Enhancing the mana of Te Tiriti
5 December 2023
Opinion: There is no need for the Act Party’s ‘principles’, because there are not two treaties, says Professor Margaret Mutu. There is only one – Te Tiriti o Waitangi
ACT Party leader David Seymour has announced his party’s Treaty Principles bill would go through the parliamentary process “to enhance the mana of the treaty” and to “debate what our founding document means in the modern age”.
To enhance the treaty and to debate its meaning, we must understand what it is and know what it says. A treaty is an agreement between two sovereign nations – ours was the agreement reached between the rangatira of the hapū and Queen Victoria. It was signed because the treaty promised to provide the solution to a problem that had been troubling the rangatira for some time.
In the early 1800s, the population of the country was in the hundreds of thousands. Few were Pākehā. Mana – the power, authority, and control that includes sovereignty – resided in the rangatira of the many hundreds of hapū throughout the country and did so until at least the 1850s. The legal system was the tikanga of the hapū, an ancient system underpinned by common values.
Most of the early Pākehā visitors came to the North. Some were uncivilised and lawless, especially those congregating in Kororāreka (Russell), known in the early 1800s as “The Hellhole of the Pacific”. Rangatira of the North came together frequently as Te Whakaminenga o Ngā Hapū o Nu Tireni (The Confederation of the Nations of New Zealand) and often discussed the increasing lawlessness of Pākehā. They undertook a diplomatic mission to meet King William IV where they established a diplomatic alliance with him. The king sent a British Resident who acted as an ambassador.
Most New Zealanders don’t know about He Whakaputanga because Pākehā authorities refused to acknowledge it until Prime Minister Jacinda Ardern did so in 2018. In 2014, the Waitangi Tribunal issued a report explaining the constitutional importance of He Whakaputanga and Te Tiriti.
He Whakaputanga o te Rangatiratanga o Nu Tireni 1835
Unable to control lawless Pākehā, the Resident drafted the Declaration of Independence which was translated into He Whakaputanga o te Rangatiratanga o Nu Tireni of 1835. It set out where power and authority for the country lay and the processes for decision-making and law-making.
It declared that the rangatiratanga and the mana of the country (sovereignty in the English draft) resided with the rangatira of Te Whakaminenga in respect of all their lands. It declared that the rangatira would not allow any other persons or any other ‘kāwanatanga’ or governance mechanism to have law-making powers over their lands. In the Declaration Te Whakaminenga undertakes to meet every autumn at Waitangi for law-making purposes, invites rangatira from the south to join them, thanks King William IV for recognising their flag and asks him to send them an ambassador to help them understand his people, for whom they are responsible.
He Whakaputanga was first signed by 35 northern rangatira on October 28, 1835, and by 15 more subsequently including two southern rangatira, Te Wherowhero (later Potatau Te Wherowhero, the first Waikato-Tainui king), and Te Hāpuku of Ngāti Kahungunu. King William IV acknowledged He Whakaputanga and Māori continue to uphold it as confirming Māori sovereignty.
Commemorations are held every October 28 at Waitangi. The 2016 report of Matike Mai Aotearoa on constitutional transformation sets out He Whakaputanga and its addendum, Te Tiriti o Waitangi, as the constitutional basis of Aotearoa New Zealand. Most New Zealanders don’t know about He Whakaputanga because Pākehā authorities refused to acknowledge it until Prime Minister Jacinda Ardern did so in 2018. In 2014, the Waitangi Tribunal issued a report explaining the constitutional importance of He Whakaputanga and Te Tiriti.
Many of the same rangatira who had signed He Whakaputanga, signed Te Tiriti. So did several hundred others around the country. Te Tiriti confirms He Whakaputanga and sets out the conditions under which subjects of the Queen will be permitted to migrate to this country.
Te Tiriti o Waitangi 1840
By 1840, lawless Pākehā were still being lawless. The rangatira insisted their lawlessness be stopped. So, Queen Victoria sent another representative, this time a Governor, William Hobson. He drafted a treaty for missionaries to translate for the rangatira. That translated document is Te Tiriti o Waitangi. It was Te Tiriti that was discussed, agreed to and first signed at Waitangi on February 6 1840. Many of the same rangatira who had signed He Whakaputanga, signed Te Tiriti. So did several hundred others around the country. Te Tiriti confirms He Whakaputanga and sets out the conditions under which subjects of the Queen will be permitted to migrate to this country.
