Treaty of Waitangi
One of the few extant copies of the Treaty of Waitangi
|Context||Treaty to establish a British Governor of New Zealand, consider Māori ownership of their lands and other properties, and give Māori the rights of British subjects.|
|Drafted||4 – 5 February 1840 by William Hobson with the help of his secretary, James Freeman, and British Resident James Busby|
|Signed||6 February 1840|
|Location||Waitangi, Bay of Islands, New Zealand, and various other locations. Currently held at Archives New Zealand, Wellington.|
|Signatories||Representatives of the British Crown, various Māori chiefs from the northern North Island, and later a further 500 signatories.|
|Treaty of Waitangi at Wikisource|
The Treaty established a British Governor of New Zealand, recognised Māori ownership of their lands and other properties, and gave the Māori the rights of British subjects. The English and Māori versions of the Treaty differed significantly, so there is no consensus as to exactly what was agreed. From the British point of view, the Treaty gave Britain sovereignty over New Zealand, and gave the Governor the right to govern the country. Māori believed they ceded to the Crown a right of governance in return for protection, without giving up their authority to manage their own affairs. After the initial signing at Waitangi, copies of the Treaty were taken around New Zealand and over the following months many other chiefs signed. In total there are nine copies of the Treaty of Waitangi including the original signed on 6 February 1840. Around 530 to 540 Māori, at least 13 of them women, signed the Treaty of Waitangi.
Until the 1970s, the Treaty was generally regarded as having served its purpose in 1840 New Zealand, and was ignored by the courts and parliament alike; although it was usually depicted in New Zealand history as a generous act on the part of the British Empire, which was at the time at its peak. Māori have looked to the Treaty for rights and remedies for land loss and unequal treatment by the state, with mixed success. From the late 1960s Māori began drawing attention to breaches of the Treaty, and subsequent histories have emphasised problems with its translation. In 1975, the Waitangi Tribunal was established as a permanent commission of inquiry tasked with researching breaches of the Treaty by the British Crown or its agents, and suggesting means of redress.
Almost 150 years after the signing of the Treaty, the government tried to give judicial and moral effect to the document by defining another, new version, the "spirit" or "intent" of the treaty through specifying the principles of the Treaty. The move showed that the original document was not a firm foundation for the construction of a State.
Today the Treaty is generally considered the founding document of New Zealand as a nation. Despite this, it is often the subject of heated debate, and much disagreement by both Māori and non-Māori New Zealanders. Many Māori feel that the Crown did not fulfil its obligations under the Treaty, and have presented evidence of this before sittings of the Waitangi Tribunal. Some non-Māori New Zealanders have suggested that Māori may be abusing the Treaty in order to claim special privileges. The Crown, in most cases, is not obliged to act on the recommendations of the Tribunal but nonetheless in many instances has accepted that it breached the Treaty and its principles. Settlements for Treaty breaches to date have consisted of hundreds of millions of dollars of reparations in cash and assets, as well as apologies.
- Drafting of the Treaty 1.1
- Debate 2
- Signing 3
- Extant copies 4
Meaning and interpretation 5
- Differences between English and Māori versions 5.1
- Difficulties in cross-cultural communication 5.2
- Effects 6
Legal standing 7
- Waitangi Tribunal's Te Paparahi o te Raki inquiry 7.1.1
- Binding on the Crown? 7.2
- Legislation 7.3
Principles of the Treaty 7.4
- Fourth Labour Government's principles 7.4.1
- Principles Deletion Bill 7.4.2
- Sovereignty 7.1
Claims for redress 8
- Public opinion 8.1
- Commemoration 9
- See also 10
- References 11
- Further reading 12
- External links 13
Early in the 19th century, Māori, missionaries and settlers were perturbed by the behaviour of runaway convicts and sailors, traders, whalers and sealers who had come to the country, especially in the Bay of Islands. The purchase of muskets by Ngāpuhi in Sydney began a devastation of the Māori population in a series of about 500 tribal battles known as the "Musket Wars" between 1805 and 1843. 2007 In 1831, thirteen chiefly rangatira from the far north of the country met at Kerikeri to compose a letter to King William IV asking for help to guard their lands. Specifically, the chiefs sought protection from the French, "the tribe of Marion", and it is the first known plea for British intervention written by Māori. In response, the British government sent James Busby in 1832 to be the British Resident in New Zealand.
