Abstract
In the opening lines of te Tiriti o Waitangi / the Treaty of Waitangi (‘the treaty’), the rationale for a new Crown and government presence in Aotearoa New Zealand is the Queen’s “concern to protect”. In the third article, Ko te Tuatoru, the Māori phrase “ka tiakina e te Kuini”, asserting the Crown will begin to protect and Māori will be cared for by the Queen as her own, has not been fully explored. Derived from the word tiaki (to guard, keep, or watch for), “ka tiakina” has connections with a tikanga Māori concept, kaitiakitanga: a guardian presence and protective role within Māori kin collectives, of consequence in tikanga Māori governing order.
My thesis explores, through both tikanga Māori and a common lawyer’s eyes, how kaitiakitanga as a tikanga paradigm of guardian relationships can guide the treaty’s guardian relationships, and the parallels of kaitiakitanga with “ka tiakina”. It contends that in the treaty the latter co-exist. Viewed in light of the ways of thinking underlying kaitiakitanga, the guardian role “ka tiakina” may be properly understood according to tikanga Māori and this proves a coherent treaty interpretation. Substantiating these connections and assessing their consequence in the treaty relationship are the thesis’ primary tasks.
To situate kaitiakitanga constitutionally and identify its treaty relevance, I approach it in three ways. Ontologically, knowledge of guardians’ presence in other orders of reality suggests a tikanga basis for perceiving the treaty relationship patterned on like principles. To illuminate main concepts, conceptualised as the structural pillars or guard posts pou, I study iwi and hapū kaitiakitanga outlined in resource management plans. Both these and a further case study of kaitiakitanga reinforce its grounding in whanaungatanga: the sense of kin-like bonds. To reflect then on the nature of treaty ties I explore tuku, as a kaitiakitanga-connected concept which runs through the treaty, referencing tikanga Māori processes of forming bonds between two parties. Drawing on features of kaitiakitanga and tuku identified through these studies, I reconstruct alignment of well-settled relationship principles of the treaty to this guardian relations-oriented frame. The latter has explanatory value for the present principles and moreover, would extend them.
Kaitiakitanga proves robust as a paradigm to analyse the treaty and as a source of constitutional thought. Tikanga Māori values associated with being in a guardian relationship can guide “ka tiakina” interpretation and treaty construction, thereby tikanga Māori-orienting both treaty and Crown. Doing so amplifies guardian relationships’ treaty significance. A guardian relations frame implies Māori treaty parties and the Crown ought to be supposed to relate to each other in ways exceeding partnership, reaching toward doubled or further— also future— dimensions of oneself. An ethos of kaitiaki might inform governing relations, and bases a framework developed around guardians’ standing, and guardianship having cardinal importance. Altogether, identifying the treaty as a tikanga Māori site of guardian relations can contribute to reading of its text, knowledge of its relationships, and describe contemporary governing principles to develop and manage relations according to tikanga in present-day constitutional life.