Let’s suppose the history of the Treaty of Waitangi reads like a balance sheet.  We would list the cumulative debits – codified land theft, enforced poverty, scarce opportunities and more – while noting the credits – some reparations, a little less poverty, a little more opportunity and some good will. Even the most generous observer would admit that the debits outweigh the credits. Yet, if any doubt remains, let’s settle it with the Waitangi Tribunal’s report in Te Paparahi o Te Raki Inquiry.

The Tribunal, in its report released last Friday, confirmed that the rangatira who signed the Treaty did not surrender their sovereignty to the Crown. That might seem like a straightforward finding, but it raises all sorts of tricky questions. How did the Crown acquire sovereignty? And, if the rangatira – on behalf of their hapū – did not cede their sovereignty, then where did it go? Does it still exist or was it extinguished? Does it even matter?

Well, of course it matters. The Tribunal may have delivered only a formal restatement of a view commonly held – and a view often remembered with the bitterness of an outstanding debt – yet it matters because the Tribunal has exclusive authority to determine the meaning and effect of the Treaty. So the Tribunal’s finding does matter. In fact. And in law. It’s now a fact as far as the law is concerned that “at no stage… did rangatira who signed te Tiriti in February 1840 surrender ultimate authority to the British”.

It might seem that the Tribunal has reintroduced the sovereignty debate, but it would be a mistake to assume that the debate ever disappeared. Understandably – and perhaps unfortunately – the Tribunal doesn’t tell us how the Crown acquired sovereignty or whether hapū and iwi still hold it. Yet it didn’t have to. That one confirmation alone – “rangatira [did not] surrender ultimate authority to the British” – is enough to help even the playing field. The Crown is confident in its de facto sovereignty, but it now must have the burden to prove its de jure sovereignty.

This is the strength of the Treaty: constant interpretation and negotiation. The Crown should – whether out of constitutional, political or emotional necessity – prove its de jure sovereignty. Meanwhile, hapū and iwi can agitate for a new Treaty relationship  – one more like a nation to nation relationship than citizenry to state relationship. The Crown has a debit owing – it has assumed sovereignty even when the original sovereigns never relinquished it – and renegotiating the nature of the Treaty relationship is the least that can be done to create a credit.

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