered to be relics of a bygone superstitious past and irrelevant to a modern people in the contemporary world. The collectivism of Maori societies had to be replaced with the individualism of progress. This policy was most apparent in the eradication of 'beastly communism' by the workings of the Native Land Court. The court was established under a series of Native Land Acts from 1862 onwards to substitute customary tenures of land with an individualised form of freehold tenure and to facilitate alienation of the freehold land interests to settlers or Crown purchase agents.[38] Assimilation and individualisation were also the underlying premises of Crown policies towards Maori on the whole gamut of state interventions such as in health, education, housing and criminal justice.

19. Moreover, this was not just the policy of some distant past when imperial notions of British political, economic, cultural and military supremacy predominated in the thinking of a colonial society that thought of itself as a 'Better Britain in the South Seas'.[39] Sir Apirana Ngata represented the Young Maori Party in parliament from the turn of the twentieth century until 1943 and was for a time Minister of Native Affairs. He, like many of his generation of Maori leaders (especially members of Te Aute College Old Boy's Association), was a long-time advocate of the government's English-language-only policy in the education of Maori children. This education, he thought, would prepare coming generations of Maori for the new world, dominated by Pakeha ways, that they must now live in. But he changed his mind in 1945 when he saw the startling statistics of inability to speak Maori among Maori new entrants to primary schools. He wrote a letter that helped to persuade a Maori Language Committee to recommend that ways must now be found to teach the Maori language in primary schools. He concluded: 'Lastly there [is] something in the sentiment of preserving a culture which belonged to the country. With that goes the assertion that New Zealand would be all the richer for a bilingual and bicultural people.'[40]

20. Decision-makers ignored these remarks and the committee's recommendations. They preferred to remember Ngata's 1930s views that English should be the only medium of education, rather than pay attention to his late in life alarm call for action to foster the indigenous language and culture. Bird, a long-serving Senior Inspector of Native Schools, sternly countered Ngata's letter with this remark: 'And finally if the result [of education policies] has been to make Maori lose his language, don't forget that in its place he has the finest language in the world and that the retention of Maori is after all largely a matter of sentiment.'[41] There are scores of documents stored in the archives that I have read expressing similar views that were adopted by Crown ministers and government officials right through until the 1960s. When they are told of or learn about the deliberate nature of those policies, some among the current generation of Maori leaders (who were personally affected by them) can and do speak of 'cultural genocide'. That is not surprising. What is more surprising is how little rancour is generally expressed by Maori and how rarely such sentiments are publicly aired. What is disturbing is how stridently defensive many Pakeha are on the few occasions that these issues are broached and how unwilling they are to look at the historical record in any detail.

    Do many New Zealanders wish the Government to return to assimilation policies?

21. Any indication that a person or institution with governmental powers holds to the notion that New Zealand governments may have been responsible in the past for some form of 'cultural genocide' is certain to be the subject of a significant backlash in expressions of public opinion. There was, for example, an acrimonious debate about the use of the word 'holocaust' in the Waitangi Tribunal's Taranaki Report in 1996 to describe nineteenth century colonial government policies of war, land confiscations and the invasion of a pacifist Maori community engaged in non-violent resistance to the implementation of land confiscations.[42] There was a white-hot negative reaction to a speech by Tariana Turia in 2000. She is now a co-leader of the Maori Party that was formed in the wake of the Hikoi to oppose the Foreshore and Seabed Bill 2004. At the time though, she was the Associate Minister of Health speaking to psychologists and she commented on the adverse effects of cultural oppression in the past for Maori mental health issues today:[43]

    Do you consider for example the effects of the trauma of colonisation? I know that psychology has accepted the relevance of PTSD (Post Traumatic Stress Disorder)

    understand that much of the research done in this area has focused on the trauma suffered by the Jewish survivors of the holocaust of World War Two. I also understand the same has been done with the Vietnam veterans.

    What seems to not have received similar attention is the holocaust suffered by indigenous people including Maori as a result of colonial contact and behaviour.

22. Such attacks on colonisation are not in order, it seems, according to the court of public opinion. Turia was strongly cautioned by members of the Government from the Prime Minister down and roundly condemned in many quarters. Attacks on 'Maori privilege' are quite a different matter. Despite the overwhelming fact of Maori marginalisation and under-privilege in social and economic data, 'Maori privilege' is the word to attack even the very modest attempts of successive neo-liberal Governments since the late 1980s to deal with historical injustices and contemporary inequities affecting Maori.

23. Thus a speech on 'Nationhood' in January 2004 by the Leader of the Opposition, Don Brash, received a very different reaction to that of Tariana Turia. These were his questions:[44]

    [W]hat sort of nation do we want to build?
    Is it to be a modern democratic society, embodying the essential notion of one rule for all in a single nation state?
    Or is it the racially divided nation, with two sets of laws, and two standards of citizenship, that the present Labour Government is moving us steadily towards?

    And then he invoked the words that Lieutenant-Governor Hobson said to rangatira signing the Treaty in February 1840: 'He iwi tahi tatou'. The precise meaning and intention of Hobson in using those words has been mulled over at many Waitangi Day ceremonies in the past. Brash, following Colenso's contemporary account, translated them as 'We are one people'. A respected academic authority, Dame Joan Metge, has suggested that a better translation of the Maori words would be: 'We two peoples together make a nation' or, to give it a wider interpretation: 'We many peoples together make a nation.' [45] That interpretation points to acceptance of a vision that this is a nation with bicultural origins and a multicultural current reality.

24. It is apparent that there is no consensus in our understanding of Hobson's few words - 'He iwi tahi tatou'. Hobson's statement as he shook hands with each Maori signatory has come to be seen as crucial to our national origins. However from different understandings of that symbolic event very different competing myths have been constructed. For Brash there is no doubt that 'We are one people' speaks of integration as crucial to our national origins and to our future:[46]

    Where there has been a clear breach of the Treaty - where land has been stolen, for example - then it is right that attempts to make amends should be made.

    But the Treaty is not some magical, mystical, document. Lurking behind its words is not a blueprint for building a modern, prosperous, New Zealand. The Treaty did not create a partnership: fundamentally, it was the launching pad for the creation of one sovereign nation.

    We should not use the Treaty as a basis for creating greater civil, political or democratic rights for Maori than for any other New Zealander. In the 21st century, it is unconscionable for us to be taking that separatist path.

