GUEST BLOG: Geoff Fischer – Sovereignty
The ACT Party’s Treaty Principles Bill has opened a proverbial can of worms. For decades New Zealand politicians have used the concept of “treaty principles” to avoid the issue of te Tiriti itself. ACT’s attempt to dramatically alter the legal meaning of “treaty principles” has blown that consensus out of the water, and people, including Professor Jane Kelsey are now questioning the whole notion of “treaty principles”.
Kelsey is a professor of law, and the Treaty of Waitangi is a legal instrument. Professionally, Kelsey would tend to a strict interpretation of the document. That is how lawyers first approach any legal instrument. Then, if they find the document to be vague or ambiguous they interpret in a way that “avoids .. absurdity” and gives effect to the presumed intentions of the parties. That is as far as a good lawyer will normally go. Loose construction only applies where strict interpretation has failed.
The Crown in New Zealand has gone further than a good lawyer would. It faced certain difficulties in interpretation of the Treaty arising out of the fact that the treaty exists in two versions in different languages but these difficulties were not insuperable. On sound judicial principles it was decided that the Maori language version, Te Tiriti, had primacy over the English language version. However this led to the conclusion that Maori had not ceded sovereignty to the British Crown through the Treaty of Waitangi, thus upsetting the idea that the Treaty was “the founding document” of the Colony, Dominion, and Realm of New Zealand. The residual problem was not one of legal interpretation, but of political implementation. The Crown could not bring itself to acknowledge that its claim to legitimacy was at best suspect.
The response of the Crown (in both its political and judicial branches) was to abandon the idea of strict interpretation and turn to loose construction which delivered the idea of “treaty principles”. As initially introduced these principles sought to accommodate and placate Maori while maintaining the appearance of legitimacy for the Realm. But the notion of treaty principles inevitably advanced in the direction of “co-governance” or “joint sovereignty” between the Crown and Maori which provoked a hostile political reaction, primarily, though not exclusively, among non-Maori. This hostile reaction found legislative expression in the ACT Party’s Treaty Principles Bill.
So we now have two contending sets of ostensible “treaty principles”, the first well-intentioned and the other quite mischievous, but neither offering a viable way forward for the nation. The political and constitutional consequence of reliance on the original (broadly “left-wing”) treaty principles would be that all the people of Aotearoa, both Maori (incorrectly in this context denominated as “tangata whenua”) and and non-Maori (some of whom style themselves “tangata tiriti”) would remain perpetually in submission to the British Crown with Maori, and only Maori, enjoying a degree of autonomy from the Crown. The idea that Maori have natural rights (“tangata whenua”) while the rights of non-Maori (“tangata tiriti”) are derived through and dependent upon the British Crown, was always going to be problematic. It was particularly offensive to those Pakeha who reject the colonial project in its disgraceful historical entirety. Then under the proposed right-wing alternative, which looks like becoming the de facto if not the de jure standard, all peoples of Aotearoa would be held in submission to the British Crown in perpetuity and without distinction, which would be equally bad for both Maori and Pakeha.
If we accept Kelsey’s criticism of the notion of “treaty principles” (which I do), then we have to go back to to the situation of and prior to 1840. We are then free to examine Te Tiriti and other legal instruments (for example Te Whakaputanga of 1835), the facts of history and our aspirations as a nation, and on that basis decide for ourselves how the nation is to be constituted. To that end there are a number of crucial concepts. On the European side they are the notions of sovereign and sovereignty, monarch and monarchy, governor and government. On the Maori side are rangatira and rangatiratanga, kingi and kingitanga, kawana and kawanatanga. Of these six related conceptual categories the most profound and the most relevant to our future as a nation is the concept of rangatira and rangatiratanga. Normally rangatiratanga is translated as “sovereignty”, but rangatiratanga also has a range of meaning that extends from the spiritual relationship between humanity and God (Ihoa o nga mano) to the actual forms of organisation in a natural social order. Other concepts such as kotahitanga, mana and specifically mana motuhake are important but rangatiratanga will always be front and centre of any authentic national dialogue on constitutional matters.
