– the identification of Crown breaches of the Treaty. On the contrary, its unreality is in essence counter-productive.

The Tribunal’s evaluation of the nature and extent of the Crown’s Treaty breaches and so of the Crown’s culpability is further thrown into question by its habit of examining Crown actions solely in the light of timeless principles and without the qualifications that might arise from taking ‘surrounding circumstances’ into account. In this the Tribunal is a good deal less than consistent. When it is a matter of explaining the way in which it interprets the Treaty, it insists upon the importance of such circumstances but in the event limits them to a largely speculative reconstruction of Maori expectations only, and a decontextualised discussion of Lord Normanby’s instructions. This is a thin reading of the circumstances of 1840. By contrast, when the Tribunal looks at the situation of Taranaki land-selling Maori, it gives them the benefit of a solid account of the ‘surrounding circumstances’ which caused them to take up that position. That consideration, given to the Crown agents whose activities are so rigorously evaluated, could at least qualify the extent of their culpability and would certainly lead to a higher level of historical understanding.

18.       Importantly, Professor Oliver does not suggest that such an approach would diminish claims for Treaty breach or detract from the case for reparation. Rather, he concludes –

The matter of remedy could be pursued effectively enough, perhaps more effectively, in an atmosphere less clouded with retrospective recrimination.

Oliver; The Future Behind Us in Sharp & McHugh; Histories Power and Loss (Bridget Williams Books, 2001) at pp 28-29.

19.       Perhaps the first and most significant matter of historical context is the fact that, by definition, the Crown’s actions occurred against the background of colonization. Colonization had already occurred – for better or worse - and indeed had effectively been acknowledged through the Treaty of Waitangi. Accordingly, criticism of colonization and its incidents (and there are many) can never properly be part of the Treaty claims process. By and of itself, the act of colonization cannot be a Treaty breach.