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Revitalizing Chief Panakareao’s Sovereignty Talk with Emily Dickinson’s Immortality Talk

6 December 2007

Byline:	Richard Dawson
Source:	Humanities Research Network

A paper given at Transformations '07: Composing the nation: ideas, peoples, histories, languages, cultures, economies, the Congress of Te Whāinga Aronui The Council for the Humanities (VUW, Wellington, 27-28 August 2007).

The word 'sovereign'; has long carried an aura of assurance that often turns out to be illusory: Under the pressure of domestic tensions or of external dependency, all that seems so solid can easily melt away. - Sandford Lakoff (1)

In Waitangi talk, we commonly hear it said, with an aura of assurance, that 'Maori ceded sovereignty'. We also commonly hear it said, with a similar tone, 'Maori did not cede sovereignty'. What is this solid thing 'sovereignty'? With the hope of stimulating some vital talk, this paper seeks to do some melting.

Our focus will be on an oft-quoted metaphor of Chief Nopera Panakareao. We will tune into his metaphor via some of poet Emily Dickinson's lively immortality talk. The activity of reading a text in the echo of another is the reader's equivalent of metaphor(2). What are its possibilities?

A preliminary remark on metaphor might be helpful. 'Metaphor', according to lawyer Joseph Vining, 'is not the use of the name of one thing for the name of something else. That would be literalism once removed.'(3) Such literalism offers an imagined world of lifeless objects. Vining senses other possibilities: 'In metaphor the word or pattern of words disattached from a previous object of understanding is not reattached to another previous object of understanding, but is used to express something new - or alive, which is the same - and that something new is meaning itself, the meaning of what is being said.'(4) Contrary to what we commonly hear about the 'ambiguity' of metaphor, 'Metaphor is the result actually of a search for precision, an attempt to speak the new which is in mind beyond language and of which language is only evidence'.(5) Dickinson seemingly shared this vital sense of metaphor. What can we learn from her and then 'metaphor' to Waitangi talk?

I

Emily Dickinson was born in 1830 in Amherst, Massachusetts. For seven years, she attended Amherst Academy, an institution established, largely by the efforts of her paternal grandfather, 'for the purpose of promoting morality, piety and religion, and the instruction of youth in the learned languages, and in such arts and sciences as are usually taught in other Academies'(6) Here she went through an intense religious indoctrination. The Calvinist God she learned to worship was an unpredictable God of 'absolute sovereignty'(7). Such a God would become a problem for her. If He ';causes all', He 'causes death'(8).

Death had been something of a regular presence for young Emily since 1840, when her family moved to a house bordering on the Amherst cemetery, a house from which the adolescent Emily watched numerous funeral processions (9). In her teenage years, Dickinson was an avid writer of letters, and she showed in them an exceptional curiosity about death. The death of her friend Sophia Holland when she and Emily were fourteen apparently had a profound impact on her. Two years later, in 1846, she remembered the event in a letter to her friend Abiah Root:

I sincerely sympathise with you Dear A. in the loss of your friend E. Smith. Although I had never seen her, yet I loved her from your account of her & because she was your friend. I was in hopes I might at sometime meet her but God has ordained otherwise & I shall never see her except as a spirit above. . . . What a blow to the fond hopes of her parents & friends must her early death be. I have never lost but one friend near my age & with whom my thoughts & her own were the same. . . . My friend was Sophia Holland. She was too lovely for earth & she was transplanted from earth to heaven. I visited her often in sickness & watched over her bed. But at length Reason fled and the physician forbid any but the nurse to go into her room. Then it seemed to me I should die too if I could not be permitted to watch over her or even to look at her face. At length the doctor said she must die & allowed me to look at her a moment through the open door. I took of my shoes and stole softly to the sick room.
There she lay mild & beautiful as in health & her pale features lit up with an unearthly - smile. . . . I shed no tear, for my heart was too full to weep, but after she was laid in her coffin & I felt I could not call her back again I gave way to a fixed melancholy.
I told no one the cause of my grief, though it was gnawing at my very heart strings. I was not well & I went to Boston & stayed a month & my health improved so that my spirits were better. I trust she is now in heaven & though I shall never forget her, yet I shall meet her in heaven.(10)

The subject of death came to dominate Dickinson's poetry. The associated subject of immortality is central to many of her poems. Dickinson would have heard a great deal of immortality talk at the Academy and at the Congregational Church in which her parents had her immersed. In a letter to Abiah Root in 1846, she included immortality as a topic:

When I am most happy there is a sting in every enjoyment. I find no rose without a thorn. . . . I continually hear Christ saying to me Daughter give me thine heart. Perhaps you have exchanged the fleeting pleasures of time for a crown of immortality. . . . I am continually putting off becoming a Christian. Evil voices lisp in my ear - There is yet time enough. I feel that every day I live I sin more and more in closing my heart to offers of mercy which are presented to me freely. . . .
Does not Eternity appear dreadful to you. I often get thinking of it and it seems so dark to me that I almost wish there was no Eternity. To think that we must forever live and never cease to be. It seems as if Death which is so full of dread because it launches us upon an unknown world would be a relief to so endless a state of existence. I don't know why it is but it does not seem to me that I shall ever cease to live on earth - I cannot imagine with the farthest stretch of my imagination my own death scene - It does not seem to me that I shall ever close my eyes in death. I cannot realize that the grave will be my last home - that friends will weep over my coffin and that my name will be mentioned, as one who has ceased to be among the haunts of the living, and it will be wondered where my disembodied spirit has flown. I cannot realize that the friends I have seen pass from my sight in the prime of their days like dew before the sun will not again walk in the streets and act in their parts in the great drama of life . . . . I hope we shall all be acquitted at the bar of God, and shall receive the welcome, Well done Good & faithful Servants., Enter Ye into the Joy of your Lord. . . .(11)