In 1834 Busby drafted a document known as the Declaration of Independence of New Zealand which he and 35 northern Māori chiefs signed at Waitangi on 28 October 1835, establishing those chiefs as representatives of a proto-state under the title of the "United Tribes of New Zealand". This document was not well received by the Colonial Office in Britain, and it was decided that a new policy for New Zealand was needed as a corrective.
From May to July 1836, Royal Navy officer Captain William Hobson, under instruction from Sir Richard Bourke, visited New Zealand to investigate claims of lawlessness in its settlements. Hobson recommended in his report that British sovereignty be established over New Zealand, in small pockets similar to the Hudson's Bay Company in Canada. Hobson's report was forwarded to the Colonial Office. From April to May 1837, the House of Lords held a select committee into the "State of the Islands of New Zealand". The New Zealand Association (later the New Zealand Company), missionaries and Royal Navy all made submissions to the committee. The committee recommended a treaty be concluded with Māori.
Historian Claudia Orange claims that the Colonial Office had initially planned a "Māori New Zealand" in which European settlers would be accommodated, but by 1839 had shifted to "a settler New Zealand in which a place had to be kept for Māori" due to pressure from the New Zealand Company which hurriedly dispatched the Tory to New Zealand on 12 May 1839 (arriving in Port Nicholson (Wellington) on 20 September 1839 to purchase land) and plans by French Captain Jean François L'Anglois for a French colony in Akaroa.
On 15 June 1839 new George Gipps was appointed Governor over New Zealand. This was the first clear expression of British intent to annex New Zealand.
Captain William Hobson was called to the Colonial Office on the evening of 14 August 1839 and given instructions to take the constitutional steps needed to establish a British colony. Historian Paul Moon believes the instructions were written by Sir James Stephen, then head of the Colonial Office. However, in his landmark 1914 book The Treaty of Waitangi: or how New Zealand became a British Colony, T. Lindsay Buick reproduces the written instructions of Edward Cardwell of the Colonial Office (who later became Viscount Cardwell and was most noted for his reforms of the British Army after the disastrous Crimean War). Hobson was appointed Consul to New Zealand and was instructed to negotiate a voluntary transfer of sovereignty from the Māori to the British Crown as the House of Lords select committee had recommended in 1837. Normanby gave Hobson three instructions – to seek a cession of sovereignty, to assume complete control over land matters, and to establish a form of civil government, but he did not provide a draft of the treaty. Hobson left London on 15 August 1839 and was sworn in as Lieutenant-Governor in Sydney on 14 January, finally arriving in the Bay of Islands on 29 January 1840. Meanwhile, a second ship, the Cuba, had arrived in Port Nicholson on 3 January with a survey party to prepare for settlement. The Aurora, a the first ship carrying immigrants, arrived on 22 January.
On 30 January 1840 Hobson attended the Christ Church at Kororareka (Russell) where he publicly read a number of proclamations. The first was the Letters Patent 1839, in relation to the extension of the boundaries of New South Wales to include the islands of New Zealand. The second was in relation to Hobson's own appointment as Lieutenant-Governor of New Zealand. The third was in relation to land transactions (notably on the issue of pre-emption).
Drafting of the Treaty
Without a draft document prepared by lawyers or Colonial Office officials, Hobson was forced to write his own treaty with the help of his secretary, James Freeman, and British Resident James Busby, neither of whom was a lawyer. Historian Paul Moon believes certain articles of the Treaty resemble the Treaty of Utrecht (1713), the British Sherbo Agreement (1825) and the Treaty between Britain and Soombia Soosoos (1826). The entire treaty was prepared in four days.
Realising that a treaty in English could not be understood, debated or agreed to by Māori, Hobson instructed missionary Henry Williams and his son Edward Marsh Williams, who was more proficient in Te Reo, to translate the document into Māori and this was done overnight on 4 February. The translation of the Treaty was reviewed by James Busby, and he proposed the substitution of the word whakaminenga for huihuinga, to describe the "Confederation" or gathering of the Chiefs.
