Rangatiratanga and the Crown

Lana Simmons-Donaldson looks at the evolution of rangatiratanga and what it means for the Crown through three very different Waitangi Tribunal reports. One looks at claims from central North Island iwi that highlight the impact of sustained historical Treaty breaches, the second finds that 1840 rangatira did not cede their rangatiratanga (autonomy), and the third is a contemporary claim that recommends a Māori-led review of the Māori Development Act.

The Waitangi Tribunal reports explored in this article are the He Maunga Rongo: Report on Central North Island Claims Stage I (2008); He Whakaputanga me te Tiriti: The Declaration and the Treaty (2014); and Whaia Te Mana Motuhake / In Pursuit of Mana Motuhake: Report on the Māori Community Development Act Claim (2014).

The He Maunga Rongo inquiry is the Tribunal’s biggest ever inquiry, addressing more than 120 Treaty claims by 50 iwi and hapū, living in a region that stretches from the Bay of Plenty coastline to just south of Lake Taupō and eastwards across the Kaingaroa Plains.

The He Whakaputanga me te Tiriti inquiry is the first inquiry where the Tribunal has heard historical claims from the descendants of the rangatira who signed Te Tiriti. The Tribunal was also the first to hear and test the full range of evidence about the Treaty’s meaning and effect in February 1840. 

The Whaia Te Mana Motuhake report was released in 2014. The claim was brought by the co-chairs of the New Zealand Māori Council and representatives of district Māori councils.

The claim focused on whether the Crown was breaching the Treaty in its review of the Māori Community Development Act 1962 and in its development and administration of the Māori Wardens Project, launched in 2007. The Tribunal was one of the first to consider the United Nations Declaration on the Rights of Indigenous Peoples.

He Maunga Rongo inquiry

The key Treaty breach in respect to this inquiry was the Crown’s failure, over more than a century, to facilitate community titles to land, which would have enabled hapū to make community decisions about land management, development, sale, and lease. The Tribunal also found the breach had been mitigated by provisions of the Te Ture Whenua Maori Act 1993.

The Tribunal consisted of Judge Caren Fox (presiding), John Baird, Gloria Herbert, and Dr Ann Parsonson. Judge Fox highlighted the importance of the inquiry in raising major twentieth-century issues “which often have their roots in Crown Treaty breaches of the nineteenth century,” she said.

The Tribunal concluded that the Crown’s guarantee to Māori of the same rights as other British subjects included the right to self-government through representative institutions. The Tribunal concluded that given the sheer breadth and number of lost opportunities between 1840 and 1920, the historical evidence was overwhelmingly that the Crown committed a sustained breach of the Treaty.

Judge Fox said the Tribunal upheld the claimants fundamental grievance “that the root of all Treaty breaches in their rohe was the Crown’s failure to give effect to the Treaty guarantee to Māori of tino rangatiratanga (autonomy), and their entitlement under article 3, to the same rights and powers of self-government as settlers”.

The Tribunal also found that the Treaty guaranteed and protected the full authority (tino rangatiratanga) of Māori over their lands, people, treasures, and affairs.

Judge Fox said tribes of the central North Island have had a form of land title imposed on them “that broke the tino rangatiratanga of their communities and led to real or virtual loss of much of their land”.

“Central North Island iwi and hapū have been denied their Treaty right to develop their properties and taonga, and to develop as a people. They have not been given the same state assistance or its equivalent, as was provided to settlers,” she said. The Tribunal recommended that Māori autonomy be given effect and that the Resource Management Act 1991 be amended to be made consistent with the Treaty.

In addition, the Tribunal concluded that Māori land was often not taken as a last resort or in exceptional circumstances of the national interest. “Rather, because of the lesser requirements for notification, consultation and opportunities to object, Māori land (when wanted for a public work) tended to be taken as a first or early resort. This was in breach of the Treaty.”

The Tribunal found that the Crown had breached the Treaty in failing to recognise and provide for the customary rights and Treaty interests of central North Island Māori in the natural resources of the region. “In the area of resource management, the Tribunal is of the opinion that central North Island Māori seek the right to negotiate arrangements in accordance with the principle of partnership and the Treaty of Waitangi.”

