Why are there differences between Te Tiriti o Waitangi and the Crown’s English-language version and what did Māori intend in entering into the Treaty agreement?

Note: We use ‘the Treaty of Waitangi’ and ‘te Tiriti o Waitangi’ interchangeably to signify the reo Maori text. We call the English language document ‘the Crown’s English language version’ or similar.

In drawing up the first reo Māori draft Henry Williams used the word mana in Article I (which is closest to the meaning of sovereignty) to name what was being granted to the Crown. After feedback from Northern Rangatira on that first reo Māori draft, that they could never give up their rangatiratanga or mana, changes were made, new wording was agreed upon and the second reo Māori version was prepared, in which the Crown was instead granted the right and responsibility to control non-Māori within the lands they had been granted. This significant change between the first reo Māori draft and the final reo Māori Treaty was done to reflect the vision of the Rangatira that the Governor was to have a status similar to theirs but certainly not rule over them. This was in direct contrast to the expectation of some that the Treaty was to set up a new British Colony.  In fact, the reason many Rangatira agreed to sign was that their rangatiratanga was specifically confirmed in Article II.

The vast majority of the country would continue to be governed by Māori while English law applied only to the few Pākehā settlements at Kororāreka, Port Nicholson (Wellington), Auckland and a few other individual holdings around the country. This fits with the frequently reiterated views of Rangatira in later years, including at Waitangi Tribunal hearings, that the Treaty allowed for English law for settlers while endorsing tikanga Māori(jurisprudence, law) for the vast majority of the country.

What Māori intended in agreeing to Te Tiriti o Waitangi is set out in Ngāpuhi Speaks, the independent report on the Ngāpuhi Nui Tonu initial hearing (pp. 240–241). While some points are specific to Ngāpuhi Nui Tonu, the broad intentions are pertinent to all Māori signatories. In summary these intentions are:

  • Queen Victoria’s Governor would work with the Rangatira to maintain peace and good order, based on upholding the established authority and ordered way of life (āta noho) of the many hapū.
  • The Governor was being granted the authority he needed to exercise control over Pākehā,  building on previous alliances.
  • Te Tiriti o Waitangi was an endorsement of He Wakaputanga, with its declarations of Māori mana and independence and their particular relationship with the British Crown.
  • The international trade of the many hapū was to be advanced through a closer alliance with the British.
  • Māori were allowing for more non-Māori to settle on their lands on the understanding that the Queen would uphold their authority (tino rangatiratanga) and her other guarantees in Te Tiriti.
  • Māori would support the Queen by ensuring the safety of her people and by working co-operatively with her Governor.
  • The Governor would investigate and rectify any unjust dealings over land.
  • The Governor would sit with them, as guided by tikanga where hapu authority continued, so that together they could decide on matters of common concern and especially on those things that would advance their trading interests and bring peace for all.

Furthermore, He Whakaputanga me te Tiriti – The Declaration and the Treaty, the Waitangi Tribunal Report on Stage 1 of the Te Paparahi o Te Raki Inquiry (WAI 1040), which was released in October 2014 states clearly that the Rangatira who signed Te Tiriti o Waitangi in February 1840 did not cede sovereignty to the British Crown, and outlines the intentions of the Rangatira who signed the Treaty as well as those of the Crown.

Britain’s representative Hobson and his agents explained the Treaty as granting Britain the power to control British subjects and thereby to protect Māori, while Rangatira were told that they would retain their tino rangatiratanga, their independence and full chiefly authority.

The Rangatira who signed te Tiriti o Waitangi in February 1840 did not cede authority to make and enforce law over their people or their territories; they did, however, agree 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 Tribunal said that, “having considered all of the evidence available to it, the conclusion that Māori did not cede sovereignty in February 1840 was inescapable”.

The Māori vision in signing the Treaty agreement was for an inclusive future, based on co-operation, mutual support and reciprocity between themselves and the Crown. The model of government would continue to be one of confederation, where the hapū and the Queen’s tribe would retain their distinct authorities, the leaders in their different areas coming together alongside the governor to resolve and advance issues of shared interest. Māori fully expected to retain their authority in the land, while expecting the governor and the Queen’s people to work in co-operation with them. Māori continue to hold this inclusive vision for their present and future relationships with the Crown, which effectively today is the New Zealand Government – operating at national, regional and local levels. Unfortunately, governments have held to unilateral decision making, or ‘indivisible sovereignty’, and have been unwilling to work as equals with Māori leadership however small but significant changes to this ethos are becoming apparent.