    It is also worth noting that Brash specifically addressed the historiography question:[47]

    [W]e need to look at our past honestly, not through a lens which projects current values onto 19th century New Zealand, and not by stripping away the context of the past.

25. This speech, it seems, has begun to create a new landscape for debate and thinking about New Zealand's national identity.[48] The 'political correctness' of the notion that the Treaty of Waitangi is a foundation of our national origins and is of continuing importance to the nation's future has been challenged. The 'anachronism' of the Maori seats in Parliament - a feature of the House of Representatives since 1867 - should be removed, according to Brash, and all statutory references to the Treaty of Waitangi or the principles of the Treaty should be eliminated. Parliament should take back from the judges the power to define Treaty principles that were only ever inserted because of 'and accident of litigation'. Brash in succeeding speeches has capitalised on non-Maori resentment against biculturalism being rammed down people's throats. And he talks of 'non-Maori' deliberately in order to avoid using the label 'Pakeha' which is disliked by some people who have no glue what it means, nor a desire to find out, but who assume (incorrectly) that it is in some way derogatory. Incidentally, though, Brash's terminology hardly moves discourse away from the 'racial' or cultural categories he claims to abhor.

26. The huge initial surge of popular support for his approach and for his National Party, even though it has since ebbed, has the potential to transform the political landscape. Indeed, the present Labour-led Government has been left scrambling to find a defensible position that will not seriously alienate one group or another of its supporters. It now insists that all its policies towards Maori are really 'needs based', with a focus on reducing inequalities, rather than based on 'race' or on Treaty partnership models.[49] Since the 'Nationhood' speech it is still unlikely, perhaps, but it is no longer implausible to suggest that government policy in the future may aim to revert to the integration policies of the past. Thus the theme for the 2005 conference of the Australasian Law Teachers' Association in Hamilton, New Zealand, is "One Law For All?" and the conference publicity notes: 'As nation-states struggle with internal diversity while globalisation demands harmonisation, the issue of legal uniformity is one which resonates across all subjects and jurisdictions. From the foreshore of New Zealand to the deserts of Iraq we see controversial decisions justified on the basis of democracy, the rule of law and legal equality, but does one size fit all?'[50]

27. It is important, therefore, to outline the thinking behind the policies of integration in New Zealand prior to the 1970s that were the precursors to the bicultural development notions the Waitangi Tribunal has promoted since then. The legal reasoning and advocacy history approach adopted by the Tribunal in its reports have made a powerful contribution to the prevailing notions of bicultural development within one nation. Those prevailing notions are now under attack as out of date 'racial' thinking that are inconsistent with notions of equality within a modern democratic state. Yet do leaders of the nation seriously want to return the country to the 'good old days' of integration? Do any of them remember what those policies looked like in practice and how abject a failure they were to achieve the avowed intention of 'closing the gaps'?

    Biculturalism in one nation rather than dual sovereignties in one land

28. Before describing the integration policies of the past, it needs to be acknowledged that the Waitangi Tribunal's support for Government policies of biculturalism is by no means fully embraced by many Maori now basking in a resurgent sense of Maori nationalism. The Maori cultural renaissance and language revival may be traced back some decades to a number of significant events such as opposition to the Maori Affairs (Amendment) Act 1967, the Maori language petition to Parliament in 1972, the Maori Land March in 1975 (now often called the 'first Hikoi'), the Hikoi to Waitangi in 1984, the Hirangi hui (and the various fiscal envelope hui) in 1995, and the Hikoi of Hope in 1999.[51] Land protest occupations over the years - such as those at Raglan, Bastion Point, Moutoa Gardens and elsewhere - were also hugely important in honing the skills of Maori resistance to Pakeha hegemony. In 2004 that assertive cultural revival was strikingly evident in a very strong sense of Maori unity and the massive support for the Hikoi against the Foreshore and Seabed Bill.[52] This Hikoi to Parliament was mounted in opposition to the government's abandonment of due process in the courts, its rejection of a carefully crafted Waitangi Tribunal report and its discriminatory extinguishment of customary rights in the Foreshore and Seabed Bill 2004.[53] Calls for recognition of tino rangatiratanga rights affirmed by te Tiriti o Waitangi - viz most explicitly the Maori text of the Treaty - at the very least require some major reforms of the monistic constitutional structures based on the Westminster system of government presently in place, and in the view of some Maori sovereignty advocates involve revolutionary challenges to the current legal order.[54] There is some ambivalence within Maoridom as between an emphasis on the Treaty's affirmation of Maori rights - 'a document which articulates the status of Maori as tangata whenua of Aotearoa'[55] - and an emphasis that it is for the nation as a whole - 'The Treaty of Waitangi is the Constitution of New Zealand'.[56] The Co-leader of the Maori Party, speaking in Parliament in 2005 inclines to the latter position:[57]

    A vision for a nation must be founded in its very origins. Our vision for this nation is based in the covenant by which its first people, the people of the land, tangata whenua, negotiated with the Crown, about a model for developing a unified nation. ... At its very core, the Treaty is about a relationship that has been entered into.

29. Ani Mikaere, who teaches Maori laws and philosophy at Te Wananga o Raukawa, inclines to the former position:[58]

    [T]he facts surrounding the signing of the Treaty of Waitangi reveals a clear Maori intention to create a space for the Crown to regulate the conduct of its own subjects, subject to the overriding authority of the rangatira. This reaffirmation of Maori authority meant that the highly developed and successful system of tikanga that had prevailed within iwi and hapu for a thousand years would retain its status as first law in Aotearoa: the development of Pakeha law, as contemplated by the granting of kawanatanga to the Crown, was to remain firmly subject to tikanga Maori.

30. The Waitangi Tribunal has chosen deliberately to adopt a middle ground position somewhere between reliance on the Treaty as a basis for claims of separate Maori nationhood and marginalisation of the Treaty as a cession of sovereignty that has left the Crown (later the Crown in Parliament) with sole and absolute sovereign law-making power in the nation. The Tribunal position has long been that the sovereignty of the Crown is not in doubt but that nevertheless its sovereignty is qualified by reciprocal obligations to honour the rangatiratanga guarantees of the Treaty in a manner that recognises that the Treaty is always speaking. This is a theory of our national origins that depicts the Treaty as a contract or compact - Maori often call it a covenant - against which the Crown's treatment of Maori is to be assessed.[59] This middle ground, including the Tribunal's pragmatic reinterpretation of the 'partnership' nature of the Treaty relationship between the Crown and Maori, did appear to have achieved a significant degree of acceptance in political, legal and cultural discourse during the 1990s. Now, as noted above, that consensus is being seriously eroded from several directions.

