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TINO RANGATIRATANGA


Revised July 1993
Joint Methodist Presbyterian Public Questions Committee
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CONTENTS
Introduction
The Meaning of Tino Rangatiratanga
Rangatiratanga and Kawanatanga
TR and the Labour Government 1984-1990
TR and the National Government 1990-1993

TR and Maori Devolution
TR and the Courts
TR and the Waitangi Tribunal
TR and the Principles of the Treaty
The Need for Constitutional Reform


This paper discusses tino rangatiratanga which is central to a Maori understanding of the Treaty of Waitangi. It refers to Maori control of all things Maori - Maori sovereignty. Tino rangatiratanga stands in contrast to kawanatanga which Maori have always seen as giving only limited power to the Crown. However history has seen the displacement of tino rangatiratanga by a form of kawanatanga which assumes that the Crown has absolute authority over all people and all matters in this land.
The present National Government like its Labour predecessor has no place for the recognition of tino rangatiratanga in its policies. Both have acted on the mistaken assumption that Maori ceded their sovereignty. The Courts have reflected this view, interpreting the Treaty in a way that upholds Crown sovereignty and rules out tino rangatiratanga The Waitangi Tribunal has found itself bound by the Court of Appeal, with its findings now based on a cession by Maori of their sovereignty. Its powers have also been curtailed by government. Labour redefined the Treaty with its 'Principles of Crown Action on the Treaty of Waitangi. National went further in seeking to ensure these principles were in accordance with its policies. The Ka Awatea policy has been dropped. The Sealord deal has been found sadly lacking. Now the government proposes implementing a policy for settling all Treaty claims, that is a further denial of tino rangatiratanga.
The policies of both National and Labour with their failure to recognise tino rangatiratanga have led to the continued subordination of Maori. This is being increasingly challenged by the assertion of tino rangatiratanga, which continues to be the Treaty issue for the 1990's.

Introduction
In 1989 the Conference of the Methodist Church passed a resolution relating to 'tino rangatiratanga'. The resolution was in two parts. The first expressed "full and unqualified support for 'te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa' o nga iwi Maori as expressed in Article 2 of the Te Tiriti o Waitangi (Maori Version)". The second expressed the concern of the Conference at the continued erosion of te tino rangatiratanga by successive governments and the Courts since 1840. Leaders of the Churches in their 'Statement for 1990' said that they accepted the challenge to work in ways which honour the Treaty, including recognition that Maori possess tino rangatiratanga. The Joint Methodist-Presbyterian Public Questions Committee agreed to make consideration of the meaning and significance of tino rangatiratanga a priority in 1990. It has been a priority for its bicultural work group.
The 1993 General Assembly of the Presbyterian Church, affirmed the continuing work of the Committee on te tino rangatiratanga and recommended that parishes continue to address and discuss this issue. The original paper appeared in September 1990. It was updated in January 1992. Much has happened in this area in the past eighteen months making a further update desirable. In order to accommodate new material without adding unduly to the length of the paper, some of the earlier material has now been presented in summary form.

The Meaning of Tino Rangatiratanga
The word rangatiratanga comes form the word rangatira which is most often translated as chief. Rangatiratanga which refers to chieftainship, approximates to oversight, responsibility, authority, control, sovereignty. It is a word used in the Lord's prayer for kingdom, which is a word very close in meaning to sovereignty. The word tino is an intensive or superlative, meaning variously: very, full, total, absolute. So tino rangatiratanga approximates to total control, complete responsibility, full authority, absolute sovereignty.
The term tino rangatiratanga was used in the Declaration of Independence of 1835 which recognised Nu Tireni (New Zealand) to be a sovereign and independent nation where power and authority rested with the rangatira. The English version of that declaration stated that "all sovereign power and authority resided entirely and exclusively" in the rangatira.
Te Tiriti o Waitangi of 1840 also used the term tino rangatiratanga with the promise that it would be guaranteed to Maori. In the words of the English translation of the Maori version of the Treaty, the Queen agreed to the rangatira and the iwi retaining full chieftainship (tino rangatiratanga) of their lands, their villages and all their taonga including the Maori way of life.

