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by Andrea Tunks
As the first peoples of Aotearoa, Maori continue to dispute the English Crown’s assertions of sovereignty. Sovereignty accords full and exclusive law-making power to the New Zealand parliament, including the right to determine the political and legal status of tangata whenua.[1] The Crown makes its claim of sovereignty on three bases: a series of proclamations issued in 1840; a treaty made with Maori in 1840 and continued occupation and control. In this article I discuss the ways in which the Colonial state stripped Maori of their rights under both Maori customary law and English common law in order to substantiate its claims. I argue that in spite of recent, limited, recognition of Maori claims to aboriginal title, the issue of Maori sovereignty has not been adequately addressed.
The Crown has argued that by virtue of proclamations issued by Governor Gipps[2] on 14 January 1840, English common law was ‘received’ by the new colony of New Zealand. The proclamations declared that Aotearoa was now under the jurisdiction of New South Wales, appointed Captain William Hobson as New Zealand's Lieutenant Governor and the Crown as the sole source of title to land. Gipps’ proclamations ostensibly effected the Crown’s unilateral assumption of sovereignty.[3]
In May 1840, Governor Hobson proclaimed that Britain had acquired the North Island by signing a treaty of cession with Maori in which Maori consented to the surrender of their sovereignty over the territory. The South Island, declared terra nullus, was said to have been acquired through ‘discovery’ by New South Wales.[4]
Five written versions of the treaty covenant entered into by Maori and the Crown now exist: four in English and one in Maori. The Maori text, signed by 512 Maori chiefs on behalf of their people, shall be referred to as Te Tiriti o Waitangi (‘Te Tiriti’). The official English text shall be referred to as the Treaty of Waitangi.
Article 2 of Te Tiriti guarantees tino rangatiratanga[5] in respect of homes, lands and taonga.[6] The rangatira’s duties included expressing the mana[7] of the tribal group in respect of both people and territory. Mana is the Maori term that comes closest to expressing the western legal and political concept of sovereignty.
In 1840, mana would have been the key term used by Maori in negotiating Te Tiriti. Historical evidence indicates that, contrary to the terms of the English text, Maori would not have voluntarily ceded tino rangatiratanga or mana to others and would certainly not have done so by entering into a treaty.[8]
Article 1 refers to the recognition by rangatira of the Queen’s right to govern her own people and responsibility for the administration of her own law within Aoteoroa. This power and its exercise was called kawanatanga[9] and referred to a form of authority which could be applied by and was only relevant to the colonialists. On the basis of this definition of kawanatanga, Article 1 of Te Tiriti may be contrasted with Article 1 of the English text. Article 1 of Te Tiriti does not cede Maori sovereignty to the English Crown.
In Article 3 of Te Tiriti, the signatories acknowledged receipt of the laws and customs of the English without diminishing the retention of tikanga Maori.[10] A fourth, orally recorded Article observes the spiritual freedom of Maori.
The English text is the only version of the treaty that has been considered by New Zealand courts. The 1847 Symonds case[11] found the English text to be a valid treaty of cession by which Maori surrendered their sovereignty. The Court further held that Article 2 was a ‘declaration’ of the doctrine of aboriginal title, thereby recognising Maori common law rights to the ‘full, exclusive and undisturbed possession of lands, estates, forests, fisheries and other prized possessions’[12] of their lands.
The third article grants to Maori the legal status of British subjects.
