LAWPUBL 422 Contemporary Tiriti Issues 2024

New Zealand’s Magna Carta: Navigating the Recognition of He Whakaputanga o Niu Tireni Within Domestic Law and Pathways for Māori Self-Determination.

He Whakaputanga has long been neglected in legal scholarship, given that recognition risks undermining the legitimacy narrative that the foundation of the modern New Zealand constitution began with the “cession” of sovereignty at Waitangi on 6 February 1840.¹ This myth of cession has stubbornly remained within the legal system, which explains why the legislature and judiciary refuse any legal recognition of He Whakaputanga.²  Nonetheless, He Whakaputanga remains significant, particularly to Ngāpuhi, given that the document reaffirms tikanga and Māori principles of power.³

This essay briefly explores He Whakaputanga’s historical context before discussing its current status within domestic law. Following this analysis, this essay will propose and examine various methods of granting He Whakaputanga legal recognition, including statutory recognition and judicial interpretation. Ultimately, this essay emphasises that proper recognition of He Whakaputanga cannot be achieved within the existing constitutional settings. Instead, constitutional transformation must occur to honour the mana of He Whakaputanga and the intentions of the rangatira who signed the document.

A. Signing of He Whakaputanga

The early nineteenth century saw rapid growth in contact between Māori and Europeans, driven by an increase in traders and missionaries.⁴  Māori primarily maintained control over their relationships with Pākehā, expecting newcomers to respect local tikanga.⁵  This was evident, for example, through the 1831 petition to King William IV, signed by 13 rangatira, which raised concerns about the lawlessness of British subjects.⁶

Britain subsequently appointed James Busby as British Resident to address disorder among its subjects.⁷  However, Busby sought something more significant – to establish a national congress to pass laws and resolve disputes in a manner similar to British courts.⁸  Busby was aware that Māori political organisation was fundamentally based around the hapū, however, he believed a formal assembly would serve the Crown’s interests while controlling British subjects in a land where he lacked legal authority.⁹  Despite Busby’s ambitions, the idea of a unified polity was not a new phenomenon amongst northern rangatira.¹⁰  Māori communities had engaged in various new methods of governance, including regular meetings with other hapū, to discuss and debate pressing concerns. Busby’s efforts culminated in 1835 when 34 rangatira signed He Whakaputanga at Waitangi. Recognising He Whakaputanga’s significance, Britain acknowledged its validity and the sovereign authority of the newly declared United Tribes of New Zealand.¹¹

While He Whakaputanga is often regarded as the “parent” of Te Tiriti o Waitangi, its importance transcends mere chronological precedence.¹²  He Whakaputanga was an unambiguous assertion of Māori mana and sovereignty, articulated through the concept of “tino rangatiratanga” (absolute chieftainship) enshrined within the document.¹³ Moana Jackson asserted that Te Tiriti only reaffirmed the ideals that rangatira had subscribed to within He Whakaputanga, underscoring its enduring significance in the ongoing pursuit of Māori self-determination.¹⁴

B. He Whakaputanga in Domestic Law Today

Despite its importance as a constitutional document for Māori, He Whakaputanga has little to no recognition within domestic law. The Court of Appeal has firmly established the Treaty of Waitangi as the starting point for the legitimacy narrative of New Zealand’s constitutional arrangements.¹⁵  In Easton v Wellington City Council, the Court clarified that He Whakaputanga neither affects judicial jurisdiction nor the applicability of legislation.¹⁶  These decisions underscore the prevailing narrative of cession, which views Te Tiriti as a valid transfer of sovereignty that nullifies any effects of He Whakaputanga.

While there has been a tendency to neglect and dismiss He Whakaputanga within academic debate, the document has nevertheless attracted recent attention due to the Te Paparahi o Te Raki report released by the Waitangi Tribunal.¹⁷ Here, the Tribunal strongly emphasised that authority remained with hapū before and after the signing of He Whakaputanga, the first time that any institution recognised the legitimacy of the document.¹⁸  Perhaps the obiter of Ellis J in Easton emblematise the future of He Whakaputanga within domestic law:¹⁹

Possibly, there are constitutional conversations [around He Whakaputanga] – perhaps of the kind envisioned by Mr Easton – yet to be had. But for now, the courts are not the place for that conversation, and the Court of Appeal’s decision is the word that is binding on me.