Who is speaking here? We have a young person, fascinated by religious matters, suggesting that it is difficult to talk about religion in a satisfactory way. One reason for this difficulty resides in the nature of religious experience, which is mysterious, at least for Dickinson. She sounds to me to resemble an anthropologist talking about the tribe of Christians as one who for whatever reason cannot fully commit herself 'go native'. With an aura of assurance, keywords like ';immortality' probably readily rolled off the tongues of those around her (just as the word 'sovereignty' readily rolls of many tongues in Waitangi talk), but Dickinson's relationship with her language, as suggested below, was such that it did not permit this.

We should be careful not to talk of Dickinson, or of anyone for that matter, as a unitary being, as a single, fixed self. As Shakespeare had his Richard II uttering after being deposed, 'play I in one person many people.'(12) I read recently of a woman, a daughter of an anthropologist, who is both a devout Catholic and a cultural relativist (for want of a better label). Once she said that when she is in church she knows that the Roman Catholic church is the one true church; when she is in her study at home she knows that it is one among many valid religious cultures. More recently, she has said: 'I know I have to know both things all the time.'(13) Dickinson seems to have been very much at home with this kaleidoscopic(14).

In Dickinson's voices we may hear a resemblance to that of a philosopher with a conversation-orientation. Writing on the 'voices' of Dickinson, Carol Taylor offers this comparison:

Dickinson ... often adopts a potent form of questioning that reveals ultimate and irredeemable ignorance. Like Socrates, she uses reflective, incredulous, or resigned tonal qualities to pose the insoluble riddles that show how impossible is the Absolute as an object of human longing....

Socrates also asks guileless, simple questions that mock all the 'wise' and their versions of eternal truth. Dickinson, too, often assumes an air of spontaneous incredulity ...

Dickinson's experience of Faith, or Immortality, or Truth as an 'Absolute' paradox disallows any of the comfortable security often associated with belief. The voice of this experience represents the polar opposite of sentimentality, for its truth is as terrible and absurd as it is exhilarating.(15)

A number of the Socratic dialogues of Plato revolve around such questions as 'What is justice?' or 'What is virtue?' or 'What is piety?' When Socrates confesses ignorance, his initially confident interlocutors are surprised, and they are even more surprised when the interchange that follows ends in a quandary of 'aporia' or perplexity. None of the participants can connect words like 'justice', etcetera, to anything that they themselves regard as 'real.' Socrates thought that the perplexity could be constructive to the extent that his conversation partners would become more receptive to the kind of inner 'voice' that he himself heard and took to be a divine or spiritual sign.(16) Perhaps Dickinson shared this belief.

Dickinson resisted the authoritarian whom proclaims the Truth and in doing so defined his or her audience as passive recipients of it, as inferiors not welcome to question and to converse. Her poems, as a number of critics have remarked, have an egalitarian quality. Martha Smith has suggested that Dickinson 'challenges rigid self-other boundaries as the prerogatives and roles of reader and writer mingle.'(17) By way of clarification through comparison:

Thus the ways in which Dickinson seeks to involve readers differs markedly from the strategies of a Pound or Eliot who calls upon esoteric or highbrow knowledge to interpret his poem 'correctly.'... Dickinson seems more concerned to involve even the most common of readers by offering a different kind of field for perusal and play, one which privileges reader participation and hard work by which 'each and all' may acquire knowledge rather than elitist keys to understanding held by those already 'properly' educated. ... Dickinson ... does not consider the reader an outsider to the work (a world already made), but a vital part of a textual world ... continually remade with every reading.(18)

This brings us to one of Dickinson's poems. The poem is 'Because I could not stop for Death'(19), which she wrote in or about 1862. The poem's first stanza is explicitly concerned with immortality:

Because I could not stop for Death -
He kindly stopped for me -
The Carriage held but just Ourselves -
And Immortality.

