Waitangi Tribunal sovereignty report is back in focus as northern settlement rekindled

Waitangi Tribunal member Robyn Anderson grills one of the Crown lawyers during the second stage of the Northland hearing in 2017. Photo/ Peter de Graaf

• The Waitangi Tribunal’s report concluded Māori did not cede sovereignty in 1840.
• The report’s findings have gained attention due to David Seymour’s Treaty Principles Bill.
• Paul Goldsmith aims to advance Treaty settlements in the north, focusing on economic progress.

One of the Waitangi Tribunal’s most important reports, concluding that Māori did not cede sovereignty in 1840, received perhaps the least comprehensive coverage of any of its reports.

There could be many reasons for that, including the possibility it was deliberately released at a time calculated to avoid political controversy – straight after the 2014 general election and when the country was awash with other news.

But despite the previously muted coverage, the volume is now being turned up, because of David Seymour’s Treaty Principles Bill.

The bill, which rewrites the principles of the Treaty of Waitangi, leads directly to the question: what was the meaning and effect of the Treaty of Waitangi at 1840?

That is just what the tribunal’s report looked at and the report was referenced numerous times by submitters this week during the first week of hearings on the bill in Parliament.

The tribunal’s finding reversed statements made in previous tribunal reports, when it said that Māori had ceded sovereignty.

But the inquiry, Te Paparahi o te Raki (the great land of the north), canvassed the issue at length in a 600-page report in stage one of a northern treaty claim.

“Our principal conclusion is inescapable,” it concluded. “Bay of Islands and Hokianga rangatira did not cede their sovereignty when they signed te Tiriti o Waitangi. Those who have made the assumption that the rangatira ceded sovereignty in February 1840 have largely ignored the Māori understanding…

“In drawing this conclusion, we say nothing about how and when the Crown acquired the sovereignty that it exercises today. Our point is simply that the Crown did not acquire that sovereignty through an informed cession by the rangatira who signed Te Tiriti at Waitangi, Waimate, and Mangungu.”

Leading Crown witness Alan Ward accused some other historians of what is known as “presentism,” meaning interpreting historic events with modern values.

“I believe there is a temptation, apparent in some recent historical analysis, to ‘read history backwards’, and to expect the participants of 1840, to have understandings and assumptions that are only available to us with hindsight.”

The tribunal hearings were held in 2010 and 2011 at various sites in the north but the first was held at Waitangi in a large white tent, evocative perhaps of the tent erected for the original hui erected on the Treaty grounds in 1840.

Crew of HMNZS Philomel marching on the Treaty Grounds in 2015 not far from where the tent had stood in 1840. Photo / Jason Oxenham

The Treaty was first signed in Waitangi on February 6 by 43 rangatira following debate the day and night before, although the report looks at the decades of interaction between Māori and the British leading up to that moment.

It was signed by a handful more at Waimate a few days later, then by 64 rangatira at Mangungu Mission House in the Hokianga on February 12. By the end of the year, more than 500 chiefs had signed, many on the recommendation of missionaries. Māori numbered about 100,000 and non-Māori about 2000.

The British had sent an official resident, James Busby, to New Zealand in 1833 and he learned te reo Māori. He had no powers but in 1835, under the threat of growing French influence, had been instrumental in getting the Declaration of Independence, He Whakaputanga, signed by 52 chiefs.

With increasing numbers of British arriving with demands for land and increasing levels of lawlessness, Lieutenant Governor William Hobson was instructed by the Colonial Secretary Lord Normanby in 1839 to get the consent of the Māori for the British to extend its sovereignty to New Zealand.

“I have already stated that we acknowledge New Zealand as a sovereign and independent state,” Normanby’s instructions said.

“… Her Majesty’s Government have authorised you to treat with the aborigines of New Zealand in recognition of Her Majesty’s sovereign authority over the whole or any part of those islands which they may be willing to place under Her Majesty’s dominion…”

According to the English version of the Treaty of Waitangi, it was mission accomplished – all right and powers of sovereignty ceded to the British Crown in order to establish civil government, undisturbed possession of their lands, forests and fisheries and the rights of British citizenship.

But the chiefs signed the Māori version. They did not know what the English version said, and Hobson, who also signed the Māori version, did not know what the Māori version said.

As the Waitangi Tribunal report noted, debate about different meanings began almost immediately afterwards.

In 1865, by which time the non-Māori population outnumbered Māori, James Edward Fitzgerald noted in New Zealand’s House of Representatives: “Were they bound by what they signed or what Captain Hobson meant them to sign?”

