This post is an extract from my, as yet unfinished, LLM Thesis. With submissions to the Constitutional Advisory Panel closing on 31 July 2013, I felt it was timely that I share my introductory framework for conceptualising sovereignty in Aotearoa-New Zealand. At 4,000 words this is a substantial read, but countless hours have gone into formulating this position so you will be rewarded for reading this in its entirety. Over time I plan to share more of my Thesis as it is refined and developed. I retain all intellectual property in this piece of work, please cite and reference this article in the appropriate style.
On 6 February 1840, a group of Ngāpuhi1 Rangatira met with representatives of Queen Victoria of Great Britain, led by Captain William Hobson, to sign Te Tiriti o Waitangi.2 Te Tiriti o Waitangi is a short text, nothing more than a preamble and three Articles. Yet in Aotearoa-New Zealand,3 Te Tiriti o Waitangi exists as a modern-day Magna Carta,4 a text significant as the founding document of New Zealand. More than this, a major debate flowing from Te Tiriti o Waitangi (and the core kaupapa5 of this Thesis) is the purported transfer of sovereignty from Iwi and Hapū6 to the British Crown.7
This Thesis is intended as an exploration of the concept of sovereignty in the context of the Nation State of New Zealand. In a Thesis which confronts numerous loaded terminologies, each with their own baggage, common (mis-)understandings, and legal definitions; “sovereignty” is the most loaded of them all. It is a concept which has been notoriously difficult to define, and even more difficult to frame in anything other than the theoretical. Sovereignty takes many forms, can be expressed using numerous terminologies, and has the ability to confound all those who attempt to discuss it. At its core, however, sovereignty is power.
The aim of this Thesis is to analyse, and re-define, the concept of sovereignty as it exists within Aotearoa-New Zealand. In the eight chapters that follow, I will attempt to frame sovereignty as something other than the all-encompassing power of the Nation State, a belief so common that it has be accepted at all levels of the apparatus of our Nation State. All three branches of the Crown; Parliament, the Executive, and the Judiciary; accept, and perpetuate, the idea that the Crown is the sole sovereign power.
This Thesis argues that sovereignty, rather than existing as an absolute exercise of power by the Crown; is, in fact, a multi-faceted concept, comprising many forms. Each form of sovereignty is a building block towards our understanding of what sovereignty actually is. At its core, sovereignty is power. The exercise of that power is not restricted to a sole entity in the Nation State. The Crown does not hold a monopoly on the exercise of power.
Chapter Two: Sovereignty – A Framework
In the second chapter I provide a framework for conceptualising the discussion of sovereignty. Five forms of sovereignty are discussed, each of which provide an insight into the exercise of sovereignty. Sovereignty as power; De Jure and De Facto sovereignty; Internal sovereignty and external sovereignty; Community sovereignty; and A spectrum of (indigenous) sovereignty.
The idea of sovereignty as power was established in the opening paragraphs of this Thesis. The exercise of power is the overarching theme that emerged from the research for this Thesis. Every society, in some form or another, has established rules relating to the exercise of power. Considered in this light, sovereignty is nothing more than the legal term for power.
The exercise of power is the underlying factor behind the second form of sovereignty, the idea of De Jure sovereignty and De Facto sovereignty. De Jure sovereignty is the sovereignty which is exercised according to law. De Facto sovereignty is that sovereignty which is exercised in fact or, in other words, the actual sovereignty that is experienced in a given territorial location.
The third form of sovereignty is the distinction between internal sovereignty and external sovereignty. Internal sovereignty refers to the sovereignty exercised within a given territory. In the context of the Nation State it manifests in the day to day operations of the Nation State. External sovereignty refers to the engagement of one sovereign power with another.
The fourth form of sovereignty is what I refer to as “community sovereignty”. Community sovereignty flows from the idea, most famously established in the Constitution of the United States of America, that sovereignty resides in the people. This conception is expanded upon to establish a form of sovereignty dependent not on a Nation State for its existence but, rather, a community of common interests.
The fifth, and final, form of sovereignty is the ideal that sovereignty (and in particular, indigenous sovereignty) exists along a spectrum. The exercise of power can exist in a weak-form, such as through the inclusion of groups within the decision making processes of a Nation State; in the strong-form, Nation State exercise of sovereignty; and in varying forms between.
These five forms of sovereignty form the framework on which the remainder of this Thesis is developed. Each will be discussed in greater detail in chapter two, and in the relevant sections of the remaining chapters.
Chapter Three: Indigenous Conceptions of Sovereignty
Chapter three canvasses several indigenous viewpoints of sovereignty, all of which establish indigenous sovereignty as a valid exercise of sovereignty. I establish that indigenous sovereignty exists both independently of, and in conjunction with, the sovereignty of the Nation-State which encompasses indigenous societies.