31. To address the issues raised, the larger project of which this paper forms a part will need to engage in an inquiry into the formation (or invention) of mythologies of national origins and to assess historiographical debates about the intersections of law and history in legal processes. I begin that discussion here. The focus, in my estimation, ought not to be a discussion of abstract theory. Mine is the work of a New Zealand intellectual committed to the statutory definition of the characteristics of a university, including the requirement that it accept a role as 'critic and conscience of society'.[60] If, or when, formal steps are taken to move New Zealand from being a constitutional monarchy to a becoming a republic, the status and future role of the Treaty of Waitangi will have to be resolved. This is a distinctive aspect of New Zealand debate on republicanism that is absent from Australian considerations of such constitutional change issues. Is the Treaty really the foundation for the legitimacy of the modern state? Is it merely are an item of historical interest only? Thus far there has been no willingness by most Pakeha, including those otherwise disposed to favour significant constitutional reforms, to address (let alone resolve) questions about the inclusion of the Treaty as a cornerstone in any new republican legal order. This reluctance may in fact serve to delay considerably the day when fundamental constitutional reforms come to be addressed in this country. There has been no reluctance, on the other hand, to pose serious questions as to whether biculturalism will survive as an integral feature of national life in the twenty first century, when compared with its predominant position in late twentieth century political and cultural discourse.

32. Of course, for most Maori biculturalism is not a matter of choice. Some individuals will accept assimilation into the majority culture as Hunn hoped for in his 1960 report on integration to be discussed below. The post-1975 Maori cultural renaissance has ensured, however, that a very substantial proportion of the Maori population wish to promote and enhance their collective values and customs, their tribal rangatiratanga and their pride in being Maori. People who now positively identify themselves as Maori comprise substantially more than 10% (perhaps 15%) of the total population, and they perforce must be bicultural to survive in daily life. They cannot operate in a Maori-only world as our populations are too closely intertwined in all but the most remote rural settlements. So, perforce, they must move between Maori and Pakeha cultural norms in their daily life.

33. For the non-Maori majority and especially for those who are the power-holders, however, there is a choice. It is perfectly easy to conduct one's daily affairs without care for or knowledge of Maori cultural knowledge. Among the choices we Pakeha have is whether we wish to affirm the re-interpretive work of the Waitangi Tribunal since 1975 on the one hand, or to condemn it as a massive mistake, a blind alley, a cultural ghetto that we should be glad to escape from. We must decide whether the hopes encapsulated in the bicultural design featured on Tribunal reports are to be emblematic of a unique nation with a tolerance of cultural diversity. Will that diversity be built into our national vision and lived out in the daily lives of ordinary people, or will the Pakeha majority retreat back to the monocultural vision that we are all one people?

    Integration

34. Integration was a post-World War II government policy implemented to sustain the belief that New Zealand was a country without a race relations problem, and indeed with perhaps the most harmonious race relations in the world. This was believed in and implemented by leading Labour and National political leaders of the 1940s to 1960s such as Fraser, Algie, Corbett, Nash and Hanan who exercised ministerial responsibility for education and Maori affairs during those decades. Yet, in many respects the most grievous loss of Maori language, the consequent marginalisation of Maori cultural knowledge systems, and the deep pain felt by many Maori that they had suffered cultural oppression, was a product of those policies from 1945 onwards.[61] Prior to World War II, in spite of the implementation of policies of amalgamation and assimilation for many decades, Maori language retained a sound home base in the rural villages where most Maori lived. Measures such as the Tohunga Suppression Act 1907 had declared criminal the activities of all tohunga - not just the medical and spiritual quacks of the time but also the specialist guardians and transmitters of oral tribal and cultural traditions. In spite of that Act and of the many pressures to conform to the new ways of the Pakeha, Maori knowledge and traditions continued to be transmitted and special houses of learning in the ways of the old knowledge and rituals continued to be held.

35. After the Second World War, however, there was massive social change for all Maori communities. The government's active promotion of migration away from rural areas was consciously intended to accelerate the detribalisation process. Deliberate decisions were made to not build Maori communal facilities in urban areas and 'Operation Re-location' encouraged migrants to sell their 'useless' shares in ancestral lands for deposits on new homes. Housing policies, especially in the 1960s, were devised to 'pepperpot' Maori into suburban life living alongside Pakeha neighbours in the cities.

36. The Hunn Report 1960 drew the threads of post-war policy developments together and articulated a policy of integration that, it recommended, should be applied in a most thoroughgoing manner. A year ago I could not have imagined needing to make more than a passing reference to the Hunn Report in a paper on the Waitangi Tribunal, but ideas of integration are now being voiced again and those voices have been striking a chord in public opinion. Rather than continue to assume a consensus of support for bicultural policies that enhance the status of the Treaty, therefore, it behoves me to return to the primary source for the policy of integration as we once had it.

    The Hunn Report 1960

37. J K Hunn, of the Public Service Commission, was appointed to write a report on the aims and policy of the Department of Maori Affairs by Walter Nash, Prime Minister and Minister of Maori Affairs in the Second Labour Government from 1957 to 1960.[62] It was enthusiastically implemented over the next decade by Ralph Hanan, Minister of Maori Affairs in the succeeding National Government. Hunn worked with both Hanan and his efficient Secretary of Justice, Robson, to promote a fast-track path towards the elimination of the 2[64] pieces of legislation found by Hunn to contain 'differentiation between Maoris and Europeans': 58 instances of 'Maori privilege'; 35 instances of 'Maori disability'; 69 instances of "Maori protection'; and 102 instances of 'different procedure'. These laws and other policies set Maori apart from the general population and that setting apart should cease forthwith or as soon as was possible.[63] In theory, Hunn suggested, there were four possible alternative models of development:[64]
    • Assimilation: To become absorbed, blended, amalgamated, with complete loss of Maori culture.
    • Integration: To combine (not fuse) the Maori and pakeha elements to form one nation wherein Maori culture remains distinct.
    • Segregation: To enforce a theoretical concept of 'apartheid'. One school of thought in New Zealand advocates 'parallel development', which in essence is segregation under another name.
    • Symbiosis: To have two dissimilar peoples living together but as separate entities with the smaller deriving sustenance from the larger (seemingly an attempt to integrate and segregate at the same time).

