The insert appeared in the New Zealand Herald last Friday, and in The Post on Wednesday

OPINIONĀteaFebruary 5, 2024

According to Apirana Ngata, Māori ceded sovereignty by signing Te Tiriti. Is he right?

Guest writer

The insert appeared in the New Zealand Herald last Friday, and in The Post on Wednesday

The respected statesman’s 1922 explanation of the Treaty of Waitangi, which says Māori ceded sovereignty, featured in a newspaper advertorial last week. Law lecturer and Treaty scholar Carwyn Jones provides some much-needed context.

Last week, readers of the New Zealand Herald and The Post received an eight-page advertorial insert from rightwing thinktank the New Zealand Centre for Political Research (NZCPR*). This advertisement was a reproduction of the English translation of Apirana Ngata’s 1922 explanation of Te Tiriti o Waitangi. Putting to one side questions about who is funding the NZCPR to place these advertisements and what their aims are, there are a few things that might be useful to consider when thinking about how we should understand Ngata’s explanation.

What does Apirana Ngata say about Te Tiriti?

Ngata identifies that the central ideas in Te Tiriti relate to the nature of the authority to be exercised by the Crown and Māori respectively, and notes that without an understanding of the terms “kāwanatanga” and “mana rangatira”, “no one can consciously understand the full meaning of the Treaty of Waitangi”.

Ngata views the first article of the Treaty as a “complete cession” of governmental authority to the British Crown. “The main purport was the transferring of the authority of the Maori chiefs for making laws for their respective tribes and sub-tribes under the Treaty of Waitangi to the Queen of England for ever.”

Ngata quotes the famous words of the Te Rarawa rangatira Nopera Panakareao, who said “It is the shadow of the land which had been given to the Queen while the soil remains.”

Ngata comments:

“These are very wise words, an old time saying. The saying of the elderly chief has combined the words of the first article with those of the second article of the Treaty. It is the shadow, that is, the main authority covering the land; it is the power to make laws, the power to say this group shall adjudicate, that authority should see that the purchase is right, while that one leads the individual through the many intricacies of the law, that was the shadow ceded to the Queen by the first article of the Treaty. As for the soil, it is yours, it is mine inherited from our ancestors. It was the second article which firmly established this to the Maori people.”

That sounds pretty clear. So, Māori did cede sovereignty by signing Te Tiriti?

No. The Waitangi Tribunal has been clear that Māori did not give up their sovereignty by signing Te Tiriti. In its 2014 report, He Whakaputanga me Te Tiriti, the tribunal found that:

“The rangatira who signed te Tiriti o Waitangi in February 1840 did not cede their sovereignty to Britain. That is, they did not cede authority to make and enforce law over their people or their territories.”

That finding was based on a thorough review of all the historical evidence, the vast body of scholarship written about the nature of the agreement entered into, and submissions made by claimants and the Crown.

The tribunal summarised the agreement in Te Tiriti as follows:

The rangatira agreed to share power and authority with Britain. They agreed to the governor having authority to control British subjects in New Zealand, and thereby keep the peace and protect Māori interests.
The rangatira consented to the Treaty on the basis that they and the governor were to be equals, though they were to have different roles and different spheres of influence. The detail of how this relationship would work in practice, especially where the Māori and European populations intermingled, remained to be negotiated over time on a case-by-case basis.
The rangatira agreed to enter land transactions with the Crown, and the Crown promised to investigate pre-Treaty land transactions and to return any land that had not been properly acquired from Māori.
The rangatira appear to have agreed that the Crown would protect them from foreign threats and represent them in international affairs, where that was necessary.

So, is Ngata wrong to assert that the rangatira who signed Te Tiriti gave up their authority to govern themselves?

Yes. The legal, historical and constitutional research we have access to today all point to the fact that the rangatira did not give up the authority of their own communities. That authority is, in fact, guaranteed in Article 2. And this is not inconsistent with the grant of governmental authority to the Crown in Article 1.

Apirana Ngata leads a haka at the Waitangi centennial celebrations in 1940 (Photo: Ref: MNZ-2746-1/2-F, Alexander Turnbull Library, /records/23012205)

But Ngata is an important and respected person, living at a time much closer to 1840 than we are. Shouldn’t we take his views seriously?

Yes, Ngata is an important figure and one of significant mana. We should not dismiss his views out of hand. But, respected figure though he is, he is only one person, and we should not uncritically accept his views without any other context.

Writing in 1922, Ngata is, of course, closer in time to when Te Tiriti was signed than we are in 2024. But his explanation is not an eyewitness account. Like us, he is providing an explanation based on the interpretation of historical events, the intentions of the parties as they can be discerned from the historical record, and the understanding of key concepts contained in the Treaty.

