Treaty Partnership and Sovereignty

Posted on September 1, 2013
By Dr Muriel Newman

Tribal leaders continue to make on-going demands for new rights and privileges based on claims of Treaty partnership and Maori sovereignty. The question that needs to be asked is whether such partnership and sovereignty claims are valid. Two examples of their use will suffice.

The first example, which uses the Treaty partnership argument, is the situation in the Far North where iwi leaders are claiming guardianship rights over the region – “as affirmed in Te Tiriti o Waitangi as Treaty partners”. They claim that a Treaty partnership gives them the right to seats at the ‘top’ council table rather than any Maori working committees: “Relegation to the side tables is not the partnership envisaged by the treaty, and we should not accept anything less than what the Treaty proposed”.¹

Far North iwi are supporting the Mayor in his bid to replace the District Council and the Northland Regional Council with a Unitary Authority – and it’s not hard to see why. They have been promised a third of the seats on the new council – that is 3 seats at the nine-seat council table, will be reserved for Maori.² It seems like a nice arrangement – the Mayor will get a share of the Regional Council’s $120m investment portfolio, and unelected iwi will get to occupy a third of all the council seats. As a block, 3 out of 9 seats is probably enough to swing most council decisions.

The former long-serving Northland MP John Carter (who is standing as a candidate for the Far North mayoralty in the upcoming election) rejected the proposal as divisive, calling reserved Maori seats a path to “apartheid”. However, the iwi leaders’ representative Rangitane Marsden, responded by predictably claiming he was a racist.³

But in his response, Mr Marsden also exposed the arrogance of iwi leaders towards those Maori who work hard and get themselves elected: “Anybody who’s voted onto the council who happens to be Maori is then perceived by the council to be speaking for all Maori. When in fact they’ve never been mandated by Maori to speak for them. Because you’re a brown face at the table does not give you a mandate to speak for Maori. What iwi are saying is ‘no, no, we mandate the people who speak for us, nobody without a mandate can do this, if you are elected by the general population and just happen to be Maori it doesn’t make you the Maori representative at all’. That’s a myth that needs to be dispelled.”

In other words, iwi want their own representatives on the council, but they aren’t prepared to gain that representation the democratic way – by doing the hard yards and winning the support of voters in their communities in a fair election. Instead want dedicated Maori seats – a third of the seats on the new council to be reserved for them, with the Maori representatives selected by them. Their approach, using their ‘Treaty partnership’ claim to justify the reserved seats, will ensure their self-interested projects can be imposed onto the district – funded by all ratepayers. The second example, involves the use of the Maori sovereignty argument, and exposes the underlying agenda of the elite leaders of Maoridom.

In a lecture entitled Te Tiriti o Waitangi in a Future Constitution – Removing the Shackles of Colonisation, prominent iwi leader Professor Margaret Mutu of Auckland University, not only claims that Maori did not cede sovereignty to the Crown, but also that the Treaty settlement process is not about settling claims and providing millions of dollars in compensation, but is simply a means to “legally extinguish all historic Māori claims against the Crown as cheaply and as expeditiously as possible”.⁴ She calls the Treaty settlement process “deeply racist, dishonest and yet another gross violation of Te Tiriti o Waitangi.”

Professor Mutu is the chairman of the Independent Constitutional Transformation Working Group, which was set up by iwi leaders to prepare a model constitution for New Zealand based on the Treaty of Waitangi.

In her speech, Professor Mutu explains how iwi now enjoy the backing of the United Nations: “Faced with the fact that Māori have never ceded sovereignty, National Iwi Chairs Forum simply followed on from decisions of previous national Māori gatherings. We had to take the necessary steps to bring about constitutional transformation. However now we also have the backing of the United Nations Declaration on the Rights of Indigenous Peoples. The New Zealand government refused to support it for many years but finally signed up to it under international pressure in 2010. It provides a strong moral directive from the international community. The Declaration has forty six articles setting out the human rights and fundamental freedoms of indigenous peoples, including Māori. It provides a blueprint for the implementation of Te Tiriti o Waitangi and is a clear set of instructions for the removal of the shackles of colonisation that have imprisoned Māori for over 150 years.”

