Treaty of Waitangi

An artists rendition of the signing of The Treaty of Waitangi

The Treaty of Waitangi (Māori: Te Tiriti o Waitangi) was signed on February 6, 1840 at Waitangi in the Bay of Islands, New Zealand. It was signed by representatives of the British Crown, and chiefs from the North Island. The British Resident, James Busby, had earlier convinced some 35 of these chiefs to declare independence as the Confederation of the United Tribes of New Zealand at that time.

From the British point of view, The Treaty, as New Zealanders often call it, justified making New Zealand a British colony. Today it is generally considered the founding point of New Zealand as a nation. However, there have been major issues concerning the original translation of the treaty from English to Māori. An example is kawanatanga, a calque transplanted from the English, which appeared in the Māori language for the first time in the Treaty. It was used there to translate the concept of sovereignty; it is often stated that Māori had no word for sovereignty in their language at the time, although some respond that the Māori "mana" had been used to describe Māori sovereignty in the Declaration of Independence in 1835. The word is made up of kawana, a transliteration into Māori of the English word governor, and the existing Māori suffix -tanga, similar to the English -ship or -dom. A literal translation of the word, therefore, would be governorship. Other Māori words with the suffix -tanga include rangatiratanga, "chieftainship", and kingitanga, "kingship".

The meaning attached to this word, and in particular how it relates to rangatiratanga, is vital to discussion of the Treaty of Waitangi. This treaty is still vitally important in modern New Zealand, and remains the object of much controversy and political debate, (see tino rangatiratanga).

The signing of the Treaty

The Treaty of Waitangi was first proposed by Captain William Hobson on his return to Britain from his first visit to New Zealand. He received a mandate from the British government to carry out his plan and was given the title of Lieutenant-Governor. He arrived in New Zealand and drafted the Treaty with James Busby, who was the British Resident in New Zealand and had been given the task of greeting Hobson upon his arrival and helping to draft the Treaty. Busby had previously drafted the Declaration of the Independence of New Zealand which had been signed by a few Māori chiefs in 1835. Missionary Henry Williams translated the text into Māori, and gave an oral explanation at the initial signing. His translation has been the focus of considerable scrutiny.

Hobson headed the British signatories. Of the 40 or so Māori chiefs, the Ngapuhi rangatira Hone Heke was the first to sign the treaty. To enhance the authority of the treaty eight further copies were made and sent around the country to gather additional signatures:

The Original Treaty

* the Manukau-Kawhia copy,
* the Waikato-Manukau copy,
* the Tauranga copy,
* the Bay of Plenty copy,
* the Herald-Bunbury copy,
* the Henry Williams copy,
* the East Coast copy and
* the Printed copy.

Around 50 meetings were held from February to September 1840 to discuss and sign the copies, and a further 500 signatures were added to the treaty. Several chiefs declined to sign. New Zealand was constituted as a colony separate from New South Wales on 16 November 1840.

The anniversary of the signing of the Treaty is now a New Zealand public holiday, Waitangi Day, on 6 February. The first Waitangi Day was not until 1934 and the day was not made a public holiday until 1974. The commemoration has often been the focus of protest by Māori and has frequently attracted controversy. The anniversary is officially commemorated at the Treaty House at Waitangi, where the Treaty was first signed.

Subsequent history

In 1841, the Treaty narrowly escaped destruction when the government offices in Auckland were destroyed by fire. When the Capital was relocated, the Treaty documents were fastened together and deposited in a safe in the Colonial Secretary's office in Auckland and later in Wellington. The documents were untouched until 1865 when a list of signatories was produced.

In 1877 the English language rough draft of the Treaty was published along with photolithographic facsimiles of the Treaty, and the originals were returned to storage. In 1908 Dr Hocken found the Treaty in poor condition, eaten by rodents. The document was restored by the Dominion Museum in 1913.

In February 1940 the Treaty was taken to Waitangi for display in the Treaty house during the Centenary celebrations - this was possibly the first time the Treaty had been on public display since it was signed.

