#16971 - Essay 3 - Legal Foundations (LAWS110)

Discuss the meaning of tino rangatiratanga in Te Tiriti o Waitangi and identify two contemporary challenges to the expression of tino rangatiratanga in the present day.

PLAN

Intro

The meaning of tino rangatiratanga?:

• The use in the treaty- English and Maori

• Legal standing: Court case view of it x 2 Wi Parata and New Zealand Maori Council v Attorney General in 1987. Courts today-??

• The tribunal view and Maori view in contrast to court view. My view= still relevant although Maori do not have right to sovereignty today. Courts believe that this sovereignty and kawanatanga is the legal justification for the exercise of power of Parliament. The judicial jurisprudence states that the sovereignty of the British Crown in New Zealand is umpeachable. Still must be expressed

• Principle of partnership means that the Pakeha must also consider Maori tino rangatiratanga and there must be a shared power and authority with co-management.

Contemporary challenges:

1. Parliamentary structure Maori guaranteed right of autonomy and authority over own affairs

• Representation in government is low but improving under MMP

• Local governing bodies – 5% only

• Good- Maori electorates- naïve to think that Maori now have full representation

• Lack of legislation devoted to this- needs to change~ quote

• View that Maori should not be treated as separate group- challenge

1. More radical extreme views : Membership opportunities on organisations take over Minister of Social development?

• Some believe that Maori should have their own courts and land to govern like reservations. However, holding to tribunal and court belief rather Maori should work as a treaty partner with the Crown

• Struggle for Maori to have a say over Maori affairs in particular to the environment and tikanga values. They feel they are being ignored by the government. Redesign parliament structure?

The Environment Court struggle. Statutory acknowledgement given low regard in environment court

• Co-management issues. Maori need to have more management. Maori have to struggle to implement tino rangatiratanga, resistance due to a lingering colonial impact- not enough legislation. Co-management regime over natural environments such as the whanganui river and te urewera

• This partnership between the Crown and Maori today is a balance especially in conservation. This is shown by the Ngati Pahauwera’s claim to have recognised their tino rangatiratanga over their part of the Mohaka river. The Maori argued that Article 2 guaranteed them this right due to how the river is taonga. Had to argue for it- met active resistance rather than active protection

• Treaty principle of active protection- is not binding- does not guarantee Maori the right to look after land, weakened the promises of treaty in a legal sense

• Other cases- difficulty because Maori do not own land but they still want to protect it- fine balance- don’t own land not much legal influence in NZ

• Found by Harvard university the more governship means better rights for Maori, less governship and Maori are disadvantaged- deal with maori issues like prison rates and preserve the environment for generations to come, links to Article 3 and the protection of Maori taonga. (spinoff article)

• Change has not come far enough, contrasting perspectives of whether Maori should be given special representation.

2. Right of self-determination economic ability to provide for people

• Restore economic independence to restore tino rangatiratanga

• Without tino rangatiratanga it is difficult for Maori to improve their finances, they need self-determination and the right to look out for their own affairs.

• This is termed a reoccurring cycle

• In the past Maori have been exploited by the Crown with land seizures which has disadvantaged Maori and left them impoverished for years. A minority group.

• Treaty principle- redress

• Period of redress- Waitangi Settlements- Ngai Tahu Claims Settlement

• Only a fraction of what Maori really lost

• Challenge: Settlements don’t restore authority to hapu

• Must restore resources, give financial interdependence – challenge: land already sold

• If you want to make aspirations real, you have to find a way to pay for it. Economic interdependence, aspire and make things real, restore the honour of crown and restore some degree of the ability to restore tino rangitiratanga.

• Thus, Maori are still suffering in the long-term from these impacts to become financially independent again.

• 6% of New Zealand land remains as Maori land (spin off)- so Maori have to regain their independence in other ways. Not as simple as restoring land so Maori can control their area. This tino rangatiratanga must come from politics, being involved in management of land and being allowed to prosper financially again through other means like investments.

