OPINION: At the heart of Te Tiriti o Waitangi is a foundational relationship between the authority granted to the Crown and the authority retained by Māori.
Under Te Tiriti, the Crown was granted ‘kāwanatanga’, meaning ‘governmental authority’. Māori were guaranteed ‘tino rangatiratanga’, that is, ‘absolute chieftainship’.
Those two concepts were central to the treaty relationship created in 1840, and they remain central to that relationship today, even as we grapple with responding to a global pandemic.
The centrality of that relationship has sometimes been obscured.
Over the past 40 years or so, much of the discussion about Te Tiriti o Waitangi has focused on the meaning of the English text as compared to the Māori text. For example, when Māori leaders agreed to grant to the Crown the powers of ‘kāwanatanga’ (governmental authority), was this the same as ‘sovereignty’?
But these language issues don’t need to confuse that central relationship.
The Waitangi Tribunal has been clear in its finding rangatira who signed Te Tiriti did not give up the sovereign authority of their own communities. Instead, by allowing the Crown to exercise kāwanatanga , the rangatira were agreeing to the Crown exercising governmental authority over the Crown’s subjects, British settlers making a home here in Aotearoa.
So, to get to grips with the meaning of Te Tiriti, and particularly what it means for us today and in the future, we should focus not on how the concept of sovereignty relates to kāwantanga, but how kāwanatanga and tino rangatiratanga relate to each other.
The Waitangi Tribunal has talked about kāwanatanga and tino rangatiratanga as being ‘spheres of influence’ – kāwanatanga expressing the authority exercised by the Crown (or government, as we’d probably more naturally talk about it) and tino rangatiratanga reflecting the authority exercised by Māori.
This is a useful way to think about it because it helps us to see that there are two sources of ongoing authority.
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This is not Crown authority within which there is a particular space for Māori participation or vice versa. One authority does not need to subsume the other.
In fact, for there to be an enduring relationship between kāwanatanga and tino rangatiratanga, as Te Tiriti sets out, these spheres of influence and authority must continue to co-exist independently of one another.
Te Tiriti provides us with the basic framework of the relationship but not always all the details of how that relationship should be implemented in a particular situation.
Like many constitutional documents, Te Tiriti sets out a high-level structure, but doesn’t attempt to describe how that structure applies to every imaginable situation we might find ourselves in.
But if we keep the relationship between kāwanatanga and tino rangatiratanga centred, then we can think through how this relationship ought to apply to new or unexpected situations.
The emergence of Covid-19 and the continuing global pandemic was a new situation, unanticipated by those who signed Te Tiriti in 1840.
And yet the relationship between kāwanatanga and tino rangatiratanga is highly relevant to the way in which government has responded. Not that government always recognised this.
Despite being proactive in taking steps to protect our communities, Māori were virtually invisible in the government response.
It seems apparent that Māori, whether from within relevant government agencies or from outside with public health and equity expertise, were not central to core decision-making.
This is hardly consistent with the mutual recognition of authority that is the foundation of the relationship between kāwanatanga and tino rangatiratanga.
And, in this instance, there were real consequences for how we were able to learn about the impact of the virus on different communities. For example, high quality ethnicity data collection and reporting should have been taking place from the outset, but only began to be implemented once Māori had brought attention to these issues.
One area where we did, for a time at least, see a better recognition of the relationship between kāwanatanga and tino rangatiratanga was when community checkpoints were established by Māori in a number of places around the country.
The authority for these checkpoints was sourced in tino rangatiratanga, that is, various Māori communities exercised their own authority to take actions necessary to keep their people safe. And by most accounts this appears to have been a positive and effective measure undertaken in a spirit of collaboration and partnership with government agencies.
As our response to the pandemic shifts to recovery, including economic recovery as well as continuing public health measures, it will be vital to keep the relationship between kāwanatanga and tino rangatiratanga central to all decision-making.
In this way, we ensure we’re working towards just outcomes and living up to the promise of Te Tiriti.
Dr Carwyn Jones, Associate Professor, Faculty of Law, Te Herenga Waka–Victoria University of Wellington.
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