Ngata’s explanation appears to be grounded in the idea of sovereignty being an absolute and exclusive authority. To his mind, if governmental authority is granted to the Crown in Article 1, then there is no room for any form of continuing Māori authority. So, this must be a “complete cession” to the Crown.

But such an interpretation would be at odds with the explicit guarantee of Māori authority (tino rangatiratanga) in Article 2. And there is plenty of evidence that colonial officials in 1840, and in the years that followed, did not see continuing Māori authority as being necessarily inconsistent with an exercise of kāwanatanga or the governmental authority of the Crown. That is, the Crown’s authority here need not be understood as exclusive. It could in fact look just like the two spheres of influence and authority that the Waitangi Tribunal has described.

Isn’t it a good thing that groups like NZCPR are sharing information about Te Tiriti?

We should be encouraging people to share information about Te Tiriti. Apirana Ngata’s explanation can form a useful part of our discussion about Te Tiriti, its meaning, and how we ought to give effect to it today.

But we should not think of the perspective of any one person as being the definitive explanation. All views must be understood in context. We wouldn’t rely on one single explanation of the environmental impacts of the use of fossil fuels from 100 years ago to inform our response to climate change. And we shouldn’t rely on any one single view of Te Tiriti to inform our approach today. We should think about how one explanation sits among all the research that we have access to.

What else should I be reading then?

The Spinoff has already put together a great list of reading and other resources about Te Tiriti.

There is some highly accessible material there, and that list provides some really good places to start finding out more about Te Tiriti.

There are heaps of excellent resources out there about Te Tiriti, but if you are up for a deeper dive, two publications that are specifically relevant to giving context to Ngata’s explanation are:

The Spinoff list already includes Ned Fletcher’s thorough consideration of the English text, The English Text of the Treaty of Waitangi. It’s a big book, but takes a detailed look at the various views informing the drafting and early application of the English text.
And, I mentioned above, the Waitangi Tribunal’s 2014 report, He Whakaputanga me Te Tiriti. Again, there is lots of detail here, and this report is perhaps the most thorough investigation that the tribunal has produced about the meaning of Te Tiriti for those who signed in 1840.

*In the ad, two letters in NZCPR’s website are transposed, and the typo directs readers to nzpcr.com. Curiously, this URL now redirects to Re:News’ Understanding Te Tiriti video, which begins: “Māori didn’t intend to cede their sovereignty.”

Ngāpuhi welcomes te Kiingitanga (Photo: Mad Chapman)

PoliticsFebruary 5, 2024

The tide is rising at Waitangi

Madeleine Chapman

Editor

Ngāpuhi welcomes te Kiingitanga (Photo: Mad Chapman)

The government is set to be welcomed onto the Treaty Grounds after three days of calls for unity against its policies. Madeleine Chapman writes from Waitangi.

Chris Hipkins stood in a shadowy nook beneath the bridge that connects Te Tii Marae and the Waitangi Treaty Grounds, speaking to a small group of reporters about the need to support Māori in their fight against what he described as divisive policies from the new coalition government. He attempted, not quite successfully, to speak over the sounds of the waka crews with whom he’d just spent time. As if on cue, he was asked whether Labour’s inability to communicate its co-governance policies to non-Māori while in government helped set the scene for today’s divisive political landscape. The former prime minister acknowledged that his government “could’ve explained it to non-Māori better” but insisted that the new government alone was responsible for any fallout from its proposals.

Hipkins, alongside Willie Jackson and Willow-Jean Prime, the highest-ranking MPs of the Labour Māori caucus, were answering questions as members of the biggest party in opposition, though whether they are leading the opposition at Waitangi this year is up for debate. Labour has been relatively quiet since the election, while its contemporaries on the left have been vocal, visible and largely aligned on issues as broad as climate, Palestine and Te Tiriti. So where does Labour stand? “There’s a huge worry among our people,” said Jackson, referencing the speeches given at the opposition pōwhiri on Saturday, where his party’s Kelvin Davis and Peeni Henare and the Greens’ Teanau Tuiono spoke of the coalition government as “a three-headed taniwha” and “a den of lions”. In response, Ngāpuhi asked them to “lick your wounds, make a plan, work out how you will move us forward. But don’t take too long.”

The party has promised to “listen” this week before deciding how exactly it will work with Māori. As the Labour MPs stood under the bridge, debating whether or not their party had done more for Māori than previous National governments, the tide rose, slowly but surely, and lapped at their feet.

