Words do matter. Their meanings change over time and sometimes get manipulated. If you Google “meaning of treaty partnership nz” you will receive 6,180,000 instant results. Everybody has an opinion.
But what is the Government’s opinion? Google’s front search page alone includes these responses from various NZ Government agencies:
The principle of partnership requires the Crown and Maori to work in partnership in the governance, design, delivery, and monitoring of health and disability services.
– [Ministry of Health]
“Te Tiriti o Waitangi is a founding document for Aotearoa. It as an on-going power-sharing relationship, in which the autonomy and rangatiratanga of hapū/iwi is affirmed.”
The Treaty principle of partnership benefits all learners….By working collaboratively, schools learn to share power, control, and decision-making.
These extracts are truly frightening. They deal with political power and the authority to govern the people of New Zealand. They meddle with nothing less than national sovereignty – and therefore the very fundamentals of our longstanding constitutional democracy.
This covert leap by our bureaucracy seems to be based on verbal sleight-of-hand. The concept of “partnership” does not appear in the Treaty in either language. It does not even arise under Geoffrey Palmer’s weasel words – the “principles of the Treaty of Waitangi” – which have been microscopically examined by the Courts over decades.
Nearly 40 years ago, Justice Robin Cooke suggested that the Treaty relationship was “akin to” a partnership in that it entailed reciprocal duties of reasonableness and good faith. A reasonable analogue. But, quite clearly, there is no actual partnership. And it wouldn’t make much difference if there were, because the word “partnership” (in a non-legal sense) is little more than a meaningless cliche.
But now our ever-busy Wellington officials have devised a novel and unexplained phrase – a “principle of partnership” – which apparently deals with governance or state sovereignty. This is coupled with a repositioning of the Treaty as a “power-sharing relationship”. Some use the term “co-governance”.
Who invented these concepts? How are they defined? When and where were they created? By whose authority? By what mandate?
What is Co-governance?
The major world dictionaries are not familiar with Wellington’s hyphenated “co-governance” neologism, but it obviously means “shared governance”. The word says nothing about the number of groups who share, or the level of sharing (ie 99/1 or 80/20 or 50/50) or whether there are vetoes or loaded voting rights or whatever. But the intent is quite clear that no single person/group can govern alone.
The Oxford Dictionary tells us that “governance” means “the activity of governing a country or controlling a company or an organisation”. Merriam-Webster defines “govern” as: “to exercise continuous sovereign authority over”. Governance is all about power – which in turn is defined as the ability to control or direct the behaviour of others.
So, if someone has governance over you, they can run your life. If you don’t obey, a group with governance power can have you fined and imprisoned. If you resist, the governing group can lawfully use violence to subdue you and force you to comply.
Governance is not something that can be taken lightly.
What is Sovereignty?
Simply put, sovereignty is the possession of governance power over a nation state.
The Oxford Dictionary Reference is instructive:
Supreme authority in a state. In any state, sovereignty is vested in the institution, person, or body having the ultimate authority to impose law on everyone else in the state and the power to alter any pre-existing law. How and by whom the authority is exercised varies according to the political nature of the state…
Since the Peace of Westphalia in 1648, at the end of the European Thirty Years’ War, it has been universally accepted that sovereignty is vested solely in nation states – rather than in Princedoms, Municipalities, Chiefdoms, Shires, Duchies, etc. In modern times, the concept of state sovereignty was outlined, among other things, in a proclamation on Principles of International Law (Resolution 2625) by the UN General Assembly in 1970.
Returning to the Oxford Dictionary Reference:
In international law, it is an essential aspect of sovereignty that all states should have supreme control over their internal affairs, subject to the recognised limitations imposed by international law. These limitations include, in particular, the international law of human rights and the rules forbidding the use of force. However, no state or international organisation may intervene in matters that fall within the domestic jurisdiction of another state.
Treaty of Waitangi
The First Article of the Treaty reads:
The chiefs of the Confederation of the United Tribes and the other chiefs who have not joined the confederation, cede to the Queen of England for ever the entire Sovereignty of their country.
Clear enough, one might have thought. But about 130 years later, a group of Maori radicals launched the argument that kawanatanga, the word used for “sovereignty” in the Maori language version of the First Article, actually meant “governance”. They contended that “state sovereignty” would have been better rendered as tino rangatiratanga, meaning “highest chieftainship”.
This is one of those intriguing historical arguments which can never be resolved. The English version was drafted by James Busby and William Hobson, and translated overnight by Henry Williams and his son Edward. None of these four were lawyers or linguists or diplomats. It is unsurprising that all four were Englishmen, as Maori had no written language, tribes spoke different dialects, and most of the signatories were illiterate.
The Treaty was no lawyer’s picnic. Nobody in the Treaty House was debating how many angels could dance on the head of a pin. Nobody doubted that the British were taking over.
Fortunately, all of this historical pettifoggery is rather irrelevant. The Iwi who signed the Treaty had no state sovereignty to sign away. They controlled various rohe, they ran chiefdoms, they were local potentates. But nobody “exercised supreme control over the internal affairs of the state”. There has never been any such thing as a pan-Maori nation state, and state sovereignty never existed in New Zealand until the British Crown seized it and then exercised it for many decades without challenge.
