Settlers v. Natives

Stephen Sedley

  • Questioning Sovereignty: Law, State and Nation in the European Commonwealth by Neil MacCormick
    Oxford, 210 pp, £40.00, October 2000, ISBN 0 19 826876 9
  • Waitangi and Indigenous Rights: Revolution, Law and Legitimation by F.M. Brookfield
    Auckland, 253 pp, NZ $39.95, November 1999, ISBN 1 86940 184 0

It’s not too hard today to recognise the sovereign individual, supposed master of his fate and captain of his soul, as a sociopath. The idea of the sovereign state, by contrast, still commands intellectual allegiance in spite of evidence that its day is done. This is not to say that states do not continue to exist which both assert and possess the power to determine what happens inside their borders. It is to say that sovereignty no longer furnishes (if it ever did) an adequate account of the distribution of powers by which people are governed. This is as true of the most powerful nation, the United States, where the shadow of states’ rights cuts out (in Hubert Humphrey’s phrase) the sunshine of human rights and fragments the legal and political centralism fundamental to any unitary conception of sovereignty, as it is of the weakest, whose polities and economies are corks on the waves of globalism. The recent establishment of international war crimes tribunals, like the growing question-mark over the ability of regimes to grant themselves or their nastier predecessors amnesties, marks a strong move to qualify national sovereignty in the interests of humanitarian standards; a move tellingly resisted in regard to its own citizens by the United States, whose long-arm jurisdiction is regularly used to try citizens of other states. Frontiers mean increasingly little to those with the physical power to impose their will, and states no longer declare war as a preliminary to invasion. Sovereignty does not come in platonic form, however stridently a state may assert its own or purport to acknowledge others’.

What these two books are about is the other major awakening from the Platonic dream: the state which actually decides to part with some of its sovereign powers. Neil MacCormick, a distinguished constitutional theorist and a prominent Scottish nationalist, advances a theoretical and political case for a redistribution of sovereignty which would anchor Scotland politically to Western Europe. F.M. Brookfield, a New Zealand scholar with a lifelong interest in Maori constitutional issues, argues for a republican settlement which would make some reparation for historic wrongs and entrench Maori rights for the future. These are big projects, but in a world where sovereignties are in meltdown they inhabit the realm of the possible.

Both writers debate whether the kind of change they support is revolutionary. MacCormick reasons that Parliament’s decision in 1972 to cede a measure of the United Kingdom’s sovereignty to the European Community was simply an exercise of its absolute sovereign power, and that a future decision to let Scotland go its own way into Europe need likewise be no more than evolutionary; just as the Union of 1707 was, he argues, an organic continuation of the restructuring of 1688. Brookfield, by contrast, regards New Zealand’s modern history as a series of actual or potential revolutions, starting with the fatal impact of colonisation, passing through the Maori invasion of the Chatham Islands in 1835 and the Crown’s arrogation of sovereignty by the Treaty of Waitangi in 1840, on through the recurrent wars between Maori and the colonial power, to the republican settlement by which he would like to see New Zealand reach peace with itself.

Each writer could perfectly well have argued the opposite; for what truly matters, as both ultimately recognise, is the political reality of such events and the legitimacy they possess or acquire – or, just as important, lose. It’s of real interest that the Union of 1707, though denounced by nationalists then and since, is taken on all sides to be an irreversible fact (indeed, as Defoe argued at the time, to be a constitutional document from which all sovereignty has since flowed), while the Treaty of Waitangi has become a site of bitter contest both as to its content and its status. The contest over legitimacy, in other words, dogs New Zealand’s constitutional present in a way which no longer seriously touches the Union of England and Wales with Scotland.

The Waitangi argument focuses on the differences between the English and Maori texts: while the former ceded the chiefs’ ‘sovereignty’ to the Crown – to a Victorian constitutionalist as complete a surrender as was imaginable – the latter ceded kawanatanga, a word coined out of the English word ‘governor’ and meaning ‘governance’, but reserved to the chiefs the highest chieftainship, tino rangatiratanga, under the protection of the Crown. The fierce arguments which have come to turn on these discrepancies have served the legitimate political purpose of calling in question the political and legal dominance of the settler population, or pakeha. But the important thing, as Brookfield accepts, is that both the Treaty and the issues of power raised by it are facts of political life. The question of power would still exist today – albeit in less sharply delineated form – if the Treaty had never been made. What has given the question of native title a force possibly greater than anywhere else in the colonised world is New Zealand’s remarkable political and military history, a subject which has been revolutionised in recent years. From the triumphalist versions with which British readers of a certain age are familiar, New Zealand has been awakened by modern scholars, prominent among them James Belich, to the fact that the Maori tribes, well accustomed to fighting and enslaving each other during the centuries before the Europeans arrived, for over thirty years inflicted a series of military defeats on British troops, developing among other things a very effective form of trench warfare based on their traditional redoubt, the pa. The consequences are palpable in modern New Zealand’s political life.