Professor Mutu shares their vision of independence: “Implementing the Declaration and upholding the mana and rangatiratanga of hapū would go some way to putting Te Tiriti o Waitangi back in its proper place. Once that happens, and it will, Māori will be free: free to be who we are, free to identify and organise ourselves according to our own structures and institutions, free to live under our own values and our own tikanga (laws), free to plan for and decide our own futures. Our language, culture, values and the way of life of our whānau and hapū will be protected and preserved. Our knowledge systems will be fully preserved and enhanced to meet our and the country’s changing needs and circumstances. Respecting and caring for Papatūānuku, our earth mother, and understanding that our lands, our mountains, our rivers, our seas are a part of who we are will be fundamental to the constitutional arrangements of the country. We will have full access to the positive aspects of English culture, to technology, literacy and material wealth. We will have full health, education, housing, employment and our own justice system and media. We will be thriving and prosperous, economically self-sufficient and fully participating in both Māori and Pākehā worlds.”

Professor Mutu concludes her speech with the following: “More and more Māori … are working together towards the full recognition of our mana and tino rangatiratanga, our sovereignty. Māori are proud of who we are and we are taking back control of our lives and our territories. And Māori are leading out the long conversation this country is entering into about the rules we can all agree to live by… My hope is that my mokopuna will live in a constitutionally different world from the one I grew up in, one that honours He Whakaputanga and Te Tiriti o Waitangi and one in which Māori are free of the shackles of colonisation.”

The resurgent demands of iwi are based on their claims of superiority over all other citizens as a result of Treaty partnerships and sovereignty. This is the mantra used to elevate themselves into positions of power and control. Many academics and officials have also bought into the Maori rights agenda – promoted under the mantle of biculturalism. However, biculturalism is an outdated notion based on the belief that New Zealand is made up of largely two groups of people – those of Maori descent and those of British settler heritage. Yet, in this day and age where generations of rampant immigration and intermarriage have totally changed the shape of our society, biculturalism is no longer relevant.

In July the NZCPR published a submission to the government’s constitutional review by Judge Anthony Willy, a retired District Court Judge and former Canterbury University Law Lecturer. In his comments he concluded that there is no legal authority for the proposition that Maori enjoy some form of partnership status with the Crown: “In the context of a constitutional debate and in particular whether the Treaty is a constitutional document the distinction is fundamental. In the result Maori and the Crown are not partners in any sense of the word. Indeed it is constitutionally impossible for the Crown to enter into a partnership with any of its subjects. The true position is that the Crown is sovereign but owes duties of justice and good faith to the Maori descendants of those who signed the treaty. Once this distinction is understood there can be no question of the sovereignty of the Crown in New Zealand represented by the Governor General and The New Zealand Parliament, being shared with any other person or entity. It is one and indivisible.”⁵

What that means that the claims by groups like the Far North iwi, that their Treaty partnership should confer reserved seats on the local council, are totally unfounded.  There is no Treaty partnership and iwi leaders should be dealt with in exactly the same way as any other citizen.

Judge Willy has now turned his attention to the question of whether the Treaty guarantees Maori some form of sovereignty rights – which is the other claim that iwi leaders commonly make for special rights and privileges. His detailed paper Sovereignty and the Treaty of Waitangi is this week’s NZCPR Commentary.  In his note to the paper, Judge Willy explains:

“In forming a government at the last election the National Party needed, and received the support of the Maori Party on matters of confidence and supply. Part of the price of that support was the establishment of a committee to examine, and make recommendations to the Government on various aspects of the New Zealand Constitution. Included among the matters to be enquired into is the place of the Treaty of Waitangi in any proposed changes to the existing, largely unwritten, constitution.

“My purpose in writing this paper is to review what I take to be the current legal status of the Treaty to ensure that any suggested changes to the current constitutional arrangements proceed from the law as it is, and not from notions of the law as some would like it to be. In particular whether or not the Treaty has any residual constitutional significance which could lead to it being incorporated into a written Constitution such that it might form the basis of some form of shared sovereignty.”

Judge Willy’s paper makes it clear that there is no legal or Constitutional basis on which the Treaty confers some form of joint sovereignty on Maori. I would urge everyone with an interest in this important constitutional issue to read the full paper HERE.

In other words, just as no ‘partnership’ is promised by the Treaty of Waitangi, no ‘sovereignty’ is either. Claims by iwi that there are partnership or sovereignty rights should be dismissed and rejected – even at the risk of being called a “racist”.

THIS WEEK’S POLL ASKS: 

In general are you in favour or opposed to local body amalgamation if that means the creation of reserved seats for Maori?  

Click HERE to see the results