The interpretation of the expressions tino rangatiratanga and kawanatanga have changed the destiny of New Zealand as a nation by providing the basis of a popular claim that the Treaty established a form of co-governance.
The Waitangi Tribunal reached the conclusion in its Te Raki report of 2014 on Northland hapu land claims that the Treaty did not cede sovereignty to the Crown but created two separate systems of government whereby Maori chiefs exercised tino rangatiratanga over Maori (Article 2), and the Crown exercised kawanatanga over the settlers (Article 1).
Kawanatanga in Article 1 was interpreted as governorship, being derived from kawana, the Maori word from governor. So the chiefs only ceded governorship, not sovereignty. Tino rangatiratanga in Article 2 was translated as Sovereignty. It was also extended to mean the chiefs’ sovereignty not just over land and possessions, but sovereignty over the Maori people, their treasures and virtually everything relating to Maori.
On page 526 of its report the Tribunal stated:
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 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. But the rangatira did not surrender to the British the sole right to make and enforce law over Māori.
This was not co-governance as it is understood today with shared governance. It was two parallel separate governments for different races with different rules. Presumably a type of apartheid.
On page 529 the Tribunal summarised its conclusions:
Summary of Conclusions
At various points in this chapter we have arrived at conclusions about the treaty’s meaning and effect in February 1840. As we have said, the agreement can be found in what signatory rangatira (or at least the great majority of them) were prepared to assent to, based on the proposals that Hobson and his agents put to them, and on the assurances that the rangatira sought and received. Here, we summarise our conclusions:
The rangatira who signed te Tiriti o Waitangi in February 1840 did not cede their sovereignty to Britain. That is, they did not cede authority to make and enforce law over their people or their territories.
The rangatira agreed to share power and authority with Britain. They agreed to the Governor having authority to control British subjects in New Zealand, and thereby keep the peace and protect Māori interests.
The rangatira consented to the treaty on the basis that they and the Governor were to be equals, though they were to have 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.
The rangatira agreed to enter land transactions with the Crown, and the Crown promised to investigate pre-treaty land transactions and to return any land that had not been properly acquired from Māori.
The rangatira appear to have agreed that the Crown would protect them from foreign threats and represent them in international affairs, where that was necessary.
Though Britain went into the treaty negotiation intending to acquire sovereignty, and therefore the power to make and enforce law over both Māori and Pākehā, it did not explain this to the rangatira. Rather, in the explanations of the texts and in the verbal assurances given by Hobson and his agents, it sought the power to control British subjects and thereby to protect Māori. That is the essence of what the rangatira agreed to.
The conclusions are surprising, especially after over 500 pages of closely considered information and arguments about the Treaty and its meaning. The resulting arrangement of having two separate governments, with any intermingling to be decided on a case by case basis, was not only completely impractical, but is not referred to or hinted at anywhere in the Treaty itself. It also defies logic. Article 3 of the Treaty – the granting of British citizenship by the Crown – can only be effective if the Crown is ceded sovereignty.
Fortunately, the conclusions of the Tribunal are only relevant to Treaty claims and are not binding in law or binding on the government. The finding that sovereignty was not ceded to the Crown in the Treaty has not been actioned by the government even though it was released in 2014. On the other hand it has formed the basis of the popular claim throughout every echelon of society that the Treaty didn't ceded sovereignty but created a type of co-governance.
The Lands case
The issue was resolved once and for all by the Court of Appeal (New Zealand’s highest court at that time) in the Land’s case, New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641, (1987) 6 NZAR 353
All five judges agreed that sovereignty was ceded to the Crown. The President of the Court, Sir Robin Cooke, side-stepped the differences between the texts and the shades of meaning, concentrated on the “spirit” of the Treaty, and summed up the situation:
In brief the basic terms of the bargain were that the Queen was to govern and the Maoris were to be her subjects; in return their chieftainships and possessions were to be protected, but sales of land to the Crown could be negotiated.
Somers J took the same approach:
We were referred to a number of valuable commentaries on this part of the Treaty and to the several determinations of the Waitangi Tribunal. They provide grounds for thinking that there were important differences between the understanding of the signatories as to true intent and meaning of article I of the Treaty. But notwithstanding that feature I am of opinion that the question of sovereignty in New Zealand is not in doubt.
He based this statement on Captain Hobson’s proclamation of 21 May 1840 asserting full sovereignty of Queen Victoria over the whole of the North Island by virtue of the rights and powers ceded to the Crown by the Treaty of Waitangi, and over the South Island and Stewart Island on the grounds of discovery. This was confirmed by a Royal Charter and Letters Patent from Queen Victoria.
The Waitangi Tribunal commented:
This was, we suspect, both an acknowledgement that the situation at Waitangi on 6 February 1840 was far from clear cut and a reminder that our law will not countenance any criticism of sovereignty that has been proclaimed in accordance with law. There were other reminders that it was the subsequent assertion of sovereignty by Britain that mattered legally, rather than whether Māori intended to cede it in te Tiriti.
Perhaps the Tribunal was making a fine point. The Court side-stepped the issue of the whether the Treaty itself ceded sovereignty, and relied on Hobson’s subsequent proclamation and assertion of sovereignty in 1840, while the Treaty was still being signed. Therefore the Tribunal’s conclusion was still valid.
That may be, but the timeline of events is relevant. The Treaty was signed in Waitangi on 6 February (52 signatures) and was circulated around New Zealand for signature during the following months (over 500 signatures). Hobson’s assertion of sovereignty, acknowledged by legal experts to be valid and lawful, was in May 1840 (three months later) and became legal in October 1840. Given the timeline, the doubt about the meaning of the two versions of the Treaty, and the parties’ lack of understanding of its terms, it is not surprising that the courts considered the undisputable assertion of sovereignty by Hobson to be the final and undisputed word on the matter.
The Tribunal also referred to the Whales case of 1995, in which the Ngāi Tahu Māori Trust Board challenged the Director-General of Conservation over the allocation of an additional whale-watching licence at Kaikoura (section 4 of the Conservation Act 1987 requiring the Crown to “give effect’ to the principles of the Treaty”) Cooke P acknowledged the various interpretations of kawanatanga in Article 1 and added, somewhat tersely:
Clearly, whatever version or rendering is preferred, the first article must cover power in the Queen in Parliament to enact comprehensive legislation for the protection and conservation of the environment and natural resources. The rights and interests of everyone in New Zealand, Maori and Pakeha and all others alike, must be subject to that overriding authority.
The Tribunal criticised the Court’s decision on the basis that there was no discussion of the issue and it lacked the degree of scrutiny of the Treaty’s meaning that characterises more recent scholarship.
In stage 2 of the Te Raki enquiry in 2022 the Waitangi Tribunal confirmed that the Crown agreed to the separate governance arrangement in the Treaty with the chiefs having tino rangatiratanga over their own people. It then went on to conclude that by subsequently asserting sovereignty over the Maori people the Crown breached its obligations under the Treaty, as well as committing breaches of the Treaty in respect of land and other matters.
The conclusions of the Tribunal are merely recommendations to the government and are not binding in law. However, they provide an enormous amount of encouragement to those who wish to promote the concept of co-governance, who do not understand that the conclusions of the Tribunal are not binding, and do not know that irrespective of the meaning of the Treaty the British Crown asserted indisputable sovereignty over Maori even whilst the Treaty was travelling around the country seeking further signatures.