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


Which document is the Treaty?

Note: We use ‘the Treaty of Waitangi’ and ‘te Tiriti o Waitangi’ interchangeably to signify the reo Maori text. We call the English language document ‘the Crown’s English language version’ or similar.

The reo Māori (the Māori language) text of Te Tiriti o Waitangi is the only authentic text of the Treaty. It was the one signed at Waitangi by Hobson and the Rangatira, and Hobson always saw the Waitangi signing as the most significant. The great majority of the 534 Rangatira who signed the Treaty around the country signed Te Tiriti o Waitangi in te reo Māori and it was the content of this document which was discussed and agreed to at every signing event, regardless of which document was actually signed. The English language text was not present at Waitangi on February 6th 1840 – it was a later creation.

For the small number of Rangatira who signed the English-language text their agreement would have been to what was discussed i.e. the contents of the text in Māori. All the discussions at the signings were in the Māori language and in Māori law the words spoken are crucial. The late Sir James Henare said that the key to the Treaty’s meaning and mana lay in the Māori text – “ko te mana te kupu, ko te kupu te mana”.

Furthermore, in international contract law, when the intent or meaning of a legally binding contract is not clear, the principle of contra proferentem applies. This means the interpretation of any ambiguous provision will be against the interests of the party that put forward (proffered) the wording – in this case, the British (which later became the New Zealand) Crown – and in favour of the other party or parties to the contract – in this case Māori.

In addition, international law upholds the text with “significant signature”, i.e. the one with more signatures, and also gives weight to the oral context, i.e. what was said or promised at the time.

Moreover, in 1840 the population was 100,000 – 200,000 Māori and about 2,000 Pākehā. It is absurd to suggest that those Rangatira who signed Te Tiriti would have voluntarily given up their power to a foreign entity, especially after having declared their national sovereignty and independence just five years previously in He Wakaputanga o te Rangatiratanga o Nu Tireni. In fact, it was legally and culturally impossible for rangatira to give away the mana and rangatiratanga of their hapū (B. Korewha, M. Jackson, Ngāpuhi Speaks, pp. 175–176). Rangatiratanga is handed down from the ancestors and exercised by rangatira in concert with the people for the benefit of their descendants.

The evidence given at the hearing of the Ngāpuhi Nui Tonu initial claim to the Waitangi Tribunal (2010–2011) made it clear that Te Tiriti o Waitangi is the authentic Treaty (Ngāpuhi Speaks, pp. 221–222) and the Tribunal accepted that claim (see the Tribunal’s report on WAI1040). It is an unfortunate legacy that legislation drawn up in 1975, without the benefit of Maori evidence and scholarship, required the Waitangi Tribunal to give equal weight to both texts.


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


What are the similarities and differences between Te Tiriti o Waitangi and the Crown’s English language version?

Note: We use ‘the Treaty of Waitangi’ and ‘te Tiriti o Waitangi’ interchangeably to signify the reo Maori text. We call the English language document ‘the Crown’s English language version’ or similar.

The Treaty consists of a Preamble and four Articles; the fourth Article was added at Waitangi on 6 February 1840, although it does not appear in the Crown’s English-language version. The significant differences between Te Tiriti and the Crown’s English-language version are most crucially evident in Articles 1 and 2 but are to be found in all parts of the documents.

Preamble

The Preamble is an introductory statement, expressing the Queen’s good will to the Rangatira and hapū of New Zealand, asking them to allow a place for her Governor, and committing to a peaceful future together. It recognises that other people will come.

Article I

Te Tiriti o Waitangi says that the Rangatira and hapū agree to the Queen’s Governor exercising kāwanatanga (a transliteration of the word governorship) within the lands granted to non-Māori. Clearly this did not mean that the Governor was to have authority over Māori but rather only over the British subjects and others “living here in a state of lawlessness”.

