Coalition partners have sided with Prime Minister Christopher Luxon after he said he believed "Māori ceded sovereignty to the Crown". Photo: RNZ / Angus Dreaver
The debate over whether Māori ceded sovereignty in 1840 has flared up in Parliament, with party leaders staking clear positions where they have previously tip-toed.
Prime Minister Christopher Luxon reopened the can of worms when pressed during Question Time last week, saying he believed "Māori ceded sovereignty to the Crown".
Before that, Luxon had been willing only to say that the Crown was sovereign.
Political parties state their views on sovereignty - Lillian Hanly
In response, Labour leader Chris Hipkins took the opposing view, a position neither he, nor his predecessor Jacinda Ardern, ever ventured when in power.
"I accept the overwhelming body of literature that suggests Māori did not cede sovereignty, having said that, sovereignty was clearly taken."
It's not a new position for the Greens or Te Pāti Māori, who were asked about the issue on Wednesday.
Greens Co-leader Chlöe Swarbrick said Māori did not cede sovereignty, citing the Te Paparahi o te Raki Waitangi Tribunal report from 2014.
Swarbrick also suggested the prime minister go back to school.
"I think the Aotearoa Histories in Schools curriculum would do him a hell of a lot of good."
Māori Party co-leader Debbie Ngarewa-Packer also said Māori did not cede sovereignty.
"I think the fact that we're still here is evident that we didn't cede. I think this is a discussion that we're having with people who lack the knowledge to be involved in this discussion, in this debate."
Coalition partners back PM
In that debate, the coalition partners, ACT and New Zealand First, stand with the prime minister.
ACT leader David Seymour said the Treaty was entirely about giving sovereignty to the British Crown.
"The Treaty was about the Queen taking sovereignty of New Zealand in agreement with the signatories of the Treaty but I also believe it is a bit of a sideshow.
"Because ultimately, we're all here now, we've all got to live together, there's one government. The idea is that we want to maximise each person's ability to flourish on their own terms."
New Zealand First leader Winston Peters agreed, citing a thesis written by Sir Āpirana Ngata in 1922 that stated Māori ceded sovereignty.
"It's in all the comment of leading Māori scholars, all the way to Ngata, that they did cede sovereignty and had a reason to and to try to deny that now is to impose a view of history which is false, convenient, and simply not going to be conducive to a united country going forward, which all those leaders focused on."
When asked about the Te Paparahi o te Raki report as a more recent ruling that is referred to by legal academics and Treaty experts, Peters said they don't refer to that.
"Some academics might do, some left wing radicals trying to rewrite history might do, but no, they don't.
"And the Lands case of 1987 had these five judges wrestling over this, and they couldn't decide either.
"So my view is the view of Ngata, not because he's from my tribe or my iwi, but because he was respected nationwide by Māori for the brain he had and his understanding of history he had."
Some of the northern iwi who were involved in the Te Paparahi o te Raki report hit out yesterday at the prime minister's comments, writing an open letter saying it's misleading and offensive.
Ngāti Hine and Ngāti Manu rejected his statement saying they were deeply frustrated by his disregard for the truth, demanding Luxon acknowledge Māori did not cede sovereignty to the Crown.
Luxon was asked for his response to the letter while at the Pacific Islands Forum in Tonga.
"I appreciate there are different views from iwi across New Zealand about what happened in 1840, but the Crown acquired sovereignty through the Treaty of Waitangi and subsequent proclamations."
When asked whether sovereignty was ceded or taken, Attorney-General Judith Collins said she agreed with the prime minister.
Minister for Māori Development Tama Potaka also agreed.
"You and I and others have had a long conversation on that and I sit in the pocket of the prime minister's comments."
Housing Minister Chris Bishop answered saying: "The Crown has sovereignty over New Zealand. It was done through the Treaty of Waitangi and subsequent legal developments."
ACT's Nicole McKee, Minister for Courts, said "the Treaty needs a good debate".
Differing Treaty translations cause for confusion - professor
Legal academics and Treaty experts have grappled with the debate for decades.
Professor Claire Charters from the University of Auckland and head lecturer Carwyn Jones from Te Wānanga o Raukawa point to the different translations of the Treaty of Waitangi as cause for confusion.
Charters explains that under law, the te Reo Māori version will always takes precedence.
"As a matter of law, of international law, but also British common law, under a rule or the Latin name, called contra proferentum.
"So it is the reo version of Te Tiriti o Waitangi that is the authoritative version."
Jones explains the English text speaks about sovereignty going to the British Crown - but points out that is not what the Māori text says.
"Te Tiriti talks about kāwanatanga going to the Crown, and so that's a different idea than sovereignty, that talks about functions of government."
He also points to Article Two of Te Tiriti which uses 'tino rangatiratanga', "you can see that what's being guaranteed to Māori is Tino rangatiratana, that absolute authority of the rangatira."
"We often think about that as being self determination or independence, and that's an idea which is actually much more like sovereignty. So that's being retained by Māori. And so it would be inconsistent with that guarantee for Māori to have ceded sovereignty in Te Tiriti."
Professor Charters agrees, saying the Crown has "claimed sovereignty" and tried to "create this myth" that Te Tiriti was a cession of sovereignty, which she says it wasn't.
Jones said the Crown was asserting sovereignty in a way which ]was "not based on agreement or consent", and was instead "based on the kind of coercion and oppression, and ultimately violence, in that sense of forced coercion."
He said the prime minister's comments demonstrated a "fundamental misunderstanding" of New Zealand's constitutional history, and Charters added he was "perpetuating this myth" that had existed as an explanation for why the Crown claimed sovereignty, "but it was never ceded, legally or legitimately".
Charters pointed out that if you were to acknowledge the illegitimate process of gaining sovereignty you would argue your authority out of existence.
Hipkins' clarified his comments were not about claiming the current Parliament is illegitimate, but about being honest about New Zealand's history.
"If you look at the history we've made as a country over the last 40 or 50 years, including in areas like the Treaty Principles, and areas around redress, it is a recognition that bad things happened around the time of the signing of the Treaty and subsequent to that. And we need to remedy that, we need to rectify that, we need to find a way of moving forward on that.
Hipkins said it was relevant given the upcoming debate around the Treaty Principles Bill.
Seymour, who is leading the Treaty Principles Debate, said the question of whether sovereignty was ceded or taken was "exactly the kind of debate we've had for too long".
Hipkins rejected the assertion he was vying for the Māori vote, but Te Pāti Māori's Ngarewa-Packer said it was interesting to hear his comments now.
"There were times when there were really good opportunities for discussion with He Puapua, entrenching Māori seats, advancing the wai kaupapa when they were going through infrastructure of three waters that could have been led, and so it's interesting to see that now it's politically palatable to come on this kaupapa and support things that Te Pāti Māori have been saying for a really, really long time.
"This is so much more than political parties trying to get points. This actually has to be having vision of what Aotearoa should and could be."