Wednesday, December 20, 2023

Peter Winsley: Te Tiriti o Waitangi cedes sovereignty to the Crown, and can be unifying rather than divisive

Repeated claims are made that Māori never ceded sovereignty to the Crown. These claims come from sources such as the Waitangi Tribunal, activists, academics, and from Te Pāti Māori.

A display in Te Papa on an English language version of the Treaty of Waitangi has been vandalized, presumably because it stated that the Crown assumed full sovereignty over New Zealand. Activists argue that the Māori language Te Tiriti o Waitangi is the only legitimate Treaty text, since most Māori assenting to a Treaty signed this version. I agree with these assertions. However, I disagree that in signing Te Tiriti, Māori did not cede sovereignty to the Crown.

Te Tiriti confers on the Crown governance powers (kāwanatanga), including the ability to make and enforce laws, and to uphold the rule of law. It protects Māori property rights through tino rangatiratanga or chieftainship, consistent with Magna Carta and with common law. It also makes Māori subjects of the Crown, with all the rights and obligations inherent in this. Te Tiriti protects all New Zealanders, not just Māori.

Over 500 Māori leaders and the British Crown’s representatives signed Te Tiriti o Waitangi in 1840. It was an international agreement that was the first step in the creation of a colonial administration in New Zealand, leading to the NZ Constitution Act 1852.

McQueen (2020) comprehensively summarizes the evidence that Māori fully understood what they were signing up to in Te Tiriti, including Crown sovereignty and its relationship with tino rangatiratanga.

In discussions with Māori leading up to Te Tiriti’s signing, Hobson, Henry Williams and others emphasised ensuring Māori knew what they were asked to agree to. Henry Williams translated Hobson’s presentation into Māori. William Colenso took detailed notes of Tiriti discussions in 1840 and recorded them in The Authentic and Genuine History of the Signing of the Treaty of Waitangi. James Busby attested to these notes in the month following Te Tiriti’s signing. Colenso’s notes accurately reflected the Māori perspective, including the key arguments that swayed the chiefs to sign Te Tiriti. Others who left accounts of the discussions included Hobson, Pompallier and Henry Williams.

The Kohimarama Conference in 1860 was at the time the largest ever gathering of Māori chiefs in New Zealand. Many of the chiefs who signed Te Tiriti in 1840 were at the 1860 Conference. All of them affirmed their support for Crown sovereignty.

Understanding of Te Tiriti o Waitangi must be based on the signatories’ intent and the meanings of words as at 1840. For example, in 1840 ‘taonga’ meant real tangible property such as a waka, not intangible ‘property’ such as language. It did not include things that were yet to be invented such as broadcasting spectrum.

Te Tiriti has a preamble that stresses the need for government and the rule of law. Te Tiriti has three Ture (Articles.)

In Article One the Crown is given the power to govern New Zealand (kāwanatanga). Māori before 1840 had no conception of a sovereign nation state. The neologism ‘kāwanatanga’ (the authority to govern) was therefore coined.

By 1840 many Māori had visited Port Jackson and were aware of the power governors had. In December 1838, at the command of Governor George Gipps, seven white British subjects were executed for the murder of some aboriginal civilians in the Myall Creek massacre. Māori knew that kāwanatanga as agreed to in Tiriti Article One came with the power of life or death.

British officials working on a Treaty with Māori saw the need to protect individual rights as well as the rights of chiefs. In 1840 the Highland clearances in Scotland were a recent memory. Clan chiefs and landlords had enclosed smallholdings into large commercial farming operations and driven crofters off their land and into penury. British officials were concerned to avoid a similar outcome in New Zealand.

In Article Two, the Queen recognises te tino rangatiratanga, that is property rights over lands, dwelling places and other properties. Queen Victoria promises te tino rangatiratanga over property of all New Zealanders.

The relationship between kāwanatanga and tino rangatiratanga has some affinity with the relationships between statute law and common law. That is, the two co-exist, however where there is a conflict statute law prevails. Kāwanatanga is more powerful than tino rangatiratanga.