In the 1990s, the NZ Maori Council lobbied other APEC countries to recognise Maori sovereignty over New Zealand based on the Declaration of Sovereignty 1835 (not the Treaty). In 1999, Rt Hon Sir Douglas Graham replied:
What actually is the “sovereignty” being claimed by the Maori Council? Is it that Maori should have the sole right to pass laws binding on all New Zealanders or just on Maori? The first is simply fanciful and the second would depend on Maori support. Where is that support? Do all Maori wish to be subject somehow to Maori-generated laws but no others? How would it work? Would Maori living in Auckland be subject to laws that are different to those applying to the non-Maori living next door?
Neither the common law nor the Treaty permit “Maori sovereignty”. The English common law could not and did not recognise a challenge to the authority of the Sovereign. The Treaty did not include any concept of “joint government” and continued reference to the Treaty as a “partnership” is misleading. Maori and the Crown were parties to the Treaty, and the Treaty created obligations on each similar to those that partners have in a partnership. But it certainly did not create a partnership to govern the country. That function passed to the Crown. The Treaty guarantees to Maori may restrict the exercise of absolute sovereignty by the Crown but even that is debatable.
The Maori Council’s assertion of Maori sovereignty has no legal basis. It would, if accepted, be a rejection of the Treaty itself. It is unlikely to be contemplated by the vast majority of New Zealanders, including many Maori. It could not be capable of being put in place anyway. In summary, it is a concept which requires a pretence that the last 200 years has not happened.
Sir Douglas concluded: “We should all work towards a united, peaceful country rather than promote separatism and division.”
Notwithstanding this rejection, the Waitangi Tribunal accepted a 2014 argument by Ngapuhi that the chiefs who signed the Treaty did not intend to cede their sovereignty to Britain. Attorney-General and Treaty of Waitangi Negotiations Minister Chris Finlayson said:
There is no question that the Crown has sovereignty in New Zealand. This report doesn’t change that fact… The tribunal doesn’t reach any conclusion regarding the sovereignty the Crown exercises in New Zealand. Nor does it address the other events considered part of the Crown’s acquisition of sovereignty or how the treaty relationship should operate today.
The government’s The Encyclopedia of New Zealand (Te Ara) website sets out the “Treaty Principles developed by Courts”. Importantly, these include:
The Crown has the right to govern – the principles of the treaty ‘do not authorise unreasonable restrictions on the right of a duly elected government to follow its chosen policy. Indeed, to try and shackle the Government unreasonably would itself be inconsistent with those principles.
Gordon Bisson [a Judge in the Lands Case], said it was:
…in accordance with the principles of the Treaty that the Crown should provide laws and make related decisions for the community as a whole having regard to the economic and other needs of the day.
The Courts have never accepted the decades-long argument of the NZ Maori Council that the Maori-language version of the Treaty stopped short of acknowledging that national sovereignty resides with the Crown. It is a political argument, not a legal one.
The position of successive governments has been crystal-clear and wholly unshakeable. Sovereignty over New Zealand is vested in our Sovereign, who inherited it by process of law from the British Sovereign. The Sovereign of New Zealand must always act on the advice of a Prime Minister who has the confidence of a Parliament which has been elected by universal adult suffrage. The power rests (indirectly) with the people.
No New Zealand citizen with Maori blood has any more or less hereditary governance rights/duties than any other New Zealand citizen.
For the first time in our history we have single-party MMP government (2020-23). Recognising that this was a consequence of unprecedented events and is unlikely to happen again, the Labour Party has promised to deliver “transformation”. They have not been transparent about what that means.
The prior Labour-led government (2017-20) commissioned a report called He Puapua, which was kept secret for nearly 18 months until it was leaked. It has never been put before cabinet for formal approval or disapproval. It was recently the subject of nationwide consultation with New Zealanders of Maori descent, and was to be reported back to Cabinet last December.
The report calls for “Maori control over Maori destinies” and “focuses on rangatiratanga Maori (self-determination)” – which “ranges from full independence at one end of the spectrum to participation in state government at the other.” It says: “We consider Aotearoa has reached a maturity where it is ready to undertake the transformation necessary to restructure governance to realise self-determination”.
He Puapua does not claim authority under “the partnership principle”. Nor does it offer technical tomfoolery regarding the 19th-century translation of a missionary neologism. On the contrary, its very name means “a break” – referring to “the breaking of the usual societal norms and approaches”. It calls for a new beginning and envisages two nations living side-by-side in Aotearoa. Transformation indeed.
This current government has been much criticised for its lack of transparency, and its reliance upon an army of recently-appointed spin-doctors. It clearly believes that “you never want a serious crisis to go to waste” and knows that there will never again be such an all-concealing cloak as the Covid-19 pandemic. Beneath that cloak there has been a massive all-of-government project to reinvent New Zealand as a Polynesian nation which is highly sceptical of colonisation and all other aspects of “Western Civilisation”. Every Government department, ministry, agency or quango has played a role.
But one important stakeholder has been wholly omitted from this transformation – the voting public of New Zealand.
 In particular in New Zealand Maori Council v Attorney-General CA 54/87  NZCA 60;  1 NZLR 641; (1987) 6 NZAR 353 (the “Lands Case”)
 It quite probably did. kawanatanga was apparently a Missionary neologism to repair a lack of nuance in the traditional Ngapuhi vocabulary.
 Te Paparahi o Te Raki decision.
 An aphorism attributed to Rahm Emmanuel, Obama’s chief of staff.