Many of the Treaty claims or slogans such as co-governance and partnership, and those based on the United Declaration on the Rights of Indigenous people (UNDRIP) such as self-determination and the He Puapua proposal, have fundamental shortcomings:
- They are based on a misunderstanding of the constitution of New Zealand.
New Zealand’s constitution today, as explained above, is based on the absolute sovereignty of the Crown and, has been since 1840.
- Claims of co-governance or partnership with Maori or self-determination for Maori would breach the the absolute sovereignty of the Crown as required by the constitution and are therefore not possible.
In any case, the claims are misconceived in fact and law. Here are some examples:
Self-determination/He Puapua
The claim for self-determination and the He Puapua proposal are specifically based on selecting parts of UNDRIP, ignoring the parts that don’t fit in with the narrative, and ignoring the fact that article 46 states that:
“nothing in this Declaration may be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States”.
In other words UNDRIP, which is not part of New Zealand domestic law, cannot be used to challenge the existing constitution of a sovereign state.
The other important reasons why UNDRIP cannot apply can be seen here:https://thetreatyfacts.blogspot.com/p/he-puapua-and-undrip-fatal-fallacy.html
Co-governance
It is also an "invisible" fact that in January 2002 the Tribunal released its Stage 2 Te Raki report in which it restated the above view. However, it went on in the report to accept that in fact and in law the Crown successfully asserted full sovereignty over New Zealand through Lieutenant-Governor Hobson's assertion of sovereignty in 1840, a few months after the signing of the Treaty in Waitangi. That curtailed the granting of tino rangatiratanga over Maori in the Treaty - and constituted part of the claim for compensation. The Tribunal supported the various court judgments in the matter.
This fact is invisible because it has not been reported anywhere in the media, presumably because it undermines the whole basis of the co-governance claim.
For full details of the Te Raki saga:
https://thetreatyfacts.blogspot.com/p/the-sovereignty-solution.html
Partnership
The claim of a partnership between Maori and the Crown derives from some loose words in the Court of Appeal in the 1987 Lands case where the Court, somewhat unwisely, used the expression to describe the Crown/Maori relationship as ‘akin to partnership”.
This exaggeration was seized on by Treaty supporters and has even found its way into a multitude of official government documents and policy statements. (It is even possible that “parties in the Treaty” has simply been confused with “partners in the Treaty”). The comments were obiter dicta (not binding) and were made when the court was seeking to identify relevant principles of the Treaty. It has no relevance to the the meaning of the actual Treaty and the rights and obligations in that document.
Finally, and most importantly the constitution of New Zealand is based on the absolute sovereignty of the Monarch. Shared sovereignty, whether as a partnership or co-governance, is impossible.
See: https://thetreatyfacts.blogspot.com/p/co-governance-what-does-it-mean.html
https://thetreatyfacts.blogspot.com/p/partnership-v-equal-rights-three.html