Here, as in many of Dickinson's poems, we have the voice of a deceased speaker, who talks of Death as a person whom is sensitive to the ordinary busy life of mortals; he 'kindly' takes the speaker for a carriage ride. In the carriage with Death is another passenger, Immortality. The opening stanza, in conventional rhyme and meter, is something of balm against the fear of death.(20)

Concerning the interaction of words, what might become of the comfortable 'immortality' in the first stanza? The next stanza is as follows:

We slowly drove - He knew no haste
And I had put away
My labor and my leisure too,
For his Civility -

The 'slowly drove' and 'knew no haste' serve to amplify the 'kindly' image of the driver, and thus to offer further balm against the fear of death. But the poet is playing with time. Why should Death not drive slowly and know no haste? Is Death not a force outside of time?(21) The poet also is playing with identity. Who are 'we'? We can keep asking that question:

We passed the School, where Children strove
At Recess - in the Ring -
We passed the Fields of Gazing Grain -
We passed the Setting Sun -

Here a journey continues at the level of the movement of the 'Carriage' (the repetition of 'passed') and of life stages - the playful striving of childhood activity, the growing reflection ('Gazing Grain') of maturity, and the sunset of old age.(22)

Next, in the fourth stanza, the speaker makes a reversal in her perception of their movement in relation to the sun. Accompanying this reversal is a remark about being inadequately clothed:

Or rather - He passed Us -
The Dews drew quivering and chill -
For only Gossamer, my Gown -
My Tippet - only Tulle -

Death has been kind and civil, but he now is driving the carriage in the dark and in the cold. The process of growing cold mimics the process of dying. The physical 'chill' she announces here suggests that death may be more chilling than she anticipated. (In Dickinson's day, 'gossamer' would have referred not to fine material but to spider webs.(23)) At the outset of the poem the speaker sounded comfortable in having been taken by Death, but perhaps the speaker quickly came to appreciate she had been abducted, as in the ancient Greek story of Persephone, whom was abducted by Hades (Death)(24). (Dickinson's first editors, Mabel Todd and Thomas Higginson omitted the entire fourth stanza of the poem for the 1890 edition of Dickinson poems.(25) They may well have become squeamish on sensing abduction, but perhaps I am projecting my own response.)

In the concluding stanzas the movement of the poem slows almost to a stop. The penultimate stanza is located in a foreign place, in front of a 'House':

We paused before a House that seemed
A swelling of the Ground -
The Roof was scarcely visible -
The Cornice - in the Ground -

Is the 'House' a metaphor for the grave at which the corpse of the speaker lays buried? We can take the dashes to be pauses in the speaker's voice and as a medium for varying the tone of voice.(26) These pauses during the 'House' scene contribute to the intensity of 'a macabre mix of sex and pregnancy and death images.'(27)

Finally, the speaker reflects on what seems to her to be an immense length of time since the moment at which she 'paused' before the grave:

Since then - 'tis Centuries - and yet
Feels shorter than the Day
I first surmised the Horses' Heads
Were toward Eternity -

With this ending, written in the present tense, we readers join the speaker in inhabiting an uncanny space and time. The poem, in the spirit of Dickinson's letter to Abiah Root, has transformed the comfortable 'Immortality' into a dreadful 'Eternity'.(28)

Commenting on the poem in relation to the topic of immortality, Martha Smith writes: '[B]y mixing tropes and tones Dickinson underscores the importance of refusing any singleminded response to a subject and implicitly attests to the power in continually opening possibilities by repeatedly posing questions.'(29) Such possibilities will be uncomfortable for those whom seek solid ground with determinate answers.

'Because I could not stop for Death', like all poems, can be sensed as taking place in time, as read aloud for the first time from beginning to end, or as an a-temporal structure, as it appears on the page(30). When we read the poem as taking place in time we can experience the 'surprise' that is considered by some as essential to poetic experience - here the unpleasant surprise of the uncomfortable 'Eternity'31). As we re-read and re-read the experience of surprise dies and we create a sense of the whole poem existing outside of time.

Reading poetry can enable one to escape the habit, created by the force of culture, of imagining 'meaning' to be contained in words. (Dickinson's death poems may be about language as much as they are about death.(32)) By the 'container' approach to meaning, one word, say 'immortality', has meaning 'A', another word, say 'eternity' has meaning 'B'. Acting with words, for those whom live by the container metaphor, involves putting together meanings, which supposedly remain fixed in use with each other. Dickinson resisted this approach to meaning: she understood that meanings of words are constructed in use, which includes combining them with other words. For her, words are only fragments of human expression. Words have meaning when a reader or listener connects the words with her or his own unique experiences as they reside in memory. The mind processes these words, reconstituting the past into the unfolding present and future.

II

On 27 April 1840 at Kaitaia, during the evening before he signed the Treaty of Waitangi, Chief Panakareao called upon missionary William Puckey to talk about the meaning of the Treaty, especially the term 'Sovereignty.'(33) I know of no evidence to indicate what they said during their interchange, although we do know that the next day Chief Panakareo engaged in the activity of metaphor making. An utterance attributed to him is as follows: ';Ko te atakou o te whenua ki Kuini Wikitoria o Ingarangi, ko te tinana, ko te ihi, ko te wehi, ko te mana i roto i te whenua ki a taua tonu, ki te Maori.'(34) Translated, this utterance is: 'The shadow of the land goes to Queen Victoria of England, but the substance remains with us the Maori.'(35) What might this act of metaphor have meant to Chief Panakareao when he did it?

