Tino Rangatiratanga - 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.

1,500 words

The use of tino rangatiratanga in Te Tiriti o Waitangi is important in guaranteeing the right for Maori of authority over Maori affairs. There are many contemporary challenges to the expression of tino rangatiratanga due to different Treaty perspectives. For example, the weak legal effect of the Treaty principles that enforce tino rangatiratanga. Another challenge is the Maori underrepresentation in government positions limiting their ability to exercise tino rangatiratanga.

The use of kawanatanga (governorship) in Article 1 and tino rangatiratanga (authority) in Article 2 of Te Tiriti o Waitangi reveals that Maori gave the British governing rights in New Zealand while Maori retained te tino rangatiratanga over their people, taonga and land.¹

A challenge to the expression of tino rangatiratanga is the different perspectives towards the Treaty reducing its legal effect. The Crown and courts, and the Waitangi Tribunal have opposing views. In the past, the Crown and courts have ignored tino rangatiratanga in Article 2, focusing on the Crowns right of kawanatanga in Article 1. In Wi Parata, the Treaty was ruled a “legal nullity” by Prendergast CJ setting a precedent that the Treaty was not legally binding which still applies today.² The Treaty principles were introduced for Maori rights like tino rangatiratanga to have more legal effect. The New Zealand Maori Council v Attorney-General 1987 case found that the government must act in accordance with the Treaty principles under s9 of the State Enterprises Act 1986.³ The Waitangi Tribunal believes that Parliament’s kawanatanga is subject to tino rangatiratanga. The Waitangi Tribunal’s Treaty principles support tino rangatiratanga and they must be complied with in drafting legislation. ⁴ However, their jurisprudence is non-binding to courts because Treaty principles must be drafted into statutes to be binding.⁵ For example, s4 of the Conservation Act 1987 states that the Act must be “interpreted and administered as to give effect to the principles of the Treaty of Waitangi”, however, this can be subject to different interpretations causing an unpredictable legal effect.⁶ The Act states that tino rangatiratanga qualifies kawanatanga so that the Crown can only override Maori’s tino rangatiratanga if it in the national interest.⁷ Although a challenge is that the courts have a contrasting perspective in applying the Treaty principles and the Treaty principles do not carry enough “weight” in the courts.⁸ The Court of Appeal found in the Ngai Tahu Maori Trust Board v Director-General 1995 case that “Maori had the right to exercise tino rangatiratanga.”⁹ Although it ignored the relationship between tino rangatiratanga and kawanatanga, instead they focused on kawanatanga only.¹⁰ They believe that Parliament’s governing rights have a superior authority that overrides tino rangatiratanga. This reduces the Treaty’s legal effect in the courts, undermining tino rangatiratanga. Under s7 of the Act, courts and government have to “take into account” Treaty principles. ¹¹ Since the Treaty principles are non-binding this causes them to have “weak standing” in the law, as shown when the Treaty principles were dismissed by the courts during the McRitchie v Taranaki Fish and Game Council case.¹²

The Treaty principles need more legal effect to bind or be more persuasive to the courts.¹³ In the Sealord Case, Cook P expressed that the Treaty principles should be more legally enforced in legislation.¹⁴ In this case, Parliament sovereignty and the executive overruled the Treaty. The government is not fulfilling its Treaty obligations by curtailing the Waitangi Tribunals attempts to have tino rangatiratanga expressed and the courts have reflected this by ruling out tino rangatiratanga in its Treaty interpretation.¹⁵ Geoffrey Palmer and Andrew Butler, having drafted a constitution, believe the Treaty needs to be codified in New Zealand’s constitution to remove the uncertainty in its legal effect because currently the Treaty is only mentioned in some statutes and legislation.¹⁶ They believe “the legal effect of the Treaty is inconsistent, incoherent and uncertain. There should be certainty… the Treaty should be an essential part of any written constitution” to increase the Treaty’s legal effect which will support Maori in retaining tino rangatiratanga.¹⁷

Another contemporary challenge to the expression of tino rangatiratanga is Maori underrepresentation in government positions which limits their ability to exercise tino rangatiratanga of protecting their taonga and their interests. This is caused by a lack of legislation guaranteeing Maori representation in governing bodies and co-management roles.¹⁸ Maori have limited co-management opportunities since the Treaty principle of active participation is non-binding.¹⁹ In The Resource Management Act 1991, Maori were given consultation rights in conservation decision-making over resources like the Whanganui River.²⁰ Despite this, Maori consultation has low regard in the environment court.²¹ As the Waitangi Tribunal’s 1996 Taranaki Report found, “the Government’s opposition and its determination to impose instead an ascendancy though cloaked under other names such as… majoritarian democracy or one nation.”²² Therefore, many in the government believe that Maori should not be treated as a separate political group. However, according to tino rangatiratanga, Maori should be identified as a separate group with specific rights to exercise authority over their affairs with Tikanga values.²³ The Treaty principle of partnership means that Pakeha must consider Maori’s tino rangatiratanga which involves the government and Maori sharing power and authority in the government.²⁴ Only 5% of elected local authority councillors are Maori, thus, Maori interests are...