On 5 February the original English version treaty and its translation into Māori were put before a gathering of northern chiefs inside a large marquee on the lawn in front of Busby's house at Waitangi. Hobson read the treaty aloud in English and Williams read his Māori version. Māori chiefs (rangatira) then debated the treaty for five hours, much of which was recorded and translated by the Paihia missionary station printer, William Colenso. Rewa, a Catholic chief, who had been influenced by the French Catholic Bishop Pompallier, said "The Māori people don't want a governor! We aren't European. It's true that we've sold some of our lands. But this country is still ours! We chiefs govern this land of our ancestors". Moka 'Kainga-mataa' argued that all land unjustly purchased by Europeans should be returned. Whai asked: "Yesterday I was cursed by a white man. Is that the way things are going to be?". Protestant Chiefs such as Hone Heke, Pumuka, Te Wharerahi, Tamati Waka Nene and his brother Eruera Maihi Patuone were accepting of the Governor. Hone Heke said:
|“||Governor, you should stay with us and be like a father. If you go away then the French or the rum sellers will take us Māori people over. How to you. Some of you tell Hobson to go. But that's not going to solve our difficulties. We have already sold so much land here in the north. We have no way of controlling the Europeans who have settled on it. I'm amazed to hear you telling him to go! Why didn't you tell the traders and grog-sellers to go years ago? There are too many Europeans here now and there are children that will unite our races||”|
Bishop Pompallier, who had been counselling the many Catholic Māori in the north concerning the treaty, urged them to be very wary of the treaty and not to sign anything. He left after the initial discussions and was not present when the chiefs signed.
Afterward, the chiefs then moved to a river flat below Busby's house and lawn and continued deliberations late into the night.
Although Hobson had planned for the signing to occur on 7 February, on the morning of 6 February 45 chiefs were ready to sign. Hobson hastily arranged for this to occur. Although the official painting of the signing shows Hobson wearing full naval regalia he was in fact so surprised by the chief's early morning request he was wearing his dressing gown.
Hobson headed the British signatories. Of the 40 or so Māori chiefs, Hone Heke was the first to sign the treaty. As each chief signed, Hobson said "He iwi tahi tātou", meaning "We are now one people".
Present at the signing were members of the United States Exploring Expedition. Altogether 150 northern chiefs, mainly Nga Puhi signed the Treaty that day. Forty-four chiefs from the Waikato-Tainui tribe signed the Treaty.
To enhance its authority, eight additional copies of the treaty were sent around the country to gather additional signatures:
- 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 Tūranga (East Coast) copy, and
- the Printed copy.
About 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. A number of chiefs and some tribal groups refused to sign, including Pōtatau Te Wherowhero (Waikato iwi), Tuhoe, Te Arawa and Ngāti Tuwharetoa and possibly Moka 'Kainga-mataa'. Some were not given the opportunity to sign. A number of non-signatory Waikato and Central North Island chiefs would later form a kind of confederacy with an elected monarch called the Kingitanga. (The Kingitanga Movement would later form a primary anti-government force in the New Zealand Wars.)
Nonetheless, on 21 May 1840, Lieutenant-Governor Hobson proclaimed sovereignty over the whole country, (the North Island by Treaty and the South Island by discovery) and New Zealand was constituted as a colony separate from New South Wales on 16 November 1840.
In 1841, Treaty documents escaped damage when the government offices in Auckland were destroyed by fire. They were moved to Wellington when the capital was relocated there from Auckland in 1865, when a list of signatories was produced, and were fastened together and deposited in a safe in the Colonial Secretary's office
In 1877, the English language rough draft of the Treaty was published along with photolithographic facsimiles, and the originals were returned to storage. In 1908, Hocken found the Treaty document in poor condition, partly eaten by rodents. The document was restored by the Dominion Museum in 1913.
In February 1940, the Treaty document was taken to Waitangi for display in the Treaty house during the Centenary celebrations – this was possibly the first time the Treaty document had been on public display since it was signed.
After the outbreak of war with Japan, the Treaty document 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. However, as the case was too large to fit in the safe, the Treaty document spent the war at the side of a back corridor in the Public Trust office.