Rangatiratanga and Kawanatanga
The Maori version of the Treaty of Waitangi clearly confirmed tino rangatiratanga or Maori sovereignty over all things Maori (Article 2). It granted to the Crown, kawanatanga, a word which is a transliteration of the word governorship (Article 1). Maori would have been in no doubt as to the meaning of rangatiratanga and, on the basis of its being guaranteed in the Treaty, willing to sign it. In 1840 Maori had no desire and no need to give away their tino rangatiratanga. What they gave to the Crown was limited power, to control new settlers. That power was kawanatanga. In retaining tino rangatiratanga it was clear to Maori that their ability to control their own destiny was not diminished. In granting kawanatanga they saw that they would benefit from limited controlled immigration and the introduction of new technology (Article 3) of the Treaty did not make Maori into British subjects. It recognised the continuing right of Maori to enjoy their own laws, customs and lifestyle, just as British citizens enjoyed their own. This was reinforced in (Article 4)(unwritten) which stated that the Governor would protect Maori ritenga or custom.
However, the English text of the Treaty which successive governments have relied on to this day for their legitimacy, or their own unilateral proclamation of sovereignty, assumes that Maori gave away all their sovereign power to the Crown. Such an idea would never have been acceptable to Maori. 200,000 Maori had no need whatever to concede any power to just 2,000 settlers. They signed the Maori text because they knew what it meant. Their tino rangatiratanga was retained.
On the incorrect assumption that Maori ceded sovereignty (tino rangatiratanga), successive governments have set about usurping tino rangatiratanga. The denial of the right of tino rangatiratanga since 1840 has been expressed in legislation, decisions of the Courts, and most recently in attempts to rewrite the Treaty in the form of principles.

Tino Rangatiratanga and the Labour Government 1984-1990
The coming to power of the Labour Government in 1984 coincided with a growing call for political and economic autonomy by Maori. This aspiration required the return to Maori of resources of land, forests, fisheries, and waterways unjustly acquired by successive governments in violation of the Treaty. This resulted in a clash with Rogernomics which envisaged the transfer of significant resources of the state to the private sector. The assets to be transferred were often the very ones Maori had a justifiable claim to. The Crown's claim to absolute sovereignty was on collision course with the Maori desire for restoration of their tino rangatiratanga.
The result was that Labour distanced itself from its earlier strong Treaty rhetoric. When Maori objections to the transfer of state assets to the private sector were ignored, Maori went to the courts. This resulted in the government backing right off any commitment to the Treaty. Eventually it repackaged the Treaty in the form of 'Principles for Crown Action on the Treaty of Waitangi'. This unilateral action was designed to ensure the supremacy of Crown sovereignty. The talk was now of the symbolic settlement of Treaty issues with no place for tino rangatiratanga
At the Waitangi Day celebration in 1990 the Bishop of Aotearoa made it clear that Maori grievances remained unaddressed. This was followed by the call from Te Runanga Whakawhanaunga I Nga Hahi at the October general election not to vote but instead to sign a tino rangatiratanga register. Te Runanga also called for a constitutional conference to work towards a Treaty based constitution. This suggestion was dismissed by both the Prime Minister and Leader of the Opposition.

