The Waitangi Tribunal released a landmark ruling on 14 November as stage one of their two stage inquiry into Te Paparahi o te Raki (which covers all areas north of Auckland not previously investigated in an historical claim). Stage one looked at the “meaning and effect” of te Tiriti o Waitangi.
At the time of writing (which is the day the report was tabled at Te Tii Marae) I haven’t had a chance to read the report, but the media reports that the Waitangi Tribunal concluded that tāngata whenua who signed the Treaty did not give up sovereignty, but they consented to the British Crown having power to control British settlers, while recognising that in situations where the tāngata whenua and settler populations intermingled questions of relative authority would have to be negotiated case by case.
The Waitangi Tribunal also found that the rangatira who signed in February 1840 agreed to enter land transactions with the Crown and that the Crown would protect them from foreign threats and represent them in international affairs, where that was necessary. The Crown also promised to investigate land transactions that had taken place before the Treaty, and to return any land that had not properly been acquired from Maori.
The Waitangi Tribunal does not provide any conclusions as to what the implications of this may be for Aotearoa New Zealand today (though there is a suggestion the stage two may consider these issues). May I suggest that the implications of what the Tribunal have found are very significant; but not because it is surprising or new.
For years now, when I teach classes about biculturalism, the historical and modern context of te Tiriti o Waitangi and/or principles of decolonisation, I am very clear that, in my own opinion of the signing, in most academic investigation of the signing and the weight of historical evidence itself presents a strong case that tāngata whenua did not cede sovereignty to the Crown. Furthermore I thoroughly reject the the ‘principles’ of the Treaty of Waitangi (defined in Tribunal reports, legislation, the courts and in government statement in the 1980s) as an obfuscation of the actual Treaty itself that has allowed us to avoid debating and discussing sovereignty.
The implications of a clear finding by the Tribunal that tāngata whenua did not give up sovereignty is that that the basis on which Parliament, government agencies and local government refuse to consider arrangements that share sovereignty has become very tenuous indeed.
Whilst all are guilty of lording it over tāngata whenua, local government stands out as criminal in its approach to Te Tiriti o Waitangi and tāngata whenua. Section 4 of the Local Government Act 2002 states:
In order to recognise and respect the Crown’s responsibility to take appropriate account of the principles of the Treaty of Waitangi, and to maintain and improve opportunities for Māori to contribute to local government decision-making processes, Parts 2 and 6 provide principles and requirements for councils that are intended to facilitate participation by Māori in local government decision-making processes.
Broadly legislation is read by those who implement it as either enabling or restricting activities. My experience working at Greater Wellington Regional Council and working alongside the Tauranga City Council here is that the decision makers (or, if you prefer, the no-decision makers) in local government seem to take the opinion that their legislation defines what they can’t do, rather than what they could do. As an iwi liaison officer in Wellington (stupidly entitled Policy Analyst – Māori), the council approach was to facilitate a regular forum or meeting for duly elected representatives of iwi and inform iwi of matters of concern, which councils generally confine to resource consents. Those fora or meetings had no voting rights over any decision of local government; it was consultation at its most pointless. Tāngata whenua were not treated as partners, but not because the Act forbid it; rather the Act didn’t specifically require it.
The Tribunal findings has the potential to throw a spanner in the works. Because one of these times now the potential is there for tāngata whenua to say ‘no’ to the Crown and the courts to agree on the basis that we are still sovereign. Maybe the next time it will be when local and central government try to use the Public Works Act; or a consent is heard and tāngata whenua say we do not accept the findings of the Environment Court; or a piece of land is put up for mortgagee sale because we couldn’t pay the rates; or any of the hundreds of injustices tāngata whenua suffer every day at the whim of Crown officials and representatives.
As an illustration, there is about to be a Tauranga City Council debate about establishing a Māori ward (perhaps you may read this after it happens on 17 November). The Council will vote down that proposal because they are part of a racist institution, hold views that allow for the oppression of people on the basis of ethnicity and therefore are against partnership with tāngata whenua. Their most important task is to maintain their power as handed to them by their Pākehā constituents by maintaining the status quo. They will be in the paper after the decision talking about their satisfaction with the tyranny of the majority, using the word ‘democracy’. They will most certainly not be talking about sovereignty.
The angry reaction of the fools and hatefully confused people in our Letters to the Editors and talkback radio are the thin end of the wedge of a large body of Pākehā who get very angry when the discussion turns to te Tiriti o Waitangi, sovereignty, co-management, co-governance and partnership. I believe they get angry because, consciously or sub-consciously, they are aware that their sovereignty is not the only sovereignty in this country. They will hear the reports and they will rave against this Tribunal finding because they will know the Tribunal has a good point.
Nevertheless, I am hopeful this is shifting over time. The Tuhoe settlement is at the forefront of the sharing of sovereignty in this country. They have professed quite revolutionary aims to enact their own sovereignty, their mana motuhake, over their own people. In Tauranga Moana, the movement to co-management and co-governance of Mauao, of the harbour and of Department of Conservation lands are an experiment in sharing sovereignty. However, tāngata whenua always have to fight tooth and nail to establish these relationships. My vision is that the Crown would move to acknowledging Māori sovereignty in the same way tāngata whenua have consistently acknowledged the sovereignty of the Crown. If that was done, partnership would not be a negotiation; it would be an expectation. Ultimately sovereignty exists by agreement of the populace. The immutability of the Crown’s sovereignty took a well-deserved hit today.