The Crown’s English version says that the Rangatira would cede their sovereignty to the Queen, meaning the Crown would have complete power and authority over everything and everybody throughout the land.

Article II

Te Tiriti o Waitangi says that the Crown recognises and will uphold the paramount authority (tino rangatiratanga) of the many Rangatira of the many hapū in their lands, villages and all that is precious to them (taonga). This directly contradicts the cession of sovereignty referred to in Article 1 of the Crown’s English version, which in Article II guarantees to Māori only “the full, exclusive and undisturbed possession of their lands and estates, forest, fisheries, and other properties” as long as they wish. Many of the cases brought to the Waitangi Tribunal have succeeded because it has been shown that, following the signing of the Treaty the Crown took actions that forced land and other taonga out of Māori hands. The word taonga in te Tiriti is not limited to property and possessions, as stated in the Crown’s English-language version; understood within the Māori cultural context, taonga are recognised as having inherent value and the word encompasses all things held precious: for example, language, culture, access to traditional food sources, people, yet-to-be born descendants, a clean environment and health.

Article II in the Crown’s English version allows the Crown priority over individuals in land dealings with hapū.   In Te Tiriti o Waitangi, the Rangatira just allow the Crown to trade for the use of those pieces of land that hapū consent to allocate.

Article III

Article III in both texts accords to Māori the same rights as British people, that is, additional to the rights they already enjoy in their own society.

Article IV

At the first Treaty signing, William Colenso (Anglican) recorded a discussion on religious freedom between Bishop Pompallier (Catholic) and Captain Hobson. In answer to a direct question from Pompallier, Hobson and the Rangatira agreed to add the following statement which was read out in te reo Māori and written on the document before anyone had signed:

The Governor says the several faiths (beliefs) – of England, of the Wesleyans, of Rome, and also Māori custom and religion – shall all alike be protected by him. (The word ritenga is used here and refers to beliefs and practices of the spiritual relationship between humans and the rest of the natural world.)

The Crown’s English-language version does not include this Article.

In summary

Te Tiriti o Waitangi confirms Māori authority and sovereignty, guaranteeing to Māori the full control and authority in their lands, people, settlements and all that is of value to them,  including their social, political and economic relationships and institutions. It allows a place for a Governor to exercise control over non-Māori within the lands allocated to them. The Treaty provides a framework for relationships and political organisation between Tangata Whenua and the Crown, to ensure peace and good order into the future.


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


Who wrote Te Tiriti o Waitangi?

In the first decade of the 19th century northern Rangatira established Te Wakaminenga o Ngā Hapū o Nu Tīreni The General Assembly of the Tribal Nations of New Zealand, also known as the Confederation of Chiefs, partly to discuss the problems they were having with the newcomers. Over the following years they petitioned the British Crown in person and by letter asking for help to control lawless Pākehā (as all non-Maori were known at that time), who did not accept Māori authority and law. In 1835 they drew up He Wakaputanga o te Rangatiratanga o Nu Tīreni The Declaration of the Independence of New Zealand, which was discussed around the country and formally recognised by the British Crown in 1836.

The British Colonial Office had initially been reluctant to intervene in New Zealand however various pressures, in large part the land speculating of the New Zealand Company with its plans for creating unauthorised settlements in New Zealand, and selling land that it had not yet bought, had led to the instructions for William Hobson to travel to New Zealand and ‘treat with the Aborigines… for the recognition of Her Majesty’s sovereign authority over the whole or any parts of the islands which they may be willing to place under Her Majesty’s dominion’. In January 1840 James Busby, the British Resident, and the missionaries living in the north called local Rangatira to Waitangi to talk about the proposed treaty and to announce that a Governor representing the Queen of England was coming.

The Governor, Captain William Hobson, arrived in the Bay of Islands in late January 1840 on board the Herald, with written instructions from the Colonial Secretary Lord Normanby to negotiate a treaty with the Rangatira of New Zealand. Although he had instructions from the British Government, Hobson had not been provided with a draft treaty so he set about drawing up an English-language draft on board the Herald, loosely based on examples of previous treaties between the British and tribal leaders in other parts of the world. This draft was then refined by Hobson and Busby and Hobson’s secretary Freeman, before it was passed on to the Reverend Henry Williams, a missionary who had been living in New Zealand for 17 years and a fluent Māori speaker, to translate into te reo Māori.