I commence the chapter with a discussion of the Tikanga perspectives of sovereignty. In Aotearoa, the sovereignty of Iwi and Hapū is grounded in our status as Tangata Whenua. Sovereignty flows from the whenua, and the status of Iwi and Hapū as Tangata Whenua.
According to Tikanga, the sovereignty of Iwi and Hapū was established through the occupation of the land, alongside the deep spiritual connections that has been formed over time with that land.
This sovereignty, represented in Te Reo by a number of different concepts such as Mana, Manawhenua, Kingitanga, and Tino Rangatiratanga to name several, cannot be readily assumed away by the legal fictions of a colonising people. Through the practice of Ahi Kā, Tikanga holds that the sovereignty of Iwi and Hapū remains intact even in the light of a purported extinguishment of that sovereignty by another Iwi or Hapū.
Chapter Four: Sovereignty in International Law
Chapter four explores the concept of sovereignty in international law. In this chapter I set out the argument that International Law has consistently recognised indigenous sovereignty. From its early formations by Vattel, through to the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”), indigenous sovereignty is afforded due recognition by International Law.
This chapter also discusses the conflict that arises between indigenous sovereignty, being the sovereignty of the original inhabitants of a territory; and the classical Westphalian8 conception of sovereignty, being the all-encompassing and absolute exercise of power claimed by the Nation State.
The “recognition”9 of indigenous sovereignty is currently being trumped by political arguments disguised as legal arguments. Early formulations of international law recognised the sovereignty of indigenous society’s vis-à-vis the colonising European powers. The sea change came when the European Nation-States sought to justify their foreign aggressions. Indigenous societies became “uncivilised”, and could not be considered a true sovereign due to the lack of the formal institutions of sovereignty.
This line of legal analysis, known as Positivism, came to prominence in the late 19th Century. Colonisation was justified by the European Nation States on the notion that indigenous peoples were “semi-primitive barbarians”10 who lacked the formal institutions necessary to constitute a sovereign people. By formal institutions, such positivist though required the exercise of Government to look identical to their exercise of Government before it would recognise sovereignty. This conception ignores the complex legal, political, and governance structures of indigenous societies. It is, unfortunately, a conception of sovereignty that has remained in force in New Zealand, with many politicians and scholars still maintaining that Māori were a bunch of “semi-primitive barbarians” who required protection from themselves.
The final section in chapter four discusses indigenous sovereignty in international law, and focuses on the United Nations Declaration on the Rights of Indigenous Peoples. The Declaration provides for the recognition of the right of self-determination of indigenous peoples and while the Declaration is intended to be aspirational rather than binding on Nation States, it does provide support at the international level for the sovereign rights of indigenous peoples.
Chapter Five: Te Tiriti o Waitangi – A Treaty of Cession?
In Chapter five I discuss the intersection of two sovereign powers, the two texts that arose from this intersection and the perspectives of the two sovereign powers on the meaning and effect of these two texts.
The first such text is He Whakaputanga O Te Rangatiratanga O Nu Tireni (“He Whakaputanga”) – The Declaration of Independence of the United Tribes of New Zealand, signed in 1835. He Whakaputanga was a declaration to the world of the sovereignty of the Iwi and Hapū of Aotearoa. It did not establish that sovereignty for, as set out in Chapter Three, the sovereignty of Iwi and Hapū has existed from the point of inhabitation of Aotearoa.
The second text is Te Tiriti o Waitangi. Te Tiriti o Waitangi, as noted in paragraph 1 above, is a treaty entered into between Ngāpuhi Rangatira and Queen Victoria. The meaning and effect of Te Tiriti o Waitangi depends on whether you view Te Tiriti o Waitangi from the Māori perspective, or from the Crown perspective.
For Iwi and Hapū, Te Tiriti o Waitangi was debated in Te Reo, written in Te Reo, and signed in Te Reo. The authoritative text is, therefore, Te Tiriti o Waitangi and not The Treaty of Waitangi. The two texts are materially different, and the Māori perspective is that the text debated, written, and signed is, for all intents and purposes, authoritative. Te Tiriti o Waitangi, while providing the British Crown with the power of Kawanatanga – effectively the ability to establish a form of governance in Aotearoa, reserved to Iwi and Hapū their Tino Rangatiratanga – their sovereignty.
The apparent conflict between Kawanatanga and Tino Rangatiratanga in Te Tiriti o Waitangi can be explained by reference to the idea of shared, or dual, sovereignty. Concerned over the increasing lawlessness of Pākehā in Aotearoa, Māori entered into Te Tiriti o Waitangi on the belief that it would grant the British Crown the power to exercise their authority over Pākehā, and ensure the maintenance of law and order from the visiting, and settled, Pākehā.