Evidence on the translation was given to the Waitangi Tribunal, on what the understandings of kāwanatanga and rangatiratanga would have been at the time.

The Māori version of the Treaty used the term kāwanatanga for sovereignty in article one, and it guaranteed the chiefs and their people unqualified exercise of their tino rangatiratanga in article two.

Dr Patu Hohepa addresses claimants and the Waitangi Tribunal in 2014 at the release of the stage one report. Photo / Michael Cunningham

In the Declaration of Independence, the word rangatiratanga had been used to denote independence.

About 70 people gave evidence to the tribunal for either the Crown, Māori claimants or at the invitation of the tribunal. The tribunal heard from rangatira, kaumātua, tohunga, linguists, anthropologists, lawyers, historians, and hapū experts presenting oral histories.

Among the luminaries of the north giving evidence were the late Erima Henare, son of Sir James and father of Labour MP Peeni Henare, and Dr Patu Hohepa, both former Māori language commissioners, Hone Sadler, Rima Edwards and Professor Margaret Mutu.

Examination of archival material from the time included writings of Lieutenant-Governor Hobson, interpreter Reverend Henry Williams, surveyor-general Felton Mathews, printer William Colenso and sometimes conflicting views of various modern historians about them.

The tribunal considered the evidence or works of Treaty experts including Ruth Ross, Dame Claudia Orange, Dr James Belich, Professor Paul McHugh, Professor Alan Ward, Dr Don Loveridge, Professor Jock Brookfield, Moana Jackson, Dame Anne Salmond, Dr Grant Phillipson, Matthew Palmer, Professor Michael Belgrave, Dr Phil Parkinson, Dame Judith Binney, Dr Vincent O’Malley, Dr Samuel Carpenter, Professor Paul Moon, and Dr Peter Adams. Ward, Loveridge, Parkinson and McHugh were Crown witnesses.

The tribunal report sets out some of the ferocious debates that took place at the time about power and some of the reassurances that the chiefs were given.

But there was no evidence in the answers given that Māori had been told explicitly that English law would apply to Māori.

The emphasis on Māori remaining “perfectly independent” was reinforced in the writing of Felton Mathews, who recorded in his journal that after Hobson’s brief opening remarks to the chiefs, he then had the Treaty read to them “by which the native chiefs agreed to cede the sovereignty of their country to the Queen of England, throwing themselves on her protection but retaining full power over their own people – remaining perfectly independent…”

Waitangi Tribunal Judge Craig Coxhead and late Ngāti Hine leader Erima Henare during one of the hearings. Photo/ Pita Tipene

Records show that a persistent worry of the chiefs was the role of governor and what power he would have relative to them. It was noted by several observers that Patuone, a younger brother of Tāmati Wāka Nene, was seen to put his two index fingers in the air side by side together, denoting shared power – with no disagreement from Hobson.

“When the rangatira signed or affixed their marks to te Tiriti, therefore, they were agreeing not just to the written text but also to a series of verbal promises, express or implied.”

The report recounts versions of discussions in April 1840 at Kaitāia when the chief Nopera Panakareao sought the advice of the missionary William Puckey for the meaning of sovereignty (or possibly kawanatanga) and later, in leading others to sign, famously declared that only the “shadow of the land” was passing to the Queen; the substance stayed with Māori.

Rima Edwards gave evidence for the claimants of an oral history having been passed down about an unrecorded hui having been held before February 6. At the hui, Busby and Williams were said to have given chiefs a “tuatahi tiriti”, a first treaty, in which sovereignty had been translated as “mana” – and which was firmly rejected by the chiefs.

When it was next presented, sovereignty had been translated to “kāwanatanga” – with the suggestion being that presenting the “correct” word would have meant the British would not have got the chief’s agreement.

Busby and Williams had both been involved in He Whakaputanga, the Declaration of Independence, in which “all sovereign power and authority” in New Zealand was translated as “ko te Kingitanga ko te mana,” not kāwanatanga.

The term “kāwanatanga” in the declaration was used to denote someone with subordinate power, according to Erima Henare.

“The term ‘kāwanatanga’ was understood by my tūpuna as referring to a lesser delegated set of powers such as governors over provinces in the biblical texts. My tūpuna knew the difference between ‘He Kīngi’ and ‘He Kawana’.”

But Crown counsel argued that the words Williams had used – sovereignty as kāwanatanga – was appropriate because sovereignty amounted to government.

The Crown said Māori understood the Crown’s authority and welcomed it as being to their advantage.