This shift in the discourse from “treaty principles” to “sovereignty” has profound implications. The idea of treaty principles was based around a tacit agreement to avoid the issue of sovereignty. Sovereignty does not allow for compromise. It was the primary issue driving both sides in the nineteenth century wars of resistance to British colonialism and it is a dispute that can only end with the triumph of one side and the defeat of the other. That remains true today. The point is that while colonialism prevailed through the nineteenth and twentieth centuries, it can and must be overcome in the twenty-first century.
To begin the discussion from the perspective of European political science, a sovereign is the ultimate authority in the decision-making process of the state, and sovereignty is the defining attribute of the one in whom that ultimate authority is vested. Thus there can be only one sovereign, and sovereignty is indivisible. The concept of sovereignty was initially associated with a sovereign monarch, but later developed into the idea of “popular sovereignty” which underpins democratic systems of government.
Sovereignty also has religious implications arising out of the religious belief that God is the “ultimate authority” for humankind as a whole. Thus God was assumed to hold sovereign authority in and over the world, and other forms of sovereignty (kings and emperors and so on), while being the temporal authority within their own dominions, were considered subordinate to God. For that reason human sovereigns traditionally kept close to the ecclesiastical authorities. This remains the case for the British and New Zealand Head of State, King Charles III, who is both sovereign and “supreme governor” of the Anglican Church.
With the advent of secular democracy the concept of sovereignty changed. In a democracy no individual is sovereign, and in the case of the United States it is the constitutional document itself that is the “ultimate authority” in the state. It is commonly supposed that “the people are sovereign” in democratic states, but that is not strictly correct. Although the people can alter the constitution, they can only do so in ways authorized by the constitution itself. Otherwise they are deemed to be rebelling against the constitution, the “fundamental law” of the democratic secular state and they may be called to account by the institutions of state.
Thus there may be a difference between sovereignty as legally defined and as commonly perceived. It is commonly understood that in a democracy “the people are sovereign”, that the people themselves are the ultimate source of authority and they have the final word. Yet legally that is not the case in any state, democratic or otherwise. In the United States the Constitution is sovereign. In the United Kingdom and in the Realm of New Zealand the monarch is sovereign. There is no state system in which the people, either collectively or individually, can be truly and unequivocally sovereign. In every democracy, and in many autocracies, the people are accorded rights to participate in the process of law making and government through popular assemblies (parliaments) of elected representatives. The system under which those assemblies are constituted may be “sovereign” but the assemblies themselves are not, and it would be misleading to suggest that they are.
Constitutions, whether democratic or monarchist, whether written into a fundamental law or based on convention, depend on the tacit consent of the people. Not everyone living within a secular democracy will accept the ultimate authority of the constitution. Some insist that “the individual is sovereign”. This belief is associated with far-right libertarians and the “sovereign citizen” movement and can be an expression of social irresponsibility. However it has other antecedents in religious movements which maintain that the individual conscience, informed by God, is the ultimate authority to which all must be subject. These beliefs are a reminder that sovereignty, whether vested in a monarch or a constitution, must be tempered by respect for the individual conscience and the “ultimate moral authority” of “the good”.
The Colony, Dominion and Realm of New Zealand can claim to have enjoyed the tacit consent of the bulk of the population, both Maori and non-Maori, for the past century or more. Since their setback in the nineteenth century wars of resistance the collaboration of Maori has been vital to the survival of the colonialist regime both in war and in peace. Maori did much of the heavy lifting in colonialism’s two world wars and subsequent international conflicts and they have been essential players in the era of economic progress commencing in the mid-twentieth century. But for Maori as a whole collaboration with the colonial regime has always been conditional and pragmatic. As Apirana Ngata put it, collaboration has been “the price of citizenship”. It should not be taken for granted. Less obviously, Pakeha attitudes towards colonialism are also divided and ambivalent. That combination of Maori pragmatism and Pakeha ambivalence makes the position of the colonialist regime more precarious than it might appear.
This raises the issue of the relationship between “authority” and “power” in the context of sovereignty. Authority is a quality recognized in those who possess wisdom or knowledge and who thus are trusted and inspire confidence. It may be present in an individual or an organisation, including the state as an organisation, but it is distinct from and may even be in contradiction to “power”.