Subsequent practice supports this understanding. Iwi and Hapū continued to exercise their Tino Rangatiratanga over their respective territories. In the case of Te Rohe Pōtae, the exercise of sovereignty lasted well into the late 19th Century.
The Crown, on the other hand, holds a different perspective of The Treaty of Waitangi. The Treaty of Waitangi, while not sufficient on its own to amount to a treaty of cession of indigenous sovereignty, was a critical component in a series of jurisdictional steps that the British Crown undertook to secure the transfer of sovereignty from Iwi and Hapū to Queen Victoria.
Such jurisdictional steps included the securing of the free consent of Māori through Te Tiriti o Waitangi; the declaration of sovereignty in Europe through the gazetting of Proclamations to this effect; and, ultimately, the settlement of New Zealand.
As I discuss the Crown perspectives of Te Tiriti o Waitangi, so do I critique the foundations of the assertion of Crown sovereignty on three grounds:
- The Crown’s misapplication of the prevailing international law in 1840 pertaining to the acquisition of sovereignty;
- The Crown’s flawed reliance on acquiring the free consent of Māori; and
- The Positivist-centric application of law in the Crown’s assessment of the acquisition of sovereignty.
I conclude the Chapter by setting out the proposition that De Jure sovereignty remained vested in Iwi and Hapū following the signing of Te Tiriti o Waitangi.
Chapter Six: Indigenous Sovereignty in Aotearoa-New Zealand
Following on from the concluding section of Chapter Five, I open Chapter Six with the proposition that absolute Crown sovereignty over New Zealand is a myth. While the Crown exercises De Facto sovereignty, it can hold no claim to De Jure sovereignty. According to Tikanga and International Law, there has been no transfer of De Jure sovereignty from Iwi and Hapū to the Crown, and a mere assertion that there has is not sufficient to legally support such a proposition.11
Central to the issue of indigenous sovereignty in Aotearoa-New Zealand is the position of Te Tiriti o Waitangi in the New Zealand legal system. The treatment of Te Tiriti o Waitangi by the Judiciary, the Legislature, and the Executive are all canvassed, with several case studies being discussed.
Finally, Chapter Six concludes with a discussion on the legal recognition of indigenous sovereignty in Aotearoa-New Zealand. Specifically, a case study canvasses the decisions of the District and High Courts of New Zealand in which Māori have sought to disavow the jurisdiction of the Court on the basis that the Crown has no claim to sovereignty over Māori.
What this case study demonstrates is that the New Zealand Judiciary ignores almost absolutely the claim of indigenous sovereignty by Māori. Admittedly, the cases argued are not ideal cases to argue that the Courts should uphold the sovereignty of Iwi and Hapū, but they do highlight the nature of the challenge facing Iwi and Hapū seeking to have the right of Tino Rangatiratanga upheld.
Chapter Seven: The Spectrum of Indigenous Sovereignty
In Chapter Sever the spectrum of indigenous sovereignty is considered in some detail. Each of the following four manifestations of indigenous sovereignty is discussed, with reference to case studies, to highlight the advantages and disadvantages of each, and the suitability of each as upholding indigenous sovereignty in Aotearoa-New Zealand:
- Co-Management; and
- Participatory Government.
Sovereignty refers to the exercise of power and control by a body independent of the Nation State. The case study briefly leaves the realm of indigenous sovereignty in discussing the unique position of sporting bodies in Aotearoa-New Zealand, specifically the New Zealand Rugby Football Union (“The NZRFU”). As will be argued, the NZRFU exercises a form of internal sovereignty, insofar as its actions relate to the running of the game of Rugby, specifically, the NZRFU exercises the almost complete control of activities that occur on the field of play.
Self-Management exists where the Nation State either provides Indigenous Nations with the finances to address an issue in the manner of their individual choosing, or at the very least places no barriers in the way of Indigenous Nations who seek to so act. The case study focuses on the Whānau Ora scheme implemented by the current National Party Government, in conjunction with the Māori Party. Whānau Ora intends to place financial resources directly with Whānau, and provide those Whānau with the tools and resources to self-manage their affairs.
Co-Management refers to the sharing of control and management between the Indigenous Nation and the Nation State, and is most often implemented over Mountains, Parks, and Rivers. The case study focus on a more specific aspect of Co-Management, that of the legislative protection of Te Tiriti o Waitangi. Such legislative protections provide Iwi and Hapū with a greater degree of influence over Crown decisions and actions and, in light of recent events surrounding the partial sale of State-Owned Assets, a more effective legislative regime is advocated for.
Finally, Participatory Government refers to the inclusion of Indigenous Nations, or Indigenous Peoples, in the day to day operations of the Nation State – from the administrative functions right through to the legislative functions. The case study discusses the Māori electorates, from their inception through to modern-day issues surrounding the retention of these electorates.