While genetically the indigenous population is now heavily mixed, almost 10 per cent of New Zealanders (more, in fact, in some classifications) rank as Maori – a measure of survival probably unmatched in the colonised world and one which has discernible effects, in spite of their relative pauperisation, on the respect with which their claims are heard. Two years ago I had the luck to attend an extended formal negotiation in a tribal meeting-house, a marae, this one uniquely between judges and Maori leaders. In the course of the speeches, songs and prayers which marked the three-day discussion, it was remarkable to see how the Methodism which Maori culture had embraced had itself had to adopt ancestor worship, with the result that the local minister in the course of a service would recite the tribal genealogy, its whakapapa (an innocuous word to an English eye until you hear it spoken: for reasons which the Oxford Dictionary of New Zealand English attributes to a change in pronunciation but which it’s my guess are connected with the Scottish origins of the early missionaries, wh in written Maori today represents the English f; the a is long).

That a state may not in reality enjoy the sovereignty to which it lays claim (or occasionally may exercise forms of sovereignty which exceed those to which it is safe to lay a public claim) is a matter of hard fact. That a state may cede part of its sovereign power, real or claimed, is in the end a matter of choice. It is a choice which the UK Parliament made in 1972 in joining what was then the European Economic Community by acceding to the Treaty of Rome. Not long ago, MacCormick recalls, the German constitutional court had to deal with a challenge to Germany’s accession to the Maastricht Treaty which revised the Treaty of Rome. While the court gave qualified approval to the accession, the qualifications were rather more interesting than the approval. First, it held that any transfer of sovereignty to an undemocratic institution would be contrary to Germany’s Grundgesetz, its basic law, and therefore void. Second, it held that the European Union, as it has become, was not itself sovereign because it had no power to determine the limits of its own competence. ‘This second point, denying the existence of “competence-competence”, goes,’ MacCormick writes, ‘to the root of the issue about sovereignty . . . Whoever has the competence to determine the limits (if any) on their own competence is truly sovereign.’ This is true but uninteresting because there can be no limits to the competence of anyone who is that potent. What is both true and interesting is that the ability of the EU to command the obedience of member states to all directives which its own organs decide lie within its competence determines, as a political and legal reality, the limits of national competence. To this extent at least the EU, though not a state, possesses a version of true sovereignty. The opposing view that sovereignty resides not in any organ of state or supranational entity but in national constitutions is interesting but probably untrue. This is not on MacCormick’s ground that it ‘makes short work of the classical UK constitutional interpretation and most of the legal theory of sovereignty’ – nothing wrong with that – but because it is an abstraction which fails to account for the reality or the sources of constitutional change. Constitutional change, in such a theory, must either be illicit or come from a power greater than the constitution itself – and each makes the theory itself untenable both as an abstraction and as an account of what happens.

As long ago as 1877 New Zealand’s Chief Justice held that any cession by Maori chiefs of their collective sovereignty had been of no legal effect, because ‘the title of the Crown to the territory of New Zealand was acquired, jure gentium, by discovery and priority of occupation, the territory being inhabited only by savages’. Today, when decisions of the New Zealand courts have restored the older concept of aboriginal title, it might still be said that sovereignty is not a possession that can be given away, at least by a group of local rulers. This is a perfectly coherent viewpoint (a German theorist might call it competence-incompetence) if certain assumptions are made about the nature and purpose of sovereignty, but it lacks factual reality and therefore has no purchase on the critical question of legitimacy. If, as Brookfield accepts, it has to give way to a realism which acknowledges that sovereignty is a negotiable commodity, the payoff for Maori arguments is that instead of looking back to a forsaken past it becomes possible to look forward to a voluntary surrender by the Crown of the de facto sovereignty which has long since become law. If the chiefs could part with some of their sovereignty, the argument goes, so can the Crown. The far harder questions, on which New Zealanders are deeply divided, are how much, and how, and when. The continuing work of the Waitangi Tribunal on native title is too much for some New Zealanders and not enough for others.

If sovereignty is nothing else, it is the ability to constitutionalise state power in a particular time and place; and it is possible that devolution will turn out to have made this a political reality for the Scots. How the power is allocated is secondary, except that if enough of it is given away, effective sovereignty goes with it. Scottish nationalism has come far enough to allow MacCormick to stare at Europe with a wild surmise, although with what effect on the recently reshaped Union – ours, not the European one – even he cannot say. Maori aspirations (which are not homogeneous) and those of their pakeha sympathisers face a very different and more intractable future. The ineluctable difference is that where Scotland can at least aspire to a single sovereignty, more or less qualified, within its boundaries, New Zealanders like Brookfield are looking at the partitioning of sovereignty within a single state. Canada, which has made provision in its Charter of Rights and Freedoms for first nation rights but still has much to deliver, and Australia, which is now engaged on a bitterly contested recognition of native title, are not at this stage of critical mass. New Zealand’s problem, the real legacy of colonisation, is one which the Scots, with all that the English have done to them from Culloden on, will not have to face.