Year 175

The past twelve months represent the 175th year in the life of the Treaty of Waitangi. There has been movement on a number of fronts over the last year that has ultimately suggested some very interesting directions in which the Treaty partnership is growing.

Although I recently argued that we should not limit ourselves to thinking about the Treaty as being only relevant to the settlement of historical claims, a number of interesting developments have arisen out of that context over the last year.

One of most significant developments in the Treaty settlement space was the enactment of legislation to give effect to aspects of the Tūhoe settlement. The Tūhoe Claims Settlement Act 2014 and the Te Urewera Act 2014 were both enacted in July last year. There are a number of notable aspects to this settlement, not least the new governance arrangements for Te Urewera. Further details about the key elements of this settlement can be found in the Māori Law Review’s special issue on the subject.

The Waitangi Tribunal Te Urewera report is itself an important part of the context of the Tūhoe settlement and the fifth part of that report, focusing on issues relating to Lake Waikaremoana, was released in December. This was one of a number of significant Tribunal reports released towards the end of 2014. Others were the reports on:

The report on Stage 1 of the Te Paparahi o te Raki Inquiry undertook a detailed analysis of the meaning of He Whakaputanga (the 1835 Declaration of Independence) and Te Tiriti, as it would have been understood by those in the North in 1840. As I noted at the time of the report’s release, the Tribunal’s central finding was that the rangatira who signed the Treaty of Waitangi in February 1840 did not cede their sovereignty by doing so.

The Tribunal’s report on the Māori Community Development Act review, Whaia te Mana Motuhake / In Pursuit of Mana Motuhake, takes up the discussion of tino rangatiratanga in a 20th and 21st century context and also connects the Treaty to a wider discussion of international indigenous rights. If Te Paparahi o te Raki was the Tribunal’s most comprehensive consideration of the issue of sovereignty and the Treaty’s relationship with He Whakaputanga, then Whaia te Mana Motuhake is its most comprehensive engagement with international indigenous rights, giving particular consideration to the relationship between the Treaty of Waitangi and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). In this report the Tribunal identifies specific articles of the UNDRIP that support various Treaty principles and assist our understanding of how those Treaty principles ought to apply.

Indigenous rights at an international level were in the spotlight at the UN this year with the World Conference on Indigenous Peoples (WCIP) being held as a High Level Plenary Meeting of the General Assembly in New York in September 2014. As I noted in a previous post, one of the key elements of the WCIP was the adoption by the General Assembly of an outcome document that commits member states and UN bodies to develop mechanisms for the practical implementation of the rights of indigenous peoples. As the Tribunal’s approach in Whaia te Mana Motuhake illustrates, these international developments are becoming increasingly important to understanding the application of the Treaty and the nature of the Treaty relationship.

While the New Zealand Māori Council was central to the Tribunal’s report Whaia Te Mana Motuhake (both as claimant and, at least in part, as the subject of the claim), the Council was also continuing to pursue issues around water rights and, in particular, giving expression to Māori water rights. The Council has recently proposed a framework for water policy that includes the establishment of an independent commission that would:

  • monitor the water take levels, set water prices and allocate water use rights through a mechanism to be determined by it
  • deal with all water bodies including aquifers and geothermal
  • use funds to reclaim water consents; undertake research; monitor water use; foster water storage and reticulation projects; and implement pollution reduction and environmental restoration programs
  • allocate a proportion of revenues to Māori in recognition of the Māori proprietary interest and taking account of previous non-recognition. The funds allocated to Māori shall be applied for the particular needs of Māori in relation to water supplies for marae, papakainga, and general Māori housing, to engage Māori in the restoration of customary waterways and to enable Māori to develop commercial operations utilising water.

It appears that water is going to very much be part of a continuing conversation between Treaty partners as we mark the 175th anniversary of the signing of the Treaty at Waitangi and move into the 176th year in the life of the Treaty partnership.

He Whakaputanga me te Tiriti – The Declaration and the Treaty

Just over a week ago, the Waitangi Tribunal released its report on stage one of the Wai 1040: Te Paparahi o te Raki inquiry covering claims in the Northland region. This stage one report is titled He Whakaputanga me te Tiriti – The Declaration and the Treaty and focuses on the meaning and effect of the Māori language texts of He Whakaputanga o te Rangatiratanga o Nu Tireni and Te Tiriti or Waitangi alongside their English language counterparts – the Declaration of Independence and the Treaty of Waitangi. The central finding made by the Tribunal, which has been widely reported in the media, is that the rangatira who signed the Treaty of Waitangi in February 1840 did not cede their sovereignty in doing so. However, the Tribunal makes it clear that this report on the first stage of the inquiry does not contain findings in respect of claims or draw any conclusions about the sovereignty the Crown exercises today or how the treaty relationship should operate in a modern context.

Bryce Edwards provides a survey of the commentary on the Tribunal’s report here. For my money, the most helpful commentary to date has been provided by Andrew Geddis.

