MYTH: The Treaty can’t be enforced because there are two different versions

TREATY MYTH BUSTING

 There are definitely conflicts in the two documents:

  • The Treaty in te reo (including its expression into English), and
  • the English version.

The Treaty in the Māori language was signed by Captain Hobson and over 500 Rangatira, over 40 of them at Waitangi on February 6th 1840.

The English version, only written after February 6th, was signed at Port Waikato/Manukau, where the discussion would have been of the content of the Māori text, but the English version was signed (by approximately 40 Rangatira).

When two documents conflict …

In international law where there is any ambiguity:

  • The contra proferentem principle applies, which means that a decision is made against the party that drafts the document, and
  • the indigenous language text takes preference.

In oral cultures such as Māori, verbal agreements take preference over what is written.

This means that for the Treaty of Waitangi the text in te reo takes precedence on all these counts.

In November 2014 the Waitangi Tribunal summarised their conclusions on the Nga Puhi claim (WAI 1040):

  • The rangatira who signed te Tiriti in February 1840 did not cede their sovereignty to Britain. That is, they did not cede authority to make and enforce law over their people or their territories.
  • The rangatira agreed to share power and authority with Britain. They agreed to the Governor having authority to control British subjects in New Zealand, and thereby keep the peace and protect Māori interests.
  • The rangatira consented to the treaty on the basis that they and the Governor were to be equals, though they were to have 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.
  • The rangatira agreed to enter into land transactions with the Crown, and the Crown promised to investigate pre-treaty land transactions and to return any land that had not been properly acquired from Māori.
  • The rangatira appear to have agreed that the Crown would protect them from any foreign threats and represent them in international affairs, where that was necessary.

Source: Treaty of Waitangi Questions & Answers, Network Waitangi 2018

See also: https://nwo.org.nz/resources/treaty-poster/


The Waitangi Tribunal: a brief summary

Waitangi Tribunal

The Waitangi Tribunal was established by the Treaty of Waitangi Act 1975.

It was set up to investigate claims of breaches of the Treaty from 1975 onwards and recommend compensation where evidence of breaches is sustained (so-called ‘Settlements’). In 1985 the Act was amended so that claims back to 1840 could be examined. The Government appoints the members of the Tribunal.

Authority

  • In most cases the Tribunal has the authority only to make recommendations to Parliament; it has no power to enforce settlements or decide on the amounts of settlements.
  • In some limited instances, it has the power to make “binding recommendations” for the return of certain lands to Māori ownership.
  • It must take into account both the so-called ‘English’ and Māori language texts of the Treaty in its deliberations.
  • It must not “create a further grievance in its attempt to right another”.
  • It can also hear urgent current claims, for example, the Tribunal made recommendations (although ignored) on the Seabed and Foreshore proposals before the legislation was introduced.
  • Claimants can bypass the Tribunal and negotiate directly with the Government’s Office of Treaty Settlements.
  • Parliament has the final approval by choosing whether or not to pass legislation to enact a settlement, and what that settlement will contain.

Fiscal Envelope
The controversial “fiscal envelope” policy of 1994 meant that an arbitrary limit of $1 billion was put on the total of all settlements by the Government – even before the evidence was heard. However this proved controversial and was quietly dropped.

Settlements with Iwi
Since 1999, government policy has been to negotiate settlements only with iwi, which excludes specific hapū and whānau claims; this policy has subsequently developed into a preference for negotiating only with “large natural groupings”, defined by the government over the wishes of Māori. Policies based on government definitions of who it will negotiate with, rather than seeking Māori input into the most appropriate social structures for resolving historical Treaty breaches, have been criticised and challenged by Māori, the Tribunal and others.

The Government is also facing criticism on many other fronts, including for adopting a blanket approach through the Office of Treaty Settlements, which also prefers to work regionally as opposed to addressing hapū-specific claims. The Crown’s right to choose with whom it will negotiate has interfered with traditional relationships between and within hapū, creating new problems. And claimant groups are required to restructure their organisations along legislated lines before the government will finalise any Treaty settlement, further disrupting traditional organisation and relationships. Most settlements amount to less than 2% of the current value of the assets taken. At the same time, claimants must agree to the terms as a full and final settlement.

The Tribunal has proved useful in some respects however; a major plus has been that hapū and individuals have at last been given a public hearing, and their evidence entered into the public record, so the ‘other’ side’s view of some contested historical events has been made accessible to the wider public, for example.