Parts of Chief Panakareao's speech, from notes taken by Rev. Richard Taylor and John Johnson, who listened to translator William Puckey, are as follows:

Hear, all of you, Pakehas and Mouris [sic]. This is my speech. My desire is that we should all be of one heart. Speak your words openly; speak as you mean to act; do not say one thing and mean another. I am at your head. I wish you to have the Governor. . . . My grandfather brought the Pakehas to this very spot, and the chiefs agreed with what my grandfather did. He went on board the ships and got trade. He spread it through the land. Let us act right, as my ancestor did. ... The shadow of the land goes to Queen Victoria, but the substance remains with us. ... We have always been friendly with the Pakehas. ... Live peaceably with the Pakehas. We have now a helmsman. One said 'let me steer,' and another said 'let me steer,' and we never went straight. . . . What man of sense would believe that the Governor would take our goods, and only give us half of it. If you have anything else to say, say it; but if not, finish; and all of you say yes. Say yes.(36)

The shadow-substance metaphor concerns the relationship between one part of the Treaty, the Sovereignty-Kawanatanga Clause, and another part, the Property-Rangatiratanga Clause(37). I am not aware of any evidence to indicate that any of the British officials involved in the negotiations directly responded to his metaphor. When a copy of the speech reached England in November 1840, Parliamentary-Under-Secretary Vernon Smith 'feared that the Maoris would discover that the [European] subjects of Queen Victoria had something more than the shadow.'(38) Two months after these words, in January 1841, Chief Panakareao, after perceiving that British officials were undermining his authority, reversed his saying. The translation of that which he uttered reads: 'The substance of the land goes to the Europeans, the shadow only will be our portion.'(39)

Shortly before Chief Panakareao's death in 1856 he is said to have asked this question: 'He aha oti te atakau?' (What truly is a shadow?) He is said to have responded to his own question with these words: 'Toona rite ki te mate e kore taaea te ringa te kapo.' (It is like death that the hand cannot hold.)(40) Such a Shakespearean question and answer seems instructive for directing attention to the limits of metaphor, and perhaps of language in general(41). Those whom believe figurative language contaminates meanings sought after in the name of objectivity may well think that metaphors generally are senseless, even dangerous. Metaphors, some say, readily mislead the judgment by distorting reality and perhaps by stimulating the emotions. What one needs, in order to grasp the Truth, is a literal language. To such a claim, we can counter-claim that all language is irreducibly figurative and that the opposition of literal language and figurative language may well be infelicitous. One perhaps should renounce the opposition between metaphor and reality, for metaphors are our way of having a 'reality' and, therefore the important matter about any metaphor is, Which partial reality does it enable?(42)

The Parliamentary-Under-Secretary's utterance is associated with the claim common at the time, a claim still often made today by those whom live by the 'container metaphor'(43), that 'the Maoris' failed to 'grasp' the meaning of the Treaty. In 1848, however, Louis Chamerovzow, Assistant-Secretary of the Aborigines Protection Society, in his book The New Zealand Question and the Rights of Aborigines, sought to refute this claim. The Treaty, he stressed, was ambiguous: 'The ambiguity, then, . . . was on the part of the British in not defining more clearly and unmistakably what they meant by Sovereignty.'(44) Rejecting the claim 'that the New Zealanders were incapable of comprehending the nature and the importance of the Treaty,' Chamerovzow referred to Chief Panakareao's speech:

As to their appreciation of the term 'sovereignty' limited as it was by the second article of the Treaty, the explanation given by Nopera, one of the Kaitai [sic] Chiefs, is perhaps at once the most graphic, the most poetic, and the most logical. His speech is too long to introduce here, but coming to the question of the sovereignty as asserted in antagonism with the second article, he said: "The shadow of the land goes to Queen Victoria, but the substance remains with us. . . ." This speech is . . . an explanation of 'sovereignty' as the New Zealanders understood it . . . [and] an assertion of their title to the soil.(45)

The 'explanation', however, only suggests a classic 'poetic' ambiguity, and it seems to me that we do not and cannot know precisely what Chief Panakareao 'understood' by his metaphor at the time he uttered it or when he reversed it or when he critiqued it. Whatever he 'understood' at any particular moment on 'sovereignty.' we cannot assume that any other 'New Zealander' had exactly the same 'understanding.'

Whilst rereading 'Because I could not stop for Death' several years ago I remembered Chief Panakareao's engagement with the Sovereignty-Kawanatanga and Property-Rangatiratanga Clauses of the Treaty. I had read, and sought to make sense of, Dickinson using 'Eternity' in her poem to act on and give some degree of definition to 'Immortality'. Against this background, with this experience, I sensed Chief Panakareao's shadow and substance imagery as an attempt to make sense of the use of the Property-Rangatiratanga Clause to act on and to give some degree of definition to the Sovereignty-Kawanatanga Clause. The meaning of the Sovereignty-Kawanatanga Clause, by my reading of Chief Panakareao's utterance (and by Chamerovzow''s reading: 'the term 'sovereignty' limited as it was by the second article'), is not a separate issue from that of the meaning of the Property-Rangatiratanga Clause, and of the meaning of the other clauses. I suspected then and I still suspect that reading Chief Panakareao's utterance this way has something to do with doing 'justice' to him, for it directs attention to the topic of experience, ultimately to Chie Panakareao's experience, to what the Treaty meant to him. Doing 'justice' to Chief Panakareao surely is connected to the activity of doing justice today in Waitangi talk.