38. Adopting a neo-Darwinian evolutionary framework, Hunn, thought it was entirely appropriate that 'Evolution is clearly integrating Maori and pakeha'. It was 'the obvious trend':[65]

    Integration, as stated, implies some continuation of Maori culture. Much of it, though, has already departed and only the fittest elements (worthiest of preservation) have survived the onset of civilisation. Language, arts and crafts, and the institutions of the marae are the chief relics. Only the Maoris themselves can decide whether these features of their ancient life are, in fact, to be kept alive; and, in the final analysis, it is entirely a matter of individual choice. Every Maori who can no longer speak the language, perform the haka or poi, or take his place on the marae, makes it just so much harder for these remnants of Maori culture to be perpetuated.

39. Evolution should govern policy, in Hunn's view, and evolution had decided which were the 'fittest elements' of Maori culture. Government should have absolutely no role to play in perpetuating Maori culture. Only Maori as 'a matter of individual choice' could decide. The very odd notion that the maintenance of a culture based on collective values should be purely a matter of individual choice was not seen as strange. On the contrary, it was treated as axiomatic. If key elements of Maori culture such as language did not survive, then they were not worthy of preservation. In any case, the blame for the loss of Maori cultural practices with 'the onset of civilisation' should be laid on Maori individuals who choose not to speak the Maori language or engage in Maori cultural practices. This was none of the government's business, so it could not be the government's fault. What then, according to Hunn, was the proper scope of the government's business?[66]

    The Maoris today could be broadly classified in three groups:

    A. A completely detribalised minority whose Maoritanga is only vestigial.

    B. The main body of Maoris, pretty much at home in either society, who like to partake of both (an ambivalence, however, that causes psychological stress to some of them).

    C. Another minority complacently living a backward life in primitive conditions.

    The object of policy should presumably be to eliminate Group C by raising it to Group B, and to leave it to the personal choice of Group B members whether they stay there or join Group A - in other words, whether they remain 'integrated' or become 'assimilated'.

40. Hunn was aware that such a policy might cause resentment:

    Here and there are Maoris who resent the pressure brought to bear on them to conform to what they regard as the pakeha mode of life.

41. He did not apologise for such governmental pressures however. He explained that in seeking to eliminate Group C the government was pushing Maori to live a way of life that was 'not, in fact, a pakeha but a modern way of life, common to advanced people'. 'Advanced people' were mostly Europeans but included Japanese. So it was made very clear in this report that government policy fully intended to apply pressure to Maori in order to force them to be modern. Hunn stressed that the problem for Maori was 'not one of destination or route, but of pace' and 'the rearguard' could not be left 'to go their gait' because they would 'fall behind into a world of their own that provokes all the frictions of coexistence.'[67] The Hunn Report did not beat about the bush. If the government agreed with the report, then it should not permit Maori the freedom to choose the direction or route or even the pace of their own future. The government did agree with the report. Europeans did not wish to coexist with a backward people. Maori must progress - all Maori must progress - according to the norms of the integration philosophy. The only choice left to Maori as individuals was to choose whether they wished to be fully assimilated and detribalised, or whether they desired to retain some vestiges of Maori culture.

42. The 'closing the gaps' aspect of the Hunn Report no doubt drew support from many Maori leaders but its integration philosophy certainly was not warmly embraced by them. This became particularly obvious when the Maori Affairs (Amendment) Act 1967 came under fierce attack from many Maori as 'the last land grab'. In line with the Hunn Report and a later Prichard-Waetford inquiry,[68] this Act compulsorily ordered that the status of much Maori freehold land should be converted to what was still known as 'European land' [and is now known as 'general land']. Many of the inhibitions on alienation and other due process protections of the Maori Land Court were compulsorily removed without reference to the wishes of the owners of the land in question.

    Towards bicultural development

43. As noted above, visions of biculturalism had been foreshadowed by some Maori leaders for a long time. Ngata wrote about it in 1945. The Maori Women's Welfare League campaigned vigorously for greater government recognition of the Maori language in primary education from its inception in the early 1950s.[69] The direction and presentation of Crown policy altered significantly in that direction with the accession to power of the Third Labour Government in 1972. The policy of integration was repudiated explicitly and a new language of race relations emerged with an emphasis on biculturalism. The Prime Minister, Norman Kirk, when supporting a 1974 Bill introduced to reverse the direction set by the Maori Affairs (Amendment) Act 1967, castigated the whole thrust of the integration agenda. He viewed integration as a policy designed to force the minority culture to give up its customs and traditions:[70]

    The idea of one people grew out of the days when fashionable folk talked about integration. So far as the majority and minority are concerned, integration is precisely what cats do to mice. They integrate them. The majority swallows up the minority; makes it sacrifice its culture and traditions and often its belongings to conform to the traditions and the culture of the majority. ... We are one nation in which all have equal rights, but we are two peoples and in no circumstances should we by any law or Act demand that any part of the New Zealand community should have to give up its inheritance, its culture, or its identity to play its part in this nation.

44. Kirk's statement has become the prevailing view in official circles ever since. The Maori Affairs (Amendment) Act 1974 Act was followed by the Treaty of Waitangi Act 1975 that established the Waitangi Tribunal and coined the legal notion of 'the principles of the Treaty of Waitangi'. The re-election of the National Party to power later in 1975 did not presage a return to integration, even if that thinking for some time remained influential still in the public service. The National government from 1975 to 1984, though conservative in many respects, was prepared to advance a number of programmes consistent with biculturalism under the policy known as 'Tu Tangata' [People, stand up].[71] Then one arrives at the hey-day of the new thinking on the principles of the Treaty that emerged in the later 1980s, as discussed above, after the first New Zealand Maori Council v Attorney-General Court of Appeal case in 1987 on State-owned Enterprise assets.

    A subtle cultural repositioning?

