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Contents Page The 2

The Treaty of Waitangi is ’s founding document. Over 500 Mäori chiefs and The Mäori and English texts 5 representatives of the British Crown signed the Treaty in 1840. Like all it is an exchange of the Treaty and key differences of promises; the promises that were exchanged in 1840 were the basis on which the British Crown acquired New Zealand. The Treaty of Waitangi agreed the terms on which New Zealand The English text and English 9 would become a British colony. translation of the Mäori text This is one of a series of booklets on the Treaty of Waitangi which are drawn from the Treaty of Waitangi Information Programme’s website www.treatyofwaitangi.govt.nz. The principles of the Treaty 14

Many historians have contributed to the material in these booklets to ensure it is as accurate Frequently asked questions 16 and balanced as possible. Their contribution is gratefully acknowledged. about the Treaty

Queen , 1841. Eruera Maihi Patuone. After signing the Treaty on 6 February, Artist: W C Ross. he presented a greenstone to Hobson for . Further copies of this booklet are available from: ATL: 1/2-055839. ATL: PA3-0197.

The Treaty of Waitangi Information Programme State Services Commission PO Box 329 , New Zealand

© State Services Commission 2005

Permission of the owner and copyright holder must be obtained before any re-use of the images used in this booklet.

Permission of the Alexander Turnbull Library, National Library of New Zealand Mätauranga o , must be obtained before any re-use of their images.

Note: ATL = Alexander Turnbull Library, National Library of New Zealand Te Puna Mätauranga o Aotearoa

Archives = , Te Rua Mahara o te Kawanatanga.

ISBN 0-478-24449-5

PAGE 1 THE TREATY OF WAITANGI THE TREATY OF WAITANGI

In 1839, Captain was of by for the future Settlement More than 500 chiefs have their signatures or It is widely accepted that the use of the words appointed Lieutenant-Governor and given of British Subjects must be confined to such marks on one or other of the nine signed copies "kawanatanga" and "” contrib- responsibility for securing British sovereignty Districts as the Natives can alienate without of the Treaty that have survived. At Waitangi uted to misunderstanding by the chiefs as to how over New Zealand by the negotiation of distress or serious inconvenience to themselves. and at Heads there were two texts, much authority they would retain relative to that a Treaty between Mäori and the Crown. To secure the observance of this rule will be one an English and a Mäori text. Two hundred of the governor. There can be little doubt that the The Colonial Secretary, Lord Normanby, of the first duties of their official protector." copies of the Mäori text were printed on 17 February chiefs who signed expected to enter into some instructed Hobson that: for distribution to potential signatories. Almost all kind of and power sharing in the new In carrying out his instructions, Hobson relied on the chiefs signed on one of a number of handwritten enterprise of creating a functioning nation-state in "All dealings with the Aborigines for their the advice and support of a number of copies of the Treaty in Mäori. Only 39 chiefs signed New Zealand, but this was not to be the case. must be conducted on the same principles of working in New Zealand, as well as his secretary, the English text of the Treaty. sincerity, justice, and good faith as must govern James Freeman, and , who had Some commentators, however, suggest that it is your transactions with them for the recognition been in New Zealand since 1833 as the British Henry translated the Treaty into Mäori on the spirit of the Treaty that matters most, and that of Her Majesty's Sovereignty in the . Nor is Resident (a consular representative). Relying 4 February and, on 6 February or a few days later, should override the ambiguities and differences this all. They must not be permitted to enter into also on previous British treaties as examples, the he translated the Mäori text back into English. of emphasis between the texts. Legally there is any Contracts in which they might be the ignorant Treaty was drafted in English, and an initial This became the "official English text". It was only one Treaty, despite the differences between and unintentional authors of injuries to themselves. meeting was held at Waitangi on 5 February presumed that the Mäori text and the translation the two texts. Current references to the Treaty in You will not, for example, purchase from them to discuss it with an estimated 500 Mäori back into English had the same meaning, but legislation seek to bridge the differences by referring any the retention of which by them and about 200 Päkehä witnesses. The Treaty Henry Williams observed on the copy of the official to the "principles" of the Treaty, these being the would be essential, or highly conducive, to their was first signed at Waitangi on 6 February by text sent in Hobson’s despatch to Governor Gipps: core underlying concepts that underpin both texts. own comfort, safety or subsistence. The acquisition over 40 chiefs, before travelling to other parts "I certify that the above is as literal a translation of (See page 14 for a discussion of Treaty principles.)