Te Tiriti Article Three guarantees equal rights as Crown subjects for all. An important subtlety in Article Three is that the Crown implicitly offers all New Zealanders protection against foreign attack. Marion du Fresne’s 1772 visit saw violent clashes and fatalities on both sides. Some Māori probably feared a return visit. One hundred years after Te Tiriti was signed France surrendered to Germany and the British Empire (including New Zealand) stood alone against Nazism.

As an international treaty, a domestic government was needed to deliver on Te Tiriti within New Zealand. This was given effect to through the NZ Constitution Act 1852. This established government administration, Parliament, and a basis for democracy. New Zealand’s constitution and government system evolved, leading to the NZ Constitution Act 1986. This Act reduced the Crown’s role to the symbolic and procedural and conferred on the elected Parliament the full power to make laws.

New Zealand has one of the world’s oldest continuously functioning democracies. Its economy and society are based on democracy, equal rights, an inclusive market economy, and the rule of law. It reflects the values of the Enlightenment, secularity, science, reason, and an open society.

In recent times power has been shifting away from elected representatives in Parliament and local government and towards the judiciary and entities such as the Waitangi Tribunal and the Human Rights Commission. New Zealand is vulnerable to judicial activism, to “scope creep” as agencies such as the Waitangi Tribunal and the Human Rights Commission exceed their briefs, and to tribalistic or race-based ideology.

The State Owned Enterprise (SOE) Act 1986 referred to undefined Treaty principles. There are no principles stated in Te Tiriti. The Court of Appeal’s 1987 ‘Lands case’ saw the Treaty as “a partnership between races” or between the Crown and Māori. However, Māori cannot be both subjects of the Crown and partners with it.

The Waitangi Tribunal was set up in 1975 to investigate and make recommendations on claims of Crown breaches of Te Tiriti. In 1985 it was given the right to investigate grievances from 1840. However, the Tribunal has taken the Treaty out of its historical context. “Presentism” has distorted thinking, with the Tribunal acting as if people in 1840 had the same knowledge and incentives as we have now.

In its reports on the Te Paparahi o Te Raki (Northland) inquiry the Tribunal “found” that the Northern chiefs did not cede sovereignty when they signed He Whakaputanga (The Declaration of Independence) in 1835 or Te Tiriti o Waitangi (The Treaty of Waitangi) five years later.

The Te Raki inquiry related to 415 individual Treaty claims. The reports call on the Crown to apologise to Te Raki Māori for “failing to recognise and respect the tino rangatiratanga (sovereignty) of hapū and iwi”. The Tribunal therefore spuriously equates tino rangatiratanga with sovereignty, using the terms interchangeably.

The Tribunal recommends that the Crown enter discussions with Te Raki Māori to “determine appropriate constitutional processes and institutions at national, iwi and hapū levels to recognise, respect and give effect to their Tiriti/Treaty rights.” This is a call for constitutional change along He Puapua lines, rather than focusing on restitution for Te Tiriti breaches.

The previous Labour government’s initiatives such as He Puapua, the “Three Waters” reforms, the exclusionary and accusatory history curriculum, and the promotion of Māori cultural content in inappropriate contexts such as basic science and in trades training have amplified tribalism and racialism. They have also weakened our education and our science systems and raised questions about the political neutrality of the media and some parts of the public service.

Rather than being a document to support elitist interests, the 1840 Te Tiriti covers all parties with an interest. These include Wikitoria, Te Kuini o Ingarani (Victoria, the Queen of England), nga tangata o tona Iwi (the individual members of her people); te Kawana (the Governor); nga rangatira (the chiefs); nga tangata maori o Nu Tirani (ordinary New Zealanders); and nga tangata o Ingarani (the English people).

Te Tiriti therefore covers not just the key leaders but the people themselves; the ngā tāngata of Nu Tirani (New Zealanders). There is no mention of race in Te Tiriti. The Queen undertakes to look after everyone and to be colour-blind in doing so.

Positive things can happen due to the election result, with more New Zealanders demanding improved economic, social and environmental performance.