Central to the concept is the ability for the Maori to foster economic development for their hapu (spin off)

• Waitangi Tribunal found that Maori have the right to development

• Loss of land and therefore the loss to create economic opportunities on the land has been lost which impacts the Maori ability to exercise tino rangatiratanga, sovereignty over their people from aspects like protection, the ability to provide for the hapu and to be self-determined.

• The Crown must help Maori as a treaty partner and as a form of redress

• Maori must be given more opportunities- more laws in action? Arguments for and against~ quotes

• Many believe that the settlement has fixed it, naïve view, it will take time for Maori to become independent

• Iniatives for Maori to provide health care for people improvement- provide for people. Such as Whanau Ora and home-based health care programmes delivered to Maori communities by Maori providers

• Proposal- Ngai Tuhoe – to assume responsibility for the delivery of welfare services to community. Example of exercising it. Meets resistance, need more of this!

• It is not just about power but about building a better future for Maori

• Waitangi Tribunal quote- still a long way to go

• Based on governments obligation, they have to enforce it, challenge, they could ignore Maori rights because they have absolute sovereignty

Therefore—tino r is still relevant, challenges in expression,

The use of tino rangatiratanga in Te Tiriti o Waitangi is important in expressing the rights of Maori to self-determination and autonomy over their own Maori affairs. Tino rangatiratanga has caused continual debate on Maori rights in New Zealand due to the treaty mistranslations and different interpretations by the Crown and Maori today. This must be analysed to understand the rights the treaty guarantees to Maori today. The different interpretations have caused contemporary challenges in the full expression of tino rangatiratanga. For example, the balance between parliament sovereignty with the Maori right to be involved in governing positions to be able to protect Maori interests. Another contemporary challenge is the struggle for Maori to become financially independent to be able to exercise tino rangatiratanga in relation to treaty settlements. Another challenge is the different interpretations of the Crown and Maori of tino rangatiratanga in regards to the lack of legal authority the treaty principles have.

The use of tino rangatiratanga in the Maori version of the Treaty has caused different perspectives on the degree of sovereignty Maori are guaranteed. The English mistranslated the Maori version of the treaty due to their misunderstanding of tino rangatiratanga.¹ In the English version of Te Tiriti o Waitangi, Article 1 referred to Maori ceding absolute sovereignty to the Crown. Whereas, in the Maori version, Maori only guaranteed the English limited sovereignty, governship, over the Pakeha inhabitants (kawanatanga.)² In article 2, Maori were guaranteed the right to retain sovereignty over their own Maori affairs including their people and land (tino rangatiratanga).³ Thus, the use of both kawantanatanga in article 1 and tino rangatiratanga in article 2 reveals that Maori gave the British governing rights in New Zealand while the Maori retained te tino rangatiratanga. Due to this mistranslation the Crown has at times limited Maori’s ability to exercise tino rangatiratanga.

There are conflicting viewpoints on the level of authority Maori are guaranteed in the Treaty which is challenging in the expression of tino rangatiratanga for it to have legal authority. The Crown and courts, and the Waitangi Tribunal have opposing views. The Crown, supported by the courts, states they have legal sovereignty over New Zealand including Maori due to the kawanatanga idea in Article 1 that ceded governing rights to the Crown.⁴ However, in the past the Crown and courts have ignored tino rangatiratanga in Article 2. In past cases like Wi Parata the Treaty’s importance was undermined by being termed a “legal nullity” by Prendegast CJ. Thus, Maori rights were ignored.⁵ Maori customary rights and authority are becoming more recognised in law as this perspective changes. This is shown by the New Zealand Maori Council v Attorney General 1987 case which stated that the government must act in accordance with the treaty principles under s9 of the State Enterprises Act.⁶ The Waitangi Tribunal found that in Article 2 Maori were guaranteed the right of the retention of tino rangatiratanga and they believe that Parliaments kawanatanga is subject to this.⁷ They stated in the Maori Electoral Option Report that tino rangatiratanga guaranteed Maori self-determination and self-management rights.⁸ Essentially, Maori have the right to have control over policies and...