45. Paul McHugh has described the period after 1970, and especially the period following the 1987 Court of Appeal decision, as the demise of the 'Anglo-Whig constitutional dream of Crown sovereignty' at a time when the United Kingdom entered the European Community. He identified Maori opposition to the 1967 legislative reforms as 'a crucial beginning' for pan-Maori protest that 'challenged the paternalism of the Anglo-settler state'.[72] Our leading historian, James Belich, would concur. He described the 1960s as the period when New Zealanders began to move beyond the notion that this country was destined to be and to remain a 'Better Britain in the South Seas'. He commented that the 1967 Act was a 'naïve piece of land legislation' that laid 'the political fuse for an explosion of Maori radicalism'.[73] For McHugh, in the mid-1970s 'the history of the New Zealand constitution came to require revision' and a Lockean contractarian theme became dominant. The contest of ideas about Crown sovereignty had now shifted to varieties of contractarian dogma. The Tribunal's notions were of the Treaty as a contract by which 'two peoples amalgamated their powers under the Crown and set limits to the Crown's powers over Maori.' Critics preferred to see the Treaty contract as one that 'mattered only once - in 1840' with a full and final cession by Maori of their sovereignty. After that the Treaty became 'a historical curiosity bereft of any presence beyond its spent moment.' Even this most limited view of the Treaty, suggests McHugh, demonstrates 'the historiographical distance Pakeha thinking had come' because now 'One way or another, the Treaty of Waitangi was the foundation of the state.'[74]

46. Jane Kelsey is less enthusiastic. She does not see a paradigm shift or any obvious signs of power-sharing between Crown and Maori based on the Treaty. Rather she sees that there has been a 'subtle cultural repositioning' to defuse the potentially revolutionary threat posed by Maori nationalist activism in the 1970s and early 1980s.[75] Kelsey is right to emphasise that the tide towards the courts accepting a special constitutional status for the Treaty ebbed from the early 1990s. McHugh is premature in asserting that the Treaty has already achieved recognition as the foundation of the state. Ironically, also, McHugh himself appeared as the Crown's expert witness in the Waitangi Tribunal's foreshore and seabed hearing in 2004. His expertise was drawn on to develop the policy whereby the 'full power' of the Parliament of New Zealand was utilised to enact the Foreshore and Seabed Act 2004. However, we continue to live in transitional times and we do not yet know what the outcome of our national origins myth-making will be. The Robin Cooke Lecture 2004 by Kirby J of the Australian High Court helped to continue the constitutional debate and it was delivered on the very day that the new Supreme Court decided to free an alleged international terrorist from indefinite detention.[76]

    1066 and all that

47. Clearly there are a number of competing visions for New Zealanders to consider. One vision is of the Treaty of Waitangi as a foundation document and Treaty-based policies as part of the pathway to our future. Another vision is that the Treaty is of historic interest only and that the pathway to our future should be based on integration policies. Historical debate will not resolve our choice of pathway. Political and cultural debates will need to consider the role of myth, and of invented traditions. There needs to be greater understanding of the eclectic nature of legal reasoning in the development of law and policy.

48. All nations have myths of origin and aspects of those myths usually have their source in some historical events - or at least in a latterly revised version of the significance of those events that suit the purposes of those who now live in that country. More precisely, the version of the myth that will be most persuasively articulated is likely to be that version of national origins which suits those who are now the governing elite. At various points of time the myths may be re-contested and re-framed by wars, usurpations, marriages of royal convenience or inconvenience, witch-hunts, pogroms, persecutions and such like. Historians and political theorists and others will then re-mould the myths to suit their contemporary conditions. Shakespeare's historical plays are an excellent source of information as to the myths that prevailed in late Tudor times, but may be very unreliable portrayals of the worthiness or otherwise of those monarchs whom the Tudors displaced.

49. 1066 is a significant date in English history. But was it the date of a conquest? The myths surrounding 1066 refer to the undoubted fact that in that year William, Duke of Normandy, entered England with an invasion force to claim what he saw as his right to the English throne. He defeated the incumbent monarch, King Harold, at the Battle of Hastings, and proceeded to displace the Anglo-Saxon ruling elite with his own Norman retainers. He is generally referred to as 'King William the Conqueror' and that title invites us to assume that his invasion created a clean break from the structures of law and government that had functioned in the former Anglo-Saxon and Danish kingdoms that he and his barons displaced. Though Norse in origins, the Normans were French speaking by the eleventh century. French language, along with the Latin of the educated clergy, were the languages of the rulers of England for over 400 years until the Tudor usurpation of the throne in 1492 after the battle of Bosworth. Law French remained the official language of the law courts until the seventeenth century. This Anglo-Norman elite fashioned in time a well-organised feudal society. Royal courts developed and judges applied a system of rules that we now refer to as the English common law. The common law was the law common to the entire realm of England and it did not develop into a coherent body of law until well after 1066. The foundation of the common law 'has commonly been traced to the reign of Henry II (1154-89)'.[77] Yet it was generally taken for granted by its practitioners that the common law had been established from time immemorial. In 1470 an English serjeant-at-law maintained that 'the common law had been in existence since the creation of the world' and, John Baker observes, 'it is not improbable that he believed it literally'.[78] However, the fact that this was literally untrue is of less significance than the fact that mythically it was believed to be in some sense 'true'.

50. So, in terms of the myths of national origins in England, was there a conquest in 1066 or was there a continuity of common law from Anglo-Saxon to Norman times? During the Stuart era in the seventeenth century this question was much more than a matter of mere abstract theory. Debates raged, petitions were enacted, members of the House of Commons were imprisoned for indefinite terms by the Court of Star Chamber, civil war broke out causing severe devastation in many counties, Charles I was imprisoned and eventually he was executed after a show trial by a small number of parliamentarians. One of Charles' sons was restored to the throne (Charles II), another lost it again (James II) and, finally, in 1688 a Dutch-led invasion force ensured that the Prince and Princess of Orange in the Netherlands became the monarchs of England and Scotland. William III and Mary II, however, exercised considerably less direct power over their subjects than that claimed by James I when he added the English to his Scottish throne at the beginning of that century.