Tino Rangatiratanga and the National Government 1990-1993
The National Government came to power with a weak recognition of the Treaty as New Zealand's founding document, but with policies that were deeply anti-Treaty. Like Labour it adhered to the view that Maori tino rangatiratanga would not be recognised. All sovereignty was to remain with the Crown.
Upon taking office the Minister of Maori Affairs, Winston Peters commissioned the 'Ka Awatea' report which concerned itself with Maori socio-economic disadvantage, dealing with the effects and not the causes of 150 years of colonisation upon Maori. Maori were to be left dependent on the goodwill of the government. The issue of tino rangatiratanga was ignored. Nevertheless the report received widespread support amongst Maori, being seen as a step in the right direction rather than the final solution, and preferable to the market policies that were the alternative.
'Ka Awatea' did not have an easy ride through cabinet as it promoted a heavily interventionist approach to Maori socioeconomic disadvantage at a time when those at the economic helm were seeking to have government withdraw from its social and economic responsibilities to the disadvantaged. The report's main points of principle survived, but the details of the program were left vague enough for National to proceed with plans to mainstream Maori Affairs and devolve responsibilities but with few resources and powers, to approved organisations.
'Ka Awatea' envisaged programs designed to meet the needs of Maori education, health, employment and economic development. This did not happen. With the dumping of Winston Peters by the Prime Minister, significant aspects of 'Ka Awatea' were also dropped. Refusal to reinstate Winston Peters in response to Maori protests was taken to be a sign that the Prime Minister did not want to take Maori seriously and would listen to them only on a selective basis.
A Ministry of Maori Development was established to replace the existing state agencies for Maori. The enacting legislation for the new ministry focussed on addressing the special needs of Maori while ignoring their Tiriti right to te tino rangatiratanga. Indeed the Tiriti is not mentioned in the legislation. It has done little more than restructure the previous bureaucracies to promote the governments own agenda.
The new ministry did not develop any new programs and those which it inherited were immediately transferred to mainstream government departments. Funding for 'Vote Maori Affairs' was slashed and massive staff lay-offs followed. The ministry is not able to effectively monitor the way in which other government departments seek to meet the needs of Maori. It has been reduced to providing general policy advice on matters affecting Maori.
A Ministry of Maori Development publication commissioned by kaumatua advising the ministry, which dealt with Maori leadership and government decision making, was withdrawn from circulation at the beginning of 1993 on order of the minister, because it was critical of government methods of negotiating with Maori. The activities of the ministry will clearly be reined in unless they reflect the views of the government. The ministry has increasingly been assigned a carefully prescribed role of limited effect and has seriously underspent its budget.
Meanwhile government has been pursuing its reform and restructuring agenda encompassing housing, education, health, welfare, and electricity distribution. Benefit cuts were made unilaterally with a disproportionately negative impact on Maori. Health reform legislation reflects a lack of consultation with Maori. Maori have felt excluded from restructuring in the electricity distribution sector. Bulk funding of teachers has been deemed detrimental to Maori education. Restructuring in the Housing sector has taken it outside the State Owned Enterprises Act with its provision for the Waitangi Tribunal to make binding decisions in the case of disputed assets. Enabling legislation for the reforms typically makes no reference to te Tiriti o Waitangi, much less the Maori right to te tino rangatiratanga.

Early in its term of office government declared a goal of settling all Treaty claims by the year 2000. Late in 1992 the government was presented with a means of putting an end to fisheries claims through the Sealord deal. All Maori claims over commercial fishing are now deemed to be fully and finally settled. No case can be tested either before the courts or the Waitangi Tribunal. So the Sealord deal cannot be challenged. Traditional Maori fishing rights were protected under section 88 (2) of the Fisheries Act which has now been repealed. Such rights will now be the subject of regulations determined by government. Tiriti fishing rights have been redefined to mean a share in a commercial fishing company driven by profit and which might have some trickle down benefit for some iwi, and the right to be consulted over various fisheries management decisions on the government's terms. Consultation will be with persons the government deems appropriate, with the government making up its own mind in the end. The Sealord Deed of Settlement was never the subject of proper consultation with Maori. Much of it was deemed commercially sensitive and therefore unable to be discussed with iwi. The bill finalising the deal was rushed through parliament under urgency, thereby preventing debate before a select committee. Maori have clearly been denied their tino rangatiratanga with regard to fishing.