After the outbreak of war with Japan, the Treaty was placed with other State documents in an outsize luggage trunk and deposited for secure custody with the Public Trustee at Palmerston North by the local MP, who did not tell staff what was in the case. But, as the case was too large to fit in the safe, the Treaty spent the crisis to the side of a back corridor in the Public Trust office.

In 1956 the Department of Internal Affairs placed the Treaty in the care of the Alexander Turnbull Library and it was eventually displayed in 1961. Further preservation steps were taken in 1966, with improvements to the display conditions. From 1977 to 1980, the Library extensively restored the documents before the Treaty was deposited in the Reserve Bank.

In anticipation of a decision to exhibit the treaty in 1990 (the sesquicentennial of the signing), full documentation and reproduction photography was carried out. Several years' planning culminated with the opening of the Constitution Room at the then National Archives by the Prime Minister in November 1990. The documents are currently on permanent display in the Constitution Room at Archives New Zealand's headquarters in Wellington.

Meaning and interpretation

The Treaty itself is short, consisting of only three articles. The first article of the English version grants the Queen of the United Kingdom sovereignty over New Zealand. The second article guarantees to the chiefs, their continued chieftainship, and ownership of their lands and treasures (taonga). It also specifies that Māori will sell land only to the Crown. The third article guarantees to all Māori the same rights as all other British subjects.

The English and Māori versions differ. This has made it difficult to interpret the Treaty and continues to undermine its effect. The most critical difference revolves around the interpretation of two Māori words, kawanatanga (literally, governorship) which is ceded to the Queen in the first article and rangatiratanga (literally chieftainship) which is retained by the chiefs in the second. Few Māori had good understanding of either sovereignty or 'governorship' and so some academics, such as Moana Jackson, question whether Māori fully understood that they were ceding sovereignty to the British Crown. Furthermore, kawanatanga is transliterated from 'governorship' and was not part of the Māori language per se. A more appropriate word to convey sovereignty would have been mana (prestige, authority). Another noticeable difference is that Ingarani, meaning England alone, is used throughout in the Maori version, whereas "the United Kingdom of Great Britain and Ireland" is used in the first paragraph of the English.

Māori beliefs and attitudes towards ownership and use of land were different to those prevailing in Britain and Europe. The chiefs saw themselves as `kaitiaki' or guardians of the land, and would traditionally grant permission for the land to be used for a time for a particular purpose. Some may have thought that they were leasing the land rather than selling it, leading to disputes with the occupant settlers.

Effect of the Treaty

The treaty was never ratified by Britain and carried no legal force in New Zealand until receiving limited recognition in 1975. A hundred years earlier an attempt to enforce the treaty through the law courts was dismissed by the judge, who described the treaty as "a praiseworthy device for the amusement of ignorant savages". New Zealand had become a colony when annexed by proclamation in January 1840, before the treaty was signed. Furthermore, Hobson only claimed to have taken possession of the North Island by Treaty. The South Island he claimed for Britain by right of discovery, by observing that Maori were so sparse in the South Island, that it could be considered uninhabited.

The short-term effect of the Treaty was to prevent the sale of Māori land to anyone other than the Crown. This was intended to protect Māori from the kinds of shady land purchases which had alienated indigenous people in other parts of the world from their land with minimal compensation. Indeed, anticipating the Treaty, the New Zealand Company made several hasty land deals and shipped settlers from England to New Zealand, assuming that the settlers would not be evicted from land they occupied. Essentially the Treaty was an attempt to establish a system of property rights for land with the Crown controlling and overseeing land sale, to prevent abuse.

Initially this worked well. Māori were eager to sell land, and settlers eager to buy. The Crown mediated the process to ensure that the true owners were properly identified (difficult for tribally owned land) and fairly compensated, by the standards of the time. However after a while Māori became disillusioned and less willing to sell, while the Crown came under increasing pressure from settlers wishing to buy. Consequently government land agents were involved in a number of very dubious land purchases. Agreements were negotiated with only one owner of tribally owned land and in some cases land was purchased from the wrong people altogether. Unrest and rebellion caused by these actions were met with further punitive land confiscations. Eventually this led to the New Zealand Wars which culminated in the confiscation of a large part of the Waikato and Taranaki.