of the country. the Treaty of Waitangi as the idiom of the language Rev. Henry Williams. Captain William Hobson, R.N., signed the Treaty on behalf of the , Ngä Puhi chief. Initially resisting British rule, he did not will admit of." (Public Record office, London, Artist: Charles Baugniet. British Crown and later became the first Governor of New Zealand. agree to the Treaty on 6th February, but his people pressed him to sign, ATL: C-020-005. Artist: James Ingram McDonald. which he did in May 1840. CO 209/7, 13-15), indicating that a literal or word- ATL: A-044-002. ATL: 1/2-037353. for-word translation was impracticable. The texts are, in some places, significantly different in meaning. One significant difference is in the two texts of Article 1, which describe what was being given up by Mäori: "all the rights and powers of sovereignty" in the English text or "te kawanatanga katoa" in the Mäori text. Some historians have suggested that "te tino rangatiratanga" or "" were better approximations of sovereignty than "kawanatanga". Another difference is in the two texts of Article 2, which describe what the Crown’s guarantee to Mäori was in respect to their property. It has been argued that "full, exclusive and undisturbed possession" is not an accurate translation of "te tino rangatiratanga" in the Mäori text. (For one translation of the Mäori text, see the translation by Professor Sir Hugh Kawharu on page 9.)

PAGE  PAGE  THE TREATY TEXTS

Apihai Te Kawau of Ngäti Whätua and his nephew (standing). Te Kawau Preamble Key Differences signed the Treaty at in 1840. He subsequently provided 3000 acres (1200 hectares) for £50 and a quantity of goods, for English Text Mäori Text the new capital at on Waitematä Harbour. Artist: . HER MAJESTY VICTORIA Queen KO WIKITORIA te Kuini o Ingarani The preamble of the English ATL: PUBL-0014-56-2. of the of Great i tana mahara atawai ki nga version states the British intentions Britain and Ireland regarding with Rangatira me nga Hapu o Nu Tirani were to: Her Royal Favour the Native Chiefs i tana hiahia hoki kia tohungia ki a • protect Mäori interests from and Tribes of New Zealand and ratou o ratou rangatiratanga me to the encroaching British anxious to protect their just Rights ratou wenua, a kia mau tonu hoki settlement; and Property and to secure to them te ki a ratou me te Atanoho the enjoyment of Peace and Good hoki kua wakaaro ia he mea tika • provide for British settlement; has deemed it necessary kia tukua mai tetahi Rangatira • establish a government to in consequence of the great hei kai wakarite ki nga Tangata maintain peace and order. number of Her Majesty’s Subjects maori o Nu Tirani-kia wakaaetia e who have already settled in New nga Rangatira maori te Kawana- The Mäori text suggests that the Zealand and the rapid extension tanga o te Kuini ki nga wahikatoa Queen’s main promises to Mäori of Emigration both from o te wenua nei me nga motu-na were to: and which is still in te mea hoki he tokomaha ke nga • provide a government while progress to constitute and appoint tangata o tona Kua noho ki securing tribal rangatiratanga a functionary properly authorised tenei wenua, a e haere mai nei. and Mäori land ownership for as to treat with the Aborigines of Na ko te Kuini e hiahia ana kia long as they wished to retain it. New Zealand for the recognition of wakaritea te Kawanatanga kia Her Majesty’s sovereign authority kaua ai nga kino e puta mai ki te over the whole or any part of those tangata maori ki te Pakeha e noho islands – Her Majesty therefore ture kore ana. being desirous to establish a settled form of Civil Government with a Na kua pai te Kuini kia tukua a hau view to avert the evil consequences a Wiremu Hopihona he Kapitana which must result from the i te Roiara Nawi hei Kawana mo absence of the necessary Laws nga wahi katoa o Nu Tirani e tukua and Institutions alike to the native aianei amua atu ki te Kuini, e mea population and to Her subjects atu ana ia ki nga Rangatira o te has been graciously pleased to wakaminenga o nga hapu o Nu empower and to authorise me Tirani me era Rangatira atu enei William Hobson a Captain in Her ture ka korerotia nei. Majesty’s Royal Navy and of such parts of New Zealand as may be or hereafter shall be ceded to her Majesty to invite the confederated and independent Chiefs of New Zealand to concur in the following Articles and Conditions.