Authority in te reo Maori is “mana”: “Na ka miharo ratou ki tana ako; i whai mana hoki tana kupu” (“They were amazed at his teaching, for his message was with authority”). Mana is not necessarily linked to power, but to endure power must be based on mana. Power (“kaha” or “rira”) without mana is blind. Mana without power is impotent. Thus in a properly ordered world “authority” and “power”, mana me rira, sit together. The authority of the Crown in New Zealand at this time is not on a par with its power. At the same time the mana of rangatira is growing. There is one simple rule. Mana, or moral authority, will quickly attract the rira or power necessary to effect its objects when the occasion demands, but a system of moral authority that is in decline will find its capacity to exercise power ebbing away at the same rate.
National sovereignty is exercised through the power of a state, and takes its character from the particular characteristics of the state. Sovereign authority differs between, for example, the United States where it is effectively vested in the Constitution, guarded by the Courts and subject to amendment by the legislature, and the United Kingdom and the Realm of New Zealand where sovereignty is vested in the monarch and tempered by convention but not so clearly open to the popular will. I specifically refer to “the Realm of New Zealand” rather than simply “New Zealand” because it is important to remember that the concept of sovereignty only has meaning in relation to a particular system of governance. When that system of governance is in dispute, as in Aotearoa/New Zealand, then we will have conflicting views as to where sovereignty resides, and with whom. So any dispute over sovereignty is inseparable from a wider debate over systems of governance.
Sovereignty is claimed by a sovereign authority and may be recognized variously by the population over which it claims to have authority (its subjects) and other sovereign authorities (its peers). Typically states recognize the sovereignty of other states as applying to a particular territory (jurisdiction). Their decisions to recognize a sovereign authority are based on pragmatic considerations (the extent of the power held by the claimant to sovereign authority), legal considerations (the notion of legitimacy) and usually undeclared political considerations (whether the interests of the claimant conflict with one’s own). Subject peoples apply similar criteria to the question of whether their rulers are entitled to exercise sovereign power. In a contest for sovereign power and authority the long slow process by which the mana me rira of one side grows while the other declines, culminates in the recognition of a new emergent reality. Such apparently abrupt changes in sovereignty (“revolutions”) often take the people concerned and the world at large by surprise.
So in Aotearoa/New Zealand we have this dispute over sovereignty which has been on-going for decades and indeed centuries, which can be expected to proceed for a further period of years and which will inevitably expand into a debate over systems of governance.
At this stage, within the Realm of New Zealand opinion varies as to whether the people are sovereign (to reflect the idea that New Zealand is a democracy), the parliament (to reflect the “primacy of parliament”), “the Crown”, or the monarch (presently King Charles III). The current Prime Minister, Christopher Luxon, has asserted “the Crown is sovereign”. However, he is mistaken. The Crown is two things. First, it is “a traditional form of head adornment, or hat, worn by monarchs as a symbol of their power and dignity”. (It serves us well to remember the simple literal meaning of the word). Second, “the Crown” is a metonym standing for the monarchist state in its entirety – the monarch, his ministers, military and civil services, police and judiciary. In other words the monarch and all those elements of the state over which the monarch has titular authority and which he or she can directly control if and as required. How can all these elements be jointly sovereign? How can they all be the “ultimate authority in the decision making process of the state”? The simple answer is that they cannot. The British monarch, King Charles III is sovereign and Head of State in the Realm. He is even titled, or styled, as “the sovereign”. The website of the New Zealand parliament declared “With the passing of Queen Elizabeth II, King Charles III becomes New Zealand’s Head of State … our new Sovereign..”. The man who wears the crown is sovereign, not the crown itself.
The consequence of this is that if a dispute was to arise between parliament and the king, or between the king and his Prime Minister, legally the king will prevail. The police, the judiciary, the military all understand this, and all are bound by an oath of allegiance to the king. So do the members of parliament, because they are bound by the same oath. It is commonly supposed that the king would not set himself against the government or the parliament and convention supports that supposition. However convention is not law. Law is on the side of the monarch, and convention is a fragile thing that will always bow to perceived political necessity.
