Treaty of Waitangi
The Treaty of Waitangi, sometimes referred to as Te Tiriti, is a document of central importance to the history of New Zealand, its constitution, and its national mythos. It has played a major role in the treatment of the Māori people in New Zealand by successive governments and the wider population, something that has been especially prominent from the late 20th century. Although the Treaty of Waitangi is not incorporated as a binding international treaty within New Zealand's domestic law, its status at international law is debated. It was first signed on 6 February 1840 by Captain William Hobson as consul for the British Crown and by Māori chiefs from the North Island of New Zealand. The treaty's status has clouded the question of whether Māori had ceded sovereignty to the Crown in 1840, and if so, whether such sovereignty remains intact.
The treaty was written at a time when the New Zealand Company, acting on behalf of large numbers of settlers and would-be settlers, was establishing a colony in New Zealand, and when some Māori leaders had petitioned the British for protection against French ambitions. Once it had been written and translated, it was first signed by Northern Māori leaders at Waitangi. Copies were subsequently taken around New Zealand and over the following months many other chiefs signed. Around 530 to 540 Māori, at least 13 of them women, signed the Māori language version of the Treaty of Waitangi, despite some Māori leaders cautioning against it. Only 39 signed the English version. An immediate result of the treaty was that Queen Victoria's government gained the sole right to purchase land. In total there are nine signed copies of the Treaty of Waitangi, including the sheet signed on 6 February 1840 at Waitangi.
Text and interpretation
The Treaty includes a preamble and three articles. There are two texts of the Treaty, one in English and one in the Māori language.- Article one of the Māori text grants kawanatanga, translated by Hugh Kawharu as complete governance, to the Crown while the English text cedes "all the rights and powers of sovereignty" to the Crown. A modern translation by Hugh Kāwharu indicates that the Māori chiefs "give absolutely to the Queen of England for ever the complete government over their land".
- Article two of the Māori text uses the word rangatiratanga, translated by Hugh Kawharu as full chieftainship, to describe the chieftainship exercised by Māori over their lands, villages and all their treasures, and that Māori agreed to sell land at agreed prices to the Queen and her agents. The English text establishes the full, exclusive and undisturbed ownership of the Māori over their lands and establishes the exclusive right of pre-emption of the Crown.
- Article three of the Māori text guaranteed Māori the protection of the Queen and the rights and duties of British citizenship. The English text grants Māori people royal protection and the rights and privileges of British subjects.
The rangatira may have initially viewed it as an agreement to share power and authority on equal terms; the Crown has always viewed it as the acquisition of Māori consent to cession of sovereignty. These differences created disagreements in the decades following the signing, eventually contributing to the New Zealand Wars of 1845 to 1872 and continuing through to the Treaty of Waitangi settlements starting in the early 1990s. In the period following the New Zealand Wars, the New Zealand government mostly ignored the treaty, and a court judgement in 1877 declared it to be "a simple nullity".
As some words in the English treaty did not translate directly into the written Māori language of the time, the Māori text is not a literal translation of the English text. Paul Moon and Sabie Fenton claimed that Henry Williams, the missionary entrusted with translating the treaty from English, was fluent in Māori and that, far from being a poor translator, he had in fact carefully crafted both versions to make each palatable to both parties without either noticing inherent contradictions.
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 the 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 Kīngitanga ko te mana i te wenua" to describe "all sovereign power and authority in the land". There is considerable debate about what would have been a more appropriate term. Scholars such as Ruth Ross argue that mana would have more accurately conveyed the transfer of sovereignty. However, it has more recently been argued by others, including Judith Binney, that mana would not have been appropriate as mana is not the same thing as sovereignty, and because no one can give up their mana.
The English-language text recognises Māori rights to "properties", which seems to imply physical and perhaps intellectual property. The Māori text, 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, such as in the foreshore and seabed controversy of 2003–04.
The pre-emption clause is generally not well translated. While pre-emption was present in the treaty from the very first draft, it was translated to hokonga, a word which simply meant "to buy, sell, or trade". Many Māori apparently believed that they were simply giving the British Queen first offer on land, after which they could sell it to anyone. Another less important difference is that Ingarani, meaning England alone, is used throughout in the Māori text, whereas "the United Kingdom of Great Britain and Ireland" is used in the first paragraph of the English.
Based on these differences, there are many academics who argue that the two versions of the treaty are distinctly different documents, which they refer to as "Te Tiriti o Waitangi" and "The Treaty of Waitangi", and that the Māori text should take precedence because it was the one that was signed at Waitangi and by the most signatories. The Waitangi Tribunal, tasked with deciding issues raised by the differences between the two texts, also gives additional weight to the Māori text in its interpretations of the treaty.
