…the real money passage comes at pages 525-526:
Our essential conclusion, therefore, is that the rangatira did not cede their sovereignty in February 1840; that is, they did not cede their authority to make and enforce law over their people and within their territories. Rather, they agreed to share power and authority with the Governor. They and Hobson were to be equal, although of course they had different roles and different spheres of influence. The detail of how this relationship would work in practice, especially where the Māori and European populations intermingled, remained to be negotiated over time on a case-by-case basis. But the rangatira did not surrender to the British the sole right to make and enforce law over Māori. It was up to the British, as the party drafting and explaining the treaty, to make absolutely clear that this was their intention. Hobson’s silence on this crucial matter means that the Crown’s own self-imposed condition of obtaining full and free Māori consent was not met.
Wow – that sounds pretty major! The Treaty wasn’t actually the mechanism by which Māori accepted that the British Crown could take over running the motu known as Aotearoa/New Zealand!! Māori assumed that they would retain the capacity to make and enforce their own laws for themselves!!! What then flows out of that historical finding?
If we do accept that picture, then it really poses a challenge to us. Because if we want the story we’ve come to tell ourselves about the Treaty and what it means for who we are to be true, then we can’t just keep on keeping on as we’ve done. Nor can we resolve the breaches of the Treaty simply through payments of money, transfer of resources, and apologies. Rather, it calls for a more radical reworking of the sharing of power over at least some aspects of New Zealand between the Crown and Māori in order to make good the Treaty’s original vision.
And that, it seems to me, is the real importance of the Waitangi Tribunal’s Report and its conclusions. It provides us with a choice – you can either have your comfortable and ennobling history of the Treaty as the founding document of New Zealand, or you can have the current New Zealand State in which the Crown has the right to exercise ultimate sovereignty over all aspects of life within it. But you can’t have both.
It is not likely that John Key, with his fantasy version of NZ history, will be interested in acknowledging the ramifications of this finding. Instead we will have an expensive and superficial circus about our flag. But when it comes to the matter of our national identity, this really is a defining issue. Exploring it will be up to some future government.