Control and Certainty Drives Differences between State Sovereignty and Tino Rangatiratanga
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Par ChameleonsEye/Shutterstock.com
Emily Barber
(FR) La dissertation suivante se concentre sur les tensions actuelles créées par le traité de Waitangi de 1840. La Nouvelle-Zélande fut nominalement unie lorsque les colons britanniques ainsi que les Māori signèrent une version du traité dans leur propre langue. Cependant, la politique de traduction signifiait qu’en réalité, chaque partie agréa à différents termes de gouvernance et de partage de propriétés terriennes. L’auteur examine les écarts entre la notion de souveraineté d’état généralement attribuée aux Pākehā — Les Néo-Zélandais de descendance européenne — et la notion de tino rangatiratanga (ayant pour sens général « l’autodétermination ») généralement attribuée aux Māori (le peuple indigène de Nouvelle-Zélande). L’argumentation sur les rapports non équivaut entre tino rangatiratanga et l’état souverain est basée sur le contrôle sémantique et lexical du traité. Ce contrôle s’étend aux pratiques légales, où les mots utilisés ainsi que leur sens créent les termes selon lesquelles chaque partie est disposée à gouverner et à être gouvernée. Dû au pouvoir disproportionné accordé aux Pākehā dans la version anglaise du traité de Waitangi, Barber maintient qu’à présent, trop de contrôle est attribué aux Pākehā de Nouvelle-Zélande.
The differences between the English and Māori translations of the Treaty of Waitangi have been a source of contention since its signing in 1840. New Zealand was nominally united when British colonists and the Māori each signed a version of the Treaty in their own language, each agreeing to the terms in their own Treaty. Yet the politics of translation meant that in actuality, each party signed documents that, in Articles 1 and 2, stated and implied two differing forms of governance and self-determination. Accordingly, tino rangatiratanga — the Māori conception of self-determination — and state sovereignty — the conception of governance stemming from the British colonial estimation of authority — are at odds with each other. I will argue that the relationship between tino rangatiratanga and state sovereignty is one of lexical and semantic control that extends into legal practices, where words and meanings create the terms under which each party is willing to govern and be governed. As a result, the divergent meanings of autonomy for the Pākehā – New Zealanders of European descent – and the Māori under the Treaty of Waitangi cause a great deal of distrust. Even though each party attempts to be understood on their own terms in the Treaty of Waitangi, there is a disproportionate amount of control given to the Pākehā because the wording of its English version skews power in their favour. The Crown retains the right of pre-emption, frequently demotes Māori language to purely ceremonial uses, and has a vision of certainty in settling treaty agreements that excludes Māori legal traditions.
Article 1 of the Treaty of Waitangi deals with matters of governance, but the differences in the English and the Māori texts are significant in their implications. The English text proclaims that the Māori “cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty.”[1] Here, we have a clear conception of state sovereignty — this is a complete transfer of power and authority that is unequivocal in its diction. There is no ambiguity of language; the English version makes it clear that the colonists see themselves as the rulers of New Zealand. Yet the Māori version has a different conception of governance. They agreed to cede to the English “kāwanatanga,” which means the “authority to make laws for the good order and security of the country, but subject to an understanding to protect particular Maori interests.”[2] The Māori, therefore, understood the role of the British to be an administrative one, not an authoritarian one. Māori leaders expected tikanga to be upheld — that is, the right, correct, or just way of doing things according to Māori understandings.[3] The British unilateral assertion of sovereignty makes for an imbalance of power, a fundamental misunderstanding of the role of the British that erodes Māori governance over New Zealand — or as the Māori call the country, Aotearoa.
Article 1 has also been interpreted as giving the Crown jurisdiction over its colonists while governance of the Māori would continue to be in the hands of the iwi — the Māori people.[4] These lexical and semantic differences reflect the philosophic outlooks of each group: the Crown, unwilling to share power, prefers to frame their authority in terms of absolute certainty. State sovereignty shows itself to be inflexible. Even in the efforts of the Waitangi Tribunal, the Crown’s intentions are centered around the idea of settlement. The 2000 boundary dispute between Ngāti Tama and Ngāti Maniapoto became reframed as a dispute against the Crown and its procedures. Ngāti Tama’s settlement-based focus became prioritized over Ngāti Maniapoto’s focus on tikanga rights and obligations.[5] In this instance, closure becomes more important than mediation, and the tino rangatiratanga of the Māori is side-lined or regulated to ceremonial purposes in the interests of a more ‘definitive’ conception of justice.