The issue is further complicated by the fact that, at the time, writing was a novel introduction to Māori society. As members of a predominately oral society, Māori present at the signing of the treaty would have placed more value and reliance on what Hobson and the missionaries said, rather than on the written words of the treaty. Although there is still a great deal of scholarly debate surrounding the extent to which literacy had permeated Māori society at the time of the signing, what can be stated with clarity is that of the 600 plus chiefs who signed the written document only 12 signed their names in the Latin alphabet. Many others conveyed their identity by drawing parts of their Tā moko, while still others marked the document with an X.
Māori beliefs and attitudes towards ownership and use of land were different from those prevailing in Britain and Europe. The chiefs would traditionally grant permission for the land to be used for a time for a particular purpose. A northern chief, Nōpera Panakareao, 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". Nōpera later reversed the statement – feeling that the substance of the land had indeed gone to the Queen while only the shadow remained for the Māori.
Beginning in the 1970s with a renewed Māori protest movement, Māori increasingly sought the recognition of the Treaty, sparking nation-wide debate over its meaning and interpretation, particularly in contemporary society. Governments in the 1960s and 1970s responded to these arguments, giving the treaty an increasingly central role in the interpretation of land rights and relations between Māori people and the state.
In 1975 the New Zealand Parliament passed the Treaty of Waitangi Act, establishing the Waitangi Tribunal as a permanent commission of inquiry tasked with determining the meaning and effect of the two texts of the Treaty, investigating breaches of the Principles of the Treaty of Waitangi by the Crown or its agents, and recommending means of redress. The Office of Treaty Settlements was set up in 1988 to negotiate settlements on behalf of the Crown to resolve claims about historical breaches of the Treaty directly with iwi. Settlements with a total value of roughly $1 billion have been awarded. Various legislation passed in the latter part of the 20th century has made reference to the treaty, which has led to ad hoc incorporation of the treaty into law. Increasingly, the treaty is recognised as a founding document in New Zealand's developing unwritten constitution.
The New Zealand Day Act 1973 established Waitangi Day as a national holiday to commemorate the signing of the treaty.
Background
Treaty making by European powers with indigenous peoples had always been common in empire building. Treaties were dependent on the specific situation. In 19th century New Zealand, the British wanted to formalise their involvement in the country, protect British interests, regulate land speculation, control violence and disordered settlement. They were faced with a Māori population that was more numerous, with cultivated land and government. Therefore, the British drew up the Treaty of Waitangi. In comparison, this situation did not apply in Australia where no treaties were deemed necessary by the British.While heading the parliamentary campaign against the British slave trade for twenty years, leading to slave trading being prohibited in the British Empire in 1807, William Wilberforce, with other members of the Clapham Sect, championed the foundation of the Anglican Church Missionary Society in 1799, with the determination to improve the treatment of indigenous people by the British. This led to the establishment of the Christian mission in New Zealand, which saw laymen arriving from 1814 to teach building, farming and Christianity to Māori, as well as training Māori ministers.
The Māori language did not then have an indigenous writing system. Missionaries learned to speak Māori, introduced the Latin alphabet and, with Māori, developed the written form of the language between 1817 and 1830. In 1833, while living in the Paihia mission-house of the head of the New Zealand CMS, Rev Henry Williams, missioner William Colenso published Māori translations including parts of books of the Bible, the first books printed in New Zealand. Demand for Colenso's 1837 Māori New Testament, and for the Prayer Book that followed, grew exponentially, as did Christian Māori leadership and public Christian services, with 33,000 Māori soon attending regularly. Literacy and understanding the Bible increased Mana and social and economic benefits.
Other major players in the area around the 1830s included American whalers and French Catholics who came for trade and as missionaries. The Māori were deeply distrustful of the French, due to a massacre of 250 people that had occurred in 1772, when the French retaliated for the killing of Marion du Fresne and some of his crew. Māori looked to the British Crown, partially due to their relationships with missionaries and also due to Britain's status as a major maritime power observed by Māori who had travelled, when rumours flew that the French naval vessel La Favourite intended to annex New Zealand. While the threat of general French colonisation never materialised, in 1831, it prompted thirteen major chiefs from the far north of the country to meet at Kerikeri to compose a letter to King William IV asking for Britain to be a "friend and guardian" of New Zealand. It is the first known plea for British intervention written by Māori.
In 1832, the British government sent James Busby to serve as the British Resident in New Zealand, partially in response to calls from merchants, missionaries and individuals citing the Elizabeth affair, but largely in order to protect British trade. Busby's instructions from Governor Richard Bourke were to protect the more orderly British settlers and traders and prevent 'outrages' by the less orderly Europeans against Māori, albeit without naval, military or civil backing. Despite his lack of authority, Busby's immediate intentions were to create a centralised body of chiefs through which he hoped to indirectly govern the tribes.
