Moana Jackson pictured at his home in Waimana, not long before he passed away in March 2022.

The Principles of the Treaty of Waitangi bill is finally dead in the water, but not without providing a platform for bill supporters to re-air the question of whether Māori ceded sovereignty in 1840.

That question was definitively answered in 2014 by the Waitangi Tribunal in its report He Whakaputanga me Te Tiriti, which drew on decades of legal, historical and constitutional research to affirm that Māori never ceded sovereignty.

In 2019, constitutional expert Moana Jackson emphasised the Tribunal’s findings when he gave evidence to the Royal Commission of Inquiry into Abuse in Care.

He explained that there is a consistent Māori understanding of Te Tiriti, which precludes the very concept of ceding mana.

Here’s what he said.

History shows that every society realises very early on that it cannot survive in a lawless state. They therefore establish ways of ensuring social cohesion and harmony by developing a philosophy or jurisprudence of law, as well as a discrete legal system to give effect to it. Both are shaped by the land, history and values of the people concerned — the idea and ideals of law are unique cultural creations.

Iwi and hapū long ago developed a law or tikanga that grew out of the stories and the culture that developed in this land. It developed from philosophies to do with the sacred interrelatedness of whakapapa as well as from precedents and customs devised by the tīpuna. It recognised the need for sanctions but stressed the ethical base of any behaviour and sought reconciliation rather than punishment. It recognised the relationships between people and every part of the universe, both seen and unseen, physical and spiritual.

Perhaps the clearest example of the efficacy of tikanga as law is seen in the ceremonies that were performed when a baby was born.

The rites of birth associated with naming and blessing the child were not just a cultural celebration but a legal affirmation of the rights or entitlements that would vest in the child as he or she grew into adulthood. They established the child’s tūrangawaewae and the interests or title in land that went with his or her whakapapa. At the same time, they were a public declaration of the collective’s obligation to care for and protect the child.

Tikanga itself was thus relational as well as values-based. It was bound by the ethics of what ought to be in a relationship as well as the values that measured the tapu and mana of individuals and the collective.

It set prescriptive and proscriptive guidelines for what was legal or illegal (tika or non-tika) behaviour, and because it was so whakapapa-based, people lived with the law rather than under it. The idea that someone might be above it was simply a cultural contradiction in terms.

As in all cultures, law was symbiotic with the exercise of political power. The effective exercise of mana or tino rangatiratanga was proscribed and prescribed by tikanga, which in turn was given efficacy by the mana of the iwi and hapū.

The concept of mana as a political and constitutional power denoted an absolute authority. It was absolute because it was absolutely the prerogative of iwi and hapū, but it was also absolute in the sense that it was commensurate with independence and an exercise of authority that could not be tampered with by that of another polity.

It necessarily included a number of different components that may be called the specifics of power, such as:

1. a power to protect — that is the power to protect, manaaki and be the kaitiaki for everything and everyone within the polity;
2. a power to define — that is the power to define what should be protected, and the power to define the rights, interest and place of individuals and collectives;
3. a power to decide — that is the power to make decisions about everything affecting the wellbeing of the people; and
4. a power to develop — that is the power to change to meet new circumstances in ways that are consistent with tikanga and conducive to the advancement of the people.

But if iwi and hapū were independent, they were also necessarily interdependent through whakapapa. The mana of one polity was necessarily connected to the mana of another in the same way that individuals were interdependent, and the mana of humans was inseparable from mana whenua, mana moana and mana atua.

Within this reality, two fundamental tenets underpinned mana and tino rangatiratanga and determined how they could be exercised.

Firstly, the power was bound by law and could only be exercised in ways consistent with tikanga and thus the maintenance of relationships and responsibilities.

Secondly, the power was held by and for the people — that is, it was a taonga handed down from the tīpuna to be exercised by the living for the benefit of the mokopuna.

The ramification of those prescriptions was that mana was absolutely inalienable. No matter how powerful rangatira might presume to be, they never possessed the authority nor had the right to give away or subordinate the mana of the collective because to do so would have been to give away the whakapapa and the responsibilities bequeathed by the tīpuna. It would have been to abdicate the responsibility to protect the people and the land.