By the late 1850s, the Crown had suppressed the operation of the doctrine of aboriginal title.[13] Broad assertions of the Crown’s legislative powers[14] broke down communal land control exercised by pupuri whenua (land retention movements), consequently weakening Maori sovereignty movements such as the Kingitanga and Kauhanganui[15] and authorised large scale military confiscations of land.[16] Colonialist histories record this period as a ‘revolutionary seizure of power which has been effective, durable and therefore legitimated over time’.[17]
The1877 decision in Parata[18] and the Native Land Act 1909 institutionalised racist views that Maori had no legal or political capacity either to hold property rights or to negotiate a binding agreement with a sovereign power. In Parata it was found that the Treaty of Waitangi was a ‘simple nullity' and statutory references to aboriginal rights were, subsequently, not enforced by the courts.[19] To this, a 1941 Privy Council decision[20] added the English doctrine of transformation, [21] which holds that where they create new rights, international treaties may not be considered the law of a State until they are legislated in an Act of Parliament. Consequently, even if Maori were found to have the capacity to treat with a sovereign, the terms of the Tiriti/Treaty were deemed unenforceable. Despite the fact that Article 2 of the Treaty of Waitangi was merely declaratory of existing common law rules, the doctrine of native title remained similarly unenforceable until 1986.[22] In 1993, the New Zealand parliament enacted the Maori Land Act, which overruled the earlier cases and legislation suppressing Maori customary law.[23]
The lack of legal recognition of Maori rights led Maori protest movements to refer to Te Tiriti as a fraud. The irreconcilable sovereignty provisions of both texts and the refusal to recognise their enforceability has shifted legal and political focus from the provisions themselves to a series of 'principles' derived from ‘the spirit and intent’ of the treaty agreement.[24]
The Treaty of Waitangi Act 1975 (‘the Act’) establishes the Waitangi Tribunal, whose task is to reconcile the two treaty texts and to practically apply ‘the principles of the Treaty’ so derived.[25] The treaty texts are considered part of the Act for the purposes of statutory interpretation. This technically provides a form of legal recognition that gives equal legitimacy to both versions of the treaty agreement. The Tribunal's recommendations to government are non-binding and must be 'practically applied' within the existing legal framework.[26]
The 1987 State Owned Enterprise (‘SOE’) case[27] defined the key principle of the Treaty as: 'the acquisition of [Crown] sovereignty [Article 1 Treaty of Waitangi] in exchange for the protection [by the Crown] of rangatiratanga over taonga [Article 2 Te Tiriti]’ (emphasis added).[28] This ‘exchange’ has been said to establish a ‘partnership’ requiring Maori and the Crown to act in ‘good faith, honour and reciprocity’ towards each other.[29] One commentator has described this partnership as recognising the Crown’s right to govern and Maori the right to be governed.[30] Maori need only be 'consulted' on issues of 'truly major importance' [31] and only where reasonably practicable in light of government time and financial constraints.[32] The inequity of this ‘partnership’ is particularly acute in respect of shares in strategic natural resources.[33] This decision was thus a re-statement of Symonds except with specific reference to 'the principles of the Treaty' as they were incorporated into section 9 of the State Owned Enterprise Act 1986.
The concept and application of 'Maori sovereignty' is problematic because of continued positivist interpretations of what sovereignty means and who is able to hold it. State government and United Nations structures perpetuate the positivist approach by asserting that law-making power and territorial authority cannot be shared by more than one entity in the same land; that is, it is 'indivisible'. In the context of Aotearoa, the right to exercise sovereignty is therefore the exclusive prerogative of the colonial state. Mana and rangatiratanga have been interpreted by the State as referring only to ‘property rights’ and it is only willing to discuss rangatiratanga in the context of the limited recognition of aboriginal title.
Due to the restrictive interpretations of the meaning of 'sovereignty', Maori have increasingly defined mana and rangatiratanga as including their collective rights to 'self-determination’ under international law. The rights of self-determination are seen as enhancing those stated in Te Tiriti o Waitangi and in giving status to the Maori text by obliging the government to recognise parallel Maori law making power. Maori are as yet undecided as to what form this parallel power should take. Minimally, it would enable hapu and iwi to exercise law making power in respect of their territories, resources and their own members. It may also include an ability for pan-tribal structures to gather separate tribal nations into one decision making entity so that the relationship with Crown kawantanga and non-Maori can be continually negotiated. [34]
Contrary to this, the New Zealand government supports the right of Maori to exercise ‘self-management’ or ‘self-reliance’ in respect of themselves and the resources over which they retain ownership. Like other Anglo-settler states, the government will not recognise self determination as a 'right' applicable in Aotearoa, due to the legal association of self-determination with territorial secession - the formation of a new state from within the territories of an existing state.[35]
Secession is not at the forefront of Maori aspirations. The physical and spiritual connection of tangata whenua to their ancestral lands and the independent nature of tribal groups means that the carving up of territory to permit Maori independence is not a viable option. Rather, Maori aspire to independence from the social, political and legal structures of the colonial state.[36] In order to achieve this, the state would require a new constitutional structure on the basis of Te Tiriti which recognises the mana of Maori in respect of themselves and the Crown's law-making power in respect of non-Maori citizens. The external exercise of sovereignty would have to be negotiated by hapu, iwi, Maori entities and the Crown. [37]
The push by indigenous peoples to open up the definition and application of the doctrine of 'self-determination’ has assisted the Maori cause and will eventually, perhaps, enable a more creative negotiation of sovereign power within the State. The current claims Maori have lodged in the Waitangi Tribunal refer not only to land grievances but to: the unilateral determination of the grievance settlement process itself; immigration and citizenship issues; environmental management; ownership and regulation of indigenous biodiversity, intellectual and cultural property; the status of Maori educational methodologies and equal access to tertiary sector funding; the operation of the criminal justice system and economic decision making and control of fiscal policy. These will remain grievances until the Crown negotiates with Maori in relation to the fundamental issue of sovereignty. Any constitutional relationship with the Crown must be based on Te Tiriti o Waitangi, the Maori treaty text, rather than an incorporation of 'the Treaty' into the existing common law framework. It is appropriate that we define the extent of our political and legal authority in our own language and negotiate the boundaries of sovereignty in a manner that is not divorced from Maori cultural responsibilities.