Chief Panakareao grew up in an oral culture. It seems to me that fully literate persons need at least the imaginative capacities of Emily Dickinson to sense what an oral culture is like. Philosopher and theologian Walter Ong, who takes metaphor seriously, offers this food-for-thought:

Try to imagine a culture where no one has ever 'looked up' anything. In a primary oral culture, the expression 'to look up something' is an empty phrase: it would have no conceivable meaning. Without writing, words as such have no visual presence, even when objects they represent are visual. They are sounds. You might 'call' them back - 'recall'; them. But there is nowhere to 'look' for them. They have no focus and no trace (a visual metaphor, showing dependency on writing), not even a trajectory. They are occurences, events. . . . . Writing separates the knower from the known and thus sets up conditions for 'objectivity', in the sense of personal disengagement or distancing.(46)

After first hearing these words from Ong, a self within my selves that seeks equilibrium (the central organizing metaphor in the brand of economics presented as an autonomous 'field') trembled in fear. Let not, however, this self and fear dominate, lest we fail to hear and to speak about the wastes and dangers of the written word, lest we fail to do Chief Panakareao justice. One cannot separate the activity of reading texts from sound. Reading the written word means sounding it. How can you not hear a voice whilst you interchange with the text before you? How can you not hear one voice or another? Perhaps there are many voices?

III

Any interest in Chief Panakareao's act of metaphor would have a difficult time in being heard by constitutional lawyers following the 1877 case Wi Parata v The Bishop of Wellington. This case involved Ngati Toa, who had gifted land in the 1848 to the Anglican Bishop of Wellington for the purpose of building a school. The proposed school was not built. In 1850, Governor Grey had issued a grant that included the gifted land without the knowledge or consent of the chiefs. After a dispute with Church officials, Ngati Toa leader Wi Parata challenged the legitimacy of that grant. Excerpts from Chief Justice Prendergast's 'black letter' judgment are as follows:

On the foundation of this colony, the aborigines were found without any kind of civil government, or any settled system of law. There is no doubt that during a series of years the British Government desired and endeavoured to recognise the independent nationality of New Zealand. But the thing neither existed nor at the time could be established. The Maori tribes were incapable of performing the duties, and therefore assuming the rights, of a civilised community. . . . [T]he Crown was compelled to assume in relation to the Maori tribes, and in relation to native land titles, these rights and duties which, jure gentium, vest in and devolve upon the first civilised occupier of a territory thinly peopled by barbarians without any form of law or civil government. . . .
On the cessation of territory by one civilised power to another, the rights of private property are invariably respected, and the old law of the country is administered . . . by the Courts of the new sovereign. . . . But in the case of primitive barbarians, the supreme executive Government must acquit itself, as best it may, of its obligation to respect native proprietary rights, and of necessity must be the sole arbiter of its own justice. Its acts in this particular cannot be examined or called in question by any tribunal, because there exist no known principles whereon a regular adjudication can be based. Here, then, is one sufficient reason why this Court must disclaim the jurisdiction which the plaintiff is seeking to assume. . . .
The existence of the pact known as the 'Treaty of Waitangi' . . . is perfectly consistent with what has been stated. So far as that instrument purported to cede the sovereignty - a matter with which we are not directly concerned - it must be regarded as a simple nullity. No body politic existed capable of making cession of sovereignty, nor could the thing itself exist. So far as the proprietary rights of the natives are concerned, the so-called treaty merely affirms the rights and obligations which, jure gentium, vested in and devolved upon the Crown under the circumstances of the case. . . .(47)

What can we say about the character of the Court constituted through Prendergast CJ's judgment, and what relations are established through it? The judgment brings to mind this proverb: He tao kii ekore e taea te karo, he tao rakau ka taea ano te karo', or, 'A spoken spear cannot be warded off, a wooden spear can easily be warded'.(48) Readers familiar with historical context against which Prendergast CJ acts might sense that the Court is completing and justifying the wars that began earlier in the previous decade. Many settlers imagined the indigenes to be 'beyond the pale', to be 'primitive barbarians'; they reduced the indigenes to objects, denying their equal claims to 'property'. The language of race was part of the language of war, which established an inherent difference between 'us' and 'them', dehumanizing the Other. Prendergast CJ's use of the language of race was part of the process of colonial assimilation, carried out by physical violence, and the threat of it. Prendergast CJ's so-called judgment constituted a spoken spear.

Why 'so-called'? The matter of whether there 'existed an 'independent nationality' could have been argued either way, with complex claims on each side, the material of alive speech. But Prendergast CJ reduced 'independent nationality' to a 'thing', involving 'performing' 'duties', which he simply declares 'Maori tribes'; to be 'incapable of' doing. He offered no 'explanation' worthy of the name. Dare his reader question his declaration? Dare his reader ask why he addressed the question about the existence of an 'independent nationality' in the first place? The parties to the Treaty of Waitangi were 'Her Majesty Victoria' and 'the Chiefs of the Confederation of the United Tribes of New Zealand' and 'the Separate and Independent Chiefs of New Zealand'. There was a significant question of the identity of the party before the Court, again with complex claims possible. Associated with this question of identity is the question of the meaning of the word 'sovereignty' as used in the Treaty, especially in relation to 'property'. This question could lead to a volume or more, but Prendergast CJ reduced 'sovereignty' to an objective 'thing', leaving no room for anything worthy of the name 'interpretation'.(49)

