Dr Henares\' presentation on "He Whakaputanga o Te Rangatiratanga o Niu Tireni"

1. Is Te Tiriti o Waitangi a Human Rights Document?
Is the Treaty of Waitangi a Human Rights
Document?
Manuka Henare
University of Auckland Business School Mira Szászy Research Centre
Human Rights &
The Treaty of Waitangi Seminar
Legal Research Foundation/Human Rights Commission
Stone Lecture Theatre, Law School
The University of Auckland
10 June 2003

2. Māori Philosophical
Metaphysical & Historical View
• To answer the question(s) – Tiriti/Treaty as human rights document
• Focus on Te Tiriti – Māori language used & not English
• Offer two short answers –
– Te Tiriti - Māori version is a human rights document
– The Treaty? – I‟m not sure - it has no effect until parliament gives
it effect - the Treaty is thus not a source of human rights, but
parliament is the source of rights
• Māori intentions in agreeing to a treaty with the British Queen
• Māori philosophy/metaphysics & ethics are important
• Historical context of treaty making is important (Henare 2001)
University of Auckland Business 2
School

3. Moral principles of leadership
1840?
• What was the moral basis upon which Māori
leaders ceded sovereignty in perpetuity?
• No Māori evidence that cession was intended in
1840
• There is evidence that Māori wanted a protectorate
relationship with the British
– In return some settlers could live in Nu Tireni
(Henare 2001)
University of Auckland Business 3
School

4. Philosophy, metaphysics & ethics
• … Māori see themselves as descendants of
spiritual powers, and as such are partners with
those powers in a physical and spiritual universe. I
have argued elsewhere that Māori philosophy and
metaphysics constitutes a philosophy of vitalism
and humanism, which I have defined as “the belief
in an original singular source of life in which that
life continues as a force which imbues and
animates all forms and things of the cosmos
(Henare 2001)
University of Auckland Business 4
School

5. Philosophy of Vitalism –Matrix of -Ethics 1830s
Te ao mārama Ethic of wholeness, cosmos
Te ao hurihuri Ethic of change and tradition
Tapu Ethic of being, potentiality, sacred
Mauri Ethic of life essence, creation
Hau Ethic of obligatory reciprocity
Mana Ethic of authority, common good
Tika Ethic of finding the right way, justice
Whānaungatanga Ethic of belonging, dignity of humanity
Wairuatanga Ethic of spirituality
Kotahitanga Ethic of solidarity
Tiaki Ethic of guardianship
Hohou rongo Ethic of peace, reconciliation, restoration
Kotahitanga Ethic of solidarity of people, natural world
Manaaki Ethic of love and honour, reciprocity
(Henare 2001)
University of Auckland Business 5
School

6. University of Auckland Business 6
School

7. Pluralism Ethics & Monism
• Clash of world views, ethics & notions of
society and nation
• Pluralism ethics of Māori – vitalism &
cosmos
• Monist tendency in English ethics and
jurisprudence 1820-1830s – utilitarianism,
secularism and positivism (Henare 2001)
University of Auckland Business 7
School

8. Phenomenon of nation-building
• Hongi Hika‟s handshake with King George IV, 1820
•Rangatira Letter to King William IV, 1831
• Meeting James Busby, British Resident, 1833
• First national flag of Māori nation, 1834 - te Kara
• Rangatira and international law – de Vattel & Ionian Islands
• Declaring Independence “He Whenua Rangatira”, 1835 –
He Whakaputanga o Te Rangatiratanga o Nu Tireni
(Henare 2001)
University of Auckland Business 8
School

9. He Whakaputanga o Te
Rangatiratanga o Nu Tireni 1835
Declaration of Independence
• Clause 1.
 Hereditary leaders gather at Waitangi, 28th October 1835
 Agree to act in a collective capacity
 establish a Sacred Confederation of Tribes
 declare the independence of Nu Tireni (Henare 2001)
University of Auckland Business 9
School

10. Declaration of Independence
Te Whakaputanga o Te Rangatiratanga o Nu Tireni
• Clause 2
• power & authority resides in leaders in their
collective capacity
• no legislative authority outside themselves
• no function of government unless appointed &
acting under law enabled by Congress
(Henare 2001)
University of Auckland Business 10
School

11. Declaration of Independence
Te Whakaputanga o Te Rangatiratanga o Nu Tireni
• Clause 3
• hereditary leaders to meet in annual Congress
• to frame laws for dispensation of justice
• preservation of peace & good order
• regulation of trade
(Henare 2001)
University of Auckland Business 11
School