Recognition of He Whakaputanga within domestic law faces significant challenges, given that Parliament possess virtually all lawmaking power.²⁰ Any recognition of He Whakaputanga in statute relies heavily on Parliament’s political will, a task complicated by historical narratives that remain deeply entrenched within the legal system.²¹  However, as discussed below, alternative legal avenues exist that could be pursued as an alternative to statutory recognition.

A. Legislative Change

The primary way that the Crown could recognise He Whakaputanga within domestic law is through statute. However, any statutory recognition of He Whakaputanga should uphold the mana of the document.²²  This means that the original intentions of the rangatira who signed He Whakaputanga ought to be honoured.
1. Amending existing legislation requiring consideration of principles
To circumvent binding obligations, the Crown opted to introduce “principles” of the Treaty of Waitangi into legislation instead of acknowledging its total weight. These abstract principles aimed to capture the sentiments and intentions of the Treaty. The Court of Appeal in Lands further developed the substance of these principles to include reciprocal obligations of partnership, reasonableness, and good faith. As the jurisprudence developed, these principles evolved into the widely recognised partnership, protection, and participation framework.
Similarly, the Crown could consider incorporating legislative principles that recognise the underlying sentiment and intentions behind He Whakaputanga within specific Acts, such as the Resource Management Act (RMA). Drawing from key themes highlighted within Te Paparahi o Te Raki, such principles could require the Crown to honour concepts like mana (authority/status), he whakaminenga (collective unity), kīngitanga (sovereign power and authority) and rangatiratanga (absolute sovereignty) in decision-making. Additionally, a principle of partnership could acknowledge the historical alliance between Māori and the Crown, as reflected in He Whakaputanga.
While politically favourable, there are issues with distilling He Whakaputanga into abstract principles instead of textual interpretation. Abstract principles inherently require the judiciary to define and develop its substance. Judicial interpretation primarily borrows from Pākehā legal doctrines, which often diverge from Te Ao Māori perspectives and values. For example, one focal theme within He Whakaputanga is the concept of sovereignty. In Te Ao Pākehā, sovereignty resides with civil government, which is hierarchical and supreme that all must conform to. In Te Ao Māori, sovereignty has been retrospectively interpreted to mean mana, which encompasses authority and power. Given the judiciary is an innately Pākehā institution, there is a significant risk of the courts misconstruing He Whakaputanga, which only serves to undermine the document’s mana.
2. Act of Parliament
An alternative approach to the principles-based method could involve drafting a new statute incorporating He Whakaputanga. Such an Act would legally bind the Crown to abide by Māori assertions of sovereign power and authority over their land and protect tangata whenua from any threats to their mana.
While an Act of Parliament holds significant legal authority in New Zealand’s legal system, statutory recognition of He Whakaputanga would be a monumental task. Politically, the Crown has demonstrated little inclination to share power with Māori, as evident by events like the Foreshore and Seabed controversy. Despite the Court of Appeal affirming that the transfer of sovereignty did not affect customary property, the Crown passed legislation extinguishing customary rights to the foreshore and seabed. Moreover, the current Sixth National Government has actively resisted co-governance efforts, diminishing the prospects of recognising He Whakaputanga through legislation.
Another difficulty with statutory recognition is the potential impact on broader Māoridom. While He Whakaputanga contains signatures outside Tai Tokerau, it is often regarded as Ngāpuhi-centric, as reflected by the Ngāpuhi tikanga and dialect evident throughout the document. There will be a challenge in ensuring the document demonstrates the tikanga of all iwi while upholding the original intentions of the signatories. As such, any statutory recognition of He Whakaputanga must not favour one iwi at the expense of wider Māoridom.
Additionally, the Te Paparahi o Te Raki report highlights significant differences between the Māori and English texts of He Whakaputanga. The English version – the Declaration of Independence – suggests the document was a unilateral declaration by the signatories rather than an enforceable agreement or Treaty. Meanwhile, Māori interpreted He Whakaputanga as an enhancement of their mana while deepening their alliance with Britain. Despite these discrepancies, the Tribunal concluded He Whakaputanga as the authoritative text, acknowledging both the clear intentions of the signatories and the need to honour the historical context.
B. Executive Decision-making