In 1956, the Department of Internal Affairs placed the Treaty document into 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 document in 1990 (the sesquicentennial of the signing), full documentation and reproduction photography was carried out. Several years of planning culminated with the opening of the Constitution Room at the then National Archives by Mike Moore, Prime Minister of New Zealand, in November 1990.
It was announced on 12 June 2012 that the nine Treaty of Waitangi sheets would be relocated to the National Library of New Zealand in 2013.
Meaning and interpretation
The Treaty itself is short, consisting of a preamble and three articles. The preamble presents Queen Victoria "being desirous to establish a settled form of Civil Government", and invites Māori chiefs to concur in the following articles. The first article of the English version grants the "Queen of England" sovereignty over New Zealand. The second article guarantees to the chiefs full "exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties." It also specifies that Māori will sell land only to the Crown (Crown pre-emption). The third article guarantees to all Māori the same rights as all other British subjects.
In 2010 the Waitangi Tribunal began hearings into the Ngāpuhi's claim that sovereignty was not given up in their signing of the Treaty of Waitangi. The Tribunal, in Te Paparahi o te Raki inquiry (Wai 1040), is considering the Māori and Crown understandings of He Whakaputanga o te Rangatiratanga / The Declaration of Independence 1835 and Te Tiriti o Waitangi / the Treaty of Waitangi. The Te Paparahi o Te Raki stage 1 inquiry hearings phase was intended to reach conclusions as to the meaning and effect of the treaty for the Crown and Te Raki Māori in 1840. The key conclusion of the stage 1 report was that the treaty signatories did not cede sovereignty in February 1840. ‘That is, they did not cede authority to make and enforce law over their people or their territories.’ The rangatira did, however, agree ‘to share power and authority with Britain’. The consequences of the findings in the stage 1 report are being considered in the Te Raki stage 2 inquiry including considering the immediate aftermath of the Treaty of Waitangi, the Northern War (1844–46) and Crown pre-emption.
Differences between English and Māori versions
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 three Māori words: kāwanatanga (governorship), which is ceded to the Queen in the first article; rangatiratanga (chieftainship) not mana (leadership) (which was stated in the Declaration of Independence just five years before the Treaty was signed), which is retained by the chiefs in the second; and taonga (property or valued possessions), which the chiefs are guaranteed ownership and control of, also in the second article. Few Māori had good understanding of either sovereignty or "governorship", as understood by 19th-century Europeans, and so some academics, such as Moana Jackson, question whether Māori fully understood that they were ceding sovereignty to the British Crown.
Furthermore, kāwanatanga is a loan translation from 'governorship' and was not part of the Māori language. The term had been used by Henry Williams in his translation of the Declaration of Independence of New Zealand which was signed by 35 northern Māori chiefs at Waitangi on 28 October 1835. The Declaration of Independence of New Zealand had stated "Ko te Kingitanga ko te mana i te w[h]enua" to describe "all sovereign power and authority in the land".
There is considerable debate about what would have been a more appropriate term. Some scholars, notably Ruth Ross, argue that mana (prestige, authority) would have more accurately conveyed the transfer of sovereignty. However, it has more recently been argued by others, for example Judith Binney, that mana would not have been appropriate. This is because mana is not the same thing as sovereignty, and also because no-one can give up their mana.
The English-language version recognises Māori rights to "properties", which seems to imply physical and perhaps intellectual property. The Māori version, on the other hand, mentions "taonga", meaning "treasures" or "precious things". In Māori usage the term applies much more broadly than the English concept of legal property, and since the 1980s courts have found that the term can encompass intangible things such as language and culture. Even where physical property such as land is concerned, differing cultural understandings as to what types of land are able to be privately owned have caused problems, as for example in the foreshore and seabed controversy of 2003–04.
The pre-emption clause is generally not well translated, and many Māori apparently believed that they were simply giving the British Queen first offer on land, after which they could sell it to anyone. Doubt has been cast on whether Hobson himself actually understood the concept of pre-emption. Another, less important, difference is that Ingarani, meaning England alone, is used throughout in the Māori version, whereas "the United Kingdom of Great Britain and Ireland" is used in the first paragraph of the English.
Difficulties in cross-cultural communication
The entire issue is further complicated by the fact that, at the time, Māori society was an oral rather than literate one. Māori present at the signing of the Treaty would have placed more value and reliance on what Hobson and the missionaries said, rather than the words of the actual Treaty.