51. Odd as it may seem to us now, in the midst of all this war, rebellion and regicide, an enormous effort in speech-making, litigation and pamphlet writing was devoted to the question of whether the common law could rely upon pre-Norman norms to restrain the prerogative powers of a King anointed by God to rule. The supporters of parliamentary rights and liberties, and more especially the members of the House of Commons perused the historical record and convinced themselves that the notion of a clean constitutional break in 1066 could not be sustained. Many of the protagonists in the debates were lawyers. A particularly influential leading advocate of parliamentary rights against the prerogative powers claimed by Charles I was Edward Coke. He was a former Chief Justice who had been peremptorily dismissed by James I for failing to support the King's royal prerogative powers. He then became a member of the House of Commons and played a leading role in drafting and promoting the passage of the Petition of Right 1627 to require the 'common consent by Act of Parliament' for any payments or taxes, to forbid the imprisonment of freemen who refused to pay royal imposts without parliamentary consent, and to prohibit proceedings by martial law. In advocating for the passage of the Petition of Right, Coke made much of the Magna Carta:[79]

    I know that prerogative is part of the law, but "Sovereign Power" is no parliamentary word. In my opinion it weakens Magna Charta (sic), and all the statutes; ... Take we heed what we yield unto: Magna Charta is such a fellow, that he will have no "Sovereign".

    The eminent Ango-American scholar, Goodhart, in commenting on this wrote:[80]

    It has been said that Coke either intentionally or unintentionally misinterpreted the Charter, ... What is true is that Coke did not always distinguish between the original Charter and the Charter as it was understood in later centuries, ... but he was not analyzing the technical provisions of an ancient Charter: he was concerned with the principles of a living constitution.

    Coke was, of course, a lawyer using 'presentist' thinking to invoke historical precedents that could be of relevance to the perceived needs of his own time.

    'The Common-law Mind'

52. J G A Pocock's influential study, The Ancient Constitution and the Feudal Law, is an incisive study of English historical thought in the seventeenth century at the time of the Petition of Right.[81] J P Reid has commented that the 'way lawyers think about history is an eccentricity foisted on them by their professional training' which 'may amuse historians who stumble over lawyering anachronisms' even though it is not a matter of controversy among lawyers. Reid cites Pocock's work as 'the most extended instance of the historian's amusement'.[82] Pocock devoted considerable attention to what he called 'The Common-law Mind', in particular as expressed in the writings of Coke. As he noted:[83]

    The English supposed that the common law was the only law their land had ever known, and this by itself encouraged them to interpret the past as if it had been governed by the law of their own day; but in addition the fact that the common law was a customary law, and that lawyers defined custom in a way which heavily emphasized its immemorial character, made even more radical the English tendency to read existing law into the remote past.

53. In their bitter contest with Charles I, Coke and his colleagues were most determined to deny any suggestion of royal prerogative powers - such as the alleged rights of the king to prorogue or dissolve parliament at will and to raise revenues without parliamentary assent. If a king such as William I once had absolute power over the realm of England by dint of conquest, then his successor might legitimately claim absolute power as God's ordained to rule as he thought prudent and just. If all kings of England since time immemorial, however, were constrained by the requirement to legislate with the houses of parliament as three coordinate estates in the government of the kingdom then matters were rather different. The canonised pre-1066 figure of Edward, King and Confessor, was seen as a poignant symbol of how Anglo-Saxon kings ruled their subjects with justice. As Coke wrote his Institutes he found it highly convenient to cite a number of texts on the ancient constitution as it had been fashioned by customs from time immemorial. What he treated as authoritative sources included a number of apocryphal texts such as Leges Edwardi Confessoris, Modus Tenendi Parliamentum, and what Pocock calls 'the lavishly fantastic' Mirror of Justices. There are, Pocock observes 'few pages of his First or Second Institutes on which one of these works is not cited.'[84] There were doubters, even in Coke's time, as to the historicity of these texts. Polydore Vergil wrote his De inventoribus rerum on the assumption that every invention could be traced to an individual discoverer, and he expressed doubts that the laws of the last Anglo-Saxon king had been confirmed by the Conqueror and his Norman successors.[85] Historians now agree that all these texts were latter day reconstructions. They can be dated not from the Saxon period - Edward reigned from 1042 to 1066 - but from more than 100 years and up to 300 years later 'when they were manufactured by clergymen and politicians who backdated them in order to produce the illusion of antiquity.'[86] In the seventeenth century, however, any doubts that they were authentic accounts of the way things used to be were not given great weight. Coke and others were determined to demonstrate an 'ancient constitution' in which rights and liberties from Anglo-Saxon times, included in coronation oaths by many monarchs since then, had circumscribed the prerogative powers of the monarch, acknowledged the role of Parliament in the constitution and undermined the validity of royalist claims to an absolutist version of the divine rights of Kings. The attitude of the 'Common-law Mind' to writers who might doubt the authenticity of the common law's claims was, as Pocock describes it, very straightforward:[87]

    Coke not only accepts a legal judgment dating a law from time out of mind as historically valid, but he regards such statements as better historical evidence than those made by chroniclers. Where the courts have adjudged an institution immemorial and a historian alleges that it was set up in such a king's reign, Coke leaves little doubt that we are to think the historian wrong, and he urges the historiographers of his own day to consult a lawyer before making any statement about the history of the law.

54. Coke's admonition suggests that in a sense the historical veracity (or otherwise) of the laws of Edward is irrelevant. They were believed to be true, or they were believed in as true principles of an ancient constitution, by people who took a leading role in the re-shaping of the English constitution in the seventeenth century. They were myths. They were myths in the Joseph Campbell sense of stories that are metaphorical truths even if they cannot be proved to have historical validity, and even they can be proven to have no historical validity.[88] It did not matter whether historians or chroniclers (then or now) found that the ancient constitution was comprised of invented laws whose authors lived long after Edward's death in 1066. As Reid put it, 'ancient constitutionalism was less history than advocacy, more imagination than scholarship, yet real enough to be the basic tool for both constitutional argumentation and for the defense of collective liberty.'[89]

55. The laws of St Edward represented an understanding of constitutional norms that came indeed to be 'true'. The myth was translated into real laws such as the Petition of Right 1627, the Bill of Rights 1688 and the Act of Settlement 1700 and the idealised notions of a constitutional monarchy became constitutional facts. Myths that began as tools of contested legal debate at the beginning of the seventeenth century had became embedded in the English constitution by the end of the century. Moreover, the Imperial Laws Application Act 1988 in New Zealand retains those statements of high constitutional principle as part of the law of New Zealand to this day.[90] In fact New Zealand retains perhaps the most 'pure' form of the Westminster version of parliamentary sovereignty anywhere in the world, albeit with a unicameral parliament since 1950. The parliaments in Australia and Canada have to operate within the restraints of federal constitutions and judicial review of the constitutionality of duly enacted legislation. In Canada's case there is also the Charter of Rights 1982 as a form of supreme law. The United Kingdom parliament is subject to supranational law and human rights conventions from the European Community, on the one hand, and has devolved certain powers to the Scottish Parliament and the Welsh Assembly on the other hand. In New Zealand, however, we have the Constitution Act 1986 - which is of course merely an ordinary statute (and a very brief one at that) without protection from amendment or repeal. It stipulates baldly that 'The Parliament of New Zealand continues to have full power to make laws.'[91]