So it only remains to ask “In what circumstances might the monarch go against the will of an ‘elected government’?”. For an answer we can look to the experiences of Fiji and Australia in the reign of Charles’ mother, Elizabeth II. In both cases the elected governments of Timoci Bavendra (1987) and Gough Whitlam (1975) respectively were dismissed on the royal authority; in the first case in favour of the the Royal Fiji Military Forces and in the second case in favour of the opposition Liberal-Country Party. The common factor was a situation deemed to be a political crisis and the presence of forces within the state which rejected the authority of the elected government and which were eager to assume power themselves. The same could happen here, and it could happen in any state constituted under the sovereign authority of the British monarch. We might like to think that the people are sovereign, or parliament, or “the Crown” but in the law of the Realm of New Zealand there is only one sovereign, and that is the monarch.
How did this situation come about? There are two explanations offered by the Crown. The first is that it came through a cession of sovereignty by representatives of the original Maori inhabitants of Aotearoa to Charles’ great-great-great grandmother Queen Victoria through the Treaty of Waitangi. This claim is problematic because those who signed the Treaty of Waitangi were only a small proportion of those who could be said to have exercised a degree of sovereign power in Aotearoa at the time. A larger number signed Te Tiriti o Waitangi, which purported to establish New Zealand as a British protectorate (not a colony) and as such did not involve a cession or transfer of sovereignty. A second problem is that there was no provision made for succession or inheritance of sovereign authority by Victoria’s descendants. (Right of succession could not be taken for granted in either Maori tikanga or British law, whose Act of Succession was not incorporated into the Treaty).
Early on the British Crown itself recognized the weakness of the cession claim and Governor Hobson proceeded to issue a unilateral Proclamation of Sovereignty in May 1840 (in which he proclaimed cession as a fact in the case of the North Island, Te Ika a Maui), and this was the basis of the British claim to sovereignty from 1840 until relatively recent times, when the Crown once again began to assert that its claim rested on a cession of sovereignty through the Treaty of Waitangi.
If the British claim to sovereignty is at best suspect, what are the alternatives? Was there a form of native sovereignty preceding the Treaty of Waitangi? The Wakaputanga (I am using the original spelling here) of 1835 declared New Zealand to be a “wenua rangatira”, that is a sovereign country. The text refers to both natural authority (“ko te mana i te wenua”) and right of governance (“Ko te kingitanga”). The words “kingitanga” and “kawanatanga” which both appear in the wakaputanga are adopted from English and their meaning is clear. A kingi is a king or ruler. Kingitanga is a kingdom. Kawana is a transliteration of governor, that is an administrator who is subordinate to a king or other ruler. Kawanatanga is governorship. The words in Maori have the same meaning as their equivalents in English, and so there is no confusion. Te Wakaputanga, commonly described as a declaration of independence, was actually a declaration of sovereignty.
We now come to the much more interesting “rangatira” and associated word “rangatiratanga”. Rangatira is commonly translated as “chief” but its meaning is much wider than that. It may also be used to refer to a noble, king, emperor, or deity, and rangatiratanga can refer to an earthly kingdom or empire (“I te tau tekau ma rima o te rangatiratanga o Taipiria Hiha..”) or to a divine system of governance (“Kia tae mai to rangatiratanga…”). In whatever context the word is used, the common feature is that it refers to the highest level of authority, a ruling system which is explicitly superior to a governor or kawana.
However we should not suppose that rangatira were self-appointed autocrats. That was never the case. A rangatira depended on the revocable consent and voluntary allegiance of his followers, a point that is crucial when it comes to considering the functioning of rangatiratanga as a system of governance. Rangatiratanga therefore equates to what we might now describe as a form of popular sovereignty which is fundamentally more democratic than the Westminster system of government introduced by the British Crown. The tikanga of rangatiratanga, its proper way of functioning, becomes an essential object of study for those who raise the sovereignty of rangatiratanga against the kawanatanga of the Crown.
In purely legal terms, despite 184 years of British rule, sovereignty remains with te Whakaminenga, which was the vehicle of rangatiratanga in 1835, but that is only half of the story. In real terms, the mana of the Crown is declining, the mana of rangatira is ascending, and people are returning to the ideas of te wakaputanga. The Chinese people speak of “the mandate of heaven” meaning that heaven bestows its mandate on a virtuous ruler. We could say that the colonialist state has lost the mandate of heaven. The challenge is for the rira of rangatiratanga to be advanced to a level in keeping with its mana. To that end our attention should shift from the principles of the treaty to the principles of rangatiratanga, and from the institutions of the Crown to te Whakaminenga.