Te Tiriti o Waitangi and ACT’s philosophy suggests affinities more so than discordances. For example, ACT supports strong property rights (Te Tiriti Article Two and tino rangatiratanga). It supports subsidiarity – the principle that decisions should be taken at the lowest level possible, or closest to where the effects fall. This may mean devolution of some public services, and more choice, for example in schools with different curricula and pedagogy. Some such initiatives may have a co-governance element so long as it does not erode Parliament’s role as law maker.

Above all we must trust young people coming through. Lots of discerning youth will see through identity politics and the evils of categorising people by race. They will not forever tolerate Parliament behaving like a theatre for class clowns and will instead expect it to make a positive difference to people’s lives and to the natural environment that we all depend upon.


McQueen, E. 2020: One sun in the sky. The untold story of sovereignty and the Treaty of Waitangi. Galatas NZ Ltd.

Dr Peter Winsley has worked in policy and economics-related fields in New Zealand for many years. With qualifications and publications in economics, management and literature. This article was first published HERE


Anonymous said...

"Some such initiatives may have a co-governance element so long as it does not erode Parliament’s role as law maker".

You were doing so well Peter until you wrote the above sentence.

To honor Te Tiriti as intended, there can be NO CO-GOVERNANCE in any shape or form because as you wrote "Māori cannot be both subjects of the Crown and partners with it".

That ridiculous experiment foisted on us by naive governments has proven categorically to be a big expensive FAIL.

Otherwise a good article.

Tony M said...

"The Court of Appeal’s 1987 ‘Lands case’ saw the Treaty as “a partnership between races” or between the Crown and Māori. However, Māori cannot be both subjects of the Crown and partners with it."

Excellent summary, thank you. I only disagree with one part. My recollection is that the CoA did not see the Treaty as a partnership for two reasons:

a. J Cook said that it was a relationship 'akin' to a partnership. Akin means like but not the same. This means that both sides have to act in a reasonable manner to the other: nothing more.

b. This was not part of the CoA Decision. Rather, it was a piece of obiter dictum by J Cook. That is, a passing opinion that was not essential to the decision and not able to be relied upon as precedent.

Therefore, the CoA did not decide that ToW was a partnership.

Robert Arthur said...

Co governace is inevitably maori control as so obligingly demonstrated by the operation of the expensive and otherwise disastrous Tupuna Maunga Authority in Auckland. Luxon is very naive in assuming co governance acceptable for local govt matters.

Peter said...

An excellent summary, Peter - except as noted by the commentators above, that there should be no co-governance - as we NZrs should ALL have an EQUAL SAY. I'd also add that the 'young' are easily indoctrinated and are hardly little angels of equity, equality and tolerance. Maturity brings fair play to the fore and it realises more so than any other cohort the stupidity of identity politics. That said, a bigot and/or a racist can be of any age, or race.

David Lillis said...

A fine piece, Peter.
Theatre for class clowns? Hana-Rawhiti Maipi-Clarke, perhaps? Actually, we may empathize with her theatre at Parliament to some extent, but we need to see and hear a few ideas for a better future rather than rear-vision mirror stuff and a degree of exaggerated victimhood.

Let’s wish her and Rawiri Waititi all the very best. He stands on behalf of his people, so we may like him!

Indeed, Rawiri does not represent all Maori. I disagree with most of what Te Pati Maori stands for but I am willing to acknowledge his right to advocate on behalf of his people.

I admire Hana-Rawhiti Maipi-Clarke for having the guts to become an MP so young and empathize with the sadness of any people who were diminished as a result of colonization. I even go along to some extent with the haka and other displays, as long as others can do their rituals too. But did not colonization bring good things too and how much time does Parliament have for Gaelic songs and dances or rituals from the Belgian Congo?

Let's wish Hana well in her career as a politician but I hope that she looks to the future rather than the past and that she invokes the Treaty to empower all New Zealanders rather than one cultural group alone. David Lillis

Anonymous said...

Who exactly are Waiti’s people? Those who chose to acknowledge part of their DNA and cultural background?

As for the haka - why give credence to a murderous incantation of death? Still, each to its own just don’t describe it as representing New Zealand and New Zealanders.