    The full power of the Parliament of New Zealand

56. That is a proposition that Ministers of the Crown are most anxious to reaffirm in 2004 at a time when courts, the Waitangi Tribunal, indigenous rights claimants and human rights activists are perceived to be challenging the right of Parliament to overturn inconvenient court decisions and Tribunal recommendations. The Deputy Prime Minister, Michael Cullen, has assiduously proclaimed the importance of parliamentary sovereignty in numerous 2004 speeches. Indeed his contribution to a special sitting of Parliament on the 150th anniversary of its first session at Auckland in 1854 was devoted to insisting upon the 'settled doctrine that New Zealand is a sovereign State in which sovereignty is exercised by Parliament as the supreme maker of law, the highest expression of the will of the governed, and the body to which the Government of the day is accountable'.[92] This speech contained a very strong attack not only on Maori radicals who doubt that proposition, but also on the judicial activism of the current bench. His strongest barb was directed at Chief Justice Sian Elias for three key statements that Cullen attributed to her:[93]

    Firstly, we have assumed the application of the doctrine of parliamentary sovereignty in New Zealand-why, is not clear. Secondly, whether there are limits to the lawmaking power of the New Zealand Parliament has not been authoritatively determined, which raises the interesting question of who has the authority to determine that. Thirdly, an untrammeled freedom of Parliament does not exist.

    To those suggestions Cullen replied in no uncertain terms:

    In my view, we are approaching the point where Parliament may need to be more assertive in defence of its own sovereignty, not just for its own sake but also for the sake of good order and government. In our tradition the courts are not free to make new law. It is fundamental to our constitution that lawmakers are chosen by the electorate and accountable to the electorate for their decisions. ...

    Governments, of whatever stripe, do not favour judicial activism. They almost inevitably favour a strict constructivist approach, because it involves far fewer political or fiscal risks. Activism does not always challenge parliamentary sovereignty, but it often does. And in New Zealand fundamental questions have been raised about that sovereignty. It is almost as if there is an emerging view that sovereignty is to be shared between Parliament and the judiciary, with Parliament being the junior and less-informed partner. That is so because where Parliament's sovereignty is questioned it is usually accompanied by the assertion or implication that it is the courts that have the final say as to the rules.

    The point I make in response is not merely that this is a trend for which there is no democratic mandate, and which has never been part of the political discourse in New Zealand, but that it cannot exist as a one-sided development. It will inevitably lead to the politicisation of the process of judicial appointments and of the judiciary itself-something to be avoided.

57. So echoes of the seventeenth century English civil wars to assert both parliamentary supremacy and an independent judiciary now resound in debates as to the proper constitutional order in this South Pacific country 400 years later. English and British hegemony have long since ceased to prevail over the state of New Zealand. We need more than a repetition of myths of an ancient English constitution. We need myths of a modern Aotearoa New Zealand constitution. In my view, our primary focus should be on the Treaty of 1840 and how that can be made applicable to the present in New Zealand, rather than on St Edward's laws, the conquest of 1066 and the evolution of the full powers of Parliament.

    Conclusion - where to with myths?

58. The historiographical wars in New Zealand have been taken seriously within the fairly limited circles of those with expertise on Treaty issues. The controversies over the foreshore and seabed court ruling and the 'Nationhood' speech have had a much wider impact. They have pushed Treaty issues to the forefront of public and private debate in the country. All of this indicates that the contest of myths competing for the hearts and minds of New Zealanders has heated up. For those of us who reject the 'We are one people' integration policies of the past, it is of the utmost importance that we continue to posit the Treaty as the foundation document of the nation and an essential element of the contemporary social fabric. A significant proportion of the majority Pakeha population, and not just the educated elite of judges, legislators and bureaucrats, will need to align themselves with the notion that the Treaty is a living document for the present and future if it is indeed to be so. We are in national myth-making times.

59. In my ongoing work on this topic I will be dealing further with Joseph Campbell's notions of myth noted above. His writings have been considered by a number of New Zealand writers in recent years in relation to the secular rationalism espoused by the iconic Victoria University of Wellington scholar Peter Munz. Alan Ward's thoughtful remarks in his tribute to Munz are a direct challenge to the direction I propose to take:[94]

    A lot of bad history is being written and spoken in the polemics of race in modern New Zealand, both by Maori seeking to assert themselves against Pakeha domination and by Pakeha such as Stuart Scott who make highly selective use of evidence to try to avert a critical scrutiny of the outcomes of colonisation. Myths abound. Bad history, like bad currency, drives out the good. The critical historian is needed more than ever.

    Ward then quoted from Bernard Smith:

    The historian is to myth what the ferret is to the rabbit. The historian burrows down after myth, hunts it down and destroys it if he can. He is Jack the myth-killer. If he should create myth in seeking to bring coherence to the chaos of past events then he will himself become fair game for the historians who come after him.

60. I will be acutely aware also of the adverse criticisms of Campbell from Te Maire Tau. He attacks 'the notion that any primitive system can be understood by taking aspects of a culture and fitting it to an assumed series of universal principles held valid by western scholars.'[95] In fact, I am not at all disposed to Campbell's preference for universalising myths and I rather prefer to explore 'the mythology that is strictly sociological, linking you to a particular society.' Campbell complains that the sociological myth 'supporting and validating a certain social order ... has taken over in our world - and it is out of date.'[96] I do not agree. It is the sociological function of myth in the reasoning of the courts and the Waitangi Tribunal on the status of the Treaty of Waitangi that I wish to explore further.

61. There may be some explorations of new myths for our times that are of wider significance than the sociological myths specific to Aotearoa New Zealand as, for example, in the writings of Thomas Berry.[97] I am certainly intrigued by many of the insights of Marina Warner in her inquiry into magic and transformation in contemporary literature and culture for the Sir Douglas Robb Lectures 2004 at the University of Auckland. She observed that: [98]

    If language institutes reality, then we have to use it vigilantly; if stories shape experience, then we need to choose them with care; if myths seep like aquifers beneath the rock then we need to make sure they are not poisoned.