Such change is inevitable, as Mikaere states:
Maori will not be trapped forever within the intellectual [and legal] imprisonment of what our colonisers deem to be feasible. We are capable of aiming much higher.[38]
No reira, tangata whenua o te ao, toro ake ra tatou![39]
Andrea Tunks is a Lecturer at the School of Law, University of Auckland. Aotearoa-New Zealand. Her tribal affiliations are Te Whanau a Apanui and Te Whakatohea.
[1] Tangata whenua means people of the land; those connected physically and spiritually to the land through ancestral descent and association and through the act of burying the afterbirth of children in the earth.
[2] Governor of New South Wales. New South Wales was the first English colony in what is now known as Australia.
[3] Williams, ‘The Foundations of Colonial Rule in New Zealand’, 13 New Zealand University Law Review 54.
[4] Orange, The Treaty of Waitangi (1987) 84.
[5] The term Rangatiratanga was invented by Christian Missionaries in the late 1830’s. By adding the suffix tanga (‘the state of’) to the word rangatira (‘chiefs/leaders’), they created a Maori word for the Biblical notion of God’s supreme power and compassion for his people. Tino is an intensifier; thus tino rangatiratanga means 'great', 'absolute' or ‘paramount’ chieftainship. In the context of the Te Tiriti, rangatiratanga has been taken to mean ‘absolute chieftainship’ in relation to hapu, the main political unit similar to a clan, and iwi, which are groupings of hapu who share a common ancestor. See Kawharu, Waitangi (1989) x-xxii.
[6] Taonga are treasured properties and components of ‘Maori’ culture, both tangible and intangible. This extends from language to the life force of a river. Waitangi Tribunal, Kaituna Report (1984).
[7] Mana is acquired through whakapapa (ancestral descent). In addition to political and legal authority, it refers to the spiritual contract between an individual and her deities. It is also defined as ‘the expression of power’ or of the ‘potential for power’.
[8] Orange, above n 4, 41-43.
[9] Like rangatiratanga, kawanatanga is a Maori word invented by Christian missionaries. Orange, above n 4, 40-41; Jackson, ‘Maori law, Pakeha Law and the Treaty of Waitangi’ in Mana Tiriti (1991)19-20.
[10] Maori laws, customs and practices.
[11] R v Symonds (1847) 1 NZLR 680.
[12] Ibid.
[13] Note that in most cases recognition of title was ‘suppressed’ by legislation rather than ‘extinguished’.
[14] For example, the passage of the Native Land Acts 1862 and 1865 established a land court which individualised Maori land title and removed the ability of Maori to hold land according to our own laws.
[15] Kingitanga or King Movement was established in 1858 under the leadership of Waikato chief Potatau Te Wherowhero and the Tainui Confederation in order to assert a parallel sovereignty to the English Crown. It was adhered to by most central, coastal and lower North Island iwi for some time. Kauhanganui is a tribal parliament established in the 1890s to assert a parallel law making power to settler government.
[16] Under the New Zealand Settlements Act1863, Maori land was confiscated forcibly and without compensation.
