David Round: No Validity to Sovereignty Claims

As we all know, the Northland Nga Puhi tribe, whose traditional territory includes the Bay of Islands, are having their day before the Waitangi Tribunal at present. Included in their claim is the argument that when they signed the treaty they never ceded their ‘sovereignty’, and that, presumably, they still retain it.

For a hundred reasons this is an absurd argument, but that is not to say that it will not be solemnly swallowed by the Waitangi Tribunal. As a matter of strict logic ~ not that logic has much to do with these issues ~ the Tribunal would be cutting its own throat to find that Nga Puhi still had ‘sovereignty’. Even leaving aside the well-known point that the Treaty itself is of no legal validity ~ a point which we should always bear in mind ~ but even leaving that aside, the Tribunal itself is created by the New Zealand Parliament, an institution which by its very existence proclaims the sovereignty of the Queen and the end of any other possible sovereignty. For the Tribunal to find sovereignty still in Nga Puhi would be to find that the Tribunal itself does not or ought not to exist, because the sovereignty of the Queen and her Parliament, which created it, is of no effect.

No other claim before the Tribunal has ever gone so far as to assert that sovereignty still resides in Maori. Many of the arguments as to why Nga Puhi did not renounce their sovereignty (e.g. they were battle-hardened warriors, &c) apply just as much to other tribes as they do to Nga Puhi. Why is sovereignty being raised now, and only now? Part of the reason, perhaps, lies in the pre-1840 ‘Confederation of United Tribes’, a short-lived comic opera confederation spun out of the brain of James Busby, the British Resident in the Bay of Islands, but which is now going to be resurrected and, for the first time ever, taken seriously. There may be another reason, though. Historical Treaty claims are coming to an end ~ for this round, anyway. There will be fewer opportunities in the immediate future to suck the taxpayer dry. Having extracted as many assets as possible from the hapless New Zealand citizen, it would make sense to move on to another quite new and different, and more far-reaching, claim. To obtain sovereignty, or some sort of privileged constitutional freedom, on top of the recently-acquired unearned riches would be a triumph indeed. First the money, then power.

The sovereignty argument generally goes something like this. By the English version of the Treaty the signatory chiefs did indeed cede to the Crown ‘all the rights and powers of sovereignty which they possessed’. Her Majesty in return guaranteed to the chiefs ‘full, exclusive and undisturbed possession of their lands, forests, fisheries and other properties’. Her Majesty could of course make this guarantee only if she had the powers of sovereignty enabling her to make it.

In the Maori version of the Treaty, however, the one which was actually signed by most chiefs, the chiefs grant the Crown ‘kawanatanga’, which, it is claimed, is something less than sovereignty. The word comes from ‘kawana’, the Maori pronunciation of the word ‘governor’. Neither kawana nor kawanatanga were Maori words before this time. ‘Kawanatanga’ means ‘governorship’, which, it is now alleged, is limited, and somewhat less than sovereignty ~ which therefore remained with Maori. If the Treaty meant the Queen to have sovereignty, another word would have been used, such as ‘mana’.

Queen Victoria in turn grants the chiefs ‘te tino rangatiratanga’, which, it is alleged, means ‘full chieftainship’, and therefore is actually sovereignty.

For various reasons, both legal and practical, this argument simply will not hold water. Some arise simply out of the words of the Treaty.

Translations of the Maori version simply do not support the Maori sovereignty claim. The 1869 translation ordered by the Legislative Council has the chiefs ‘giv[ing] up entirely to the Queen of England forever the government of their lands’ while they retained ‘the full chieftainship of their lands, their settlements and all their other property’. Professor Hugh Kawharu’s translation, used in the Court of Appeal’s 1987 decision, and accepted then by both the Crown and the Maori Council as a good translation, has the chiefs ‘giv[ing] absolutely to the Queen of England for ever the complete government over their land’, and the Queen in return agreed ‘to protect the chiefs, the sub-tribes and all the people of New Zealand in the unqualified exercise of their chieftainship over their lands, villages and all their treasures’.

As if this were not clear enough, the Waitangi Tribunal itself, believe it or not, in the 1988 Muriwhenua Fishing Report, accepted ‘that the essentials of sovereignty were not lost on Maoris in the debate at Waitangi…From the Treaty as a whole, it is 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. In any event, on reading the Maori text in the light of contemporary statements, we are satisfied that sovereignty was ceded’.

Just to repeat: these are the words of the Waitangi Tribunal itself. The tribunal went on to suggest that ‘tino rangatiratanga’ was merely ‘tribal self-management…..similar to what we understand by local government’. We might add that it is difficult to see how even that local self-government could outlast the existence of the tribes themselves as living entities, or outlast the sale of tribal lands. I note that even the now-defunct Dunedin Ngai Tahu Maori Law Centre has conceded that rangatiratanga over land is extinguished if that land is properly and validly sold and purchased.
(To be continued)