Māori beliefs and attitudes towards ownership and use of land were different from 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. A northern chief, Nopera Panakareao, also early on summarised his understanding of the Treaty as "Ko te atarau o te whenua i riro i a te kuini, ko te tinana o te whenua i waiho ki ngā Māori" (The shadow of the land will go to the Queen [of England], but the substance of the land will remain with us). Nopera later reversed his earlier statement – feeling that the substance of the land had indeed gone to the Queen; only the shadow remained for the Māori.
Hobson had at his disposal 4,000 pounds, 39 officials, and 11 "alcoholic" New South Wales policemen to run the country of about 50,000 Māori living in at least 40 different tribal groups scattered over a land twice the size of England, on four separate islands. If Māori had not given their consent, Hobson would not have been able to govern the country, given the martial nature of Māori culture and their great pride in tribal mana.
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 peoples 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 Great Britain 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 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. 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 vested in the Native Land Court under the Native Land Court Act of 1862, and later renamed the Māori Land Court. It was through this court that much Māori land was alienated, and the way in which it 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.
The treaty was never ratified by Britain and carried no legal force in New Zealand for over a century, finally receiving limited recognition in 1975 with the passage of the Treaty of Waitangi Act. The Colonial Office and early New Zealand governors were initially fairly supportive of the Treaty as it gave them authority over both New Zealand Company settlers and Māori. As the settlers were granted representative and responsible government with the New Zealand Constitution Act 1852, the Treaty became less effective, although it was used to justify the idea that Waikato and Taranaki were rebels against the Crown in the wars of the 1860s. Court cases later in the 19th century, especially Wi Parata v the Bishop of Wellington (1877), established the principle that the Treaty was a "legal nullity", which could be ignored by the courts and the government. This argument was supported by the claim that 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 by right of discovery, observing that Māori were so sparse there that it could be considered uninhabited.
Despite this, Māori frequently used the Treaty to argue for a range of issues, including greater independence and return of confiscated and unfairly purchased land. This was especially the case from the mid-19th century, when they lost numerical superiority and generally lost control of most of the country.
However irrelevant in law, the Treaty returned to the public eye after the Treaty house and grounds were purchased by Governor-General Viscount Bledisloe in the early 1930s and donated to the nation. The dedication of the site as a national reserve in 1934 was probably the first major event held there since the 1840s. The profile of the Treaty was further raised by the centenary of 1940. For most of the 20th century, text books, government publicity and many historians 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 until the 1970s, when these issues were raised by Māori protest.
The Treaty itself has never been ratified or enacted as statute law in New Zealand, although it does appear in authoritative collections of treaties, and is sometimes referred to in specific pieces of legislation. There are two major points of legal debate concerning the Treaty:
- Whether or not the Treaty was the means by which the British Crown gained sovereignty over New Zealand
- Whether or not the Treaty is binding on the Crown
Although the Treaty was considered to be Māori consenting to British sovereignty over the whole country, the actual proclamation of sovereignty was made by Hobson on 21 May 1840 (the North Island by treaty and the South by discovery – Hobson was unaware his agents were collecting signatures for the Treaty in the South Island at this stage). This was in response to New Zealand Company attempts to establish a separate colony in Wellington. The proclamation was published four months after the signing of the Treaty, in the New Zealand Advertiser and Bay Of Islands Gazette issue of 19 June 1840, the proclamation "asserts on the grounds of Discovery, the Sovereign Rights of Her Majesty over the Southern Islands of New Zealand, commonly called 'The Middle Island' (South Island) and 'Stewart’s Island' (Stewart Island/Rakiura); and the Island, commonly called 'The Northern Island', having been ceded in Sovereignty to Her Majesty".
In the 1877 Wi Parata v Bishop of Wellington judgement, Prendergast argued that the Treaty was a 'simple nullity' in terms of transferring sovereignty from Māori to Britain. This remained the legal orthodoxy until at least the 1970s. Since then, legal commentators have argued that whatever the state of Māori government in 1840, the British had acknowledged Māori sovereignty with the Declaration of the Independence of New Zealand in 1835. Therefore, if both parties had agreed on the Treaty, it was valid in a pragmatic if not necessarily a legal sense.
