Jack Vowles: Te Tiriti – A Briefing for Chris Luxon

National party leader Chris Luxon has been reported as giving some badly uninformed responses to questions about Te Tiriti o Waitangi. As a potential Prime Minister, he needs to get up to speed. Te Tiriti is the Māori language version of the Treaty of Waitangi – the version that is given greater weight in international law.

There are many claims about what Te Tiriti means, but two stand out. The first is validated by historical research, and by a close reading of Te Tiriti. The Māori who signed Te Tiriti did not explicitly cede sovereignty – supreme power and authority – over Niu Tīreni (the Māori word for New Zealand used at the time). At the time, there was no direct translation of the word sovereignty into Māori. The word sovereignty was in the English version of the Treaty and was later simply proclaimed in the name of the British Crown. That sovereignty has been passed down into our system of parliamentary democracy. We still use the word ‘Crown’ in this context, although it is an anachronism. The authority of the ‘Crown’ is now derived from the people of New Zealand, both Māori and Pākehā as well as members of other ethnic groups who live here, because in a democracy the people are the ultimate source of sovereignty.

The second claim – not really consistent with the first – is that the Treaty/Te Tiriti is based on a ‘partnership’. This principle of the Treaty/Te Tiriti is based on a reading of both English and Māori versions together. The idea of ‘partnership’ was coined by the Waitangi Tribunal and given legal recognition by the Court of Appeal in 1987. According to the Court, partnership requires ‘the Pākehā and Māori Treaty partners to act towards each other reasonably and with the utmost good faith’. At one level, this is a fine ideal. Following all this, both the Courts and the Waitangi Tribunal have moved away from what they see as narrow and literal interpretations of the Treaty/Te Tititi.

But herein lie two big problems. The Treaty relationship is not between Māori and Pākehā as peoples: it is between ‘the Crown’ and Māori. When they vote in elections, sit in Parliament or in Cabinet, Māori are as much a part of ‘the Crown’ as anyone else. This reading also ignores the other ethnic groups that live in Niu Tīreni, not to mention the mixed ancestry of many Māori and Pākehā. Worse, in abandoning the text of Te Tiriti itself, all kinds of vague and far-reaching interpretations of ‘partnership’ have been extrapolated, far beyond the intentions of those who were responsible for introducing it into the discussion. For example, partnership is frequently interpreted as meaning equal partnership, but of course all partnerships are not necessarily equal. Article 3 of Te Tiriti means that as individuals, all people who live in Nu Tīreni must be treated as equal citizens, implicitly including when they vote. Those who identify as Māori must accept that they are usually a minority when votes are counted. But they are a significant and powerful minority, nonetheless. And voting is not the be-all and end-all of democratic deliberation which is also about the weight of arguments, claims and interests, not just numbers.

The te reo version of the Te Tiriti, literally translated, calls the ‘partnership’ principle into question. It qualifies but does not entirely rule out the assertion that Māori retained sovereignty; they retained some, but not all.  Article 1 of Te Tiriti says that the chiefs ‘give up for ever … the whole government (kāwanatanga) of their lands’. Māori at the time quite rightly did not recognise this as a transfer of complete supreme power and authority. In Article 2 the Crown agreed to recognise that the Chiefs and their families – and all Māori – retained the chieftainship (rangatiratanga) of their lands, their homes, and all their property.  This was the authority that they then had, understood, and valued. Some current interpretations of Te Tiriti now translate rangatiratanga as sovereignty and dismiss kāwanatanga. But this is simply inconsistent with Māori recognition of the Crown’s kāwanatanga in the first Article and its textual and contextual meaning at the time. Māori who had travelled to New South Wales knew what governors did. In the years after Te Tiriti was signed, the application of overlapping authorities of kāwanatanga and rangatiratanga had to be worked out by accommodation. For the first few years some progress was made. Shamefully, the Crown soon abandoned the task and imposed its own unilateral authority. Now, we are seeking to find an appropriate balance again.

Independently, anthropologist Ann Salmond and political scientist Dominic O’Sullivan (Te Rarawa, Ngāti Kahu) have been arguing for a return to Te Tiriti. In both practice and theory, Te Tiriti still lays out a vision of shared sovereignty that is consistent with democracy. In a liberal democracy, governing authority is ultimately derived from the people, power to decide is widely devolved, and rights of individuals and groups to govern themselves are recognised and enabled. Concerns about ‘the tyranny of the majority’ expressed by Māori are themselves derived from liberalism, the principles of which are well able to support the protection of group rights. Under the recognition of rangatiratanga Te Tiriti does give a special status to iwi, hapū, and other Māori authorities. That status should rightly receive explicit acknowledgment as New Zealand’s constitution evolves. Understood in this way, the text of Te Tiriti provides us with much more to work with than the vague and widely misunderstood concept of partnership.

 

Professor Jack Vowles is in the Political Science and International Relations programme at Te Herenga Waka—Victoria University of Wellington.

This article can be republished under a Creative Commons CC BY-ND 4.0  license. Attributions should include a link to the Democracy Project.