Geoff Fischer is a forestry worker residing at Manaia, Te Tara-o-te-ika a-Maui.
Very interesting read .Clearly Luxon is a nobody in the big picture and Seymore is way further off the planet than first thought .
Thanks Geoff. I will be keeping a copy of this article and be using it as an important summary for considering the sovereignty in this country. The anarchist in me likes the personal sovereignty concept of tino rangatiratanga, but historically humanity does seem to have a thing for kings and emperors and priests and ceremony and ritual etc.
Thanks Seer. There are important questions around how states accommodate political and other differences. In this respect the Realm of New Zealand does not have a good record. It has always been tougher on dissent than the “mother country”, the United Kingdom. The stand off at parliament in 2022 over vaccine mandates is a case in point. Mandates were a mistake, because they were ineffective. They were ineffective because the vaccine itself was relatively ineffective and if the vaccine had been effective, the mandates would have been unnecessary. Yet the state had no way, means or desire to reach a negotiated agreement with the dissidents. So it ended in violence. This reveals both a state of mind and structural factors in the New Zealand state which make it disinclined to find consensus. Through having a majority a party or coalition achieves absolute power and uses that power to ride roughshod over others. This has been the way the New Zealand state has operated since our nineteenth century wars of resistance.
The Realm of New Zealand is a unified and centralized state even in comparison to its imperial partner states, the United Kingdom, United States of America, Canada and the Commonwealth of Australia, which all have federal (or in the case of the UK, quasi-federal) systems of government. New Zealand moved away from the federal (provincial) model very early on for reasons which had to do with the need to rapidly populate and develop the country in order to counter the challenge from Maori. So the way in which the New Zealand state operates was and is based on the perceived need to contain Maori and every other potential source of dissent. (It will be argued that New Zealand needs to be unified on account of its relatively small size. However other small states also successfully employ various kinds of federal system).
A unified and centralized state like the Realm of New Zealand, paradoxically, can be an inherently unstable state. Because of the absence of checks and balances, it can swing from one extreme to another with every turn of the electoral cycle, a phenomenon which has become clearly apparent over the past year.
There are other options open to us. Most people are aware that the common English translation of Whakaminenga is “confederation” which means that rangatiratanga must operate on the basis of consensus, negotiation and where necessary compromise, and these values are entrenched in the mindset of rangatiratanga. The requirement for negotiation and consensus may seem cumbersome but it is actually a lot more efficient than a standoff involving thousands of citizens and hundreds of police which carries on over a period of months and ends in violent chaos. A hui between rangatira would have sorted that particular issue within a few days at most. When we understand how rangatiratanga and te whakaminenga works we will understand its capacity to resolve issues peacefully and constructively. That is something worth working for.
I don’t think Luxon and David Stealmore are very well read in NZ History.
Geoff, thanks for this great article.
For the next 200 years there will be an argument for dual sovereignty based on the simple fact that not one can articulate what it will look like structurally or how the dual sovereignty will work. What we get is the word salad and minced meat essays like above. For goodness sake, if you want to achieve something, set out your vision, how to achieve this, and what the outcome will be. How to influence people to your notons and how to win people over to your side of thinking requires more than “we want sovereignty “call.
This word salad and mince meat concoction is easy meat for anyone to throw back into the faces of those seeking sovereignty.
So lets have some discussion on how this dual sovereignty will work.
Start with the often called for, Maori Parliamant.
Will the Maori parliament take precedent over the current peoples parliament?
Will it be able to raise taxes from Maori to spent only on Maori initiatives?
Will it be fully funded from Maori tax payers and wealth owners including IWI and Hapu.
Will it be able to set new laws pertaining to Maori only with a separate police and judiciary to enforce the decisions?
Until you put some sound ideas and structure on the “we want sovereignty” call, you are pissing in the wind.
