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Shane Jones and David Seymour with serious expressions, overlaid with mathematical formulas and diagrams including a circle and cone.
Design: The Spinoff

OPINIONĀteaNovember 1, 2024

Treaty principles are clear. Why are politicians creating uncertainty?

Shane Jones and David Seymour with serious expressions, overlaid with mathematical formulas and diagrams including a circle and cone.
Design: The Spinoff

Despite decades of legal clarity, David Seymour and Shane Jones are claiming the principles are ambiguous in order to justify their push to undermine them, argues Māori legal scholar Carwyn Jones.

The government seems determined to pretend that the principles of the Treaty of Waitangi are currently unknown and unknowable. Despite nearly 50 years of reports from the Waitangi Tribunal and nearly 40 years of case law on the subject from our senior courts, the politicians would have you believe that Treaty principles are a source of great legal uncertainty. Nothing could be further from the truth. 

David Seymour says we need to define “the principles of the Treaty” in legislation to have certainty, yet provides no evidence of the alleged current uncertainty. In fact, the regulatory impact statement prepared by the Ministry of Justice makes it clear that Seymour’s proposed Treaty Principles Bill would be less certain than the current situation, noting “the status quo also provides a higher degree of certainty about what the Treaty principles are and how they operate in New Zealand law”. 

Shane Jones, meanwhile, tells us that we need to review, amend or replace Treaty principles provisions in 28 pieces of legislation in order to clarify their meaning and application. Jones (no relation, I hasten to add) chose an interesting example to illustrate his point. He was recently reported as saying: “…if the Treaty of Waitangi, for example, is in the Disabilities Act, what does that actually mean? Does that give whānau Māori a higher entitlement for disability services beyond other New Zealanders? That can’t possibly be right? What does it mean? No one’s able to tell me.”

Now, let’s start with the fact that there is no such thing as the Disabilities Act. I would concede that it is difficult to determine how Treaty principles would apply in an imaginary statute. But let’s assume the minister was intending to refer to the New Zealand Public Health and Disability Act 2000. Sure, that law is no longer in force, after having been repealed by the Pae Ora (Health Futures) Act 2022, but at least the New Zealand Public Health and Disability Act was at least once a real law and did contain a Treaty principles clause.

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In fact, the reason that the minister may have been grasping for the New Zealand Public Health and Disability Act is because its Treaty principles clause was much commented upon. That clause has been the subject of significant commentary because it did set out in detail how the Treaty principles provision was to operate in the context of the act. 

Section 4 of that act stated: “In order to recognise and respect the principles of the Treaty of Waitangi, and with a view to improving health outcomes for Maori, Part 3 provides for mechanisms to enable Maori to contribute to decision-making on, and to participate in the delivery of, health and disability services.”

The “Part 3” that is referred to contained the provisions relating to district health boards with clauses that specified exactly how Māori were enabled “to contribute to decision-making on, and to participate in the delivery of, health and disability services”. There was a direct and explicit link from the recognition of Treaty principles to the particulars of how they applied in the context of the act. All very straightforward.

If anything, the legislation that replaced the New Zealand Public Health and Disability Act went into even greater detail about how Treaty principles would apply. The Pae Ora (Healthy Futures) Act contained a list of 14 particular requirements to provide for the Crown’s intention to give effect to the principles of the Treaty. Though some of these provisions (those relating to the Māori Health Authority) have themselves now been repealed, the Pae Ora Act still contains nine specific requirements, including that a permanent committee (the Hauora Māori Advisory Committee) be established to advise the minister, and that the Government Policy Statement contain priorities for hauora Māori.The current Treaty principles provision in that act also appears to be clear and specific.

Granted, some Treaty principles provisions are not as specific as that. Section 9 of the State-Owned Enterprises Act 1986 states: “Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.” That is much broader and, in 1986, there may well have been some uncertainty as to how that clause would apply. But in 1987, the Court of Appeal made things very clear. In its decision in the famous New Zealand Māori Council v Attorney-General case, the court identified relevant principles of partnership, active protection and redress. The application of those principles, in that case, ultimately required the government to agree, with the New Zealand Māori Council, a mechanism to protect potential Māori interests in state-owned enterprise land before further steps were taken under the act. That was a specific application of Treaty principles to a specific context. 

Every decision of the courts that has dealt with Treaty principles since that time has provided another specific application of those principles. We now have lots of examples of what Treaty principles mean and how they apply, even when the provision of the statute is broadly worded. This body of cases gives us a very settled and certain area of law.

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a blue background of sky and ferns, with the white flag of the United tribes of New Zealand imposed on it at a jaunty angle
(Image: The Spinoff)

ĀteaOctober 28, 2024

The first official flag of Aotearoa and what it represents

a blue background of sky and ferns, with the white flag of the United tribes of New Zealand imposed on it at a jaunty angle
(Image: The Spinoff)

Adopted in 1834 the first national flag of New Zealand (Te Kara o Te Whakaminenga o Ngā Hapū o Nu Tīreni) symbolises more than just necessity – it represents Māori autonomy and a legacy of self-determination that continues today.

If you’ve ever ventured into the Far North, chances are you’ve probably seen a flag flying somewhere that sort of looks like the English flag, but with four white stars in the top left corner. It’s Te Kara o Te Whakaminenga o Ngā Hapū o Nu Tīreni – The Flag of the United Tribes of New Zealand, or Te Kara for short. It’s one of the most significant symbols in our country’s history, the first ever official flag of Aotearoa, and remains a symbol of mana motuhake for Māori across Aoteraoa, particularly in Te Tai Tokerau.