PAGE  PAGE  PAGE  THE TREATY TEXTS THE TREATY TEXTS

Article the first Ko te tuatahi Key Differences Article the second Ko te tuarua Key Differences English Text Mäori Text English Text Mäori Text The Chiefs of the Confederation of Ko nga Rangatira o te wakaminen- In the English text of the Treaty, Her Majesty the Queen of Ko te Kuini o Ingarani ka wakarite In the English text of the Treaty, the United Tribes of New Zealand ga me nga Rangatira katoa hoki ki Mäori leaders gave the Queen confirms and guarantees to the ka wakaae ki nga Rangatira ki nga Mäori leaders and people, and the separate and independ- hai i uru ki wakaminenga ka "all the rights and powers of Chiefs and Tribes of New Zealand hapu-ki nga tangata katoa o Nu collectively and individually, ent Chiefs who have not become tuku rawa atu ki te Kuini o Ingarani sovereignty" over their land. and to the respective families and Tirani te tino rangatiratanga o o were confirmed and guaranteed members of the Confederation ake tonu atu-te Kawanatanga individuals thereof the full exclusive ratou wenua o ratou kainga me o "exclusive and undisturbed In the Mäori text of the Treaty, cede to Her Majesty the Queen katoa o o ratou wenua. and undisturbed possession of ratou katoa. Otiia ko nga possession of their lands and Mäori leaders gave the Queen of England absolutely and without their Lands and Estates Forests Rangatira o te wakaminenga me estates, forests, fisheries and other "te kawanatanga katoa" – the reservation all the rights and pow- Fisheries and other properties nga Rangatira katoa atu ka tuku properties". complete government over their ers of Sovereignty which the said which they may collectively or ki te Kuini te hokonga o era wahi land. In the Mäori text of the Treaty, Confederation or Individual Chiefs individually possess so long as it wenua e pai ai te tangata nona Mäori were guaranteed "te tino respectively exercise or possess, is their wish and desire to retain te wenua-ki te ritenga o te utu e rangatiratanga" – the unqualified or may be supposed to exercise the same in their possession; but wakaritea ai e ratou ko te kai hoko exercise of their chieftainship over or to possess over their respective the Chiefs of the United Tribes e meatia nei e te Kuini hei kai their lands "wenua", villages as the sole sovereigns and the individual Chiefs yield to hoko mona. "kainga", and all their property/ thereof. Matene Te Whiwhi of Ngäti Toa and Ngäti Raukawa. In 1839 he Her Majesty the exclusive right travelled to the seeking a Christian for treasures "taonga katoa". Rangi Topeora, of Ngäti Toa and Ngäti Raukawa. She signed the Treaty his people. As a result later settled at . of Preemption over such lands as in May 1840 when the missionary Henry Williams brought the Treaty to In 1840, Te Whiwhi (son of Rangi Topeora) signed the copy of the Kapiti . She was one of an estimated 13 women to sign the Treaty. Treaty brought south by Henry Williams. the proprietors thereof may be In the English text of the Treaty, ATL: PA2-2808. ATL: 1/2-057403. disposed to alienate at such prices Mäori yielded to the Crown an as may be agreed upon between exclusive right to purchase their the respective Proprietors and land. persons appointed by Her Majesty In the Mäori text of the Treaty, to treat with them in that behalf. Mäori agreed to give the Crown the right to buy land from them The landing of New Zealand's first Governor, Captain Hobson, Bay of Islands, 1840. Artist: Arthur Herbert Messenger. ATL: A-109-018. should Mäori wish to sell.

