Ewen McQueen: There can be only 'one sun in the sky' and that's the Crown

The constitutional review may help us find new ways for that chieftainship to be expressed. Photo / HOS

Opinion

In 1908 the Tuhoe chief Rua Kenana came down from his mountain stronghold to discuss matters of state with Prime Minister Sir Joseph Ward. To Rua's question on the issue of sovereignty, Ward replied: There can be only one sun in the sky. As we review the place of the Treaty in our constitution, we would do well to remember his words.

Protection of rangatiratanga or chieftainship is a fundamental Treaty guarantee. However, for some, rangatiratanga has gained a lot in translation. Ngapuhi, for instance, have challenged Crown sovereignty at the Waitangi Tribunal. They argue that the guarantee of rangatiratanga means they never relinquished sovereignty when signing the Treaty.

The Ngapuhi claim is not an isolated aberration. It is the inevitable outcome of Treaty history being revised for the past two decades by activists, lawyers and bureaucrats. The revision process means it has now become fashionable to speak of Crown and iwi as Treaty "partners".

Indeed, "partnership" has become the mantra of a whole new paradigm of interpreting the Treaty.

Taken to its logical conclusion, this paradigm sees iwi not so much as loyal subjects of Her Majesty's Government but rather co-regents expressing their own sovereignty. Advocates of this position assert the Treaty merely granted the Crown a partial concession to exercise authority over incoming settlers, while at the same time preserving for iwi ultimate authority over all things Maori. In effect it is argued that the Treaty established a dual sovereignty in New Zealand.

However, such thinking ignores both the Treaty itself and the historical context in which it was signed.

Start with the Treaty text. Much is made of the differences between the English and Maori versions. But one thing is certain - the word partnership appears in neither. The Treaty articles do not even imply a partnership in a constitutional sense. Rather they establish the British Crown as the ultimate legal authority in return for protection of Maori interests. The latter include land and chieftainship (rangatiratanga). However, that chieftainship is guaranteed within the context of the overarching sovereignty of the Crown.

As the Waitangi Tribunal noted in its 1987 Muriwhenua report: "From the Treaty as a whole it is obvious that it does not purport to describe a continuing relationship between sovereign states. Its purpose and effect was the reverse - to provide for the relinquishment by Maori of their sovereign status and to guarantee their protection upon becoming subjects of the Crown."

The tribunal's reference to the Treaty "as a whole" is key. The Article Two guarantee of rangatiratanga must be understood in the context of the whole document. Iwi signed up to the whole Treaty, not just the second article. Article One establishes Crown sovereignty. In it chiefs agreed to "give absolutely to the Queen of England forever the complete government over their land". That's Professor Sir Hugh Kawharu's translation of the Maori version. It doesn't leave much room for manoeuvre.

Kawharu's translation of Article Three is equally straightforward. Maori took on "the same rights and duties of citizenship as the people of England". The Court of Appeal reinforced this in a key 1987 judgment, stating "For their part the Maori people have undertaken a duty of loyalty to the Queen, [and] full acceptance of her Government". Ironically this judgment also introduced the Treaty partnership concept that is now so popular. Full acceptance of Crown sovereignty is less fashionable.

In addition to the Treaty text, we have William Colenso's detailed first-hand account of the debate at Waitangi. It shows that many chiefs were initially reluctant to sign the Treaty, precisely because they understood it would establish an authority above theirs. Tareha replied to Hobson: "We only are the chiefs, rulers. We will not be ruled over. What! thou, a foreigner, up, and I down! Thou high, and I, Tareha, the great chief of the Ngapuhi tribes, low! No ..." Others expressed similar sentiments. In the Hawkes Bay one chief, Te Hapuku, even drew a diagram showing the Queen above the chiefs.

It is clear then, that while Maori may not have grasped the finer nuances of sovereignty, they definitely understood the critical issue - the Treaty established a governing authority over and above their chieftainship. However, most still signed it.

They did so not because of assurances of "partnership", but because they were persuaded of the benefits that Crown authority would bring. These included law and order, peace between tribes and increased opportunity for trade. Tamati Waka Nene, for instance, urged Hobson to remain as "a father, a judge, a peacemaker". These were the arguments advanced in support of the Treaty. Clearly they were persuasive, for most chiefs agreed to give absolutely to the Queen the complete government over their land.

Of course they did so in return for guaranteed protection of chieftainship. The constitutional review may help us find new ways for that chieftainship to be expressed. But let us never forget the foundational constitutional reality that the Treaty established - one sun in the sky.

Ewen McQueen blogs at RenewNZ.org