He Whakaputanga me Te Tiriti

The He Whakaputanga me Te Tiriti: The Declaration and the Treaty report encompasses all territories north of Auckland that have not been the subject of previous Waitangi Tribunal reports. The Tribunal consisted of Judge Craig Coxhead (presiding), Joanne Morris, Kihi Ngatai, Professor Ranginui Walker, Keita Walker, and Professor Richard Hill.

The Tribunal’s essential conclusion was that on February 1840, the rangatira who signed Te Tiriti did not cede their sovereignty. That is, they did not cede their authority to make and enforce law over their people or their territories. Rather, they agreed to share power and authority with the Governor.

Judge Coxhead said rangatira “agreed to a relationship: one in which they and Hobson were to be equal – equal while having different roles and different spheres of influence … In essence, rangatira retained their authority over their hapū and territories, while Hobson was given authority to control Pākehā.”

The Tribunal made no conclusions about the sovereignty that the Crown exercises today or about how the Treaty relationship should operate in a modern context.

Judge Coxhead said that while conclusions may seem “radical, they are not, our report represents continuity rather than dramatic change.

“Leading scholars, both Māori and Pākehā, have been expressing similar views for a generation or more. When all of the evidence is considered, including the texts as they were explained to rangatira, the debates at Waitangi and Mangungu, and the wider historical context, we cannot see how other conclusions can be reached.”

In pursuit of mana motuhake

The Whaia Te Mana Motuhake / In Pursuit of Mana Motuhake: Report on the Māori Community Development Act Claim was released in 2014. The claim focused on two issues: the Crown’s ongoing review of the Māori Community Development Act 1962 and the Crown’s role in the development and administration of the Māori Wardens Project, launched in 2007. The Tribunal comprised Judge Caren Fox (presiding), Ron Crosby, Miriama Evans, Sir Hīrini Moko Mead, and Tania Simpson.

Claimants alleged that the Crown, through Te Puni Kōkiri, in reviewing the Māori Community Development Act 1962 and the role of Māori Wardens, acted in a manner inconsistent with the principles of the Treaty.

Judge Fox said the Tribunal largely upheld the claim and concluded, after a full historical review, that the Māori Community Development Act 1962 and its amendments embody a compact that gave statutory recognition and powers to institutions established by the Māori people for their own self-government. “This compact was negotiated between 1959 and 1963 by Māori leaders and the Crown. It reflects the Crown’s recognition that Māori rangatiratanga or Māori autonomy and self-government must be protected and provided for at all levels (that is, local, regional, and national), as required by article 2 of the Treaty of Waitangi,” she said.

The Tribunal made the primary recommendation that the Crown accept that the recognition of Māori self-government and Māori self-determination reflected in the Māori Community Development Act 1962 must remain in legislation and should underpin all future administration, policy development, and law reform in this area.

Judge Fox said the Tribunal considered the relevant principles of the Treaty of Waitangi and noted that, “we are also one of the first tribunals to be asked to consider how, if at all, the United Nations Declaration on the Rights of Indigenous Peoples has informed those Treaty principles.”

The Tribunal recommended that any future review of the Māori Community Development Act be led by Māori – specifically the New Zealand Māori Council – and that all reasonable costs flowing from the review and consultation process should be met by the Crown. Once the council had developed its own proposals for legislative reform and carried out extensive consultation with Māori communities, then it and the Crown should collaborate to reach a negotiated agreement.

The Tribunal further recommended that the Māori Wardens Project continue but that an interim advisory group or governance board be appointed from among the New Zealand Māori Council and Māori Wardens to provide Māori community oversight of the funding, training, and other support delivered under the project.

What this means for the public sector

These reports have profound implications for the public sector and how it deals with Māori as tangata whenua and as the Crown’s Te Tiriti partner. The reports confirm the central right to rangatiratanga of Māori, as it was guaranteed in Te Tiriti o Waitangi, and reinforces findings with sound historical evidence and international agreements like the Declaration on the Rights of Indigenous Peoples. The challenge for the public sector will be in accepting, developing, and negotiating a new era of partnership arrangements with Māori.