PAGE  PAGE  PAGE  PAGE  THE TREATY TEXTS ENGLISH TRANSLATION OF THE MAORI TREATY TEXT

Article the third Ko te tuatoru Key Differences Preamble Footnotes English Text Mäori Text English Text English translation of Mäori text by Professor Sir Hugh Kawharu In consideration thereof Her Hei wakaritenga mai hoki tenei In the Mäori text of the Treaty, HER MAJESTY VICTORIA Queen (1) "Chieftainship": this concept Majesty the Queen of England mo te wakaaetanga ki te Kawana- the Crown gave an assurance of the United Kingdom of Great Victoria, the Queen of England, in has to be understood in the extends to the Natives of New tanga o te Kuini - Ka tiakina e te that Mäori would have the Britain and Ireland regarding with her concern to protect the chiefs context of Mäori social and Zealand Her royal protection and Kuini o Ingarani nga tangata maori Queen’s protection and all rights Her Royal favour the Native Chiefs and the subtribes of New Zealand political organization as at 1840. imparts to them all the Rights and katoa o Nu Tirani ka tukua ki a – "tikanga" – accorded to British and Tribes of New Zealand and and in her desire to preserve their The accepted approximation today Privileges of British Subjects. ratou nga tikanga katoa rite tahi subjects. anxious to protect their just Rights chieftainship (1) and their lands is "trusteeship". ki ana mea ki nga tangata o and Property and to secure to them to them and to maintain peace [signed] W. Hobson Lieutenant This is considered a fair translation (2) "Rongo": "Peace", seemingly Ingarani. the enjoyment of Peace and Good (2) and good order considers it Governor of the English. a missionary usage (rongo – to Order has deemed it necessary just to appoint an administrator [signed] W. Hobson Consul & hear i.e. hear the "Word" – the Now therefore We the Chiefs of in consequence of the great (3) one who will negotiate with Lieutenant Governor "message" of peace and goodwill, the Confederation of the United number of Her Majesty’s Subjects the people of New Zealand to the etc). Tribes of New Zealand being Na ko matou ko nga Rangatira o who have already settled in New end that their chiefs will agree assembled in Congress at Victoria te Wakaminenga o nga hapu o Nu Zealand and the rapid extension to the Queen’s Government being (3) "Chief" ("Rangatira") here is in Waitangi and We the Separate Tirani ka huihui nei ki Waitangi ko of Emigration both from Europe established over all parts of this of course ambiguous. Clearly a and Independent Chiefs of New matou hoki ko nga Rangatira o Nu and Australia which is still in land and (adjoining) islands (4) European could not be a Mäori, Zealand claiming authority over Tirani ka nei i te ritenga o enei progress to constitute and appoint and also because there are many but the word could well have the Tribes and Territories which kupu. Ka tangohia ka wakaaetia a functionary properly authorised of her subjects already living on implied a trustee-like role rather are specified after our respective katoatia e matou, koia ka tohungia to treat with the Aborigines of this land and others yet to come. than that of a mere "functionary". names, having been made fully to ai o matou ingoa o matou tohu. New Zealand for the recognition of So the Queen desires to establish Mäori speeches at Waitangi in understand the Provisions of the Her Majesty’s Sovereign authority 1840 refer to Hobson being or Ka meatia tenei ki Waitangi i te a government so that no evil will foregoing Treaty, accept and enter over the whole or any part of those becoming a "father" for the Mäori ono o nga ra o Pepueri i te tau come to Mäori and European living into the same in the full spirit and islands - Her Majesty therefore people. Certainly this attitude has kotahi mano, e waru rau e te in a state of lawlessness. meaning thereof in witness of which being desirous to establish a settled been held towards the person of kau o to tatou . we have attached our signatures or form of Civil Government with a So the Queen has appointed me, the Crown down to the present day marks at the places and the dates Ko nga Rangatira o te view to avert the evil consequences William Hobson, a Captain in the – hence the continued expectations respectively specified. Wakaminenga which must result from the Royal Navy to be Governor for and commitments entailed in the absence of the necessary Laws all parts of New Zealand (both Treaty. Done at Waitangi this Sixth day and Institutions alike to the native those) shortly to be received by the of February in the year of Our (4) "Islands" i.e. neighbouring, not population and to Her subjects Queen and (those) to be received Lord one thousand eight hundred of the Pacific. has been graciously pleased to hereafter and presents (5) to the and forty. empower and to authorise me chiefs of the Confederation chiefs (5) "Making" i.e. "offering" or The Chiefs of the Confederation William Hobson a Captain in Her of the subtribes of New Zealand "saying" – but not "inviting to Majesty’s Royal Navy Consul and and other chiefs these laws set concur". Lieutenant Governor of such parts out here. of New Zealand as may be or hereafter shall be ceded to her Rev. Richard . Taylor took part in the Treaty discussions at Waitangi Majesty to invite the confederated in February 1840, and attended Treaty signings at and . ATL: 1/2-C-14302. and independent Chiefs of New Zealand to concur in the following Articles and Conditions. PAGE  PAGE  PAGE  PAGE  ENGLISH TRANSLATION OF THE MAORI TREATY TEXT ENGLISH TRANSLATION OF THE MAORI TREATY TEXT