The latest scheme to achieve the governments election promise involves what are called fiscal envelopes. It is understood the government will divide up the country into regions (not based on tribal boundaries), and set a sum which it is prepared to pay to settle claims in each area. Government and Treasury will be the only ones to know how much is in each envelope. The Government will assess the extent of the grievance of each tribe in each region and offer compensation. So different claimants within each region will be made offers according to what government has in its envelope. Given the make up of the National Cabinet and its commitment to budgetary restraint, Maori claimants will again be asked to accept less than just settlements and to scrap over the crumbs government allocates to each envelope. It is also the governments desire to introduce a claims cut-off date. Claims relating to last century that are not registered with either the Waitangi Tribunal or the Crown by June 1996 will be ignored. Meanwhile the government will claim it has acted in good faith, has demonstrated financial responsibility and has complied with its election promise. Any failure of the policy will be blamed on Maori. Sealord revisited?
There has been an increasing desire by government to settle treaty claims by direct negotiation. The latest instance is its 'land bank' proposal, whereby surplus Crown properties will be held for use in Maori land claims settlements. Iwi claims on surplus property are to be lodged with a new Crown/Maori Congress working group. Once that property has been placed in the land bank it must be used in settlement of that iwi's land claims. The Treaty of Waitangi Unit within the Justice Department has major input into direct negotiation. The considerable resources at its disposal are in marked contrast to those available to iwi, who are constantly at a disadvantage in the direct negotiation process.
The government has sought to fast track some Maori claims in its own interest e.g. Railways land. Increasingly such negotiations have been held with the Maori Congress to which not all iwi belong. The government with all its resources clearly has the upper hand. The National Government like its Labour predecessor has no commitment to tino rangatiratanga. Crown sovereignty has been deemed to be paramount.

Tino Rangatiratanga and Maori Devolution
The Labour Government's proposal for Maori Affairs devolution started from the premise that article two of Te Tiriti o Waitangi only placed a responsibility on the government to protect Maori interests and where necessary redress grievances. It was proposed that iwi organisations would administer programs for Maori under rules set by government. While Maori supported the devolution of resources and authority to the iwi, they questioned government control of the process. Labour's Runanga Iwi Act was widely rejected as not recognising te tino rangatiratanga.
The National Government dropped Labour's policy and repealed the Runanga Iwi Act. The 'Ka Awatea' report saw devolution as the right to self development. Although falling short of self government, taken seriously this could at least have put an end to the divide and rule approach arising from Labour's policy. However, the government's handling of the Sealord deal together with its fiscal envelopes policy, has dashed that possibility.
Iwi may obtain government funds to deliver and monitor government services to Maori. The Ministry of Maori Development is able to contract with iwi to do this. However, the terms are those deemed appropriate by the government. Maori delivery agencies will always be kept on a string. The danger remains that government schemes will distract iwi from focussing on their Tiriti right to te tino rangatiratanga.
Tino rangatiratanga has not featured in either Labour's or National's devolution proposals.

Tino Rangatiratanga and the Courts
From 1840 till 1988 both the legislature and the Courts had ignored the Treaty of Waitangi. In 1877 Chief Justice James Prendergast declared the Treaty to be a "legal nullity". Since it had not been written into legislation, it was of no consequence to the Courts. This was the position of the Courts for more than a hundred years.
When in 1987 the Labour Government set about passing the State Owned Enterprises Bill, the Waitangi Tribunal drew its attention to the fact that it took no account of the need to address Treaty of Waitangi concerns. As a result a clause was added stating that nothing in the Act shall be inconsistent with the principles of the Treaty. The Bill was then passed.
Subsequently the Maori Council brought a case against the Government. This case and subsequent cases involving fishing, forests and coal, have been acclaimed as victories for Maori. However, their implications for tino rangatiratanga were quite serious. The Court of Appeal avoided the Treaty guarantee of tino rangatiratanga. It seized upon the reference of the S.O.E. Act to the principles of the Treaty which it said involved the 'spirit', of the Treaty (rather than its words) adapted to the present day changed circumstances. Partnership based on reasonableness and good faith, it said, was the essence of the Treaty. The Government was recognised as having sovereign power to govern. While it had a duty to take into account Maori Treaty rights, and if necessary to consult with Maori; the final decision, the Court said, remained with the Government. Further, Maori were to be loyal to the Crown, recognise the Government and be reasonably co-operative. The Court of Appeal confirmed two things: Crown sovereignty and Maori subordination.
When the Government demonstrated reluctance to consult Maori over privatisation of State Forest and Coal Corp, Maori went back to court. While the Court found in favour of Maori, all that Maori secured was a promise to return assets if in the future the Waitangi Tribunal ordered it to do so. The Court stated that partnership did not mean equal division of assets or resources. Later in the case of the Maori Fisheries Act (1989) it was stated that legislation may well provide a sufficient expression of traditional Maori fishing rights in present day circumstances.
The effect of recent Court findings has been to seriously undermine the bargaining power of Maori in negotiations over the government assets and resources. The Treaty has been reduced to terms compatible with Crown sovereignty. Tino rangatiratanga simply does not have a place so far as the Courts are concerned.

