#16972 - Notes For Essay - Legal Foundations (LAWS110)

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

Tino Rangatiratanga- authority and autonomy

Everyone has different interpretation of what it means

• In essay you discuss the literal interpretation and explain the different views of how it has been described and defined

• Commentary from cases and Waitangi tribunal

• Courts and tribunals have said different things

• Explain different views of what it means

• Form your own view on what you think Tino rangatiratanga is

And…

• Then 2 contemporary challenges

What are the things that make the full expression of authority and autonomy difficult?

You could say iwi Maori exercising full degree of authority over their own affairs is difficult because of…

• One centralized parliamentary structure

• How to deal with authority and autonomy with the different demographics, Maori live everywhere, not like the state’s reservations. The institutional set up. Think about the practical challenges of expressing authority and autonomy.

• How broadly- high Maori incarceration (prison) rate- expression of tino rangatiratanga- how does it impact on the expression of authority.

• Practicality and people’s views about it, can go into different debates- different political positions on the legitimacy and status of tino rangatiratanga- political side of the challenges.

Law Alive 4^th edition

The New Zealand Legal System

Grant Morris

Section 4.3 pg 77 Interpreting the Treaty

• There has been misinterpretation in the Treaty of Waitangi because the British and Maori had different versions.

• British perspective of the Treaty of Waitangi was to transfer sovereignty from Maori tot the Crown

• The Maori perspective of the Treaty of Waitangi was to keep a degree of chieftain authority and to “confirm Maori possession of land and taonga.”

Structure of English version of TOW

• Article 1 was the ceding of sovereignty to the Crown

• Article 2 gave Maori safeguards such as for their land

• Article 3 gave Maori the rights of British subjects

• The Treaty of Waitangi is seen by many as New Zealand’s founding document

• The issue with the Treaty of Waitangi is that it contradicts itself due to how the Maori version was not correctly translated. Significantly, due to this it contradicts the English version of the treaty.

One controversial word is kawangatanga which is used in article 1. Article 1 is about the cession of sovereignty, In the Maori version Maori cede kawangatanga to the British Crown whereas in the British version Maori cede sovereignty to the British Crown. This is described as meaning a limited form of administrative government. Thus, as a result the Maori thought this meant that the British and the Governor would have limited powers so that their powers would extend over British citizens but that it would be subject to the Maori chief’s authority.

Article 2 also contradicts itself in the English and Maori version. For instance, in article 2 in the British version Maori are guaranteed “full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties.” In the Maori version this is translated into “te tino rangatiratanga” meaning absolute sovereignty. Thus, this meant that due to the mistranslations of article 1 and 2 the Maori believed that they were giving the English limited sovereignty over the non-Maori inhabitants and due to article 2 they believed that they would be able to retain sovereignty over their own people and land. Therefore, this causes issues today by how the treaty contradicts itself over the rights of Maori.

Article 2 right of preemption

Significantly, the Waitangi Tribunal concluded in 2014 that Maori did not cede sovereignty at Waitangi. This is because the Tribunal found that the rangatira “would have found it inconceivable” meaning that they would never have signed the treaty had they known the English version.

Despite the translation controversy in the Treaty of Waitangi, the Crown still has legal sovereignty over New Zealand in the 21^st century. The New Zealand Courts and Legislation support the British sovereignty.

The use of the word Te tino rangatiratanga in Article 2 promises Maori complete sovereignty over the land instead of complete “possession” that the British version stated meaning that they would be subject would be subject to the Crowns ultimate sovereignty.

In Article 2 in the English version Maori were promised that they would be able to keep possession of their lands, forests and fisheries, with taonga being added to the Maori version. The use of the word taonga is controversial, because it means “treasured things” and today Maori have argued that it applies to Maori language, airways, cultural intellectual property and indigenous flora and fauna.

Due to these contradictions, New Zealand legislature and judiciary focus on the principles of the treaty with this approach having been used since the 1970s. Before this, the treaty was ignored by the New Zealand legal system.