1. Policy decisions
An alternative to legislative action could involve integrating He Whakaputanga into the policy process by leveraging the role of the public service. The public service, comprising government departments, plays a vital role in formulating and executing government policies while delivering services to the public. Embedding He Whakaputanga considerations throughout the policy process could offer a more viable and practical approach to legal recognition.
Some government agencies, such as the Ministry of Business, Innovation and Employment (MBIE), already recognise Te Tiriti obligations in the policy process by working with iwi and hapū Māori. Similarly, departments could acknowledge He Whakaputanga’s validity by aligning their mission statements with the four fundamental concepts of the document. This approach ensures that departments actively consider any implications on He Whakaputanga throughout the policy process. While this approach lacks any direct legal enforcement of He Whakaputanga, it ensures that the government is guided by a proper understanding of the obligations under the document when passing legislation.
However, there are challenges to implementing He Whakaputanga in policy. For instance, given the limited public awareness of the document, there is a risk of misinterpretation. Government agencies may conflate their He Whakaputanga and Te Tiriti obligations despite the distinct themes present within the two documents. Additionally, without statutory recognition or jurisprudence, interpreting and applying He Whakaputanga in policy frameworks may prove difficult for departments to interpret and apply the document. Thus, while integrating He Whakaputanga into the policy process is a potential indirect avenue towards legal recognition, it must be done carefully to avoid misinterpretation.
C. Judicial Interpretation

1. He Whakaputanga as an interpretative aid
Statutory interpretation holds immense significance in shaping the legal landscape of Aotearoa, driven by the judicial movement towards the purposive approach when ascertaining the meaning of a provision. Within the purposive approach, the Court actively considers “legislative aids” in interpreting the statute, such as legislative history, context, and consistency with existing rights. While statute remains at the apex of lawmaking, He Whakaputanga could indirectly influence the legal system by serving as an interpretive aid in statutory interpretation.

There are certain limitations to the purposive approach. For instance, judges may not use this discretion to justify rewriting a statute. Glazebrook J necessitated that within this ‘gap-filling’ exercise, any conclusion that a judge arrives at when interpreting legislation must be envisaged by Parliament. This limitation restricts the scope for applying He Whakaputanga, particularly in those instances where a provision clearly contradicts the obligations under the provision. Nonetheless, in matters impacting Māori rights, considerations of He Whakaputanga may indirectly strengthen the document’s position within the law.
However, the judiciary has been reluctant to recognise the status of He Whakaputanga as an interpretive aid. For instance, in Ngaronoa, the Court of Appeal refused to accord He Whakaputanga discrete status as an extrinsic aid in interpreting statutes. In Easton, the High Court affirmed that He Whakaputanga had no effect on judicial jurisdiction, nor did the document alter the applicability of statutes. This stance suggests that statutory recognition is a prerequisite for He Whakaputanga to inform statutory interpretation. As illustrated within Ngaronoa, the courts are unwilling to subsume He Whakaputanga over Te Tiriti as the starting point of New Zealand’s constitutional legitimacy narrative without Parliament doing so first.
 

¹Waitangi Tribunal The Report on Stage 1 of the Te Paparahi o Te Raki Inquiry (Wai 1040, 2014) at 195.
²Ngaronoa v Attorney-General [2017] 3 NZLR 634 at [59].
³At [59].
⁴Waitangi Tribunal Te Paparahi o Te Raki, above n 1, at 12.
⁵At 157.
⁶At 157.
⁷At 57.
⁸At 329.
⁹At 157.
¹⁰At 157.
¹¹At 184-185.
¹²At 503.
¹³At 12.
¹⁴At 430.