Tino Rangatiratanga and the Waitangi Tribunal
When the Waitangi Tribunal was established it was seen as a source of hope by Maori. However, it was later to become clear that it was established under Crown supremacy, not tino rangatiratanga. It could only recommend solutions to Maori grievances. Maori Treaty rights were still dependent on the goodwill of the Government. Tribunal members were Government selected and they were required to consider not the Treaty but the principles of the Treaty.
In its early years, however, the Tribunal's reports stressed the belief that Maori would never have ceded their sovereignty as successive governments had deemed they had. Kawanatanga was defined as something less than rangatiratanga and the challenge of rangatiratanga to Crown sovereignty was upheld. But following the S.O.E. court case the Tribunal made a dramatic turn around on the crucial question of tino rangatiratanga or sovereignty. The Court of Appeal stated that it would determine what the principles of the Treaty were. While the views of the Tribunal might be of assistance to the Court, they were not binding. Only the Court's findings could be binding and it stated "should be followed by the Waitangi Tribunal as a declaration of the highest judicial tribunal in New Zealand". The Tribunal was now bound by the Court of Appeal's findings.
In its subsequent reports on claims, the Tribunal began to state that a cession of sovereignty had taken place with the signing of the Treaty. By August 1988 the Tribunal was writing about a cession of [Maori] sovereignty and Pakeha settlement rights that cannot now be denied". The Tribunal was now a mechanism to deny tino rangatiratanga and uphold the Court's Treaty principles. The Tribunal had now been pulled back into the mainstream Pakeha legal system. The judiciary had successfully undermined the work of the Waitangi Tribunal.
In February 1993 the government introduced into parliament the Treaty of Waitangi Amendment Bill which provided that the Waitangi Tribunal shall not recommend that the crown acquire ownership of any land or interest held by any person. This was quite unnecessary as the tribunal can only make recommendations that the Government is quite free to ignore, except where a private owner has bought State Owned Enterprises land with full warning of the (remote) risk of resumption if the Tribunal so orders. This action makes it clear that the tribunal is an instrument of the crown that will be reined in should it be seen to threaten crown interests.
Despite protestations to the contrary it is clear the Waitangi Tribunal is being increasingly marginalised by government.The governments desire for direct negotiation with iwi, its land bank and fiscal envelopes policies, together with the suggestion of a cut off point for the lodging of claims, are all evidence of a sidelining of the work of the tribunal. Under the present government the Waitangi Tribunal is struggling to retain a significant role for itself. This is reflected in recent comments by the Chairman of the Waitangi Tribunal. Judge Durie has indicated that the tribunal may have run its course such that direct negotiation between iwi and the Crown may now be the way ahead.

Tino Rangatiratanga and the Principles of the Treaty
In recent years there has been a concerted effort to focus discussion not on the Treaty of Waitangi, but on the principles of the Treaty. The Waitangi Tribunal has always operated on the basis of defining Treaty principles. The Labour Government legislated for principles of the Treaty in the Treaty of Waitangi Act, and in the S.O.E. Act. The Court of Appeal has enunciated its principles of the Treaty which are now binding on all levels of the judiciary. The Labour Government too produced its own set of principles.
In its 'Principles for Crown Action of the Treaty of Waitangi', the Labour Government established a "kawanatanga principle" and a "rangatiratanga principle". The so-called kawanatanga principle reaffirmed the notion of cession of sovereignty by Maori and assumed that they gave up their right to self determination. Both of these have been constantly refuted by Maori. The so-called rangatiratanga principle redefined rangatiratanga as a concept of resource management which excludes ideas of social, economic or political power for Maori. Others of these principles limit rangatiratanga to a power subject to the authority of the Crown, require reasonable co-operation with the Crown and justify the imposition of English Common Law as a basis for equality. In other words, recognition of tino rangatiratanga is strenuously denied.
The National Government decided to rewrite Labour's set of Treaty principles so that they would conform with its policy and be more explicit. Kawanatanga now referred to the governments 'right and responsibility to govern for the common good'. Rangatiratanga became 'restoration of iwi self-management within the scope of the law'. These attempts to restate the Treaty have been part of a process toward the settlement of iwi claims. However, such claims are based on Te Tiriti and not Crown defined principles. The outcome is that te tino rangatiratanga is still strongly denied Maori.