There has been some popular acceptance of the idea that the Treaty transferred sovereignty since the early twentieth century. Popular histories of New Zealand and the Treaty often claimed that the Treaty was an example of British benevolence and therefore an honourable contract.
Waitangi Tribunal's Te Paparahi o te Raki inquiry
The Waitangi Tribunal, in Te Paparahi o te Raki inquiry (Wai 1040) is in the process of considering the Māori and Crown understandings of He Whakaputanga o te Rangatiratanga / The Declaration of Independence 1835 and Te Tiriti o Waitangi / the Treaty of Waitangi 1840. This aspect of the inquiry raises issues as to the nature of sovereignty and whether the Māori signatories to the Treaty of Waitangi intended to transfer sovereignty.
The first stage of the report was released in November 2014, and found that Māori chiefs never agreed to give up their sovereignty when they signed the Treaty of Waitangi in 1840. Although the Crown intended to negotiate the transfer of sovereignty through the Treaty, the chiefs' understanding of the agreement was they were only ceding the power for the Crown to control Pākehā and protect Māori. Tribunal manager Julie Tangaere said at the report's release to the Ngapuhi claimants:
|“||"Your tupuna [ancestors] did not give away their mana at Waitangi, at Waimate, at Mangungu. They did not cede their sovereignty. This is the truth you have been waiting a long time to hear."||”|
However, the Tribunal's finding does not establish that the Crown does not have sovereignty today. Treaty Settlements minister Chris Finlayson emphasised that: "The Tribunal doesn't reach any conclusion regarding the sovereignty the Crown exercises in New Zealand. Nor does it address the other events considered part of the Crown's acquisition of sovereignty or how the Treaty relationship should operate today".
Binding on the Crown?
While the above issue is mostly academic, since the Crown does have sovereignty in New Zealand, the question of whether the Crown is bound by the Treaty has been hotly contested since 1840. This has been a point of a number of court cases:
- R v Symonds (1847). The Treaty was found to be binding on the Crown.
- Wi Parata v Bishop of Wellington (1877). Judge James Prendergast called the Treaty ‘a simple nullity’ and claimed that it was neither a valid treaty nor binding on the Crown. Although the Treaty’s status was not a major part of the case, Prendergast’s judgment on the Treaty’s validity was considered definitive for many decades.
- Te Heuheu Tukino v Aotea District Maori Land Board (1938). The Treaty was seen as valid in terms of the transfer of sovereignty, but the judge ruled that as it was not part of New Zealand law it was not binding on the Crown.
- New Zealand Maori Council v Attorney-General (1987). Also known as the SOE (State Owned Enterprises) case, this defined the "principles of the Treaty". The State Owned Enterprises Act stated that nothing in the Act permitted the government to act inconsistently with the principles of the Treaty, and the proposed sale of government assets was found to be in breach of this proviso. This case established the principle that if the Treaty is mentioned in strong terms in a piece of legislation, it takes precedence over other parts of that legislation should they come into conflict.
- New Zealand Maori Council v Attorney General (1990). This case concerned FM radio frequencies and found that the Treaty could be relevant even concerning legislation which did not mention it.
Since the late 1980s the Treaty has become much more legally important. However, because of uncertainties about its meaning and translation, it still does not have a firm place in New Zealand law or jurisprudence. Another issue is whether the Crown in Right of New Zealand is bound. The separate New Zealand Crown was created when New Zealand adopted the Statute of Westminster in 1947, which granted legislative independence to New Zealand and created the Crown in Right of New Zealand. Martyn Finlay rejected this contention.
The English version of the Treaty appeared as a schedule to the Waitangi Day Act 1960, but this did not technically make it a part of statute law. The Treaty of Waitangi Act 1975 established the Waitangi Tribunal, but this initially had very limited powers to make findings of facts and recommendations only. The Act was amended in 1985 to enable it to investigate Treaty breaches back to 1840, and also to increase the Tribunal membership. The membership was further increased in another amendment in 1988.