Te Kara represents the first formal declaration of New Zealand as a distinct nation-state, before te Tiriti o Waitangi and the establishment of colonial governance in Aotearoa. Understanding the origins, purpose, and legacy of this flag offers insight into the mana motuhake and rangatiratanga of hapū during a period of immense change in the early 19th century.

The origins of a flag

In the early 1800s, Aotearoa was being visited by an increasing number of European traders, whalers, and missionaries. Māori were networking and trading around Australia and the Pacific and travelling as far afield as Britain and North and South America by the mid-1800s. However, the country and its people lacked a formalised nation-state status, which created a legal and diplomatic problem – ships built in Aotearoa were not recognised under international maritime law, which required vessels to sail under a recognised national flag. This meant ships owned by Māori and Pākehā traders were vulnerable to seizure and faced difficulties entering foreign ports.

This issue apparently came to a head in 1830 when the trading ship Sir George Murray, built in the Hokianga, was seized in Port Jackson, Sydney, due to its lack of a flag representing a recognised sovereign nation (some claim the ship was seized due to financial issues). The British Resident in New Zealand, James Busby, recognising the growing importance of New Zealand in international trade and the threat this posed to Māori and Pākehā interests, looked to address the issue.

The adoption of Te Kara

In 1834, Busby convened a gathering of rangatira from various northern iwi, representing Te Whakaminenga o Ngā Hapū o Nu Tīreni, also known as the Confederation of United Tribes of New Zealand. Te Whakaminenga had been meeting around Northland since as early as 1808 to work collectively and manage their relationships with Pākehā. 

Ngāpuhi chiefs gathering to choose the United tribes flag. Many would go on to sign He Whakaputanga. (Image: Shaw Savill, Alexander Turnbull Library)

Busby presented three flag designs to the rangatira, all designed by British naval officials. After deliberation, the rangatira selected the design that became known as Te Kara o Te Whakaminenga o Ngā Hapū o Nu Tīreni. The chosen flag featured a red St. George’s Cross on a white background, with a smaller red cross in the top left quarter, and four stars on a blue field. These stars represented the Southern Cross, a symbol of the Pacific and Māori connection to the land and sea.

On March 20, 1834, at a formal ceremony in Waitangi, the rangatira officially adopted the flag. The event was marked by a 21-gun salute, and the new flag was hoisted on a flagpole, symbolising Māori unity and New Zealand’s entry into international relations. The adoption of the flag was officially recognised by the British government, effectively acknowledging New Zealand as a distinct entity in international law. This was a crucial step towards the assertion of mana motuhake.

Te Kara is rich with both Māori and European symbolism, reflecting the convergence of Māori and European worlds during this period. The St. George’s Cross signifies the British influence, while the blue field and stars represent the Pacific and Māori cosmology. The combination of these elements is significant as it reflects a Māori decision to engage with Pākehā international systems while retaining distinct Māori identity and mana.

‘He mea tautoko nā ngā mema atawhai. Supported by our generous members.’
Liam Rātana
— Ātea editor

The flag was more than a solution to a maritime issue – it was also a symbol of the political aspirations of te Whakaminenga. The Confederation was an early attempt by Māori to present a unified front to the outside world, emphasising their rangatiratanga and mana motuhake. The adoption of Te Kara demonstrated that Māori sought to engage with global powers on their own terms, exercising mana over their whenua and people.

On October 28, 1835, te Whakaminenga further asserted its mana motuhake by issuing He Whakaputanga o te Rangatiratanga o Nu Tīreni. Signed by 52 rangatira, He Whakaputanga stated that all sovereign power and authority in Aotearoa resided in the hands of the chiefs in their collective capacity. He Whakaputanga reinforced the symbolic role of Te Kara as a marker of nationhood and Māori independence.

Te Kara and te Tiriti o Waitangi

The significance of Te Kara took grew with the signing of te Tiriti o Waitangi in 1840. Many rangatira saw te Tiriti as a formal continuation of the relationship established by He Whakaputanga and the adoption of Te Kara. While te Tiriti introduced British sovereignty, many chiefs believed that it did so in a way that preserved Māori autonomy, as the flag had signified.

As we know, interpretation of te Tiriti has been a constant source of debate, with many arguing the promises of Māori sovereignty were not upheld. In this light, Te Kara remains a powerful reminder of the political aspirations and rights of Māori, symbolising the inherent rangatiratanga promised to them.

A collage featuring a black-and-white flag in the background and colourful flags with white koru designs on red backgrounds in the foreground.
Design: Liam Rātana

Today, Te Kara o Te Whakaminenga o Ngā Hapū o Nu Tīreni remains a strong symbol of mana motuhake and rangatiratanga. It continues to be flown at Māori gatherings and events,  particularly those focused on issues of Māori rights and governance. It’s also printed on T-shirts and hoodies, and stitched on vests my sovereigntist uncles wear. It has been embraced by various Māori political movements as a symbol of the ongoing struggle for recognition and sovereignty.

For many Māori, Te Kara is also a reminder of the promises made under He Whakaputanga and the te Tiriti – promises that remain unfulfilled in the eyes of many. Its continued use and prominence underscores the enduring relevance of the principles of mana motuhake, collective governance, and indigenous rights.

Te Kara o Te Whakaminenga o Ngā Hapū o Nu Tīreni is more than a historical artefact – it is a living symbol of the complex and evolving relationship between Māori and the Crown. Its adoption in 1834 marked a significant moment in the assertion of Māori nationhood and sovereignty, a legacy that lives on today. As a symbol, it speaks to the lasting strength of Māori identity, the ongoing fight for rangatiratanga, and the resilience of Māori governance in the face of colonial pressures. Its significance in Aotearoa history is profound, serving as a reminder of the nation’s bicultural foundations and the uncompromising mana of Māori.

This is Public Interest Journalism funded by NZ On Air.