2015 Virtual Edition: Jonathan Barrett and Luke Strongman

Postscript to Sovereignty in Postcolonial Aotearoa New Zealand: Ambiguities, Paradoxes, and Possibilities

Our article destabilizes traditional conceptions of unique and indivisible Crown sovereignty which have predominantly underpinned constitutional thinking in Aotearoa New Zealand. Following, among others Saskia Sassen (1996), we generally indicated the instability of the concept of national sovereignty in contemporary thought. More specifically, by teasing out republican subtexts to English constitutional theory and practice, from the Magna Carta to pronouncements on popular sovereignty made by leading Australasian jurists (see HcHugh 2001), we sought to identify ambiguities and fissures in the orthodoxy. By comparing Western sovereignty with non-European conceptions of governance, we further sought to reveal paradoxes in ostensible constitutional certainties. European ideas of sovereignty were shown to have their own exoticism; they are neither natural nor necessary. Finally, we considered Māori conceptions of governance, which have long been subjugated but have an increasing contemporary relevance.

The Treaty of Waitangi Te Tirirti O Waitangi (‘the Treaty’) is undoubtedly the nation’s foundational pact but, historically, the Crown in New Zealand has been as guilty as other colonial powers of contracting with indigenous people and then reneging by way of legal legerdemain (see Robertson 2005). Once Crown sovereignty is destabilized and Māori claims to self or co-governance are taken seriously, possibilities for new constitutional arrangements emerge. We concluded:

What really matters today is whether sufficient spaces exist for particular peoples to determine for themselves how their traditions and cultural treasures should be protected, preserved, and developed. Antiquated and disputable conceptions of sovereignty should not present barriers to engaging with this fundamental issue. Conversely, they can present opportunities for alternative views to be entertained and may, indeed, influence legal thinking about ongoing contested claims.

Since publication of the article, three developments have occurred that reinforce our thesis and indicate how arrangements unique to Aotearoa New Zealand might evolve. The first is the recognition that Ngāpuhi, a major iwi (nation) did not intend to cede its sovereignty under the Treaty. Second, the autonomy of Tūhoe, a fiercely independent and systematically repressed people (King 2003) whose homeland had been subsumed into a vast and greatly impenetrable national park, has been recognised. Third, the Whanganui River ecosystem, a single living organism for Māori, has been granted legal personality and a statutory system of kaitiakitanga (guardianship) established to represent and answer for it.

Ngāpuhi and Sovereignty

We noted that the large Ngāpuhi iwi denied that their rangatira (chiefs) had intended to cede their sovereignty to the Crown when signing the Treaty. The Waitangi Tribunal, which hears complaints of Treaty breaches, concluded that this should be the correct understanding of the Māori text of the Treaty, when interpreted in context. The Waitangi Tribunal (2014:[10.5]) observed:

The rangatira [chiefs] who signed te Tiriti were aware that Britain was a powerful nation. They recognised that they were consenting to the establishment of a significant new authority in their lands, where previously all authority had rested with them on behalf of their hapū [tribes]. They must also have recognised that, where the Māori and European populations intermingled, questions of relative authority would inevitably have to be negotiated over time on a case-by-case basis – as, of course, was typical for rangatira-to-rangatira relationships. Having sought and received assurances that they would retain their independence and chiefly authority, and that they and the Governor would be equals, many rangatira were prepared to welcome this new British authority. They did not regard kāwanatanga [‘sovereignty’] as undermining their own status or authority. Rather, the treaty was a means of protecting, or even enhancing, their rangatiratanga [chieftainship] as contact with Europeans increased.

The Waitangi Tribunal has not as yet expressed an opinion on the contemporary consequences of its finding, but the Crown was quick to discount its finding, with the relevant Minister stating, ‘There is no question that the Crown has sovereignty in New Zealand. The report doesn’t change that fact’ (Kenny 2014). The Minister’s automatic and seemingly unthinking reaction was unfortunate because he has been instrumental in developing innovative co-governance arrangements.

Tūhoe Autonomy

The Te Urewera Act 2014 recognizes Tūhoe autonomy, establishing a unique governance arrangement for their ancestral land.[1] The land itself has been deemed a legal entity, in the way of a human being or a corporation, and Te Urewera Board created as its steward. The Board has equal representation for Tūhoe and the Crown, but, after three years, Tūhoe representation will outweigh Crown representation by six to three. The arrangement is a laudable compromise between iwi and the Crown. Jacinta Ruru (2014) observes: “While I dreamed for radical legislative reform … I did not know … that the horizon for change was so near. The enactment of Te Urewera Act makes me immensely proud to be a New Zealander.”