The Need for Constitutional Reform
Attempts to have tino rangatiratanga recognised by the Crown and the Courts have failed. This has enforced Maori dependency. But the struggle goes on. What is required in these days is a process of political or constitutional reform which recognises that Maori have an inherent right to their tino rangatiratanga.To achieve this the supremacy of Crown sovereignty must be relinquished so that we can recognise two co-existing constitutional entices within one nation, one representing tino rangatiratanga and the other representing kawanatanga. These two entities must of necessity exist in a new Treaty based (Maori Version) relationship with each other.
The church leaders have recognised the need for this. In their 'Statement for 1990' they asserted, "We believe there needs to be a political restructuring which recognises Maori as a people possessing te tino rangatiratanga according to the Treaty". In September 1990 Te Runanga Whakawhanaunga I Nga Hahi (the Maori Ecumenical Council) called "to all Maori and to all people of goodwill" not to vote in the October General Election because of 150 years of injustice in denying te tino rangatiratanga. They also stated it would not be difficult to establish a constitutional forum to resolve Treaty issues, such as te tino rangatiratanga, through dialogue and negotiation and indicated that they would be willing to contribute a draft proposal for such a process.
In 1986 the Royal Commission on the Electoral System which recommended a change to proportional representation had urged government to enter into consultation with Maori about the definition and protection of the rights of Maori and their constitutional position under the Treaty of Waitangi. While government has pressed on with a referendum on proportional representation, it has ignored the recommendation on Maori constitutional rights.
Last September's indicative referendum, on electoral reform, resulted in considerable Maori comment. While some still see proportional representation as offering a better deal for Maori than the present system, it is not based on tino rangatiratanga. For this reason both the Maori Council and the Maori Congress urged a boycott of the electoral referendum. The council's view was that there was nothing in it for Maori. The congress spoke out in favour of self government and a Maori parliament.
The latest round of hui to 'consult' with Maori on electoral reform demonstrated the governments superficial commitment to and expediency in manipulating Maori views on electoral reform. It looked like the Sealord process once again?
A Tiriti analysis suggests that no form of proportional representation reflects Tiriti rights and the guarantee of te tino rangatiratanga to Maori. It remains an expression of kawanatanga. The Methodist Conference of 1992 stated: "believing the September referendum on proportional representation was premature...Conference supports all efforts to hold a constitutional review hui early in 1993." The need for such a hui has become urgent.
As we approach the binding referendum on multi-member proportional representation together with the proposal for an upper house (not fifty/fifty based) as well as voting in the general election, we need to be alert and sensitive to the voice of Maori and any further call they may make.

Acknowledgements
In the preparation of this paper the analysis of Jane Kelsey, together with that of Moana Jackson and Moana Maniopoto-Jackson, John Salmon, and Kia Mohio Kia Marama Trust, has been particularly helpful and is here gratefully acknowledged.

Bibliography

  • Jackson, Moana 'The Crown, The Treaty and the Usurpation of Maori Rights' in Proceedings of Aotearoa New Zealand and Human Rights in the Pacific and Asia Region: A Policy Conference 1989.
  • Kelsey, Jane A Rolling Back the State: Privatisation of Power in Aotearoa New Zealand Bridget Williams Books 1993.
  • Kia Mohio Kia Marama Trust: The Treaty of Waitangi (Fisheries Claims) Settlement Act or the Governments Latest Raupatu' 1992, 'A Constitutional Hui' 1993 and 'Mystery Envelopes' 1993.
  • Maniopoto-Jackson, Moana 'The Crown and Te Tino Rangatiratanga' in Proceedings of Aotearoa New Zealand and Human Rights in the Pacific and Asia Region: A Policy Conference 1989.
  • Salmon, John et al 'Te Tino Rangatiratanga' a paper presented to the Methodist Church Council, May 1990.

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