Williams and his son Edward worked on the document and further changes in its meaning were made during its translation into te reo Māori, due in part to feedback from Rangatira that they would never cede their mana (power, prestige and authority) to the the Queen; the word kawanatanga (a transliteration of the word ‘governor’, an authority delegated by the British Crown such as that exercised by the Governors of New South Wales and Norfolk Island), was substituted. The final reo Māori version is what is known to Ngāpuhi as Te Tiriti Tuarua (the second version of the Treaty written in te reo) and it was this document that was presented to northern Māori at Waitangi and signed on 6th February by about 40 Rangatira and Captain Hobson on behalf of the Queen.

Copies of the reo Māori document were then circulated at hui all around the country over the following months for Rangatira to debate and sign. This document, Te Tiriti o Waitangi The Treaty of Waitangi, was subsequently signed by well over 500 Rangatira. An English language version was also circulated during that time which is believed to have been written from memory of the original English-language draft, which has since been lost. It was sent out in late March and presented at hui in two locations where it is possible that up to 39 Rangatira signed it. In effect, these Rangatira would have been assenting to the content of the document in te reo Māori, as news of it would have travelled from the Waitangi signing and the discussion would have been about the content and intent of the reo Māori text since there were few who spoke or read fluent formal English in 1840.  In addition, that which was verbally agreed was of the essence in the oral tradition of Māori and there are also several reasons from international law for this assertion; see https://nwo.org.nz/resources/treaty-poster/.

The Treaty documents with signatures comprise nine sheets: eight in te reo Māori and one in English. They are currently on display at the National Library as part of its exhibition He Tohu.


Sources:
Treaty of Waitangi Questions & Answers, Network Waitangi 2018
Ngapuhi Speaks, Te Kawariki & Network Waitangi Whangarei 2012


What is the “Māori Option”?

The Māori Option was introduced in 1975 to permit Māori to choose – for a few months after every five-yearly census – whether to be on the Māori electoral roll or the general roll.

This option increased the number of Māori seats to seven, by 2005. Although Māori, especially new voters, continue to opt for the Māori roll, significant numbers of Māori also choose the general roll, for various reasons. This, combined with increased immigration and the principle of proportionality, has prevented a further increase in the number of Māori seats, as the total number of seats is limited to The 1986 Royal Commission on the Electoral System said the Māori seats had gone some way towards providing for political representation of Māori interests, but they did not ensure that Māori electors had an effective voice. It recommended MMP as the best system for those purposes, with or without the Māori seats.

When MMP was introduced in 1993, parliament decided that the Māori seats should be retained, along with the Māori Option. However, unlike other important provisions of the Electoral Act which need a 75 per cent majority to be changed, the Māori seats can be abolished by just 51 per cent of parliament.

It should be remembered that Māori representation within Kawanatanga (a right provided to Māori in Article III of the Treaty) is a fundamentally different concept from the relationship between the Crown and hapū leaders envisaged in Articles I and II of the Treaty.


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


Why are there separate parliamentary seats for Māori?

British voting restrictions were included in the 1852 Constitution Act, i.e. only adult male property owners with individual land titles could vote. Effectively, Māori contributed most of the revenue, through land sales and business, but had no representation. After the Māori Land Court was established in 1864, settler politicians feared that Māori men might soon acquire the right to vote because they would in time possess an individualized right to property, and that this might cause a political “imbalance” in some North Island electorates. It was thought the creation of three or four Māori seats would eliminate that threat by confining Māori voters to those seats.

In 1867 two more factors combined to create Māori seats. The government wanted to capture Māori support for its pacification programme, and the West Coast gold rush tipped the number of seats in favour of the South Island, with the possibility of the capital moving south. As a result, in 1867 northern MPs introduced a Bill which provided for Māori representatives – who might be European – elected by Māori men. The Bill proposed four seats, three in the North Island and one in the South, and it was accepted mainly because it preserved the distribution of seats between the North and South Islands. An amendment made it mandatory that the Māori representatives be Māori – largely because the South Islanders were unhappy at the prospect of three more northern Pākehā MPs.