Source: Treaty of Waitangi Questions & Answers, Network Waitangi 2018


What was Te Wakaminenga / the Confederation of Chiefs?

Stimulated by the rangatira Te Pahi, northern leaders began meeting from about 1808 in formal assembly to agree on law and policy concerning the newcomers. This assembly was called Te Wakaminenga o Ngā Hapū o Nu Tīreni (the General Assembly of the Tribal Nations). The name of the Assembly’s general secretary was Waikato. He and the renowned Ngāpuhi leader Hongi Hika went to meet King George IV of Britain in 1820, under the auspices of Te Wakaminenga.

In the years leading up the Declaration and the Treaty, the meetings of Te Wakaminenga were attended and supported by many key leaders from around Te Ika a Māui (North Island), and gatherings continued well after the Treaty was signed. There were also many South Island connections with the assembly through tribal associations that reached back for hundreds of years.

The flag chosen by the northern leaders in 1834 was known as the Te Wakaminenga flag. Te Wakaminenga, known to the British as the Confederation of Chiefs, was the author of the Declaration of Independence and is prominently named in the Treaty.

Te Wakaminenga operated as a true confederation, where the member hapū retained their authority and independence.

While Te Wakaminenga (the Confederation) had an important role in dealing with matters that were of common concern and particularly those that involved dealing with the growing number of foreigners, it was not intended that it would displace the authority held by the hapū and their rangatira.


Sources:

Treaty of Waitangi Questions & Answers, Network Waitangi 2018

Ngapuhi Speaks, Te Kawariki & Network Waitangi Whangarei 2012

Evidence from WAI27, Waitangi Tribunal


The Report of Matike Mai Aotearoa – The Independent Working Group on Constitutional Transformation

Matike Mai

Matike Mai Aotearoa, the Independent Working Group on Constitutional Transformation, was first promoted at a meeting of the Iwi Chairs’ Forum in 2010. The Terms of Reference given to the Working Group were deliberately broad –

“To develop and implement a model for an inclusive Constitution for Aotearoa based on tikanga and kawa, He Whakaputanga o te Rangatiratanga o Niu Tireni of 1835, TeTiriti o Waitangi of 1840, and other indigenous human rights instruments which enjoy a wide degree of international recognition”.

The Terms of Reference did not ask the Working Group to consider such questions as “How might the Treaty fit within the current Westminster constitutional system” but rather required it to seek advice on a different type of constitutionalism that is based upon He Whakaputanga and Te Tiriti. For that reason this Report uses the term “constitutional transformation” rather than “constitutional change”.

VIEW OR DOWNLOAD THE FULL REPORT

Contents of the report include:

  • THE NATURE OF CONSTITUTIONS
  • THE CONSTITUTIONAL FOUNDATIONS
  • THE CONSTITUTIONAL VALUES
  • THE CONSTITUTIONAL VISION, featuring six  indicative Constitutional Models of how New Zealand could facilitate a Treaty-based constitution.

Source: Report of Matike Mai Aotearoa – The Independent Working Group on Constitutional Transformation


He Wakaputanga o te Rangatiratanga o Nu Tireni / The Declaration of Independence of New Zealand, 28 October 1835

He Wakaputanga

What is the Declaration of Independence?

  • Is an international declaration of sovereignty
  • Was made by Te Wakaminenga (Confederation of Chiefs)
  • Was signed on 28 October, 1835
  • Was recognised by Great Britain and other international states
  • Was the forerunner of Te Tiriti o Waitangi
  • Has an internationally-recognised flag to indicate tribal rights to trade as independent nations

The Declaration of Independence – more correctly, He Wakaputanga o te Rangatiratanga o Nu Tīreni – is a Māori proclamation to the international world that this country was an independent state, and that full sovereign power and authority (mana, tino rangatiratanga) resided in rangatira and the hapū they represented. It was declared at Waitangi on 28 October 1835. The signatories were members of Te Wakaminenga, also known as “the Confederation of Chiefs”. Thirty-four rangatira from the North signed the declaration at Waitangi. By 1840 there were 52 signatories; these included Te Wherowhero, leading Tainui rangatira from the Waikato, and Te Hapuku of Ngāti Kahungunu in the Hawkes Bay. There is also evidence that the Declaration was signed by Te Heuheu, influential Tūwharetoa ariki (major leader) from the central North Island, and as late as 1890 by 40 rangatira at Hauraki.