In modern times, in Treaty of Waitangi discourse Prendergast CJs Wi Parata judgment is commonly talked about as being problematic at the level of rules. Prendergast CJ, we hear, 'misunderstood' the doctrine of aboriginal title. Whilst the authority of Wi Parata has been undermined in one sense, it remains authoritative at the level of its way of imagining law as a lifeless object, in the form of a closed system of rules. What place is there for a lawyer to challenge the 'justness' of Wi Parata in regard to its silencing of the indigenes? Judging by the absence of legal claim against 'the Crown' in relation to the enactment of Foreshore and Seabed Act 2004 (notwithstanding protests by many tribes about 'history repeating itself') it seems that Waitangi lawyers do not consider justice to be a legitimate topic for talk in our newly constituted Supreme Court. The doctrine of Parliamentary Sovereignty is considered to be 'trumps'. Here the word 'sovereignty' is commonly used in the dead manner that suggests it carries its own meaning. Objective Law and subjective Justice are imagined to be separate, lifeless 'things'. This paper is written out of a will to resist the dominant and dominating unchallenged metaphors, hoping to help stop the spoken spears and to finally - in a real sense - end the 'Land Wars.

IV

As I have discussed elsewhere(50), Chief Panakareao's shadow and substance imagery is well known. Partly because of the force of Wi Parata, I do not believe the readings of him have been helpful in the sense of opening a door to a potentially rich conversation. In 1988, the Waitangi Tribunal, in putting together its report on the fishing claim of the Muriwhenua tribes, brought his imagery into their story:

The concept of a national controlling authority with kawanatanga (lit. governorship), or the power to govern or make laws, was new to Maori, divided as they were to their respective tribes. But the supremacy of this new form of control was clear. The Queen as guarantor and protector of the Maori interest (preamble, articles 2 and 3) had perforce an overriding power.

We accept in this respect the submission of the Fishing Industry, though made in another context, that the essentials of sovereignty were not lost on Maori . . . [W]e refer particularly to that of Nopera Panekareao [sic], the leading Muriwhenua chief who explained to his people the nature of the queen's sovereignty in the Treaty.

Ko te atakau o te whenua i riro i a te Kuini, ko te tinana o te whenua i waiho ki nga Maori. The Shadow of the land passes to the Queen, but the substance remains with us).

Thus did Nopera obtain the unanimous and immediate agreement of other Muriwhenua chiefs. . . .
Sovereignty, in law, is not dependent on the Treaty but on the proclamations that followed the signings at Waitangi. It is important to consider whether sovereignty was founded in consensus. . . . From the Treaty as a whole is it obvious that it does not purport to describe a continuing relationship between sovereign states. Its purpose and effect was the reverse, to provide for the relinquishment by Maori of their sovereign status and to guarantee their protection upon becoming subjects of the Crown.(51)

The Tribunal here, I submit, does not do justice to Chief Panakareao. The nature of 'the essentials of sovereignty', when he spoke and as we speak now, is contested. In saying 'Sovereignty, in law, is not dependent on the Treaty' the Tribunal is objectifying law. Absent from the Tribunal's discourse is a discussion about limits. I disagree with the Tribunal's statement that 'the supremacy of this new form of control [kawanatanga] was clear.' Nothing in the Treaty is 'clear' with regard to who can do what to whom. A substantial impropriety, I submit, was the usurpation by those speaking in the name of 'the Crown' of the exclusive power to interpret the Treaty for the activity of making 'the law'. The Treaty is silent on this power.

The Tribunal's talk of the 'guarantee' of 'protection' raises questions about what was to be the protected and who was to decide. In 1832, eight years before the Waitangi negotiations, the United States Supreme Court, in the person of Chief Justice Marshall, in the context of interpreting a treaty between the Cherokee and the United States, stated, 'Protection does not imply destruction of the protected.'(52) It seems untenable to claim that the chiefs, in entering into the Treaty, divested themselves of chiefly status, and became legally disabled from challenging and perhaps 'overriding' the person or group speaking in the name of 'Kawana'. Not believing it is meaningful to talk about the Kawana-Rangatira relation in terms of 'supremacy' (this language is too simple to be faithful to the complex process of treaty making and interpreting), I submit that at in and through the Treaty the Chiefs imagined themselves to be in a cooperative activity with the Kawana/Sovereign as it concerns governance. The Treaty itself is 'thin' on the terms of cooperation and its composers, not the Chiefs, are responsible for this failing.

In 1989, Ranginui Walker, when holding the position of Associate Professor of Maori Studies at Auckland University, repeated Chief Panakareao's words in his essay 'The Treaty of Waitangi as the Focus of Maori Protest.' Walker here, bringing background to the Treaty into play, repeats the common accusation that the translators of the Treaty were deceitful:

The moral validity of the Treaty hangs on the translation of the word sovereignty. Both Revd Henry Williams and James Busby, who were responsible for translating the Treaty, were well aware that the Maori equivalent to sovereignty was the word mana. In October 1835, when Busby persuaded the thirty-five chiefs of the northern region to declare their national independence, the Article of confederation was rendered as:

Ko te kingitanga, ko te mana i te whenua o te whakaminenga o Niu Tireni ka meatia nei kei nga tino rangatira anake i to matou huihuinga.