Article the first The first Footnotes Article the second The second Footnotes English text English translation of Mäori text English text English translation of Mäori text The Chiefs of the Confederation of The Chiefs of the Confederation (6) "Government": "kawanatan- Her Majesty the Queen of England The Queen of England agrees to (7) "Unqualified exercise" of the the United Tribes of New Zealand and all the chiefs who have not ga". There could be no possibility confirms and guarantees to the protect the chiefs, the subtribes chieftainship – would emphasise and the separate and independ- joined that Confederation give of the Mäori signatories having Chiefs and Tribes of New Zealand and all the people of New Zealand to a chief the Queen’s intention ent Chiefs who have not become absolutely to the Queen of England any understanding of government and to the respective families and in the unqualified exercise (7) of to give them complete control members of the Confederation for ever the complete government in the sense of "sovereignty" i.e. individuals thereof the full exclusive their chieftainship over their lands, according to their . cede to Her Majesty the Queen (6) over their land. any understanding on the basis of and undisturbed possession of villages and all their treasures (8). "Tino" has the connotation of of England absolutely and with- experience or cultural precedent. their Lands and Estates Forests But on the other the Chiefs "quintessential". out reservation all the rights and Fisheries and other properties of the Confederation and all the (8) "Treasures": "taonga". As powers of Sovereignty which the which they may collectively or Chiefs will sell (9) land to the submissions to the Waitangi said Confederation or Individual individually possess so long as it Queen at a price agreed to by Tribunal concerning the Mäori Chiefs respectively exercise or is their wish and desire to retain the person owning it and by the language have made clear, possess, or may be supposed to the same in their possession; but person buying it (the latter being) "taonga" refers to all dimensions exercise or to possess over their the Chiefs of the United Tribes appointed by the Queen as her of a tribal group’s estate, material respective Territories as the sole and the individual Chiefs yield to purchase agent. and non-material heirlooms Sovereigns thereof. Her Majesty the exclusive right Thomas Bunbury, 1861. In March 1840, Bunbury was instructed by and wähi tapu (sacred places), Wiremu Nera Te Awa-i-taia of Ngäti Mahanga Governor Gipps to come to New Zealand with 100 men of his 80th of Preemption over such lands as at Whaingaroa (Raglan). Te Awa-i-taia signed the Treaty of Waitangi Regiment to back up Hobson and, given Hobson’s failing , ancestral lore and the proprietors thereof may be on 11 1840, when it was brought to Whaingaroa by the CMS take over the Lieutenant-Governorship if necessary. He sailed down (genealogies), etc. missionary . the east to Port Nicholson and to the to gather disposed to alienate at such prices Photographer: Webster Hartley. Treaty signatures. ATL: PA2-2101. ATL: PACOLL-6075-15. as may be agreed upon between (9) "Sale and purchase": the respective Proprietors and "hokonga". Hoko means to buy persons appointed by Her Majesty or sell. to treat with them in that behalf.

Bishop J. B. F. Pompallier. He was consecrated with responsibility for Western (including New Zealand) in 1836. He arrived in New Zealand in 1838, and by the mid- had established a number of Catholic missions. Pompallier was sympathetic to Mäori concerns, and for his time, he had an enlightened view towards Mäori culture. He was at Waitangi when the Treaty was signed on 6 February 1840, and asked Lieutenant-Governor Hobson for his promise to protect the Catholic faith. This pledge is sometimes referred to as the unwritten “fourth article” of the Treaty, and is said to protect and recognise not only major , but also Mäori custom. Image: Special Collections, Libraries (NZ). A4017.

PAGE 10 PAGE PAGE 1111 PAGE 10 PAGE 11 ENGLISH TRANSLATION OF THE MAORI TREATY TEXT

Article the third The third Footnotes Te Rangihaeata, a Ngäti Toa signatory to the Treaty. Artist: Richard Aldworth Oliver. English text English translation of Mäori text ATL: PUBL-0032-1. In consideration thereof Her For this agreed arrangement (10) "Rights and duties": "tikanga" Majesty the Queen of England therefore concerning the while "tika" means right, correct, extends to the Natives of New Government of the Queen, the (e.g. "e tika hoki" means that is Zealand Her royal protection and Queen of England will protect right), “tikanga” most commonly imparts to them all the Rights and all the ordinary people of New refers to custom(s), for example of Privileges of British Subjects. Zealand and will give them the the ; and custom(s) clearly same rights and duties (10) includes the notion of duty and Now therefore We the Chiefs of of as the people of obligation. the Confederation of the United England (11). Tribes of New Zealand being (11) There is, however, a more assembled in Congress at Victoria [signed] W. Hobson Consul & profound problem about "tikanga". in Waitangi and We the Separate Lieutenant Governor There is a real sense here of the and Independent Chiefs of New Queen "protecting" (i.e. allowing So we, the Chiefs of the Zealand claiming authority over the preservation of) the Mäori Confederation and of the subtribes the Tribes and Territories which people’s tikanga (i.e. customs) of New Zealand meeting here at are specified after our respective since no Mäori could have had Waitangi having seen the shape of names, having been made fully any understanding whatever of these words which we accept and to understand the Provisions of British tikanga (i.e. rights and agree to record our names and our the foregoing Treaty, accept and duties of British subjects.) This, marks thus. enter into the same in the full then, reinforces the guarantees in spirit and meaning thereof: in Was done at Waitangi on the Article 2. witness of which we have attached sixth of February in the year of our our signatures or marks at the Lord 1840. places and the dates respectively specified. Done at Waitangi this Sixth day of February in the year of Our Lord One thousand eight hundred and forty.