Although the Treaty has never been incorporated into New Zealand municipal law, its provisions were first incorporated into legislation as early as the Land Claims Ordinance 1841 and the Native Rights Act 1865. Later the Treaty was incorporated into New Zealand law in the State Owned Enterprises Act 1986. Section 9 said that nothing in the Act permitted the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi. This allowed the courts to consider the Crown's actions in terms of compliance with the Treaty. Contemporary legislation has followed suit, giving the Treaty an increased legal importance.
The Fourth Labour Government's Bill of Rights White Paper proposed that the Treaty be entrenched in the New Zealand Bill of Rights Act 1990. However, this proposal was never carried through to the legislation, with the attitude of many Māori towards it "suspicious, uneasy, doubtful or undecided." Many Māori were concerned that the proposal 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 altogether. Geoffrey Palmer has commented in 2013 that:
|“||We were obliged, due to Māori opposition, to drop the Treaty from the Bill of Rights. That was a great pity and it is a step that I advocate be taken still in the context of having a superior law Bill of Rights.||”|
In response to a backlash against the Treaty, politician Winston Peters, the 13th Deputy Prime Minister of New Zealand (and founder of the New Zealand First Party), and others have campaigned to remove vague references to the Treaty from New Zealand law. However, the New Zealand Māori Council case of 1990 indicated that even if references to the Treaty were removed from legislation, the Treaty may still be legally relevant.
Principles of the Treaty
The "Principles of the Treaty" are often mentioned in contemporary New Zealand politics. They originate from the famous case brought in the High Court by the New Zealand Māori Council in 1987 (New Zealand Māori Council v. Attorney-General). There was great concern at that time about the ongoing restructuring of the New Zealand economy by the then Fourth 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, there was an argument that they would prevent assets which had been given by Māori for use by the state from being returned to Māori by the Waitangi Tribunal and through Treaty settlements. The Māori Council sought enforcement of section 9 of the State Owned Enterprises Act 1986, which reads: "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 acquisition of sovereignty in exchange for the protection of rangatiratanga
- The Treaty established a partnership, and imposes on the partners the duty to act reasonably and in good faith
- The freedom of the Crown to govern
- The Crown’s duty of active protection
- The duty of the Crown to remedy past breaches
- Māori to retain rangatiratanga over their resources and taonga and to have all the privileges of citizenship
- Duty to consult
Fourth Labour Government's principles
In 1989, the Fourth Labour Government responded by adopting the following "Principles for Crown Action on the Treaty of Waitangi":
- Principle of government (the kawanatanga principle)
- Principle of self-management (the rangatiratanga principle)
- Principle of equality
- Principle of reasonable cooperation
- Principle of redress
Principles Deletion Bill
The "Principles of the Treaty of Waitangi Deletion Bill" was introduced in the New Zealand Parliament in 2005 as a private member's bill by New Zealand First MP Doug Woolerton. "This bill eliminates all references to the expressions "the principles of the Treaty", "the principles of the Treaty of Waitangi" and the "Treaty of Waitangi and its principles" from all New Zealand Statutes including all preambles, interpretations, schedules, regulations and other provisos included in or arising from each and every such Statute". The bill failed to pass its second reading in November 2007.
Claims for redress
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.
During the early 1990s, the government began to negotiate settlements of historical (pre-1992) claims. As of September 2008, there have been 23 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 former National Party leader Don Brash in his 2004 "Orewa Speech". Although claims relating to loss of land by Māori 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 the Māori language.
The 2008 New Zealand Election Study found that among the 2,700 voting age New Zealanders surveyed, 37.4% wanted the Treaty removed from New Zealand law, 19.7% were neutral, and 36.8% wanted the Treaty kept in law; additionally, 39.7% agreed Māori deserved compensation, 15.7% were neutral, and 41.2% disagreed.
However irrelevant in law, the Treaty returned to the public eye after the Treaty house and grounds were purchased by Governor-General Viscount Bledisloe in the early 1930s and donated to New Zealand.
The anniversary of the signing of the Treaty is a New Zealand public holiday, Waitangi Day, on 6 February. The first Waitangi Day was not until 1947 (although there were some commemorations before that) and the day was not made a public holiday until 1974. The commemoration has often been the focus of protest by Māori and frequently attracts controversy. The anniversary is officially commemorated at the Treaty house at Waitangi, where it was first signed.
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