Whanganui River Settlement

Ruruka Whakatupua Te Mana O Te Awa Tupua (‘Whanganui River settlement’) is premised on the idea that “Te Awa Tupua [Whanganui River ecosystem] is an indivisible and living whole comprising the Whanganui River from the mountains to the sea, incorporating its tributaries and all its metaphysical elements” (Whanganui River settlement 2014:[2.1]). In terms of forthcoming legislation, Te Awa Tupua is deemed a legal person with all rights, powers, duties and liabilities of legal person (Whanganui River settlement 2014:[2.3]). Te Pou Tupua, the ecosystem’s guardian, will be the human face of the ecosystem and will have equal iwi and Crown representation. From a jurisprudential perspective, the arrangement is consonant with Christopher Stone’s ecology law theory, first proposed in the 1970s in relation to Californian first growth forests (see Stone 1976). Nevertheless, the arrangement has a unique New Zealand flavour. On the one hand, Māori conceptions of indivisible ecosystems imbued with metaphysical meaning have been respected, and, on the other hand, these nebulous concerns (to Western eyes) have been accommodated within a legally recognisable structure.

Conclusion

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Te Ua Haumene. Ua Rongo Pai. GNZMMSS 1, Sir George Grey Special Collections, Auckland City Libraries.

In bicultural, multi-ethnic Aotearoa New Zealand, the proposition that the transplant of European conceptions of sole and indivisible Crown sovereignty could survive into the postcolonial era is chimerical. The ambiguities, paradoxes, and possibilities we sought to identify in the article emerge in distinctive ways appropriately reflective of this particular country. Formal recognition that iwi did not intend to cede their sovereignty may have little practical or immediate effect but has symbolic significance, and should act as a prompt to the Crown to take more seriously claims to partnership in governance.

This may help, to paraphrase Edward Durie (1996), “the settlers to settle.” Certain features of the Māori worldview defy capture in secular legislation; nevertheless the Te Urerewa Act and the Whanganui River settlement demonstrate the Crown’s willingness to push the boundaries of Western legal concepts. This is a welcomed development and indicates possibilities for future co-governance on an equal footing for the country as a whole. For Stuart Hall (1996), the plasticity of identity lies in its political significance because shifting and changing character of identity marks how we think about ourselves and others. We submit that sovereignty can be imagined and acted upon in similar terms. A final note: Ērima Hēnare, a Ngāpuhi leader whose learned testimony to the Waitangi Tribunal was influential in its finding that iwi had not intended to cede sovereignty to the Crown, has recently died. In writing the article and engaging in other research endeavours, we were fortunate to benefit from Ērima’s advice and unparalleled knowledge of Māori culture (tikanga) and language (te reo).

Works Cited

Durie, Edward. 1996. Will the Settlers Settle? Legal Conciliation and the Law. Otago Law Review 8(4): 449–465.

Hall, Stuart. 2000.  Who Needs Identity? In Identity: A Reader edited by P. du Gay, J. Evans, and P. Redman. London: Sage.

McHugh, Paul. 2001. A History of Crown Sovereignty in New Zealand, in Histories, Power and Loss: Uses of the Past – A New Zealand Commentary, edited by Andrew Sharp, Paul McHugh, and William Hosking Oliver, 189–211. Wellington: Bridget Williams Books, 2001.

Kenny, Katie. 2014. Maori did not give up sovereignty: Waitangi Tribunal. Fairfax Media. November 14.

King, Michael. 2003. The Penguin History of New Zealand. Auckland: Penguin Books.

Robertson, Lindsay J. 2007. Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands. New York: Oxford University Press.

Ruru, Jacinta. 2014. Tūhoe-Crown settlement – Te Urewera Act 2014. Māori Law Review: http://maorilawreview.co.nz/2014/10/tuhoe-crown-settlement-te-urewera-act-2014.

Sassen, Sakia. 1996. Losing Control? Sovereignty in an Age of Globalization. New York: Columbia University Press.

Stone, Christopher. 1974. Should Trees Have Standing? Toward Legal Rights for Natural Objects. Los Altos: William Kaufmann.

Waitangi, Tribunal. 2014. He Whakaputanga me Te Tiriti The Declaration of the Treaty: The Report on Stage 1 of the Te Paparahi o Te Raki  Inquiry. Wellington: Waitangi Tribunal.

Jonathan Barrett is a senior lecturer in the School of Accounting and Commercial Law at Victoria University, where is interested in examining taxation theory, human rights, and the role of human dignity in everyday situations. 

Luke Strongman is a senior lecturer in Humanities and Communication at Open Polytechnic University of New Zealand. He works on a wide range of issues, including most recently distance learning pedagogy and research and risk management.

Note

[1] Te Urewera is a mostly forested region which covers an area of approximately 2000 km2.