Article 2 of the Treaty of Waitangi outlines the conditions of Māori ownership and matters of tino rangatiratanga, that is, self-determination. Nevertheless, the Māori and the English texts also grant the right of pre-emption over Māori lands, meaning that British access to Māori land up for sale cannot be contested. Whether the Māori all considered this right exclusive is questionable, for the tino rangatiratanga – the unequivocal exercise of chieftainship over Māori lands, villages, and property – would have a higher claim from the Māori perspective than the right of pre-emption. In addition, not all iwi signed off on the Treaty in the first place. Nonetheless, the English version maintains that the Māori “yield to Her Majesty the exclusive right of Preemption over such lands as the proprietors thereof may be disposed to alienate at such prices as may be agreed upon between the respective Proprietors and persons appointed by Her Majesty to treat with them in that behalf.”[6] This exclusivity gave the Crown a monopoly over land that relies on the Crown’s integrity. Yet the English text, particularly the pre-emptive clause, would often be manipulated to suit the Pākehā’s interests.[7] Tino rangatiratanga is fundamentally at odds with the right to pre-emption. That the Queen “confirms and guarantees”[8] that the land the Māori already inhabit will belong to them goes against the idea of self-determination, for it implies that the English are the ones in control of Aotearoa in the first place.
While Article 3 of the Treaty of Waitangi is considered to be relatively equal in the English and Māori versions, the substance of the article itself indicates an imbalance of power. The English text extends to the Māori “Her royal protection and imparts to them all the Rights and Privileges of British Subjects.”[9] To be a British citizen does not necessarily empower the Māori, nor does the protection of the sovereign. In fact, this would be seen as precursory as it does not embrace the Māori understanding of citizenship. Looking at the Māori version of Article 3, it is clear the Māori expected this, for it contains the word “tikanga.”[10] Tikanga is the “right and correct way of doing things within Māori society,”[11] and encompasses practices, principles, procedures, and traditional knowledge. This is not merely a legal system, but includes matters of ritual, custom, and spiritual dimensions integral to Māori understandings.[12] Again, lexical and semantic differences in the Treaty of Waitangi create two different versions of the same treaty, and the nuances they imply create the conditions for British control over the Māori.
The assertion of state sovereignty over tino rangatiratanga emphasizes British control and certainty. In doing so, the legal practices of the Pākehā are prioritized over those of the Māori. The introduction of the English version of the Treaty of Waitangi proclaims that Queen Victoria desires to establish “a settled form of Civil Government with a view to avert the evil consequences which must result from the absence of the necessary Laws and Institutions alike to the native population.”[13] This asserts a form of settlement, with the Crown outlining their vision of certainty that supplants Māori forms of government. It is also patronizing and paternalistic in its assumption that there is a current absence of laws as the Māori had their own legal traditions at the time. The British are assuming theirs are the ‘civilizing’ aspect that will ‘protect’ the Māori from evils. The lack of respect for the Māori cloaked in diplomacy is aimed in creating a narrative of the Māori as uncivilized and lacking in legal systems; a narrative that gives the English the paltry excuse to ‘civilize’ Aotearoa.
Narratives drive the legal approaches of those affected by the Pākehā-Māori dispute, so it is of immense importance that authority and power is shared rather than controlled by a single group. Both the Pākehā and Māori inhabit Aotearoa, and so both must be allocated land and governance. This can only be possible when tino rangatiratanga is fully actualized. The emphasis Māori places on the Māori version of the Treaty of Waitangi means tino rangatiratanga cannot be allocated to a mere ceremonial role but needs to be given legal backing in Māori terms. Historical injustice must not be contained in the past, but be recognized as an ongoing, intergenerational process that will continue to hinder the descendants of those initially mistreated. For instance, while the Whanganui River settlement grants the body of water significant legal rights equivalent to those allotted to a person, it conforms to the Western idea of a “legal personality”[14] and does not recognize Māori conceptions of legal tradition. Rather, the Crown is the one who determines legitimacy and the extent to which historical injustices are to be amended[15] despite causing these historical injustices in the first place. By setting the terms of reparation, the Crown continues to assert dominance and to show disdain for Māori legal practices and therefore for the Māori peoples as a whole.
Based on this assessment, it does not look promising for Māori traditions to be fully expressed in New Zealand. In terms of tino rangatiratanga in contemporary New Zealand politics, Māori language and legal traditions are given nothing more than token representation. Carwyn Jones, for one, is not very optimistic, in part because the New Zealand government has made it clear that it is set on giving the state the last word. For instance, the settlement process in the Waitangi Tribunal skews Māori traditions towards “reactive change,”[16] meaning that the vision of justice and certainty purported by the Crown is prioritized over Māori understandings. If the Crown cannot even relinquish control over the process of reparations, it seems unlikely that they will commit to anything drastic in terms of co-governance with the Māori.
Tino rangatiratanga and state sovereignty, bound as they are by the implications of governance and authority, necessarily come into opposition in the context of Aotearoa, or New Zealand. While one advocates for Māori self-determination, the other demands complete control over all that falls under its jurisdiction. Perhaps a solution is to realize that Māori do not fall under the conception of state sovereignty but are bound to the conception of their own legal processes and rights, as they have agreed to in the Treaty of Waitangi. Such a solution would require the Crown to relinquish control and its hold on authoritative certainty.