62. In my view, for good or ill, the language of law can and does institute realities, and we have to use its images and metaphors vigilantly. The stories that lawyers tell of our national origins can shape our experience and we must indeed choose them with care. The myths we employ to make sense of who we are as peoples in this land and how we constitute our civil and political societies are important and we need to make sure they are not poisoned. Thus there is a rich vein of debate I wish to mine as to whether, and if so, how common law reasoning, historical research, Maori cultural knowledge systems and mythology can be intertwined into a comprehensible narrative that speaks to New Zealanders now when they engage, as Pocock has urged us to, in 'recounting histories in one another's hearing'.

63. In these concluding remarks I should be clear that it is not my view that the Treaty of Waitangi actually was crucial to the foundation of the colonial state in 1840. On the contrary, earlier in my career in my University of Dar es Salaam PhD thesis and in journal articles I argued strongly that the Treaty was peripheral to the acquisition of British sovereignty over New Zealand and that 're-evaluations of the Treaty and of the principles of international law serve only to obscure the actual historical context of the imposition of colonial rule on the indigenous peoples of Aotearoa'.[99] I wore political protest badges that declared "The Treaty is a Fraud". In recent decades, however, the myth of the Treaty as the national foundation stone has been a very positive development for the emergence of a tolerant pluralistic society in which Maori status as tangata whenua has been acknowledged. This has contributed to empowering Maori tribes and groups to develop Treaty-based partnerships with Crown entities. This has enabled a process of cultural conciliation between Maori and Pakeha to be fostered, especially in the Waitangi Tribunal hearings held throughout the country at rural and urban marae and in halls and convention centres.

64. Maori have no need of the Treaty to assert the legitimacy of their presence in this land. They were living here in organised social formations prior to the colonial state. That is the point that Ani Mikaere has stressed, and I agree with her on that. I keep my "The Treaty is a Fraud" badges in storage while I prepare evidence for the Waitangi Tribunal and I walk with the various Hikoi as they seek to have the Treaty honoured and Maori rights affirmed and implemented. It is Pakeha and Tauiwi, those who have migrated here since 1840, who need to find legitimation for the right to belong here and be citizens of this country. Do we continue to rely for the legitimacy of our presence on the arrogance of imperialist chauvinism and the military might of colonialism in the nineteenth century? Do we just assume, as they did in the nineteenth century, that English law had to apply to all because English law was the epitome of modern civilisation: 'Before, this land was occupied by evil, darkness and wrongdoing; there were no upholders of good, no preventers of evil'?[100] Such beliefs would poison our aquifer. Do we rely on time and acquiescence as the basis for legitimation and avoid too much inquiry into the merits of how the 'revolutionary' occupation of settlers was enabled?[101] That would be a second best mythology. The best grounds for legitimation, in the ideology that has been crafted in recent years, is that Pakeha like myself are citizens who can and should count ourselves as 'tangata Tiriti - people of the Treaty'.

65. We should not forget research and writing on the actual history of colonial imposition and, of course, historians should undertake that task in a conscientious and critical manner. But we need new myths of national origins to acknowledge the generosity of Maori in inviting us to come here and to explore how we can best meet the obligations of the rangatiratanga guarantees that accompanied that invitation. Some historians may want still to insist that the Treaty was a document signed by tribal peoples in a nineteenth century context with a consul of the British Crown, and that it has nothing useful to say about the multicultural identities of twenty-first century New Zealanders. I beg to differ. As Eddie Durie wrote in a 1990 sesquicentennial document:[102]

    But then we must not forget that the Treaty is not just a Bill of Rights for Maori. It is a Bill of Rights for Pakeha too. It is the Treaty that gives Pakeha the right to be here. Without the treaty there would be no lawful authority for Pakeha presence in this part of the South Pacific.

66. A myth of the Treaty that makes sense to me here and now, especially in the light of the events of 2003 and 2004, is that the Treaty's preamble and articles are an explicit immigration compact in which Maori welcomed those who wished to settle here. That welcome applies to all who came in the past, to their descendants and to all those who continue to come as immigrants and now wish to call Aotearoa New Zealand their home. Along with the welcome comes an obligation to honour the collective rights of the indigenous people and that means we need to find ways to continue to honour the Treaty in the circumstances of the present and the future. Again, and in conclusion, to quote from Eddie Durie: 'The principles of the Treaty are not diminished by time, rather it takes time to perfect them.'[103]

Glossary

Aotearoa: In a number of tribal traditions Aotearoa was a name for the North Island (or parts of it) originally, but it has become generally used (in both English and Maori language usage) as the Maori name for the nation as a whole. See also footnote 4 above.

Hikoi: Stepping together on a journey. In modern terms (especially since 1984), a politically motivated and organised form of demonstration travelling from one part of the country to another.

Hapu: Tribe, or (in some contexts) sub-tribe.

Iwi: Tribe, confederation of hapu.

Kaumatua: Elder.

Mana: Authority and power.

Mana whenua: Authority in respect of an area of land and resources; the tribe that exercises that authority.

Maori: Literally means ordinary or common, but has come in New Zealand English discourse and law to be a collective term to include all members of the indigenous tribes, and their descendants.

Marae: Space for greetings and meetings in front of a meeting house; now also the entire area (including the buildings) where Maori customarily meet for tribal and family events.

Pakeha: Maori language term for the British and other European settlers, and their descendants. [Pakeha has become a preferred form of cultural identification by many persons of European descent (such as myself) who wish to identify with New Zealand as a bicultural country. It is also intensely disliked, however, by other New Zealanders, and it is often (though wrongly) taken to be a term of abuse.[104]

Powhiri: Formal welcome (especially to a marae).

Rangatiratanga: Collective (chiefly) tribal authority. [Rangatira were those who exercised authority in tribes. Rangatiratanga over land, resources and treasures is the primary focus of the guarantees contained in article 2 of the original Maori text of the Treaty of Waitangi.]

Tangata whenua: People of the land.

Tauiwi: Stranger(s). Sometimes used as a term inclusive of all people from diverse origins who have come to New Zealand as immigrants at one time or another since the nineteenth century. [This usage is disliked by those who declaim against 'racial' or ethnic identifications.]

Tikanga: Laws and customary norms of Maori societies.

Whanau: Extended family group.

Whenua: Land.

Waiata: Song(s) - sometimes chanted in a traditional manner.