If the number of seats had been proportional to population numbers – at the time there were 56,000 Māori and 171,000 Tauiwi – in a house of 70 members, 20 would have been Māori. The number of Māori seats remained the same until Mixed Member Proportional Representation (MMP) was introduced in 1993. The number of Māori electorates is now determined from the Māori roll on the same population basis as the General roll, although population distribution means that Māori electorates are mostly much larger geographically than General, leading to further inequalities.


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


What is the UN Declaration on the Rights of Indigenous Peoples?

The UN Declaration brings indigenous peoples’ rights, both collective and individual, together into one international human rights instrument. It establishes a universal framework of minimum standards for the survival, dignity, well-being and rights of the world’s indigenous peoples.

The UN Declaration has 24 preambular paragraphs and 46 Articles that cover a range of human rights and fundamental freedoms related to indigenous peoples. These include the right of self-determination, ownership and use of traditional lands and natural resources, the honouring of treaties and agreements between states and indigenous peoples, protection against genocide, protection of cultural and intellectual property, and rights:

  • To preserve and develop their cultural characteristics and distinct identities;
  • To maintain and strengthen their own institutions, cultures and traditions;
  • To participate in the political, economic and social life of the society in which they live; and
  • To pursue their own visions of economic, social and cultural development.

The UN Declaration highlights the requirement on states to obtain the free, prior and informed consent of indigenous peoples before making any decisions affecting their property, territories, rights or interests. It explicitly encourages “harmonious and cooperative relations” between states and indigenous peoples, and refers to procedures for resolving disputes between indigenous peoples and governments.

The UN Declaration had a lengthy and arduous journey through the UN system, beginning in 1985 when representatives of indigenous peoples’ organisations and states began drafting the text, and twenty-two years of negotiations where some states – including New Zealand – attempted to weaken its provisions.

It was adopted by an overwhelming majority of the UN General Assembly in 2007, with a recorded vote of 143 states in favour, 11 abstentions, and 4 – Australia, Canada, New Zealand and the United States – against. The four states that voted against the adoption of the UN Declaration subsequently made announcements of support for it – Australia in 2009, then New Zealand, Canada and the United States in 2010.

Although it is a non-binding text (that is, a Declaration rather than a Covenant or a Convention which can be signed and ratified), the UN Declaration is used by the UN human rights treaty monitoring bodies as a standard to judge state compliance with the legally binding human rights instruments they monitor (as, for example, UN Committee on the Elimination of Racial Discrimination [CERD] did in 2013 in relation to New Zealand), and as a normative framework by the Special Rapporteur on the Rights of Indigenous Peoples and other UN human rights mechanisms.

The importance of the UN Declaration was emphasised by the first World Conference on Indigenous Peoples (a high-level plenary meeting of the UN General Assembly), which was held in September 2014 at the UN Headquarters in New York to agree an action-oriented Outcome Document on the UN Declaration.

The Outcome Document begins with a paragraph welcoming indigenous peoples’ preparatory processes for the World Conference, including the 2013 Global Indigenous Preparatory Conference held in Alta (Norway) and the Alta Conference Outcome Document; it reaffirms UN member states support for the UN Declaration and their commitment “to consult and cooperate in good faith with indigenous peoples through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them”; it reaffirms the solemn commitment of UN member states “to respect, promote and advance and in no way diminish the rights of indigenous peoples”; and includes commitments on specific actions to implement the UN Declaration. The UN Declaration text and related documents are available at: http://www.converge.org.nz/pma/decrips.htm


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


What was British policy towards NZ before 1840?

Until the 1830s the British policy towards New Zealand was one of reluctance to intervene formally. Britain was having problems in some of its colonies, and wasn’t really interested in one as far away as this.

In 1831, 13 of the Northern rangatira (leaders) sent a letter to King William IV requesting that the King become a “friend and guardian of these islands”. The rangatira letter expressed concern about a possible takeover by the French and suggested that unless the King acted to control the misconduct of British citizens living in or visiting New Zealand, the rangatira would be forced to enforce their own laws.

