Mike Butler: Tribunal displays its principles

The Waitangi Tribunal’s latest report titled Nga Matapono - The Principles puts its principles on show while condemning both ACT’s Treaty Principles Bill and New Zealand First’s review of treaty principles in legislation.

The 202-page report, that draws heavily on the once-was-covert He Puapua plan for two governments in New Zealand, predictably concludes that both policies were:

“Unfair, discriminatory, and inconsistent with the principles of partnership and reciprocity, active protection, good government, equity, and redress, and contrary to the article 2 guarantee of rangatiratanga”.

The ACT Party will introduce a Bill that may proceed to a referendum in which all citizens may vote on whether or not we agree that the basic principles that appear in the three articles of the treaty are:

Article 1: kawanatanga katoa o o ratou whenua The New Zealand Government has the right to govern all New Zealanders.

Article 2: ki nga tangata katoa o Nu Tirani te tino rangatiratanga o o ratou whenua o ratou kainga me o ratou taonga katoa The New Zealand Government will honour all New Zealanders in the chieftainship of their land and all their property

Article 3: a ratou nga tikanga katoa rite tahi All New Zealanders are equal under the law with the same rights and duties.

The NZ First Party plans “a comprehensive review of all legislation (except when it is related to, or substantive to, existing full and final Treaty settlements) that includes ‘The Principles of the Treaty of Waitangi’ and replace all such references with specific words relating to the relevance and application of the Treaty, or repeal the references”.

It looks like the tribunal sees both policies as a substantial obstacle to a long-running crusade by activists for control of New Zealand, under the code name of “rangatiratanga”, or, “the exercise of ultimate and paramount power and authority”.

This control, according to the tribunal, existed for centuries before the treaty was signed in 1840, was guaranteed in the treaty, and should be given effect in the political and administrative control of New Zealand.

The governance model promoted in the report is that depicted in the 2019 He Puapua working party report, of two overlapping spheres of government, one by-Maori-for-Maori, and the other, a fully bicultural version of what we already have, with both subject to a tribal monitoring committee.

So how does the treaty guarantee ongoing Maori control of New Zealand? It didn’t, until the meaning of the treaty was twisted.

That happened in the mid-1980s, when someone in the Fourth Labour Government had the not-so-bright idea to ask someone to re-translate the treaty from Maori to English. This was despite the existence of such a translation done by T.E. Young in 1869.

In 1986, a Waitangi Tribunal member named Hugh Kawharu provided a re-translation which came with 11 footnotes that redefined three key words.

“Kawanatanga”, which in the 1840 Te Tiriti translated “sovereignty” in article 1 of the final draft in English, became “government”.

“Rangatiratanga”, which translated “ownership” in article 2, became “chiefly authority”.

“Taonga”, also in Article 2, which translated “property”, became “treasures” (both visible and invisible).

To be very clear, before Kawharu submitted his translation, there was no question that in the treaty sovereignty had been ceded, “rangatiratanga” translated “ownership” and taonga was property.

After Kawharu submitted his translation, the treaty meant that the governor should have been governing settlers only, rangatiratanga was a long-running, successful, idyllic civilisation based on tikanga that should be re-established fully throughout New Zealand, and taonga was every resource in New Zealand, both visible and invisible. As the report put it:

The rangatira who signed te Tiriti o Waitangi in February 1840 did not cede their sovereignty to Britain. That is, they did not cede authority to make and enforce law over their people or their territories.

The rangatira agreed to share power and authority with Britain. They agreed to the Governor having authority to control British subjects in New Zealand, and thereby keep the peace and protect Māori interests.

The rangatira consented to the treaty on the basis that they and the Governor were to be equals, though they were to have different roles and different spheres of influence. The detail of how this relationship would work in practice, especially where the Māori and European populations intermingled, remained to be negoti ated over time on a case-by-case basis.

The rangatira agreed to enter land transactions with the Crown, and the Crown promised to investigate pre-treaty land transactions and to return any land that had not been properly acquired from Māori.

The rangatira appear to have agreed that the Crown would protect them from foreign threats and represent them in international affairs, where that was necessary.

The Waitangi Tribunal has nourished this “rangatiratanga” doctrine for decades until it bloomed as the He Puapua two-governments plan in 2019.

ACT’s Treaty Principles Bill is by far the bigger threat, judging from the tribunal’s response, because it would greatly limit the tribunal’s unfettered reign.

So, what are the Waitangi Tribunal’s principles?

The tribunal “does not have a single set of treaty principles that are to be applied in assessing each claim”, according to the tribunal’s website.

The principles formally cited in the body of its Principles report are the principles of tino rangatiratanga, kawanatanga, good government, partnership and reciprocity, active protection, equity and redress.

Note, the report does not refer to a principle of equality.

Moreover, the tino rangatiratanga principle (p70) limits the Crown’s right to govern, and the kawanatanga principle (p71) requires active protection and does not diminish rangatiratanga.

The tribunal’s habit of making up treaty principles flies in the face of the maxim that “governmental decisions must be made only applying known and legal principles”.

This practice means that no party to a Waitangi tribunal claim could ever know which principles would be used in the claim because those principles are yet to be selected or dreamed up while the inquiry progresses.

More than 70 names of people who feel “likely to be prejudicially affected” are listed in the report.

Claimants include Moana Maniapoto, Pita Tipene, Waihoroi Shortland, Merepeka Raukawa-Tait, Donna Awatere-Huata, Dr Leonie Pihama, Angeline Greensill, Mereana Pitman, Hilda Halkyard Harawira, Margaret Mutu, Lady Tureiti Moxon, Rueben Taipari Porter, all presented as staunch Maori rights people.

These 70 claimants, plus the seven Waitangi Tribunal members who signed the report, want to persuade Prime Minister Christopher Luxon and 47 National Party MPs to drop both the Treaty Principles Bill and the treaty clause review.

Will those MPs stick up for the constitutional right for government with a clar mandate for these policies to implement policy for all New Zealanders, or will they try to placate Waitangi Tribunal members and claimants by accepting that they can "exercise their rangatiratanga" and make up their own rules?

Placating demands is called appeasement. The Waitangi Tribunal was created to placate demands and look where it has got us.

Perhaps nows the time to disestablish the tribunal, which is quite easy to do. Repeal Sections 4-8 of the Treaty of Waitangi Act 1975 and the job is done. National, ACT, and NZ First have the votes to do it.

But will they?

Nga Matapono - The Principles, Waitangi Tribunal, https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_217933408/Nga%20Matapono%20W.pdf

Mike Butler wrote The Treaty: Basic Facts which is available at https://trosspublishing.com/product/the-treaty-basic-facts/