Interesting to read Keith Sinclair book “The Origins Of The Maori Wars” and the Waitara purchase. History is not always in Maori favour in regards who owns what, for the wars was one off the defeated and dispossessed trying to sell their previous held land to the Settlement Board. The conquering Waikato tribe said no (having farmed the land and thus taken ownership off said land by Maori custom) it was not for the dispossessed tribe to sell. Hence the Maori argy bargy over who owned the land and the resultant war.
There’s a reason that most people want to leave any dictatorship as people cannot be trusted with absolute control, while the USA has the constitution there are indications that a church state combination is coming that will destroy the freedoms it promises.
I’ll second the reply of Gerrit but conjecture a cause of this nebulous abstracting: Historical bits of paper and precedent serve as stablizing ballast for a society, but ultimately none of it matters. All that matters is what rules the present set of people collectively want to/can agree to live under. Who can go where, use what, and who ultimately has final say – these are what matter, and abstractions to gods or crowns as justification are ultimately, if anything meaningful at all, just encoded ways of expressing these facts.
Why then do we persist in waxing poetic about metaphysical legal constructions? In part because pseuds simply don’t understand that this is what they are doing, but I suspect more cynically it is understood that when kept in a realm of abstraction, there is more room to maneuver. If one of these legal scholars were forced to put into plain terms what precisely it is they want (seperate authorities, some sort of veto power, disproportionate rights based on bloodline, etc.) or make explicit the implicit threats of violence they like to dogwhistle in the event that they don’t get their way, they know that everyone else would be aghast at those suggestions, and it would lose them much of the popular support they’ve strung along with half-truths and dazzling words.
So instead we get this. A whole lot of extra words to say that “power is in violence and what people can be made to believe” and to revel in it. Everything else is smoke and mirrors.
This is a very well written and articulate article about the conceptual aspects of the Treaty. It explains the concepts simply and efficiently, as well as providing modern interpretation of those concepts.
The only point I might disagree with is the reference to “convention” not being part of law. In NZ law, as I was taught in Law101 at Canterbury, there are three types of law in NZ that are enforceable, statute, judge-made law (common law) and convention. None has superiority over the other, when day to day decisions are made. As laws cannot be made retrospective, none of the three types can contradict each other, BUT parliament can pass statutes nullifying any one of the other two IF it has a mandate to do so – there are rules about that too.
For most people, the pragmatic power of parliament remains the practicing power in NZ to raise taxes and spend them. That is the exercise of Government power. 90/95% of that is uncontentious – it’s practical pragmatic use of money doing things the individual cannot do alone, like roads, electricity etc.
The other 5/10% is. And that’s where this debate is important.
As the article pointed out, in a democracy, power resides in the combined will of individuals electing representatives to perform certain tasks. The majority rules, despite the tyranny that entails. But provided the basic rights of the minority aren’t undermined, the short term of parliament means no real damage can be done that can’t be undone.
Theoretical definitions of power need to be put to practical test to see if the theory is correct.
In the case of Maori sovereignty, as the article points out, dissatisfaction with the current wealth/income gap means the underlying power structure in NZ needs to change. Maori sovereignty is one of the ways currently being considered as a means to do so. There are others.
Utopia is always striven for but never achieved, but the journey is interesting.
Yesterday I had the pleasure of attending the Maniapoto schools Kapahaka competitions at Piopio college.Unfortunatly I was seated next to Babara Kuriger ,who farms stolen land in Taranaki .Once the Powhiri was over she scuttled off to be seen by the the local Kamatua and Kuia and the local mayor for a photo op then she vanished into the wind .She did not stay to watch any performances as it was clearly too uncomfortable for her to watch the future of NZ performing as one no matter what nationality they are .Yes it was a show of mixed race kids having a great time regardless from where they came and they all performed with pride in who they are .There is a young lady from Latvia ,a family of recent arrivals from Cambodia who know little english as well .Those boys clearly had picked up the Maori language and performed with gusto .If this is what is the future of NZ looks like long may it last and Kruiger and her redneck mates can scurry away to their stolen land .
Ranginui Walker declared years ago that the relationship between tangata whenua and tangata tiriti would be decided between the bedsheets. I heard recently on RNZ that a third of school age children had Maori ancestry. The trend is obvious but not the outcome. This is going to need both sides to forge a joint path in which the best or most appropriate of both is taken. That is precisely what Seymour is so frightened of.