The kingship and sovereignty of the land of the confederation of New Zealand shall reside exclusively with the chiefs of our assembly.

Now, despite this clear association between kingitanga 'kingship' and mana 'sovereignty over land', in the article of confederation, the word mana is left out of the Treaty of Waitangi and the word kawanatanga 'governance' substituted instead. The historian Ruth Ross has criticized the translation of the Treaty for the use of 'missionary Maori', that is the use of missionary concepts and transliterations. The word kawanatanga is a transliteration of governor into kawana, which with the suffix tanga, becomes governorship. Ceding governorship is not the same thing as ceding sovereignty. A governor is merely a satrap who rules on behalf of the sovereign. Furthermore, there were no governors in New Zealand as a referent by which the chiefs would have more readily understood the term. Their understanding of kawanatanga would be understood as a benign term not even remotely connected with the basic question of sovereignty. But if sovereignty had been translated as mana whenua 'sovereignty over land', then the chiefs would have had no doubt as to its meaning. It is highly probable they would not have signed the Treaty. That the Treaty did not appear to convey anything substantial to the Crown from the Maori viewpoint is encapsulated in the comment by the Kaitaia chief Nopera Panakareao: 'The shadow of the land goes to Queen Victoria but the substance remains to us.'(53)

In partial defense of Williams and Busby, the context in which they used the word 'sovereignty' in the Treaty differs from that of the Declaration. In the Treaty 'sovereignty' was used in a direct relationship with 'property', and this was not the case in the Declaration. Indeed, it is the tension between these two terms, a tension paralleling that between 'kawantatanga' and 'rangatiratanga,' one Chief Panakareao addressed in his substance-shadow metaphor. Walker talks of 'ceding sovereignty' as if it corresponds to some objective phenomenon. In his statement 'the Maori equivalent to sovereignty was the word 'mana'.Walker engages in abstract talk about words in which meaning is independent of circumstances, the kind of talk I am trying to resist. Walker here lives by the container metaphor for meaning (with meaning supposedly contained in words), which is associated with his 'convey' metaphor for communication (including translation), a metaphor I believe to be inapt.

IV

What is to become of Chief Panakareao's sovereignty talk in the generations to come? The direction of the process of becoming will partly be shaped by the metaphors we live with, including metaphors of metaphors. What metaphors might we imagine being worthy of living with?

Waitangi talk took something of a turn to metaphor in 2002 with the publication of Alex Frame's Grey & Iwikau: A Journey into Custom. Here Frame tells the story of Governor Grey and Chief Te Heu Heu Iwikau's travel together in from Auckland to Taupo. He tells the story for several reasons, including the following:

[I]t offers a respite from what might be termed the 'pathological view' of New Zealand race relations, which pictures an unremitting succession of dysfunctional interactions between Europeans and Maori - especially at the level of government and the tribes. The necessary and valuable work of the Waitangi Tribunal over the past two decades has, of its grievance-based nature, concentrated national attention on the pathological and dysfunctional. It is as if we were to set out to derive our understanding of family relations from the proceedings of family courts - infidelity and violence might appear to be the leading, or even the only, characteristics. The relations between Grey and Iwikau are of a different order - functional and healthy - and they may tell us something about the conditions in which a side-by-side attitude could be achieved between scholars and leaders from New Zealand's two principal cultures in the new millennium.(54)

The 'pictures . . . of dysfunctional interactions' Frame speaks of are commonly given shape through the use of military imagery. Arguments in Treaty talk frequently are structured talk of in terms of fighting, conflict, and war. The military metaphors influence perceptions of whom the parties are in relation to one another and of what they are doing. This military framing is not 'neutral', not the least because it may contribute to an atmosphere of animosity that leads to the kind of environment that the metaphors were drawn from. Changing the metaphor can dramatically transform our sense of the world and our place in it. In a foreword to Frame's book Judge Brown said as much:

Grey and Iwikau: A Journey into Custom demonstrates that shared undertaking of a challenging and difficult enterprise will bind the participants together in a common spirit articulated in action. The story of the common endeavour undertaken so long ago by Governor Grey and Te Heu Heu Iwikau, can serve to inspire us today. I suggest that as New Zealanders trying to define both our nation and ourselves, we would do well to embrace the metaphor encapsulated within this book - that of a shared journey.(55)

Frame's journey metaphor seeks to invite dialogue, one in which minds are open to new views and perspectives and to re-examining old assumptions. There is the potential for growth, change and movement, for finding and making common ground and for re-constituting relationships. Talk of such transformation brings to mind Edmund Burke's metaphor for the British constitution. In his 1790 Reflections on the Revolution in France, written 'to nip the English Jacobin movement in the bud'(56), he said this: 'Because half a dozen grasshoppers under a fern make the field ring with their importunate chink, while thousands of great cattle reposed beneath the shadow of the British oak, chew cud and are silent, pray do not imagine, that those who make the noise are the only inhabitants of the field(57). Burke's 'British oak' had its roots in Magna Carta, from which British 'liberties' had sprung. Burke sensed the importance of continuity through such roots as well as the possibility of change: 'A state without the means of some change is without the means of its conservation.' The evolution of the British constitution, he suggests, offers a model for the French:

The two principles of conservation and correction operated strongly at two critical period of the Restoration and Revolution, when England found itself without a king. At both those periods the nation had lost the bond of union in their antient edifice; they did not, however, dissolve the whole fabric. On the contrary, in both cases they regenerated the deficient part of the old constitution through the parts which were not impaired. They kept these old parts exactly as they were, that the part recovered might be suited to them.(58)

In 1929, the Judicial Committee of the Privy Council gave the metaphor of the constitution as a tree new life in the Persons Case(59). Henrietta Muir Edwards along with four other women initiated this case; it concerned the meaning of Section 24 of the British North America Act, 1867, which provided for the appointment of 'qualified Persons' to the Senate. The Supreme Court of Canada, giving standing to the common law disability of women to hold public office, had unanimously concluded that the phrase excluded women. The 'famous five' challenged this decision with success. Lord Sankey activated his metaphorical imagination as follows:

The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada. 'Like all written constitutions it has been subject to development through usage and convention.'(60)

The metaphor of the living tree is alive and well in Canada(61). In her visit to New Zealand in 2002, the Rt Hon Beverley McLachlin PC, Chief Justice of Canada, noted that Lord Sankey phrase 'a living tree capable of growth and expansion' has 'repeatedly been cited in subsequent constitutional cases'(62) The Chief Justice senses this metaphor as more apt than that of 'law . . . as a system of rules', and 'as an external agent, something that is 'applied to' or 'imposed on' people and their activities.'(63) The living tree metaphor is integral to her 'more complex vision of the law - the law as an interactive process between citizens and the institutions that make and interpret the law - the legislatures and the courts.'(64) She invites us to envision the law as a series of conversations between citizens, courts and legislatures.

Will the Canadian metaphor travel?(66) We can give it a clearing to land if we resist the old crusty metaphors, which we commonly sense as 'natural' as breathing. We might consider sensing Chief Panakareao's shadow-substance metaphor as a shoot with potential for stimulating some vital Waitangi talk.

'Metaphor, wrote Robert Nisbet, 'is, at its simplest, a way of proceeding from the known to the unknown.'(67) Emily Dickinson, who knew well that metaphor is central to our reasoning processes, was much of this view. When Chief Panakareao read the Treaty and sought to make sense of the relationship between the Sovereignty-Kawanatanga Clause and the Property-Rangatiratanga Clause, he engaged in the activity of metaphor making. The familiar phenomenon of the shadow, I submit, was his way of making the unfamiliar familiar.

In reading Chief Panakareao's reading of the Treaty in the echo of 'Because I could not stop for Death', this paper has sought to render unfamiliar what many of us in this country take to be familiar. Both the Waitangi Tribunal and Walker, in the passages I have quoted from them, talk with an aura of assurance about that which they represent with the word 'sovereignty'. Less assurance and more diffidence are basic requirements for a conversation to begin. Doing justice begins in conversation.

Representation requires a language. The Waitangi Tribunal and Walker use or talk about language as if it is an instrument for pointing to solid things. For me, the metaphor of language as a tool is inapt. Those who live with this metaphor imagine the world, and the self and others in it, as fixed at the level of identity. A conversation worthy of the name between parties in different 'worlds' becomes impossible.

The signing of the Treaty offered some considerably rich possibilities for a conversation. Panakareao offered what I have taken to be a fascinating metaphor for beginning a conversation. I have written this article as a conversational response, written with the hope that readers will respond likewise.

Let us finish with some vital Waitangi sovereignty talk. John Pocock has said this:

The Treaty of Waitangi is now considered fundamental, in the sense that it precedes and establishes the national sovereignty; it therefore furnishes a basis on which Maori make claims against that sovereignty, reminding it that it is conditional upon fulfillment of a treaty that made promises to Maori which have not always been honoured (this is to put it mildly). The Treaty is not used to delegitimise sovereignty, but as a reminder of its conditionality.(68)

The Treaty of Waitangi renders New Zealand sovereignty perpetually debateable, but recasts sovereignty as a perpetual debate between the Crown, Maori and pakeha qualified to engage in it. Sovereignty rests on the Treaty, but the Treaty remains unfulfilled, and the lack of fulfillment sets up a process and a debate that extend to an indefinite future. Like a written or an unwritten constitution, the Treaty is open to perpetual interpretation by a body identical to neither courts of law nor parliament (though in procedure it resembles the former), not exercising sovereignty so much as advising it of its perpetually disputable character ...(69)

We can imagine the Treaty as the beginning of a potentially immortal ('sovereign)) conversation, which will be a bleak and frightening eternity for those who would have us bury the Treaty. Pocock is one to celebrate conversation, and here he says as much in a manner that invites further conversation. He gives life to the word 'sovereignty' in vital talk. 'Sovereignty rests on the Treaty', he says in breath reifying that which he represents, and in the next breath he un-things 'it' with a qualification, one suggesting that the word 'sovereignty' can never rest. No wonder Chief Panakareao used the imagery of the shadow as a metaphor for sovereignty.