In 1834, Busby, Henry Williams, William Colenso and Eruera Pare Hongi drafted o te Rangatiratanga o Nu Tireni, often shortened to He Whakaputanga, and known as the Declaration of the Independence of New Zealand in English. English translation was made at the time of signing. Thirty-four northern Māori rangatira, who became known as the Confederation of United Tribes, signed the Declaration on 28 October 1835. The signatures of a further eighteen rangatira were added to He Whakaputanga by 1839, including two non-northern rangatira: Te Wherowhero, the Waikato chief who would later become the first Māori king, and Te Hāpuku of Ngāti Te Whatuiāpiti. Matthew Palmer has said that He Whakaputanga asserted that the 'public authority' of New Zealand remained with Māori; the English text as translated by Busby declares "sovereign power and authority" and the original text refers to kingitanga and mana, which has been translated by Manuka Henare as referring to sovereignty or kinship. Although one official called it "silly and unauthorised", the Colonial Office acknowledged He Whakaputanga with the assurance that the King would protect Māori as long as it was ‘consistent with a due regard to the just rights of others and to the interests of His Majesty’s subjects’. From a Māori perspective, He Whakaputanga had a twofold significance: first, for the British to establish control of its lawless subjects in New Zealand; and second, to establish internationally the mana and sovereignty of Māori leaders.
From May to July 1836, Royal Navy officer Captain William Hobson, under instruction from Governor of New South Wales 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 those of the Hudson's Bay Company in Rupert's Land. Hobson's report was forwarded to the Colonial Office. From April to May 1838, the House of Lords held a select committee into the "State of the Islands of New Zealand". The New Zealand Association, missionaries, Joel Samuel Polack, and the Royal Navy made submissions to the committee.
On 15 June 1839, new letters patent were issued in London to expand the territory of New South Wales to include the entire territory of New Zealand, from latitude 34° South to 47° 10' South, and from longitude 166° 5' East to 179° East. Governor of New South Wales George Gipps was appointed Governor over New Zealand. This was the first clear expression of British intent to annex New Zealand.
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. He 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. The Secretary of State for War and the Colonies, the Marquess of Normanby, gave Hobson three instructions: to gain freely given Māori recognition of British sovereignty over all or part of New Zealand, to assume complete control over land matters, and to establish a form of civil government. The Colonial Office did not provide a draft of the treaty. Normanby wrote at length about the need for British intervention as essential to protect Māori interests, but this was somewhat deceptive. Hobson's instructions gave no provision for Māori government of any kind nor any Māori involvement in the administrative structure of the prospective new colony. His instructions required him to:
treat with the Aborigines of New Zealand for the recognition of Her Majesty's Sovereign authority over the whole or any part of those islands which they may be willing to place under Her Majesty's dominion.
The historian Claudia Orange argues that prior to 1839 the Colonial Office had initially planned a "Māori New Zealand" in which European settlers would be accommodated, where Māori might retain ownership and authority over much of the land and cede some land to European settlers as part of a colony governed by the Crown. Normanby's instructions in 1839 show that the Colonial Office had shifted their stance toward colonisation and "a settler New Zealand in which a place had to be kept for Māori", primarily due to pressure from increasing numbers of British colonists, and the prospect of a private enterprise in the form of the New Zealand Company colonising New Zealand outside of the British Crown's jurisdiction. The Colonial Office was forced to accelerate its plans because of both the New Zealand Company's hurried dispatch of the Tory to New Zealand on 12 May 1839 to purchase land, and plans by French Captain Jean François L'Anglois to establish a French colony in Akaroa. After examining Colonial Office documents and correspondence of those who developed the policies that led to the development of the treaty, the historian Paul Moon similarly argues that the treaty was not envisioned with deliberate intent to assert sovereignty over Māori, but that the Crown originally only intended to apply rule over British subjects living in the fledgling colony, and these rights were later expanded by subsequent governors through perceived necessity.
Hobson left London on 15 August 1839 and was sworn in as Lieutenant-Governor of New Zealand in Sydney on 14 January 1840, finally arriving in the Bay of Islands on 29 January 1840. Meanwhile, a second New Zealand Company ship, the Cuba, had arrived in Port Nicholson on 3 January 1840 with a survey party to prepare for settlement there. The Aurora, the first ship carrying immigrants, arrived in Port Nicholson on 22 January 1840.
On 30 January 1840 Hobson attended the Christ Church at Kororareka, 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 related to Hobson's own appointment as Lieutenant-Governor of New Zealand. The third concerned land transactions.
CMS printer William Colenso produced a Māori circular for the United Tribes high chiefs, inviting them to meet "Rangatira Hobson" on 5 February 1840 at Busby's Waitangi home.