To hold mana and tino rangatiratanga was the only way in tikanga terms to hold the mana of every child acknowledged in the rites of birth.

The fact that there is no word in te reo Māori for “cede” is not a linguistic shortcoming but an indication that to even contemplate ceding or giving away mana would have been legally impossible, politically untenable, and culturally incomprehensible.

It was those legal and political understandings which naturally guided the process of treaty-making. For, like all polities, iwi and hapū have a long history of negotiating treaties with each other. It predates Te Tiriti o Waitangi and was known in Ngāti Kahungunu as te mahi tūhono, or the work to bring people together. Like tikanga as law, treating was a relational process dependent upon mana and the notion of equitable interdependence.

The important question in situating Te Tiriti in the Māori reality is not whether rangatira understood sovereignty (a preoccupation of many Pākehā historians and jurists) but whether they understood mana.

Sovereignty, after all, was a foreign concept of power, and because evidence shows that all of the understandings reached by the rangatira were concluded in te reo rather than a foreign language, the key interpretive lens was obviously mana and tino rangatiratanga with all of their implications and absoluteness.

The evidence in iwi histories in te reo, before and at the time of the signing, clearly indicates that rangatira were mindful of their responsibility to preserve and even enhance the mana they were entrusted with. In 1840, they could only act according to tikanga and commit the people to a relationship that was tika in terms of their constitutional traditions.

The constant statements in those histories that the words in Te Tiriti do not envisage or permit a cession of mana, or even a recognition of some sort of overarching Crown authority, therefore reaffirm a fundamental Māori truth. They simply could not consent to something that was not only contrary to law, but also the very base upon which iwi and hapū society was built.

That truth points to an obvious Māori meaning to Te Tiriti which the Waitangi Tribunal reaffirmed in its first stage report on the Paparahi o Te Raki claim: He Whakaputanga me Te Tiriti. In its report, the Tribunal declared that Māori did not cede sovereignty to the Crown but rather sought the recognition of different “spheres of influence.”

They retained mana and tino rangatiratanga because that was the prerequisite to any equitable relationship.

The tikanga understanding of Te Tiriti as affirmed by the Tribunal may be illustrated with an analogy. For just as part of the responsibility of mana was to recognise relationships with others, and to expect that they would reciprocate by ensuring that their people did nothing to impinge upon one’s own harmony and well-being, so rangatira actively sought a relationship with the Crown through Te Tiriti and granted it a limited power, kāwanatanga, to ensure its people did not impinge upon the mana of iwi and hapū.

Māori linguists have explained the nuances of the words in Te Tiriti, but the legal and political realities of iwi and hapū give those nuances a specific meaning. If mana was not ceded, then Te Tiriti was a Māori reaffirmation of a tikanga-based expectation that iwi and hapū would continue to have the authority to protect their mokopuna. The subsequent usurpation of that authority by the Crown may consequently be seen as a breach of Te Tiriti.

The fact that such a tikanga-based understanding has been dismissed in the colonising history since 1840 does not invalidate it. Rather, it merely indicates the steps this country still needs to take to properly honour Te Tiriti.

A documentary about Moana’s life and work Moana Jackson: Portrait of a Quiet Revolutionary can be watched in full here. 

Moana Jackson CRSNZ (October 10, 1945 to March 31, 2022) was a New Zealand lawyer specialising in constitutional law, the Treaty of Waitangi, and international Indigenous issues. He was an advocate and activist for Māori rights, arguing that the New Zealand criminal justice system was discriminatory, and led work on constitutional reforms. In 1987, he co-founded Ngā Kaiwhakamarama i Ngā Ture (the Māori Legal Service). Moana supported the rights of Indigenous people internationally — for example, through leading the working group that drafted the United Nations Declaration on the Rights of Indigenous Peoples and sitting as a judge on the International Tribunal of Indigenous Rights in the 1990s.

E-Tangata, 2025