Waitangi attendees make their way to the treaty grounds (Photo: Mad Chapman)

Set against the backdrop of recent mobilisations at Tūrangawaewae and Rātana, Waitangi this year will be historic for its breadth alone. With a record-breaking attendance of at least 40,000 expected to pass through by Tuesday, Christopher Luxon and his coalition partners can expect a large, if not necessarily warm, welcome to their first Waitangi Day as a new government. They may not all be arriving until today (with the government pōwhiri set for 11am) but they’ve certainly been present on the pae. There were plenty of government references on Saturday from the opposition speakers, and on Sunday even more, as Ngāpuhi welcomed te Kiingitanga and the Rātana church to Waitangi for the first time in a long, long while. For many of the 2,000-strong delegation, it was their first time at Waitangi. Some speakers referenced government ministers directly – particularly Act leader David Seymour, he of Ngāpuhi descent and Treaty principles rewriting intentions, and NZ First’s Shane Jones, who challenged Māori at Rātana to attend Waitangi to discuss Treaty of Waitangi matters. But while everyone there knew the tense reason for te Kiingitanga and others’ presence, the focus was on unity and acting for future generations.

Bayden Barber, chair of Ngāti Kahungunu, echoed speakers before him by calling for unity among iwi. “What do we do with this unity? We have come here to fight. We have come here to share thoughts and strategies with you, Ngāpuhi. We have representation of the whole country.” Others shared similar sentiments. “We are also over this current government and their racist rhetoric,” said Rehua Mihaka of Ngāti Pikiao. “We should not fight one another but fight together in unity.”

Te Pāti Māori co-leader Rawiri Waititi, meanwhile, whose party chose to walk on with te Kiingitanga, rather than as an opposition party, said, “We must be forward thinking, we must unite. Let us fix us, for the benefit of our children, grandchildren.”

Kiingi Tūheitia sits alongside iwi and Pacific leaders (Photo: Troy Rawhiti-Connell)

It wasn’t just Māori who spoke of uniting. Aupito William Sio, former Labour minister for Pacific peoples, spoke on behalf of Pacific elders who were present from Sāmoa, Tonga and the Cook Islands. He opened with te reo Māori and then Sāmoan, but was the lone speaker allowed to deliver his whaikōrero in English. Sio spoke of himself as a bridge between Pasifika and Māori, and noted the many instances in history when various iwi had supported Pacific communities and the responsibility that comes with that. “Those of us who now call Aotearoa our home, we must stand, must be with you,” he said. “When they attack Māori, we feel that next it is us.” He concluded by promising to gather Pacific leaders in the coming months before presenting a plan of support to Kiingi Tūheitia. It was a strong declaration from a Pacific leader whose political and social views have leaned more and more progressive as each year passes.

Earlier in the day and across the bridge at Te Tii Marae grounds, Fa’anana Efeso Collins was voicing similar intentions from the Green Party tent. Attending his first-ever Waitangi, the new MP admitted to simply wanting to “drink it all in”, but was acutely aware of his unique position as a conduit between Pacific and Māori communities – two communities that, though often lumped together in statistics, have vastly different approaches to conflict, authority, religion and politics. “It’s about bridging that gap,” he said. “The generational shift means the Pasifika community can [now] speak with a bit more volume. The way in which we’ve opposed things has often been polite. Now we understand the effects of colonisation but we don’t see it as a ‘them and us – this a Māori issue and we’ll keep to the side’. This is an us issue, this is something we experience together.”

As he spoke, Chlöe Swarbrick chatted to attendees nearby as the assumed new Greens co-leader, fresh from throwing down the gauntlet and promising transformational politics and a swing to the Greens as the driving force on the political left.

A child joins in during the pōwhiri for te Kiingitanga and Rātana church (Photo: Mad Chapman)

With the government not yet on site, the mood at Waitangi – both at Te Tii and on the Treaty Grounds – was fun. Manus off the bridge, a mulleted boy belting out an impressive karaoke rendition of a Bon Jovi classic, cream pāua and rongoā Māori. Notable Waitangi protest group Ngā Tamatoa reunited as kaumātua to honour the late Moana Jackson and will be speaking today in the forum tent about mobilising and protest. A tauiwi collective gathered to discuss non-Māori modes of support. There was a sense of unity and alignment. And the alignment was in opposition to the new government, and more specifically, the policies put forward by Act and New Zealand First. In fact, Luxon and National were hardly, if at all, mentioned on the pae on Sunday. And Labour’s efforts over six years have been swiftly forgotten with the Treaty Principles Bill, the disestablishment of Te Aka Whai Ora and the deprioritising of te reo Māori taking up all the space.

Today will be eventful and crowded. And with clear lines already drawn on the pae, all eyes will be on Seymour, Jones and Winston Peters, the Māori leaders within the new government. No one is expecting a change of heart from any of them, and each has the potential to take the momentum of this week’s expected protests and swing it towards their own supporters. Meanwhile, National and Labour will continue to occupy two sides of the same centre, stuck between a rock and a radical place.

At 11am, the tide will be rising again at Waitangi. We’ll soon find out who it lifts and who gets washed away.