In later years this oversight role was in the native land court, later renamed the Māori Land Court. It was through these courts that much Māori land became alienated, and the way in which they functioned is much criticised today. Over the longer term, the land purchase aspect of the treaty declined in importance, while the clauses of the Treaty which deal with sovereignty and Māori rights took on greater importance.

However irrelevant in law, the treaty returned to the public eye after the centenary of 1940. Text books and government publicity touted it as the moral foundation of colonisation and to set race relations in New Zealand above those of colonies in North America, Africa and Australia. Its lack of legal significance in 1840 and subsequent breaches tended to be overlooked. But within a generation, people began to expect the government to honour the treaty with actions as well as words.

Treaty claims

During the late 1960s and 1970s the Treaty of Waitangi became the focus of a strong Māori protest movement which rallied around calls for the government to `honour the treaty' and to `redress treaty grievances'. Māori expressed their frustration about continuing violations of the treaty and subsequent legislation by government officials, as well as inequitable legislation and unsympathetic decisions by the Māori Land Court alienating Māori land from its Māori owners.

On 10 October 1975 the Treaty of Waitangi Act, which was to provide for the observance and confirmation of the principles of the Treaty, received the royal assent. This established the Waitangi Tribunal to hear claims of official violations of the Treaty of Waitangi. Originally its mandate was limited to recent claims, but in 1985 this was extended to allow it to consider Crown actions dating back to 1840, including the period covered by the New Zealand Wars.

During the early 1990s, the government began to negotiate settlements of historical (pre-1992) claims. As at February 2006, there have been 20 such settlements of various sizes, totalling approximately $700 million. Settlements generally include financial redress, a formal Crown apology for breaches of the Treaty, and recognition of the group's cultural associations with various sites.

While during the 1990s there was broad agreement between major political parties that the settlement of historical claims was appropriate, in recent years it has become the subject of heightened debate. Claims of a "Treaty of Waitangi Grievance Industry", which profits from making frivolous claims of violations of the Treaty of Waitangi, have been made by a number of political figures, including National Party Leader Don Brash. Although claims relating to loss of land by Maori are relatively uncontroversial, debate has focused on claims that fall outside common law concepts of ownership, or relate to technologies developed since colonisation. Examples include the ownership of the radio spectrum and the protection of language.

The "Principles of the Treaty"

The "Principles of the Treaty" are often mentioned in contemporary politics. They originate from the famous case brought to the High Court by the New Zealand Maori Council (New Zealand Maori Council v Attorney-General) in 1987. There was great concern at that time that the ongoing restructuring of the New Zealand economy by the then Lange Labour government, specifically the transfer of assets from former Government departments to State-owned enterprises. Because the state-owned enterprises were essentially private firms owned by the government, they would prevent assets which had been given by Maori for use by the state from being returned to Maori by the Waitangi Tribunal. The Maori Council sought enforcement of section 9 of the State Owned Enterprises Act 1986 "Nothing in this act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi".

The Court of Appeal, by the judgment of then President Cooke decided upon the following Treaty principles:
*The acquisition of sovereignty in exchange for the protection of rangatiratanga.
*The Treaty established a partnership, and imposes on the partners the duty to act on good reasonably and in good faith.
*The freedom of the Crown to govern.
*The Crown's duty of active protection.
*Crown duty to remedy past breaches.
*Maori to retain rangatiratanga over their resources and taonga and to have all the privileges of citizenship.
*Duty to consult.

