TE TIRITI O WAITANGI: An extraterritorial treaty

SOVERIGNTY: At the COP28 conference in Dubai, King Charles said The Earth does not belong to us, we belong to the Earth’.  In that statement, he clearly set out the difference between sovereignty and the Māori view of property. What makes this significant is, in law, under sovereignty King Charles, in the person of the Crown, owns 1/6th of the planet. As King of the realm, including the realm of New Zealand, the Crown holds absolute ownership of every square metre of land and then issues “title”, a bundle of rights that people believe grants ownership – including Māori title.

KAWANATANGA: In Te Ao Māori, people do not own land, the land is a living being, the mother of the people. This is akin to what King Charles was saying at COP28 “we belong to the Earth”.

In Te Tiriti, it simply means that while the hapū will manage their own affairs, they agree to national law.

UNDERSTANDING SOVERIGNTY: In 1066 William the Conqueror defeated the Anglo-Saxons, claiming all lands and attachments as his own. He held absolute ownership of all England, granting a bundle of rights called realty that established Crown sovereignty. As the British Empire expanded, sovereignty was claimed by war, purchase, treaty or occupation, but the basic principle of absolute ownership underlying ownership of real property (land) has not changed in Western Law. Thus, to establish sovereignty over “Nu Tirani”, the Crown signed a treaty with the native leaders. But to secure that sovereignty, the Crown had to agree to extraterritoriality on hapū whenua..

Sovereignty is Centralism

UNDERSTANDING EXTRATERRITORIALITY: In the “Law of States” under which Europeans divided up the world, at the time Te Tiriti was signed, the principle of extraterritoriality was well established. It identifies territory within the sovereign’s realm that is exempt from the jurisdiction of national law, usually as the result of negotiations between equal partners. For anyone who can read Te Tiriti o Waitangi in Te Reo, it is the clearest statement of an extraterritorial treaty one could imagine. The Rangatira agree to kāwanatanga on a national basis, but not on their lands. On their whenua, rangatira and hapū reserved tino rangatiratanga.

Extraterritoriality is Localism.

WHAT THIS MEANS:

As NZ seeks to make reparations for the abuses of previous generations, an understanding of Te Tiriti as extraterritorial offers an opportunity to enable Māori to restore the mana, the taonga and the tūrangawaewae lost in the 19th, 20th and 21st centuries.

• In the 19th century, the Crown used war and confiscation to destroy the kāinga
• In the 20th century, the Crown used Urbanisation to entice the young to leave the kāinga
• In the 21st century, the Crown bribes a Māori elite as a new twist on neo-colonialism

Imagine instead that the Crown came clean, and declared it would honour the extraterritorial status of hapū whenua, kainga and taonga katoa. This would require major rebuilding in the provinces where most of the neglected or abandoned whenua lies fallow. In this web site, see the post REBUILD KAINGA for how it can be done.

 THE HISTORIC CONTEXT SUPPORTING THIS UNDERSTANDING

Tangata Māori were organised into tribal authorities and as such did not have a single nation in the 19th century meaning. Each tribe was akin to an Anglo-Saxon kingdom, with clearly defined boundaries to their land, within which they had a system of government that worked. Most notably, their system of land ownership was not the same as the Crown’s sovereignty, the legal basis of land law which continues in NZ to this day… that of absolute ownership. 

Sovereign ownership of all land: The fact that only the Crown can be the absolute owner of land is the basis of sovereignty. It is the foundational concept of English and New Zealand law. Known as the doctrine of tenure, the Crown is the ultimate owner of all land. All land is held by the citizen as tenant under a grant from the Crown. What is popularly thought of as owning land is legally being seized of a freehold estate in fee simple in the land, which must be derived from a grant by the Crown.

This concept would have been a drop-dead if presented to the rangatira present at Waitangi. Thus Te Tiriti included an extraterritorial clause in the Te Reo version. It is clearly written in simple and unambiguous words. The chiefs will accept kāwanatanga to introduce national law, provided their own local jurisdictions are exempt. They agreed to this because their need for land changed with the arrival of the colonists.

Colonialism brought benefits, enabling them to shift from a hunting & gathering economy which needed large tracts of land, to a farm-based economy needing less land, but needing money to buy the advances the English offered.  Colonialism brought technology that changed the needs of the tribes. Tools, seed and livestock meant they needed less land to feed themselves, and they were prepared to sell surplus land for barter or money to buy such technology. But the rangatira wanted a formal system of exchange to prevent opportunistic Māori from selling land over which they did not hold mana. Te Tiriti contained a protocol for formal sale of surplus land.