Pākehā lawlessness was seen in incidents around the country, including murders, kidnappings, enslavements and other criminal acts. Reports on these incidents from rangatira and missionaries were a cause of concern for the British authorities. For the British, matters were brought to a head by an incident in 1830. The Englishman, Captain Stewart, in return for one cargo of flax, secretly conveyed Te Rauparaha and war party from Kapiti to Ākaroa. The sacking of that village and capture of ariki Te Maiharanui horrified the British in Sydney. The failure to bring Stewart to justice in Sydney made the British realise that something had to be done about the lawless state of Europeans in New Zealand.

As a direct result of this incident and the letter from the rangatira, and to protect British trade interests, the British government appointed James Busby to act as British Resident in New Zealand. James and Agnes Busby arrived in May 1833 with a reply to the rangatira from King William, and set up the Residence at Waitangi.

The Northern rangatira began conferring regularly with Busby, seeking advice for the development of their international relationships and trade. One of Busby’s first tasks was to assist rangatira in 1834 in the selection of a national flag, so that their ships would be registered and have official access to Australian and other international ports. Importantly, King William IV formally recognised the flag, thus granting Māori ships the protection of the British Navy when in international waters.


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


What led to the Treaty?

Before the Treaty, Māori had long been concerned about the lawlessness of numbers of Pākehā. Their hope was that James Busby (the appointed British Resident) would exercise control over British subjects, but Busby proved to be largely ineffective in dealing with criminal offending. His requests to Britain for assistance, in the form of troops and a warship, were turned down. Some Māori groups became open to the idea of having a British governor for the Pākehā people.

In the Māori political order, rangatira were responsible to and for their own hapū. They expected, with the growing number of British subjects, that the Queen would want to bring her people to order. And, in fact, this was one reason for British interest in a treaty with Māori. Treaty-making, the process of making agreements between polities, has a long history in Māori politics. Ngāti Kahungunu knew such agreements as mahi tūhono, or “work to draw the people together”. The idea of treating with the Crown was therefore an affirmation of rangatiratanga and recognition that each polity should be responsible for its own people. Also important to the hapū was their growing international trade. The strengthening of ties with Britain was seen as favouring this growth.

Another factor was increasing tension over land, particularly in the North. Hapū allocated plots of land (tuku whenua) to the new settlers, but these were grants of land use, more like leases than sales. These grants were designed to establish relationships of reciprocity between the hapū and the newcomers. Hapū and their rangatira were dismayed when some settlers acted as if they had an absolute right to the land and showed disregard for the hapū who gave the grant in the first place. When Hobson arrived in New Zealand in 1840 rangatira asked that, as part of the treaty agreement, the Crown would see to the return of lands wrongly taken.

The British Crown, too, had concerns about land deals. By the late 1830s, it had been made aware that speculative land purchases of dubious legality were taking place around the country. In 1838, the more law-abiding settlers, traders and missionaries petitioned the British Crown asking for a more effective presence than Busby could provide.

The situation in New Zealand at the time was monitored by humanitarian groups based in London such as the Aborigines Protection Society, which was concerned about the impact of colonisation on indigenous peoples. They had an ally in the Secretary of State for Colonies, Lord Glenelg, who was opposed to the plans of the New Zealand Company to establish a colony based on the principles of Edward Gibbon Wakefield.

However, the departure of settler-laden New Zealand Company ships for Port Nicholson in 1839, without official parliamentary sanction, prompted the Colonial Office to rethink its position. Accepting colonisation as an “inevitable measure” and to protect British trade and economic interests, the new secretary, Lord Normanby, sent Captain William Hobson to New Zealand. He was instructed to acquire sovereignty over the whole or any parts of the country that Māori wished to cede (give up), by negotiating a treaty. Because Britain had recognised Māori rights in the Declaration of Independence, and because this was “binding on the faith of the Crown”, no British authority could be established in New Zealand without Māori agreement.

Treaty-making was a long-established instrument of British colonial policy, so although Hobson did not land with a treaty already fully drafted, many of the guarantees which would be included had been expressed in earlier treaties with other nations.

Hobson arrived in New Zealand on 29 January 1840.


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


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