In 1989 the Labour Government announced the following Treaty principles:The principle of government or the kawanatanga principle:Article 1 gives expression to the right of the Crown to make laws and its obligation to govern in accordance with constitutional process. This sovereignty is qualified by the promise to accord the Maori interests specified in article 2 an appropriate priority. This principle describes the balance between articles 1 and 2: the exchange of sovereignty by the Maori people for the protection of the Crown. It was emphasised in the context of this principle that ‘the Government has the right to govern and make laws'.;The principle of self-management (the rangatiratanga principle): Article 2 guarantees to iwi Maori the control and enjoyment of those resources and taonga that it is their wish to retain. The preservation of a resource base, restoration of iwi self-management, and the active protection of taonga, both material and cultural, are necessary elements of the Crown's policy of recognising rangatiratanga.
The Government also recognised the Court of Appeal's description of active protection, but identified the key concept of this principle as a right for iwi to organise as iwi and, under the law, to control the resources they own.The principle of equality:Article 3 constitutes a guarantee of legal equality between Maori and other citizens of New Zealand. This means that all New Zealand citizens are equal before the law. Furthermore, the common law system is selected by the Treaty as the basis for that equality, although human rights accepted under international law are also incorporated. Article 3 has an important social significance in the implicit assurance that social rights would be enjoyed equally by Maori with all New Zealand citizens of whatever origin. Special measures to attain that equal enjoyment of social benefits are allowed by international law.;The principle of reasonable cooperation:The Treaty is regarded by the Crown as establishing a fair basis for two peoples in one country. Duality and unity are both significant. Duality implies distinctive cultural development while unity implies common purpose and community. The relationship between community and distinctive development is governed by the requirement of cooperation, which is an obligation placed on both parties by the Treaty. Reasonable cooperation can only take place if there consultation on major issues of common concern and if good faith, balance, and common sense are shown on all sides. The outcome of reasonable cooperation will be partnership.The principle of redress:The Crown accepts a responsibility to provide a process for the resolution of grievances arising from the Treaty. This process may involve courts, the Waitangi Tribunal, or direct negotiation. The provision of redress, where entitlement is established, must take account of its practical impact and of the need to avoid the creation of fresh injustice. If the Crown demonstrates commitment to this process of redress, it will expect reconciliation to result.

Legislative enactment

The Treaty itself has never been enacted as statute law in New Zealand. In the 1941 case of Te Heu Heu Tukino v Aotea District Maori Land Board, the Privy Council held that the Treaty could not be enforced unless it was part of New Zealand's domestic law. The passage of the Treaty of Waitangi Act in 1975 included the Treaty's text in one of its schedules, but this did not enact the Treaty as statute law in New Zealand. In 1985, the Treaty of Waitangi Act was amended, and amongst other things the Maori text of the Treaty was added. The Bill of Rights White Paper proposed that the Treaty be entrenched in the New Zealand Bill of Rights Act, however this proposal was never carried through to the legislation, with many Maori being concerned that this would relegate the Treaty to a lesser position, and enable the electorate (who under the original Bill of Rights would be able to repeal certain sections by referendum) to remove the Treaty from the Bill of Rights all together.

The Treaty today

Because of the short length and limited scope of the Treaty, it is not a suitable document to be a constitution and is not recognised as such. However, it is the basis of New Zealand's founding myth and is a vitally important document because of this.

Often, people speak of the principles or spirit of the Treaty. Unfortunately, there is no clear consensus as to the nature of these. For some people the spirit is one of the joining of two peoples to become one, or as Hobson himself said on the day of the first signing, "Now we are one people". For others the 'spirit' is one of a partnership between the Crown and Māori. This latter view has tended to prevail in official circles, especially since a series of significant Court decisions in the 1980s.

Regardless of the political controversy which continues to swirl around the meaning of the treaty, it remains an extraordinary document when viewed in historical context of the time. The contrast between the Treaty and the treatment accorded indigenous people by European colonisers in most other parts of the world is striking.

External links

*Official Treaty of Waitangi Information Site
*Office of Treaty Settlements
*Waitangi Tribunal
*Text of the Treaty of Waitangi in English and Māori
*New Zealand Legislation
*Archives New Zealand site
*The Trail of Waitangi - original research
*The Littlewood Treaty - argument that an English draft of the Treaty found in 1989 is the one that was translated into the Maori version that was signed on 6 Feb 1840.
*Legislative Violations of the Treaty (1840 - 1997) - at the Network Waitangi Otautahi

Treaty of Waitangi: Encyclopedia BETA

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