In reaching an agreement about the Declaration, the rangatira took advice from James Busby and the merchant James Clendon, who was later to become the United States consul. Busby was troubled by reports that the Frenchman Baron Charles de Thierry was claiming he had bought a large amount of land in the Hokianga and planned to come to New Zealand to set himself up as a sovereign. The rangatira concerns were broader than this, however. They wished to establish their authority in the eyes of the international world and further their expanding trading interests.

The rangatira also wanted to advance their ties of friendship with the British monarchs with whom a mutually advantageous relationship was growing. The Crown was invited to ensure that others did not infringe the independence of the hapū, especially as the rangatira and their hapū were showing friendship and care to the Pākehā living on their lands. Importantly, the Declaration made it clear that “no separate legislative authority” (kawanatanga) would be allowed in the country except as appointed and directed by Te Wakaminenga, that is, the Confederation.

Busby forwarded the Declaration to Britain, which formally recognised New Zealand’s sovereign independence in 1836. This sovereign independence was also recognised by France and the United States of America.

He Wakaputanga o te Rangatiratanga o Nu Tīreni – The Declaration of  Independence – has never been rescinded by the hapū and rangatira who signed it. It is fundamental  to understanding the intentions of  the rangatira who assented to the Treaty at Waitangi in 1840. For them Te Tiriti o Waitangi is an endorsement of  the provisions set out in the Declaration.

The British and New Zealand governments paid little regard to the Declaration after the signing of the Treaty, claiming that the Treaty overrode the Declaration. However, prior to 1840, the British Crown was clear that New Zealand’s sovereignty had been internationally recognised and that it could have no authority in New Zealand unless Māori leaders gave their assent.

It is important to note that He Wakaputanga, the Declaration, endorses a confederated form of government, as in Te Wakaminenga, the General Assembly of Hapū. Ngāpuhi scholar, Nuki Aldridge, likened Te Wakaminenga’s operation to that of the United Nations (Ngāpuhi Speaks,p. 106). Each hapū retained its mana and independence, while their leaders came together in Assembly to advance matters of common interest. The Declaration of Independence is critically important to New Zealand’s constitutional history and it is a matter for concern that its history is so little known.


See He Wakaputanga (Declaration of Independence).


Source: Treaty of Waitangi Questions & Answers, Network Waitangi 2018


What is the Treaty of Waitangi?

Te Tiriti o Waitangi

A treaty is a legally binding international instrument agreed to and signed by two or more sovereign nations. All parties to a treaty are required to abide by its provisions unless they abrogate (formally withdraw from it). The Treaty of Waitangi is thus an agreement which forms a contract or covenant between the Crown and Māori hapū through their rangatira. It was signed on February 6, 1840, by 40 rangatira on behalf of their hapū and Captain Hobson, representing Queen Victoria. Copies of the Treaty (9 sheets; Eight written in Te Reo Maori and one in English) and were taken round the country and eventually more than 500 Māori leaders signed.

The treaty text signed at Waitangi was in Māori and called Te Tiriti o Waitangi. It recognised the authority and rights of Māori, as set out in the Declaration of Independence. It allowed for the peaceful acquisition of land that Māori wished to make available, and was directed towards ensuring peace and good order as more immigrants came to settle. Through Te Tiriti, Māori agreed to the appointment of a governor in order to control British settlers’ behaviour and regulate their settlement.

Thus, in Te Tiriti, the Queen agreed to arrange governorship over Pākehā, who were living here outside British law. Māori were not looking to the Crown to exercise governorship over themselves as they had their own long-established systems of government and law.

The Crown guaranteed it would uphold Māori authority and sovereignty (tino rangatiratanga) over their lands, villages, and everything else they treasured, and accorded Māori the same rights as British people. It also protected religious freedoms.


All 5 aspects of the Treaty need to be taken together as a whole and as a follow-on to the 1835 Declaration of Independence – He Wakaputanga o te Rangatiratanga o Nu Tireni.
Preamble: Peace with justice for all
Article 1: Practising honourable KAWANATANGA
Article 2: Promoting TINO RANGATIRATANGA by Tangata Whenua
Article 3: Maori participation in Kawanatanga in ways determined by Maori in relation to tikanga
Article 4: Everybody’s belief systems upheld


Sources:

Treaty of Waitangi Questions & Answers, Network Waitangi 2018

NWO Basic Summary

Treaty sheets and signing locations’, URL: https://nzhistory.govt.nz/politics/treaty/making-the-treaty/treaty-of-waitangi-signing-locations, (Ministry for Culture and Heritage), updated 1-Jul-2016