In addition, colonialism brought firearms, making utu more lethal. The tribes needed intertribal keepers of the peace – the British Army and civil police – and were prepared to accept kāwanatanga to enforce peace among the tribes as well outlaw conflict with the migrants. 

WHAT THIS DOES NOT MEAN: 

Mana whenua as extending property rights over fee simple (freehold) title is a fiction insofar as it is said to arise from Te Tiriti. In other words, the idea that in selling land under the protocol established by Te Tiriti, somehow certain rights over it remained, is an artificial construct that in a Machiavellian way continues what might be called neo-colonialism.

In neo-colonialism, the Crown elevates iwi over hapū, whereas in 1840, iwi was an identity (which waka your ancestors sailed on), not a collective governance body. But when one seeks to co-opt, the fewer cats on seeks to herd the better. Thus, by elevating iwi, and defining the Māori as partners (meaning their legitimacy is confirmed by the Crown, rather than in their own right), and by offering the baubles of office, the Crown is able to avoid its duty to extraterritorial exemption of hapū over their lands, villages and treasures. As has become part of the 21st century debate, the Crown has created a Māori elite in classic divide and conquer.

Having said that, under sovereignty the Crown can do whatever it wants. Because it holds absolute ownership of all land in NZ, if it choses to give rights to any class of persons, it has the power to do so. But to claim it derives that authority from Te Tiriti is a fiction, and it also results in continued poverty and deprivation among the rural Māori who still live on their ancestral lands. 

How Did This Come About? Regulatory Creep…

Regulatory creep is where government officials within a bubble that includes academics and persons with a vested interest enter into a conversation that begins with a kernel of fact, but then is embellished. New embellishments grow on top of the first, and over time a narrative evolves that has no foundation in reality or fact.

The term mana whenua is a tool of regulatory creep. In 2010, Victoria University Senior Lecturer in Law, Catherine Iorns Magallanes wrote The use of tangata whenua and mana whenua in New Zealand legislation  in which she set out how the term mana whenua emerged out of colonisation. It is worth reading to appreciate how regulatory creep happens.

Clive Barlow, in Tikanga Whakaaro, 1991 wrote: Mana Whenua: This is the power associated with the possession of lands. Possession is a clear concept, no different in Tikanga Māori than in English law. If a hapū no longer wishes to retain mana over whenua, it has protocols to withdraw. For example, in 1897, Neho Keepa, a rangatira of Ngati Paoa testified before the Native Land Court “All the earlier tupapaku (dead bodies) were removed to Wharekawa [the Miranda Coast]… on account of the uncertainty as to whether this land [Matiatia] would be sold or not. Tarakawa removed them, all the people know that there are no bones left in the old urupa.” 

During the gestation stage, the fiction of mana whenua is contained within its bubble. It is only when that bubble starts implementing change based on its fabricated story that pushback begins. This happened when the legislation for the Auckland Supercity was amended in 2010. It included regulatory creep in regard to mana whenua, granting involvement of mana whenua, and “mataawaka” (Māori living in the Auckland region who are not in a Mana Whenua group) in decisions over land outside of the extraterritorial jurisdictions of hapū.

The Act did not directly define the term, but established the concept of mana whenua groups:

Local Government (Auckland Council) Act 2009 

Part 7 (81) This Part establishes a board whose purpose is to assist the Auckland Council to make decisions, perform functions, and exercise powers by—
(a) promoting cultural, economic, environmental, and social issues of significance
for— (i) mana whenua groups; and (ii) mataawaka of Tamaki Makaurau; and
(b) ensuring that the Council acts in accordance with statutory provisions referring to the Treaty of Waitangi. 

Part 4 Interpretation (1) mana whenua group means an iwi or hapu that— (a) exercises historical and continuing mana whenua in an area wholly or partly located in Auckland; is 1 or more of the following in Auckland:
(i) a mandated iwi organisation under the Maori Fisheries Act 2004:
(ii) a body that has been the subject of a settlement of Treaty of Waitangi claims:
(iii) a body that has been confirmed by the Crown as holding a mandate for the purposes of negotiating Treaty of Waitangi claims and that is currently negotiating with the Crown over the claims

This is regulatory creep and neo-colonialism. Where mana whenua meant clear physical boundaries over which rangatira held tino rangatiratanga, the Local Government (Auckland Council) Act extends this to cover freehold title land sold by their respective hapū under the terms of Te Tiriti (or lost due to breaches of Te Tiriti, which is another subject and is the purpose of the Waitangi Tribunal.

The Crown holds sovereign authority to make any law, and in the absence of a written Constitution limiting its powers, it can do what it wants, including granting mana whenua as some sort of right over freehold title. But to say this comes from the words in Te Tiriti o Waitangi is a fiction.