PAGE 12 PAGE 13 PAGE 12 PAGE 13 THE PRINCIPLES OF THE TREATY OF WAITANGI THE PRINCIPLES OF THE TREATY OF WAITANGI

The Principles of the Treaty of Waitangi

The Treaty of Waitangi is considered to be an There are many other examples. There is considerable utility of consultation in upholding and strengthening Mäori authority over their own affairs and important source of the New Zealand , variety in wording: in some statutes an obligation the Treaty partnership. protect their resource rights; or, in the Mäori text, however the formal legal position is that the Treaty to comply with the Treaty is phrased positively, the giving up of kawanatanga for the guarantee Also mentioned in the case was a principle of has legally enforceable effect only when referred in others negatively. of tino rangatiratanga. This is sometimes described "redress of grievances", which, however, "is not to in legislation. At the present time the Treaty of as the principle of reciprocity. Given the tendency to refer to the "principles" of the justiciable in the Courts" (Justice Somers, at p. 693). Waitangi is referred to in 62 separate Acts of Treaty rather than to the Treaty text, it has become The principle of redress was seen to arise from the Since 1987, the Courts and the . Most statutes have no reference to the necessary for the Courts and the Waitangi Tribunal partnership principle, and reflects the Crown's duty have developed a number of more detailed Treaty, and most of the ones that do relate either to work out what those principles are. The most to take active and positive steps to redress Treaty principles but the concepts of "partnership" and to natural resources and environmental legislation, important discussion of this issue by the Courts is breaches. It entails a fair and reasonable recognition "active protection" have remained dominant. For or to such Mäori-specific parts of the law as Mäori found in the judgment of the Court of Appeal in and recompense for wrongdoing. a detailed list of the principles that have been land law. New Zealand Mäori Council v Attorney-General, developed see "He o Kawa ki te Tiriti o As to "active protection", President Cooke observed Most of these legislative references are not to the [1987] 1 NZLR 641. In this case, Court of Appeal Waitangi: A Guide to the Principles of the Treaty that "the duty of the Crown is not merely passive Treaty text but rather to the "principles" of the President Cooke said that the task of interpretation of Waitangi", Te Puni Kökiri, Wellington, 2001 but extends to active protection of Mäori people Treaty. This is because the two texts of the Treaty "should not be approached with the austerity of (http://www.tpk.govt.nz/publications). in the use of their lands and waters to the fullest have led to different understandings, and because tabulated legalism" and that a "broad, unquibbling extent practicable". This principle is located in the of the need to apply the Treaty to present-day and practical interpretation" was necessary (p. 661). fundamental exchange recorded in the Treaty – the circumstances and issues. Treaty principles interpret In the same case, Justice Richardson noted that Dame and others in the public gallery of the Court cession of sovereignty for the promise to respect the Treaty as a whole, its intention and its spirit. In of Appeal, at the hearing of the New Zealand Mäori Council case. "regrettably, but reflecting the limited dialogue there The Dominion Post, 5 May 1987. the 1994 Broadcasting Assets case (p. 513), Lord has been on the Treaty, it cannot yet be said that Woolf described the principles as "the underlying there is broad agreement as to what those principles mutual obligations and responsibilities the Treaty are" (p. 673). places on the parties. They reflect the intention of the The Court of Appeal emphasised that there were Treaty as a whole and include, but are not confined two core principles. These were "partnership" and to, the express terms of the Treaty." "active protection". President Cooke said that "the Examples of references to Treaty principles in Treaty signified a partnership between races, and it legislation include section 6 of the Treaty of Waitangi is in this concept that the answer to the present case Act 1975, which gives the Waitangi Tribunal has to be found" (p. 664). jurisdiction to inquire into claims that actions or Both the Courts and the Waitangi Tribunal have omissions of the Crown are "inconsistent" with "the determined that the principle of partnership includes principles of the Treaty of Waitangi". Section 9 of the obligation on both parties to act reasonably, the State Owned Enterprises Act 1986 states that honourably and in good faith. The Courts have found "nothing in this Act shall permit the Crown to act in a that Treaty partnership does not necessarily describe manner that is inconsistent with the principles of the a relationship where the partners share national Treaty of Waitangi". To take yet another example, resources equally. The Courts have also found that an section 4 of the Crown Minerals Act 1991 states that aspect of the obligation to act in good faith is a duty the Act "shall be so interpreted and administered to make informed decisions through consultation as to give effect to the principles of the Treaty (although the duty to consult is not absolute). of Waitangi". The Waitangi Tribunal has emphasised the value and

PAGE 14 PAGE 15 PAGE 14 PAGE 15 TRANSLATIONSFREQUENTLY ASKED AND KEYQUESTIONS DIFFEREBNCES ABOUT INTHE THE TREATY TREATY FREQUENTLY ASKED QUESTIONS ABOUT THE TREATY