Māori had placed their faith in the advice of the missionaries and their expectations were that:

Counsel argued that the way history unfolded after 1840 should in no way be read as an indication that the Crown’s intentions in 1840 had been to deceive or dispossess.”

They highlighted a quote from Alan Ward’s submissions: “Neither in logic nor in sound historical method is it appropriate to read outcomes of a later period as proof of the intentions of an earlier one.”

Later Treaty breaches, Crown counsel had said, did not mean “the initial compact was a fraud”.

Rather, all evidence had pointed to the conclusion that officials and missionaries acted with only the best of intentions.

However, the Waitangi Tribunal found for the claimants.

“Our essential conclusion … is that the rangatira did not cede their sovereignty in February 1840; that is, they did not cede their authority to make and enforce law over their people and within their territories.

“Rather, they agreed to share power and authority with the Governor. They and Hobson were to be equal, although of course they had different roles and different spheres of influence.

“The detail of how this relationship would work in practice, especially where the Māori and European populations intermingled, remained to be negotiated over time on a case-by-case basis. But the rangatira did not surrender to the British the sole right to make and enforce law over Māori.

“It was up to the British, as the party drafting and explaining the treaty, to make absolutely clear that this was their intention.

“Hobson’s silence on this crucial matter means that the Crown’s own self-imposed condition of obtaining full and free Māori consent was not met.”

“This conclusion may seem radical,” it concluded. “It is not. A number of New Zealand’s leading scholars who have studied the treaty – Māori and Pākehā – have been expressing similar views for a generation. In that sense, our report represents continuity rather than change.”

The Treaty of Waitangi was just one step in the Crown asserting sovereignty. On May 21, 1840, Hobson issued proclamations of British sovereignty over all of New Zealand, which were gazetted in October of that year.

Māori Land Court Judge Craig Coxhead was the presiding officer for the Waitangi Tribunal panel. Others who signed off it off were Joanne Morris, Kihi Ngatai, Professor Ranginui Walker, and Professor Richard Hill. Keita Walker sat in the hearings but not in the deliberations.

The Government has not formally responded to the report but Treaty Negotiations Minister Chris Finlayson said at the time: “There is no question that the Crown has sovereignty in New Zealand. This report doesn’t change that fact.”

The report was delivered in the midst of activity over getting Treaty settlement negotiations under way through the so-called Tuhoronuku mandate for Ngāpuhi – but that mandate was eventually ditched.

Northern settlement

Treaty Negotiations Minister Paul Goldsmith is keen to “get cracking” on talks for the stalled Treaty of Waitangi settlement in the north but doesn’t expect the issue of sovereignty to feature large.

“We can literally spend the next 10 years talking about it or we can get on with it,” he told the Herald.

He is likely to be accompanied by the latest chief Crown negotiator, lawyer Brian Dickey, who took over from former Crown emissary Sir Brian Roche.

“My message next week will be to all the various hapū of Ngāpuhi that we are keen to get cracking,” said Goldsmith.

“In terms of the overall benefits for Northland, the two things that will make a difference: the road and getting the settlement underway.”

Goldsmith will meet several hapū in the north next week ahead of February 5 when politicians will be welcomed on to the Waitangi Treaty Grounds.

Goldsmith has six formal meetings in his diary so far in the coming days, although not all of them are with northern groups, and none is with Ngapuhi’s largest iwi, Ngāti Hine. It successfully campaigned to overturn the Tuhoronuku mandate and is working on getting a fresh negotiating mandate.

“I’ll be up there encouraging the others to get moving and indicating a broad preference, if at all possible, for a single commercial settlement, with a number of cultural ones lying beside that,” Goldsmith said.

“I sense that there is a bit of a shift and more people are keen to get the conversation advanced and that’s what I’ll be encouraging.

“But ultimately, what role Ngāti Hine plays vis a vis the other hapū is something for them to resolve.”

The Waitangi Tribunal began hearings for the northern Te Raki claim in 2010 but it focused primarily on whether Māori had ceded sovereignty. Stage two hearings have been held, with one report having been released and another one is still being written.

But the Crown can and does negotiate directly with iwi, with or without tribunal reports.

Treaty Negotiations Minister Paul Goldsmith has meetings lined up in Northland next week. Photo / Mark Mitchell

In 2015, the Waitangi Tribunal issued a report before negotiations had even begun saying Tūhoronuku was not fit to negotiate and recommending that the Crown halt negotiations.

Labour minister Andrew Little oversaw the design of a new evolved mandate proposal, but when it was put to a vote of 110 hapū in 2018, it received only 51% support, not the 75% required by Ngāpuhi leaders.