I don’t think that the Tribunal’s basic findings are as earth-shattering as they have been portrayed in the media. But the Tribunal’s report is important. The special significance of He Whakaputanga in the North was one reason why the Tribunal was required to squarely confront these issues and produce a thorough analysis of evidence about the Treaty’s meaning and effect in 1840. In coming to its conclusions, the Tribunal considered, amongst other things, statements from previous Tribunal reports about the effect of the Treaty. There is considerable variation amongst those earlier reports as to whether or not sovereignty was ceded via the Treaty. In this report, the Tribunal gives particular emphasis to the Report on the Orakei Claim (1987) and the Muriwhenua Land Report (1997). The Orakei Tribunal took the view that the text of the Treaty would not have conveyed the cession of the English concept of sovereignty, but that contemporary statements by Māori suggested that Māori accepted “the Crown’s higher authority”. The Muriwhenua Land Tribunal considered that, while the British might have assumed they had obtained sovereignty through the Treaty, the guarantee of tino rangatiratanga meant that the Māori perspective would have been quite different. Consequently, the Muriwhenua Land Tribunal thought that the best way to understand the Treaty is an expression of the parties’ “honest intention that Maori and Pakeha relationships would be based on mutual respect and the protection of each other”.

Alongside earlier Tribunal reports, relevant court rulings, and existing scholarship relating to the Treaty, the Tribunal also heard evidence from claimants and a number of eminent historians. The Tribunal’s summary of the claimant evidence noted:

The claimants had some differing views, as one would expect from representatives of different hapū and tūpuna, but generally held fast to certain key tenets. Foremost among these was that they did not cede mana, as well as the importance of the oral agreements made at Waitangi and elsewhere. The claimants’ evidence ranged from the technical, such as [Pat] Hohepa’s expert analysis of the grammar of te Tiriti, to traditions handed down on the nature of prophecies and reasons why certain tūpuna had or had not signed. [Rima] Edwards’s kōrero about te tiriti tuatahi was perhaps the most striking aspect of the claimant evidence, suggesting Māori had rebuffed an explicit attempt to have them cede their mana.

There were also a range of views expressed in the evidence from historians. Dame Anne Salmond dismissed the possibility of the rangatira having ceded sovereignty to the Crown, arguing that kāwanatanga would have been understood as ‘a subordinate and delegated power’. Alan Ward identified points of mutual understanding in the Treaty as being:

  • the Crown would keep out the French;
  • the Crown would control land transactions;
  • some rangatira shared the Crown’s understanding of pre-emption;
  • a ‘common understanding that the customary authority of rangatira among their own people would be recognised, at least for the immediate future and that the Governor and his officials would work with them rather than unilaterally impose their authority’ (with this being understood most strongly by Christianised Māori);
  • Māori and Pākeha would have the same rights under the law; and
  • ‘a common understanding that Kawanatanga would be exercised in good faith, for the common good, including that of Māori. This was the moral dimension of the Treaty, or “the spirit of the Treaty” as we say today’.

Don Loveridge thought that the rangatira would have understood that they would become subject to a higher authority and to British law. Paul McHugh described the treaty signing as part of ‘the process by which Māori agreement to British sovereignty over New Zealand was obtained’.

After assessing the range of evidence presented in the inquiry, the Tribunal stated:

We think it likely that the rangatira viewed their agreement with Hobson at Waitangi as a kind of strategic alliance. It followed on from and extended the alliance that they saw as dating back at least to 1820, and which had been advanced since then by important developments in the 1830s. . . They had chosen a powerful ally, with what they considered good reason. At the same time, they would have regarded the relationship as subject to further and ongoing negotiation as the two peoples came increasingly into everyday contact.

The Tribunal suggests that the British view of the Treaty and the cession of sovereignty would essentially have been that described in Paul McHugh’s evidence:

Technically, in terms of British constitutional law, the issue of the Proclamations [21 May 1840] amounted to the ‘moment’ of British sovereignty, at least for the purposes of British and colonial courts. Strictly, it amounted to the formal and authoritative announcement by the Crown that the prerequisite it had set itself before such annexation could occur – Maori consent – had in its estimation been satisfied and that the Crown could now exert sovereign authority over all the inhabitants of the New Zealand islands.

The Tribunal noted the divergence of British understanding from that of the rangatira but concludes, as the Muriwhenua Land Tribunal before it had done, that there was an agreement reached in the Treaty. This agreement, the Tribunal says, can be discerned from the Māori text, which mirrors the oral agreement and the explanation to the rangatira of Hobson’s assurances. Ultimately, the Tribunal finds:

Our essential conclusion, therefore, is that the rangatira did not cede their sovereignty in February 1840; that is, they did not cede their authority to make and enforce law over their own people and within their territories. Rather, they agreed to share power and authority with the Governor. They and Hobson were to be equal, although of course they had 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 negotiated over time on a case-by-case basis.

Fundamentally, this is (at least in part) what we might hope that the whole Treaty claims and settlement process is about – negotiating (and often fixing up) the relationship between Māori and the Crown and figuring out how to give expression to kawanatanga and tino rangatiratanga in specific circumstances. It will be interesting to see how the Waitangi Tribunal goes on to address those issues in the next stage of the Te Paparahi o te Raki inquiry.