Chapter Eight: Conclusion
To conclude this Thesis, Chapter Eight sets out the series of propositions on which the argument presented in this Thesis is based. Each proposition is reference to the Chapter and Section of this Thesis in which they are discussed.
A Personal Perspective: Ko Wai Au?12
In order to understand this Thesis, the reader should first understand who I am. My understandings of sovereignty, and in this context, indigenous sovereignty are grounded in my legal, political, and spiritual beliefs. I write this Thesis not only as an Academic, but also as a Practicing Barrister and Solicitor specialising in Te Tiriti o Waitangi issues and, most importantly, as a member of the Te Ātiawa Iwi in Taranaki. Every thesis should be seen in the context in which they are written, and this is no different. I am a descendant of Te Ātiawa and the discussion of indigenous sovereignty is, therefore, not being undertaken in the abstract.
Having made the decision to write this LLM Thesis, I reflected on the issue of assessing sovereignty through a Kaupapa Māori paradigm rather than the dominant Westminster paradigm. The problem with adhering to the Westminster paradigm is that it will, be definition, favour the rights of the colonisers over the colonised. Māori rights can never be fully realised within the Westminster paradigm, the system itself will never allow it. It is only within a Kaupapa Māori paradigm that Māori rights can be upheld in their entirety.
That is why it is imperative for Māori to analyse documents like Te Tiriti o Waitangi from a Kaupapa Māori paradigm. Tikanga Māori is a living body of law which needs to be encouraged to grow and develop. As a qualified Māori lawyer, I have a responsibility to contribute to the growth and development of Tikanga Māori and to use a Kaupapa Māori paradigm whenever I approach a legal issue.
As a qualified Barrister and Solicitor, grounded in both the Westminster and Tikanga legal systems, I have a unique appreciation of the conflict over the most political word of all – sovereignty. Sovereignty is power and sovereignty is control. The sum total of history is this battle for power and control. Those who exercise it will do all they can to retain it. Those who want it will do everything in their power to obtain it. Whether you call it sovereignty, Tino Rangatiratanga, Mana, or self determination, the core conflict is the same: power and control.
As a Māori, the pain of living in our ancestral homeland and being denied the exercise of our own political and legal systems can be overwhelming. Every day is a constant reminder of what was once ours and what has been taken from us. To see a foreign power control our lands is demoralising and demeaning and has negative consequences on the psyche of Te Ao Māori.
At its core, the usurpation of power by the European Colonisers from indigenous societies is unjust, unethical, and can have no basis in a legal system founded on principles of justice, fairness, and equality. The usurpation of power by the British in Aotearoa is, according to Tikanga, illegal and unjustifiable. The fact that it occurred in clear breach of the promises made in Te Tiriti o Waitangi makes the usurpation that much more egregious.
As a Māori, in writing this Thesis, I have been forced to confront some uncomfortable truths. Power and control in Aotearoa-New Zealand is exercised by the Crown. The concepts and sites of power13 are vested in the traditional Westphalian notion of the all-encompassing, all-powerful, ideal of Sovereignty – the Nation State. Sovereignty is vested in the Queen of New Zealand and exercised through her Government. I initially conceptualised this Thesis as being written from first principles, arguing that Queen Elizabeth II has no claim to the sovereignty of Aotearoa. Realistically, such a paper would achieve nothing. The absence of a legal claim to sovereignty (De Jure sovereignty) does not negate the exercise of sovereignty (De Facto sovereignty). In law, the only law of the land, Tikanga, the claim to sovereignty exercised by Queen Elizabeth II is a de facto sovereignty only. Legal sovereignty remains vested in the indigenous Māori communities who never ceded such sovereignty.
In embarking on this path I open myself up to criticism from my Māori brethren for failing to provide and analysis grounded solely in Kaupapa Māori. Such a critique has already been provided by scholars such as Moana Jackson (and others) and it is not my intention to attempt to replicate their illustrious efforts. I aim to begin a discussion which will, ultimately, provide a long-lasting and durable solution to the conflict between the Westphalian notion of sovereignty and the Tikanga expression of Tino Rangatiratanga – a solution which is grounded in both the Westminster Legal System and Tikanga Māori.
Is this an ambitious goal? Perhaps. And it is perhaps too much to expect from a Master of Laws Thesis? I sense so. Yet, one of the key lessons that I have learned during my time at the Bar is that change, real everlasting change, only arises through great ambition and great courage. I set out in this Thesis to destroy the comfortable myth of Crown sovereignty over New Zealand, in doing so, it is my hope (as it is the hope of all who undertake a Masters of Law Thesis) that the effect of this work is not entirely academic.