Ngāpuhi is the largest tribe in the country with 184,470 affiliates in the 2023 Census, just under 20% of all Māori, but one of the last to settle Treaty grievances.

Asked if he expected to be discussing sovereignty, Goldsmith said: “Not in any great detail. The sovereignty resides with the democratic decisions of the people of New Zealand. That’s how it has been for more than 100 years in one of the oldest democracies in the world.

“We are not entertaining changing that.”

However, it is not uncommon for Treaty settlements to canvass the issue of tino rangatiratanga and how it can be recognised today.

Northland-based New Zealand First MP Shane Jones, who is often critical of the Waitangi Tribunal, acknowledged its work on the sovereignty issue.

“It was a useful historical contribution in the sense that it delved deeply into a lot of the historical texts and it outlined a lot of oral narratives,” he told the Herald.

But so far as helping to settle any Ngāpuhi claims goes, Jones said it was “a diversion”.

And he cautioned against any “atomised” settlement for Ngāpuhi hapū and drew a line in the sand on it.

“For as long as New Zealand First is part of any Government, there will never be a hapū-based Ngāpuhi settlement.”

“We believe it is in the interests of Māoridom’s largest tribe, Māoridom’s most detribalised population to have a single economic settlement. We see no profit in atomising Ngāpuhi into scores of under-capitalised, ill-conceived units.”

New Zealand First cabinet minister Shane Jones speaking at Rātana last week. Photo / Mark Mitchell

The north needed scale, momentum and heft to make economic progress, and he had learned that at the Māori Fisheries Commission.

“The most positive legacy I left behind as the chairman of the Māori Fisheries Commission was preventing the atomisation of the majority of the fisheries settlement after the quota had been broken up into tribal portions.

“A hapū-centric approach … has weakened Ngāpuhi. It will never work and it will never, ever be agreed to by New Zealand First,” he said.

“To have the capacity to deliver meaningful opportunity to arguably the most impoverished communities in the north – you are not going to do that by succumbing to the notion that every hapū gets a pony.”

Jones was bitterly disappointed in the report by the Waitangi Tribunal panel chaired by Sarah Reeves which he said had “undermined” the Tuhoronuku mandate.

“Rather than provide advice as to how the mandate could have been strengthened, her report basically garrotted it.

“The tribunal is always in a better situation when it takes something and adds to it, rather than voiding it.”

“From my perspective, that was an egregious error.”

Waihoroi Shortland, the chairman of Te Rūnanga o Ngāti Hine, told the Herald he was working on a new mandate and hoped it could be secured through a vote within six months.

He accepts that the 2014 report had constitutional findings relevant to other iwi, not just the north.

“It is a national question. The only reason we have a focus on the north is because this the unsettled part of this process and it can still bring our hearts and minds to the issue.”

Ngāti Hine leader Waihoroi Shortland speaking in 2022. Photo / Peter de Graaf

He said Ngāti Hine had made it clear that “our sovereignty is not up for negotiation”.

“The question I keep asking myself is what sovereignty do I exercise and how do I exercise that if I’m talking about a sovereignty that existed in 1840.”

The Waitangi Tribunal had been very clear that in 1840 Māori had not ceded sovereignty to the Crown but “what the tribunal was very silent about is what sovereignty means today”.

“They did not engage with that question,” he said.

“I’m happy to have that kind of conversation with anybody but I’m not going to allow people like Seymour to redefine it for me.

“Māori are still a sovereign nation,” he said. “As much as we are part of the New Zealand nation, we remain a nation of people.”

He said he constantly reminded people who visited Waitangi was that the words that were given to Hobson were not “he iwi kotahi tatou” which was interpreted “we are now one”.

“It was ‘he iwi tahi tatou’ which is together we are a nation, which is a totally different thing and the part that is often overlooked is the part that says ‘together’. That’s what tahi means.

He said there was a leadership vacuum in the north.

“There are no natural leaders any more. You do not find a Sir James Henare walking around the streets. You do not find a Matiu Rata walking down the road. You do not find Whina Cooper at the next kōhanga reo meeting or Women’s Welfare League.

“A lot of people think roles you walk into immediately elevate you. They don’t.”

Shortland said he was open to conversation with the Crown to do something quite different although the heavy-lifting might have to be done by the next generation of leaders.

“The one thing you cannot teach young straight off the cuff is experience,” he said.

“When people say to me ‘stand aside old man – the leaders of tomorrow are here’ I quickly say to them, ‘wait for tomorrow because today belongs to me’.”