12. Declaration of Independence
Te Whakaputanga o Te Rangatiratanga o Nu Tireni
• Clause 4
• send Declaration to King William IV
• thanks for acknowledging flag 1834
• reciprocate for friendship & protection
• King‟s subject allowed to live in Nu Tireni
• help infant Māori state, be protector (Henare 2001)
University of Auckland Business 12
School

13. James Busby‟ Explanation
• The Māori Declaration of Independence 1835…
• “…is founded upon the principle of the protecting
state, administering in chief the affairs of another
state in trust for the inhabitants, as sanctioned by
the Treaty of Paris (1815), in the instance of Great
Britain and the Ionian Islands, and as applied…in
various instances, on the borders of our Indian
possessions.”
• (Despatch of James Busby to Gov. Bourke, 26 Jan 1837)
University of Auckland Business 13
School

14. Protectorate Principle
The Law of Nations
• Emmerich de Vattel Vol. 3 para.192
• When a nation is unable to protect itself, it may
obtain for itself the protection of a more powerful
State. If this protection is obtained by a promise to
do certain things, such as to pay tribute in
acknowledgement of the protection
granted…provided the contracting State reserves the
right of governing itself, the treaty is merely one of
protection, which is not in derogation of
sovereignty…
• (Cited in Henare 2001)
University of Auckland Business 14
School

15. Te Tiriti o Waitangi as a Source of Human Rights
• Historically Māori sought and gained international
support of an assertion of political, economic and
social rights
• Acquired an international identity
– formal letters, national flag, declaration of
independence, signed a treaty with Great Britain
• Te Tiriti o Waitangi affirmed the right to exist as a
nation and people
• Following are rights inferred in Te Tiriti o
Waitangi
University of Auckland Business 15
School

16. Tiriti o Waitangi
Māori Version & translation
Preamble – Freedom & Fundamental right to exist as a
•
people
Kia tohungia ki a rātou o rātou rangatiratanga me tō rātou wenua
Queen desires to preserve to them their full authority as leaders
(rangatiranga) and their country (tō rātou wenua)
…tonu hoki te Rongo … Ātanoho
peace and continued life as a Māori people
…hei kai wakarite - Sends a Governor to assist (Henare 2001)
University of Auckland Business 16
School

17. Tiriti o Waitangi
Article 1 - Right to self-determination
Kawanatanga katoa o ō rātou wenua
Governance for ever of their lands – note the
plural usage of lands „ō rātou wenua‟ (not
country?)
University of Auckland Business 17
School

18. Te Tiriti o Waitangi
Article 2 – Political, social, economic rights
Tino Rangatiranga o ō rātou wenua ō rātou kainga me ō rātou
taonga katoa
Absolute power & authority of their lands (pl) (ō ratou
wenua), their settlements and surrounding environs
(kainga), and all their valuables (property) (taonga)
(Henare 2001)
University of Auckland Business 18
School

19. Tiriti o Waitangi
Article 3 – Civil & political rights, rights protected
by law
..ka tukua ki a rātou nga tikanga katoa rite tahi ki ana
mea ki ngā tāngata o Ingarani
Royal protection, rights & privileges of British
subject
University of Auckland Business 19
School

20. Te Tiriti o Waitangi
The Additional Clause agreed to by Hobson
Article 4 - Right to practice religion, customs & freedom
to choose
Ko ngā whakapono katoa…me te ritenga Māori ngatahitia
All the chosen faiths (Anglican, Methodist, Catholic) and
customary practices shall be protected (Henare 2001)
University of Auckland Business 20
School

21. Mana-Sovereignty
• For Māori leaders the locus of power (mana) was
located in the Kings & Queen of England
– Māori personalism
• For Busby, Williams and Hobson the locus of
power (sovereignty) was located in the institution
of parliament
– English institutionalism
• Mana & sovereingty identify the locus of power –
Māori understood this (Henare 2001)
University of Auckland Business 21
School

22. Rights in Te Tiriti o Waitangi
• Preamble
– Freedom & Fundamental right to exist as a people
• Article 1 –
– Right to self-determination
• Article 2 –
– Political, social, economic rights
• Article 3 –
– Civil & political rights, rights protected by law
• Article 4 –
– Right to practice religion, customs & freedom to choose religion
University of Auckland Business 22
School