In Te Tiriti, the rangatira devolve to the Queen the responsibility to prevent the lawlessness of her subjects who had recently arrived in and would continue to come to New Zealand. The Queen would do this using the mechanism the missionaries called ‘kāwanatanga’, a controlling mechanism that would apply only to Pākehā living in this land. It would not apply to Māori because they already had their own law. Te Tiriti guarantees that the Queen will protect Māori from Pākehā lawlessness and afford them the same rights of citizenship that her subjects enjoy. Māori welcomed some aspects of British culture, such as literacy and technology, but they rejected other aspects, including the false assumption that Europeans were superior to all other people.
Te Tiriti o Waitangi is a treaty of peace and friendship between two sovereign nations. The United Nations Declaration on the Rights of Indigenous Peoples is the blueprint for implementing Te Tiriti.
Hobson’s proclamation was used to justify the British overrunning this country and setting up an illegal parliament, judicial system, and governance mechanisms that promoted the dispossession of Māori. Parliament and the judiciary rely on that proclamation to this day.
British violation of He Whakaputanga and Te Tiriti
Though British immigration took place as Māori promised it could, the Queen (and her descendants) have never been able to stop the lawlessness of her subjects in New Zealand and have refused to honour Te Tiriti.
The first serious violation of Te Tiriti took place just three months after it was first signed. On May 21 1840, without informing or seeking the permission of the rangatira, Hobson reverted to the Doctrine of Discovery to issue a proclamation in English that the Queen had now taken control of New Zealand. The Doctrine of Discovery, which is now outlawed internationally, authorised Europeans to use racism and White supremacy to dispossess Indigenous Peoples throughout the world of their lands, resources, power, and lives.
Hobson’s proclamation was used to justify the British overrunning this country and setting up an illegal parliament, judicial system, and governance mechanisms that promoted the dispossession of Māori. Parliament and the judiciary rely on that proclamation to this day. It was used to deliberately reduce Māori to poverty, deprivation, marginalisation, and permanent servitude. It is called colonisation. Until we address and try to deal with the constitutional, social, and economic injustices which it creates, we will fail to achieve the peace Te Tiriti promised.
Māori know that taking back control of our lives is fundamental to our survival as a people. Many of our younger generations are intensely proud of their heritage. They demand that government hand back our resources so we can make our own decisions about our lives. We know that the sacred covenants, He Whakaputanga and Te Tiriti, guaranteed we would be able to do that. We have never forgotten the solemn promises that bind us and the vision our ancestors had for Māori and Pākehā to live together in peace. Māori have always and will always fight to end British colonisation. In the words of Rewi Maniapoto, ka whawhai tonu mātou, ake, ake, ake – we will fight forever, and ever, and ever.
A Note on the irrelevant English-language document called the ‘Treaty of Waitangi‘
The English language document that Hobson drafted is known as The Treaty of Waitangi, but it’s not the treaty that was agreed to. It was his wish list and included that our ancestors would cede sovereignty to the Queen. Our ancestors did not agree, at Waitangi or anywhere else, to give their mana and tino rangatiratanga (which encompasses sovereignty) to anyone.
Not only is that humanly impossible, it’s also logically absurd. In times of peace, human beings do not transfer the power and authority that guarantees their existence and wellbeing to a complete stranger. It is logically absurd that the numerous nations living in Aotearoa who hugely outnumbered the few recently arrived Pākehā, and were in complete control of the country, would consider handing their control over to a person living on the other side of the world that they had never met. The missionaries who drew up Te Tiriti in the Māori language excluded any notion of ceding sovereignty, tino rangatiratanga or mana, and did not discuss it.
Only the Māori language document was discussed and agreed to. The English language Treaty was only ever a draft, and is irrelevant. The Waitangi Tribunal in its 2014 report He Whakaputanga me Te Tiriti – The Declaration and the Treaty concluded that the rangatira did not cede sovereignty when they signed Te Tiriti o Waitangi. And neither have their descendants.
The ‘principles of the treaty’ are the result of trying to reconcile two irreconcilable documents, Te Tiriti o Waitangi and Hobson’s draft Treaty of Waitangi. It led to some very muddled judicial thinking until the Waitangi Tribunal provided the facts in its 2014 report. There is no need for ‘principles’ because there are not two treaties. There is only one, Te Tiriti o Waitangi.
Professor Margaret Mutu (Ngāti Kahu, Te Rarawa, Ngāti Whātua), Professor of Māori Studies, University of Auckland
This article reflects the opinion of the author and not
necessarily the views of Waipapa Taumata Rau University of Auckland.
This article was first published on Newsroom, Enhancing the mana of Te Tiriti, 2 December, 2023
Margo White I Research communications editor
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