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HW13 Generic Constitutional Issues Closing Submissions Wai 2180, #3.3.54 IN THE WAITANGI TRIBUNAL WAI 2180 IN THE MATTER of the Treaty of Waitangi Act 1975 AND IN THE MATTER of the Taihape: Rangitīkei ki Rangipō inquiry GENERIC CONSTITUTIONAL ISSUES CLOSING SUBMISSIONS Dated: 12 October 2020 ~ ~ ANNETTE Tamak.iLegal !l ar rl sters & So l le I to rs SYKES & C o. barristers & solicitors Level 2, Cuilam Building, 8 – Unit 1 Marguerita Street, 15 Osterley Way, Manukau, Rotorua, 3010 Auckland 2104 Phone: 07-460-0433 PO Box 75517, Manurewa Fax: 07-460-0434 Auckland 2243 Email: P. 09 263 5240 [email protected] E. [email protected] Counsel Acting: Darrell Naden / Annette Sykes 1 CONTENTS INTRODUCTION .................................................................................................................. 5 TRIBUNAL STATEMENT OF ISSUES .................................................................................. 6 A. CONSTITUTIONAL ISSUES ...................................................................................... 8 1. Tino Rangatiratanga ................................................................................................. 8 Issues ............................................................................................................................... 8 2. Political engagement issues .................................................................................... 9 Issues ............................................................................................................................... 9 CROWN STATEMENT OF POSITION AND CONCESSIONS ............................................ 10 PAST FINDINGS OF THE WAITANGI TRIBUNAL .............................................................. 15 General interpretation of te Tiriti ō Waitangi ................................................................ 15 Changing Tribunals and textual differences ................................................................ 15 Before the Lands case .................................................................................................. 16 Post Lands ................................................................................................................... 17 A turning tide ................................................................................................................ 20 Assistance from he Whakaputanga .............................................................................. 22 TECHNICAL RESEARCH ................................................................................................... 23 ISSUE 1(1)(a) TIMING AND TERMS OF THE CROWN RELATIONSHIP ...................... 24 Introduction .................................................................................................................... 24 Ceded colony ................................................................................................................. 24 A settled colony ............................................................................................................. 28 Claimant date ................................................................................................................. 29 ISSUE 1(1)(b) NO CROWN PRESENCE AND KĀWANATANGA .................................. 31 Introduction .................................................................................................................... 31 The whole of New Zealand approach ........................................................................... 32 ISSUE 1(2) and 1(3) MĀORI SIGNATORIES AND UNDERSTANDINGS ........................ 41 Introduction .................................................................................................................... 41 Issue 1(2) Māori signatories ...................................................................................... 42 2 Issue 1(3) Māori Understandings.............................................................................. 43 Key Propositions ........................................................................................................... 43 Crown’s Recognition and Perceptions of Te Tino Rangatiratanga ............................ 45 Achieving the Colonial Objective ................................................................................. 47 The Civilising Mission ................................................................................................... 50 Antecedent Systems ...................................................................................................... 52 The Impact of Not Signing the Treaty ........................................................................... 55 Tangata Whenua Rights ................................................................................................ 56 The right to be distinct peoples albeit adapting with time .......................................... 57 The right of hapū to the territorial integrity of their land base. .................................. 57 The right of hapū to self-government ........................................................................... 57 Similarity to Treaty Principle ......................................................................................... 59 ISSUE 1(4) CROWN UNDERSTANDING .................................................................... 62 Introduction .................................................................................................................... 62 Consent requirement ..................................................................................................... 63 De facto sovereignty required ...................................................................................... 67 There can be only one ................................................................................................... 70 ISSUE 1(5) TRANSFER OF DE JURE SOVEREIGNTY .............................................. 72 Introduction .................................................................................................................... 73 Limits on the Queen’s writ ............................................................................................ 74 Consent was not acquired ............................................................................................ 75 “Universal adherence” not achieved ............................................................................. 76 Circumventing the consent gathering process ........................................................... 82 Consent was inconsequential to Hobson ...................................................................... 88 Settlement of Aotearoa .................................................................................................. 92 Settled and not ceded ................................................................................................... 95 Instantaneous sovereignty .......................................................................................... 104 Racist and discriminatory ............................................................................................ 108 3 ISSUE 1(6) ACQUISITION OF DE FACTO AND DE JURE SOVEREIGNTY, POLITICAL ENGAGEMENT WITH THE CROWN ................................................................................ 112 Introduction .................................................................................................................. 112 Narrow view of legality ................................................................................................ 115 Wider view of legality .................................................................................................. 116 Application of the legality test to Taihape.................................................................. 122 (i) Successful revolution and government firmly established ............................... 122 (ii) Effective rule as evidenced by the conformity of the majority .......................... 123 (iii) Such conformity is due to popular acceptance and support of the government and was not mere tacit submission to coercion or fear of force .............................. 124 Anti-sellers ................................................................................................................... 125 Inclusion in the Rohe Tapu ......................................................................................... 128 Kῑngitanga purpose and intent ................................................................................... 132 A reverberating war ..................................................................................................... 139 (d) it must not appear that the regime was oppressive and undemocratic. .......... 144 Repudiation Movement ............................................................................................... 150 Rees-Carroll Commission ........................................................................................... 155 Seddon’s ‘use it or lose it’ policy ............................................................................... 158 Te Kotahitanga ............................................................................................................. 159 Other spheres of oppression ...................................................................................... 165 Economy destroyed ..................................................................................................... 165 Maladministration of education services ..................................................................
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