#16982 - Te Aotahi 2 May 2019 - Legal Foundations (LAWS110)

Laws110

2/May/2019

How do you understand the Treaty?

Overview

What the Treaty said (x2)

What happened?

Where we are currently?

Tino Rangatiratanga- self determination

How land was treated following the treaty

Follow what happened to terms over the time.

What the Treaty said

Article 1- power

• Power- tino rangatiratanga, self determination

• The concept of power was translated different in the Maori and English version

• Settler community benefited more than Maori

• Some historians think translation issues were intentional, others say it was an accident.

• Focus on understanding the difference between the two different terms used in the concept of power

• A power sharing arrangement, concepts of power at the heart of our existence

• Concept of 1840 power is different

• Media- 21^st- Maori lower income levels, lower education, sad, bad etc.

• Prior to 1840s different- 1840- majority of Maori owned all of the economic resources in NZ, greater literacy than early settlers/

• Power imbalance for benefit of Maori, numbers, resources, know-how, acquiring from the new knowledge in New Zealand, trade internationally, before treaty Australia, Europe and south America. The relative strength and autonomy. We jump back to a time to when the settler community were reliant on Maori to survive.

• Settler community- starving, Maori provide substance

Pre-Treaty

Power- tino rangatiratanga, self-determination, sovereignty

What existed- self determination

Sovereignty- makes a state a state, association with Queen and Empire building, essence of sovereignty no higher power to tell you what to do. Sovereignty in International Law. No other nation state can tell you what to do. Being sovereign, one government can’t bind another government to do another thing, fully powerful, make decision about your life, what is right and wrong. Make rules about anything cause you want to

• What existed- self-determination

• Who governed what?

• Under what authority?

• What rules?

• How did it work?

Systems of power that were localized.

Before the Treaty of Waitangi there was a political and legal system that governed the exercise of power. Concepts like centralized parliamentary powers. The localized hapu system. There were rules, who had rights to make decisions. Who could access land, resources and things, who married who etc. governed relationships between people and place. This was a legal system put in place.

Notion of power is reversed

Westminster way of thinking, we expect power to be held by a top entity, right to send power down

Hapu- power at ground level, iwi gets permission from hapu to do things

There were preexisting presumptions- was a system of power and authority being exercised in New Zealand.

Article 2- what happened to land and things

Article 3- equality

Treaty

Maori version- Maori retain Tino rangatiratanga, was the equivalent to sovereignty - real authority, Maori thought they would have this.

Kawanatanga- governance- lesser thing- English crown would have governance

= sovereign – make your own future as you desire it to be.

English version- opposite to Maori version. British crown would gain sovereign powers.

What did it mean?

Well different views…

Who has political and legal authority?

It is about the Maori making decisions of their own future.

Maori version- have right and ability to make decisions – hopes and aspirations- benefits Maori

English version- they determine the direction of the future state

Post Treaty

What happened?

• Native Exemption Ordinance 1844

• New Zealand Constitution Act 1852

Then…

• Combine it with limited influence and participation over mainstream decision making

Gave Maori the right to govern themselves in certain areas, early constitutional experiment, in particular areas exercise their authority- things changed in the 1860s

Up to 1860s there was no much competition for land

Efforts to follow Treaty, until competition for resources between English and Maori. Competition for resources, court system, 1877 pivotal decisions

How did that happen?

Wi Parata- Treaty is a legal nullity

c. 1877

What were the consequences?
Maori had a lack of authority over own affairs

Treaty deemed to be a matter of honor; government has a moral obligation to think about the Treaty of Waitangi.

Courts free reign- don’t have to think about concepts of power sharing.

If you don’t have much moral protection, autonomy over own affairs= erodes ability to make decisions about future

Moral position

Context of competition for resources

Position of the right of Maori to have autonomy on their own affairs

Thought that Maori were not capable to have the ability to be self-determined.

Western way of doing things were seen as superior.

Political philosophers saying what you have to do as a community, scientists saying people from western world have smaller brains

The dominant thinking at the time- if you weren’t from the Western world you were less civilized and no rights to govern own affairs.
Steady erosion of Maori ability to make decisions over their own land

Pre- Treaty

Land and things

What existed- land tenure system;

• Source of rights: mana tupuna + ahi kaa

• Nature of rights: authority, use, kaitiaki

Land was the main economic asset in New Zealand

• If you wanted to make money you needed to have access to the land

• Access community

• Connect to community through physical proximity

• Enfranchisement rights connected to land- have the right to vote

Think about it… like computer

Central to connection, broker access to things that you want

Tino rangatiratanga

• Before Treaty of Waitangi…

All land has a set of owners, all of NZ was owned under Maori land tenure system, concept of ownership was very different

• Who owned it was different

• How got rights to use it- legal system

• There was a recognition of Maori land ownership under Maori legal system

• Land important for practical reasons

Treaty
What did it say?

Tino rangatiratanga (full power)/retain

What did it mean?

• Protect property land

Maori version- the rights which were retained by Maori, there was taonga, anything that is valued… land, resources and taonga.

English version- Right of presumption- crown had the right to buy land off Maori. Maori retained property rights only

When it comes to power Maori retained full power, English version they got full power

Land- Maori retained full power, English version- Maori only retained property rights

Property rights are lesser than Tino rangatiratanga

Maori could make the rules, they keep their stuff and they can do whatever they want to do with their stuff

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