Frequently Asked Questions What was the Declaration of Why was the Treaty entered into? Independence? Frequently asked questions about the Treaty of The British Government was aware that its Waitangi, the Declaration of Independence, and The Declaration asserted that all sovereign power appointment of James Busby as British Resident the signing of the Treaty. and authority in the land resided with the chiefs. was not adequate to control the lawlessness of It requested that the King of England, "in return for its own citizens, Mäori warfare, or the organised the 'friendship and protection' Mäori gave to British and orderly settlement of New Zealand. The British What is the Treaty of Waitangi? subjects in New Zealand", "continue to be the Government was also very concerned about land parent (matua) of their infant State and its Protector purchases from Mäori by British subjects and The Treaty of Waitangi is the founding document from all attempts upon its independence". other Europeans. To some extent, it was also of New Zealand. It is an agreement drawn up concerned about the interest being taken by between representatives of the British Crown and There is evidence that Busby drew up the Declaration other foreign powers in New Zealand. It therefore representatives of Mäori iwi and hapü. It is named without the authority of his superiors, using a appointed Captain William Hobson as Consul, and after the place in the Bay of Islands where the Treaty perceived threat of French annexation to encourage provided him with instructions to negotiate for the was first signed, on 6 February 1840, although, in the chiefs to sign. Some historians also suggest sovereignty of New Zealand and for the setting fact, it was signed all over the country. The Treaty, that the in London was by no up of a British colony. like all treaties, is an exchange of promises between means convinced that there was a viable political the parties to it. The Treaty is in two languages, authority in New Zealand with which it could form Missionary assurances that the Treaty would be Mäori and English, but this is not exceptional, diplomatic relations. Other historians, however, view of benefit to Mäori may have been important in as most international treaties are in a number of the Declaration as an embryonic expression of Mäori obtaining the agreement of the chiefs. However it languages, often more than two. But the precise nationhood, irrespective of its original impetus. The also seems Mäori had clear expectations of how of the exchange within the Treaty of Declaration was, however, formally acknowledged the Treaty would bring benefits. A sharing of Waitangi is a matter of debate, as the terms by the British Government in 1836, and a primary authority in the land would enhance the mana of the used in the surviving Mäori and English purpose of the Treaty of Waitangi was to revoke chiefs, and the country would be protected texts do not mean quite the same thing. the Declaration, so as to permit the from acquisition by other foreign powers. A (To find out more, see pages 5-8.) The Treaty of sovereignty to Queen Victoria. kawana (governor) would control Europeans, James Busby. was intended by Great Britain to be an exchange Artist: Richard Read. especially land buyers, who were causing of sovereignty in return for a guarantee of the Private collection, courtesy ATL: NON-ATL-P-0065. problems in some areas. The Treaty would bring authority of the chiefs and the protection settlement and more markets for Mäori produce of Mäori land and resource rights. The and more goods to buy, and it would increase Treaty also extended to Mäori the same demand for Mäori to provide services essential rights and privileges of British citizens. to settlement. Some chiefs also noted that circumstances had changed as a result of contact The copy of the Treaty signed at Waitangi on 6 with Europeans, and that the clock could not February 1840, although it has been damaged be turned back. over the years, is on display at Archives New Zealand in Wellington, along with eight The Treaty was not drafted as a constitution or a The Treaty of Waitangi - the Waitangi Sheet. other Treaty sheets that have survived. Archives New Zealand: IA 9/9. statute. Rather, it was a broad statement of principles upon which the British officials and Mäori chiefs made a political compact or covenant to found a nation-state and build a functioning government in New Zealand to deal with pressing new circumstances.