[17] Brookfield, ‘Kelsen, the Constitution and the Treaty’ (1992) 15 New Zealand University Law Review 163, Brookfield, ‘Parliament, the Treaty and Freedom: Millenial Hopes and Speculations’ (1994) New Zealand Law Journal 462.
[18] Parata v Bishop of Wellington (1878) 3 NZ Jur 72.
[19] In particular, section 77(2) Fisheries Act 1908 which stated 'Nothing in this Act shall affect existing Maori fishing rights'. In Waipapakura v Hempton [1914] NZGazLawRp 141; (1914) 33 NZLR 1065 it was held Maori had no existing fishing rights to be recognised in law. The law was modified in 1986, below note 21.
[20] Tukino v Aotea District Maori Land Board [1941] NZLR 590 Privy Council.
[21] See eg Trendtex Trading Corporation v Central Bank of Nigeria (1977) QB 529 (Court of Appeal) cited in Dixon & McCorquodale, Cases and Materials on International Law (2nd ed, 1991) 110.
[22] In Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 682, the High Court recognised the existence of a subsistence right to take seafood in accordance with tikanga Maori.
[23] The removal of this express suppression of Maori customary title in, eg Harbours Act 1950; Territorial Sea and Exclusive Economic Zone Act 1977; Foreshore and Seabed Endowment Revesting Act 1991, has led to a renewal of claims by Maori to ownership of the foreshore, and challenges to common law assumptions of sovereign prerogative over land within the low water and mean high water marks. See In re 90 Mile Beach [1963] NZLR 461 CA, but note Re Marlborough Sounds [1999] AUIndigLawRpr 25; (1999) 4 (1) Australian Indigenous Law Reporter 114.
[24] J Kelsey, ‘Rogernomics and the Treaty’ PhD Thesis 1990 University of Auckland, 723.
[25] Preamble and short title to 1975 Act.
[26] Ibid.
[27] New Zealand Maori Council v Attorney General [1987] 1 NZLR 641. See Jane Kelsey, ‘The Labour Government and the Treaty of Waitangi’ (1989) 2(37) Aboriginal Law Bulletin 7
[28] New Zealand Court of Appeal The Treaty of Waitangi in the Court of Appeal (June 1987) per President Cooke 34-37.
[29] Ibid, 35-36.
[30] Ibid, 37 at note 49.
[31] New Zealand Court of Appeal, The Treaty of Waitangi in the Court of Appeal (June 1987) Justice Richardson at 40 and Justice Somers at 23.
[32] New Zealand Maori Council v Attorney General [1994] 1 NZLR 641.
[33] Tainui Maori Trust Board v Attorney General 2 NZLR 513 (‘the coal case’).
[34] Aotearoa would possibly have a multi-tiered system of citizenship: Maori would belong to their tribal nations and to a state of Aotearoa; non-Maori would be citizens of the state of New Zealand or Aotearoa and could have the choice to participate in Maori processes.
[35] For example, UN Charter Articles 1, 55 and Chapters XI and XII, which relate to non-self governing territories’ progression towards self-government; the UN General Assembly Declaration on the Granting of Independence to Colonial Countries and Peoples (1960) and the work of the Decolonisation Committee.
[36] The Maori sovereignty/self-determination movement has mobilised on many fronts, strengthened by international momentum, but always having maintained mana Maori on the basis of the Maori text. For example, the NZ Maori Congress represents an iwi-based parallel to Pakeha (non-Maori) government and promotes dialogue about constitutional change. The Tino Rangatiratanga movement promotes sovereign Maori independence - although there is debate about which form this should take - and the de-colonisation of Maori through grassroots education.
[37] M Jackson, ‘Return to Sender: Analysis of the Crown's Treaty of Waitangi Settlement Policy’; manuscript, Nga Kaiwhakamarama I Nga Ture, Wellington December 1994.
[38] Mikaere, ‘Challenging the Mission of Colonisation: A Maori View of the Treaty of Waitangi and the Constitution’, (paper presented at the Liberty, Equality and Community: Constitutional Rights in Conflict Conference), Auckland, 20-21 August 1999, 17.
[39] Therefore, indigenous peoples of the world, stretch out and aim as high as you can!
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