However the treaty was ruled as a “simple nullity” in wi parata

The case of New Zealand Maori Council v Attorney General in 1987 addressed the issue of what place the Treaty of Waitangi had in the New Zealand Legal System. They looked at the effects of s9 of the State Enterprises Act 1986 and significantly they stated that the government must act in accordance with the treaty principles. The Maori argued that the state-owned enterprises could not be sold because the areas of land involved could be used in treaty claims and settlements. Under s9 they were found to have breached the principles of the treaty under s9 of the Act.

Challenge- the treaty does not have legal force unless it Is incorporated into statute

One of the principles of the Treaty of Waitangi (Court of Appeal, 1987) is the recognition of Maori rangatiratanga over Maori land and culture.

Treaty of Waitangi 1975 established the Waitangi tribunal to address Maori grievances with the Treaty.

Weeping Waters the Treaty of Waitangi

Page 133

The Ngai Tahu Tribunal in its 1991 report states that tino rangatiratanga “necessarily qualifies or limits the authority of the Crown to govern. In sovereignty it must respect, indeed guarantee, Maori rangatiratanga- mana Maori- in terms of Article 2. The Mohaka River Tribunal simply put it that the Crown is required to “exercise its kawanatanga with due respect for tino rangatiratanga.”

Orakei Claim tribunal found in its 1987 report that the word kawanatanga which is used in article 1 of the Maori version “is less than the supreme sovereignty of the English text and does not carry the cultural assumptions that go with it, the unfettered authority of Parliament or the principles of common law.”

Tribunal reports have linked this in regards to the principle of reciprocity. For example, in the 2008 central north island (CNI) Tribunal report found that article 1 supports that the Crown is the “only centralized body with the overview and capability necessary” to enact laws. The Crown like other previous reports was found to that it must exercise “careful balancing” when governing so that they are consistent with treaty obligations. Thus, the treaty restrains the Crowns exercise of governance. As the Waimuna Trust Tribunal states, “we accept that the exercise of tino rangatiratanga is balanced by the Crowns legitimate exercise of its kawanatanga. This is the fundamental principle of reciprocity.”

Thus, the Tribunal found that the overall principle is that the Crowns sovereignty (kawanatanga) is qualified by tino rangatiratanga, and that they still have the rights to govern. Thus the Maori still have their own rights that cannot be interfered with by the Crown. This is shown by according to the principle the CNI Tribunal endorsed the Muriwhenua Fishing Tribunals decision that “the Crown has no right to determine for the tribes the wisest or best use of their fisheries resources for so long as the tribes regulate and enforce their own standards.”

This principle has been used in section 4 of the Conservation Act 1987 which is “interpreted and administrated as to give effect to the principles in the Treaty of Waitangi.” The Tribunal interprets this to mean that the Crown has the right to govern as stated in Article 1 of the treaty, this right is qualified by the Maori right to exercise rangatiratanga. They believe that kawanatanga is subject to rangatiratanga and that the only exception is when the Crown can override rangatiratanga is when it is the national interest. Although, in the Conservation Act 1987 this exception does apply. Also according to Article 3 if a resource is taonga the Crown has an obligation to protect it.

Significantly, the Maori descendants believe that the Treaty is the only constitutional basis that lets Pakeha live in New Zealand.

The rights of the British Crown can override the rights of the Maori

The

In comparison, the courts have not gone as far as the Tribunal. For example, the Tribunal has found that kawanatanga is subject to ranatiratanga. Similarly, The Court of Appeal in the Ngai Tahu Maori Trust Board v Director-General of the Conservation decision recognized the Crowns right to govern and the Maori right to exercise tino rangatiratanga although it did not look at how they would work together. Instead, it looked at the first right, which is the governing rights of the Crown without looking at how tino rangatiratanga could operate alongside it. This is shown by how the Crown stated, “the rights and interests of...