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Who signed the Treaty of Waitangi, Why are there Treaty of Waitangi claims? How does a historical claim get settled? where and when? provincial governments. The provincial governments Essentially, over the course of New Zealand's history The Tribunal considers claims by individuals, usually The Treaty was first presented to a meeting of around were abolished in 1875 by an Act of the New since 1840, there have been actions taken by early on behalf of groups (whänau, hapü or iwi), and issues 500 Mäori at Waitangi on 5 February 1840, and it was Zealand parliament. At this point, the New Zealand governments that have resulted in the alienation a report about the claim and the evidence provided signed by over 40 chiefs on 6 February. It was then constitutional and governmental system reached of Mäori land, waters, and other resources from in the inquiry. It may make recommendations, but taken to North and to a major Hokianga the same basic form as it is today. There have, their owners. Recent governments have recognised it has no further involvement in the settlement meeting, where further signatures and marks were however, been some further changes, such as the that the way this has occurred has often not been process. The government may decide to settle a added. On 17 February, 200 copies of the Treaty abolition of the British Government's power to just, leaving a strong sense of grievance with the claim. If so, the Office of Treaty Settlements were printed. A meeting by the Waitemata Harbour legislate for New Zealand, and the abolition of original owners and their descendants. Ever since the negotiates on behalf of the Crown with the resulted in more signatures. Several manuscript the (the of the grievances occurred, there have been many attempts claimants. Once claimants and the Crown agree copies of the Treaty were made in longhand and ). Items of constitutional by Mäori to have their grievances addressed, and on the terms of a settlement, they sign a Deed, were widely circulated. There were about 50 significance are set out in the . some early governments made attempts to settle and the Crown passes legislation in Parliament to meetings around the country over a seven-month their claims. However, only some of those claims give effect to it and remove the Tribunal's ability The Treaty of Waitangi has never been made a period in 1840, starting in February and ending were addressed, and these attempts are now to inquire further into those claims. Settlement formal part of the New Zealand constitutional in . considered to have been inadequate. redress is then transferred to the claimants. system. Many statutes, however, refer to it and, Over 500 chiefs gave their agreement on one of in 1975, parliament enacted the Treaty of Waitangi In 1975, the Waitangi Tribunal was established as a The Minister or Department responsible for the the nine Treaty copies that have survived. Most Act. This established the Waitangi Tribunal as permanent commission of inquiry to consider claims policy usually the resolution of chiefs signed a Mäori-language copy of the Treaty, a means of inquiring into Mäori claims relating by Mäori against the Crown regarding breaches of contemporary claims (those that relate to current except for 39 chiefs who signed an English-language to breaches of the Treaty. principles of the Treaty, and to make recommen- or recent Government policies or practices). version. (See page 5-8 for more on the differences dations to government to remove the prejudice and Although Treaty breaches need to be proven, this between the two texts.) provide recompense. Initially, it had the power to does not have to be through a Waitangi Tribunal Is the Treaty still valid today? only hear claims relating to Crown actions after 1975. hearing. Some claimants may choose to negotiate The jurisdiction of the Waitangi Tribunal was directly with the Office of Treaty Settlements, What happened after the Treaty The status of the Treaty has evolved over time. extended in 1985 to cover Crown acts and omissions without having a Tribunal hearing first. was signed? Unlike many other countries, New Zealand does not have a constitution in the form of a single dating back to 1840. This has provided Mäori with an In May 1840, Lieutenant-Governor Hobson document, but it has a collection of common laws, important means to have their grievances against the proclaimed British sovereignty over the whole of customs and legislation that establish the framework actions of past governments investigated. New Zealand. His proclamations were ratified by of our government. Nevertheless, the Treaty was the British Government in of that year. the initial agreement by which British authority Under British law, the effect was that New Zealand was established here and was later transferred technically became a part of the colony of New to the earlier settler parliament. In recent history, South . In late 1840 and early 1841, there successive governments have recognised the were further constitutional changes, making New importance of the Treaty in the life of the nation. Zealand a separate in its own right. In In 1994, the Privy Council commented that the 1852, with the New Zealand Constitution Act 1852, Treaty "is of the greatest constitutional importance Britain conferred on New to New Zealand". Similarly, New Zealand Zealand. This set up a quasi-federal constitution, Courts have held similar views that attest Mr Charles Crofts and Sir Tipene O’Regan with other with a general government based in Auckland (later to the continuing importance and relevance members of Ngäi Tahu at Parliament for the passage of the Ngäi Tahu settlement legislation, 1998. moved to Wellington) and a number of separate of the Treaty today. Photographed by Craig Simcox. ATL: EP/1998/3025/33 Dominion Post Collection.

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How many claims are there?

At the time of writing (September 2005) there are Although claims at the Tribunal can be about group 1294 claims lodged at the Waitangi Tribunal. These or individual grievances, the Crown negotiates Treaty may be historical or contemporary, and they may Settlements at the "large natural group" level. relate to either specific pieces of land or a generic All historical hapü and whänau claims within a government policy. Any Mäori can make a claim larger group are addressed in one set of negotiations. at the Tribunal, so many of the claims relate to Usually, when a settlement is negotiated, all the the same group of people or events. existing and potential historical claims made by that Rather than hearing individual claims one by one, claimant group are settled. Once settlement legislation the Tribunal groups them into District Inquiries. is passed, the Tribunal has no further power to hear Claims within an Inquiry district are researched historical claims made by that group. together, and once the research is ready, hearings The Office of Treaty Settlements has estimated that, are held at which claimants and the Crown give depending on the number of "large natural groups" evidence. The Tribunal then writes a report on the that form to negotiate Treaty settlements, the claims in the district. The Waitangi Tribunal has set vast majority of claims could be resolved within itself the goal of reporting on all historical claims by 10 to 15 years. 2010 and all generic claims by 2012.

Ngahinaturae Te Uira and other members of the Waikato iwi, in the public gallery of Parliament, Wellington, to witness the enactment of the settlement. Photographed by Craig Simcox. ATL: EP/1995/4228/4a Dominion Post Collection.

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