Weeping Waters 14Jan10.Indd

CHAPTER 1 Constitutional Intentions: the Treaty of Waitangi Texts1 Professor Margaret Mutu Introduction For 170 years Māori have held fast to the Treaty of Waitangi, the sacred covenant between Māori and the Queen of England, signed by the rangatira (tribal leaders) and the Queen’s representative at Waitangi on 6 February 1840. It has always been clear to Māori that the Treaty recorded the conditions under which Pākehā (non-Māori of European descent) could remain in this country they called New Zealand. By signing it, the Queen had fi nally acceded to the wishes of the rangatira of Te Whakaminenga o ngā Hapū, those rangatira who her father the King had acknowledged held sovereignty over their territories in this country. Th e rangatira had asked the King of England to take control of his hitherto lawless subjects residing in their territories, prevent their lawlessness, teach them to respect and uphold the mana and the rangatiratanga (paramount power and authority) of the hapū whose lands they were living on, and allow Māori and Pākehā to live in peace. Th at Pākehā understood the Treaty very diff erently was something that did concern the rangatira at fi rst, but they were persuaded by the assurances of the missionaries 13 Weeping Waters: Th e Treaty of Waitangi and Constitutional Change that the Treaty they signed meant what it said. Th eir descendants to this day believe that the Treaty provides the only constitutional basis on which Pākehā continue to live in New Zealand, despite over a century and a half of brutal oppression at the hands of those Pākehā subjects of the Queen of England. A close examination of the texts of the Treaty explains why that belief is so strongly held. Th is chapter provides an analysis of the Māori and English texts of the Treaty of Waitangi. Before examining the texts in detail, it provides a brief background to the nature of treaties entered into by the British with Indigenous peoples and the reason and context for Māori wishing to enter into an international agreement with the Queen of England. It also provides an overview of the translations of the Māori text that have been published since 1840, including the work undertaken by Sir Hugh Kawharu. Th e chapter concludes by summarising what was intended by the two parties upon signing the Treaty as New Zealand’s founding document and the role the Treaty therefore plays as the foundation for the development of a constitution for this country. British treaties with Indigenous peoples Treaties entered into between the British and Indigenous peoples usually had the same format as those between European nations.2 Th ey record agreements on specifi c issues reached between two sovereign nations. Th e parties to the treaty are clearly identifi ed, with the rights and obligations of both spelt out.3 Th e matters agreed to are set out in the treaty, and can cover a wide range of matters of international signifi cance, including peace and friendship, agreeing to a truce, terms of peaceful co-existence, regulation of trade, cession of sovereignty over land and water, abolition of slavery, religious freedom, shipwreck and salvage rights, cession of mineral rights, legal jurisdiction and abolition of human sacrifi ces.4 Previous studies of treaties between the British and Indigenous peoples indicate that treaties were generally agreed after explaining 14 Constitutional Intentions:the Treaty of Waitangi Texts and debating the terms in the language of the Indigenous peoples.5 Th is was certainly the case with the Treaty of Waitangi. Yet thus far I have been unable to fi nd a record of any other written treaty drawn up in an Indigenous language in the way that it was for the Treaty of Waitangi. By the time the English started diplomatic negotiations with Māori concerning the Treaty of Waitangi, they had had experience of negotiating international treaties with Indigenous nations for well over a century.6 In North America, the Indian subcontinent and Africa, as in Aotearoa, the English were forced to deal with the Indigenous nations diplomatically rather than trying to take their territories by force. Th e sparse European populations residing in or visiting those territories were no match for the military force of Indigenous communities. In Aotearoa in particular, in the late eighteenth and early to mid-nineteenth centuries at least, Europeans required the protection of Māori for their own safety and survival. In North America, the earliest treaties between the English and American Indians for which there are offi cial records or references, beginning in 1722, were negotiated and agreed on using either the English custom of formally written documents to which Indian leaders affi xed their marks, or Indian custom wampum belts, the exchange of gifts, and councils to resolve diplomatic issues and record agreements.7 However, after 1778, written treaties followed a particular format set down in the Delaware Treaty of 1778 ‘with separate articles for each subject, sometimes special sections, and always much legalistic language’. 8 Th e format used by the English for the Treaty of Waitangi follows the format used in North America. Th e format of the Treaty of Waitangi is a preamble followed by three articles, each dealing with specifi c subjects. Th e language of the Treaty is legalistic. 15 Weeping Waters: Th e Treaty of Waitangi and Constitutional Change Background and context of the Treaty of Waitangi In understanding and analysing the texts of a treaty it is essential to understand the background and context to it and, in particular, the discussions that led up to its signing. As Deloria and DeMallie9 point out for American Indian treaties, ‘By adopting this expanded understanding of the Indian treaty, one can illuminate the obscure phrases and promises contained in the written document.’ Māori society prior to the signing of the Treaty Th e oral traditions of Te Taitokerau, the North, record that over the past 1000 years or so, Māori migrated from various parts of Polynesia to a country they called Aotearoa. When Europeans arrived some 700 or so years later they called the country New Zealand, a name which Māori came to associate with English participation in the country. Th roughout the 1830s and the 1840s, the entire country was still fi rmly in the control and under the authority of the myriad of Māori tribal groupings, or hapū, that made up its population. One estimate of the population in 1840 has Māori outnumbering Pākehā by 70,000–90,000 to 2000.10 It was the hapū, under the leadership of their rangatira, who controlled the lands, seas, waterways, resources and people within the territories over which they held absolute and paramount authority. Th ere were very few European immigrants resident at that time, and almost all of them were English and lived in the northern parts of the country, Te Taitokerau, particularly around Pewhairangi (the area the English called the Bay of Islands). Th e language of communication and trade was Māori, as were all customs and culture. While some English immigrants, particularly traders, married into local hapū and assimilated themselves into Māori society, others, particularly the missionaries, remained somewhat apart. Th e missionaries’ sole purpose for being in the country was to impose their English religious beliefs on as many Māori as they could. In order to achieve that to their satisfaction they also needed to impose English culture 16 Constitutional Intentions:the Treaty of Waitangi Texts and values on Māori. While Māori welcomed some aspects of English culture, such as literacy and English technology, they fi rmly rejected other aspects, such as the English notion of their superiority over other races.11 Th e oral tradition states that the hapū had become increasingly concerned at the lawlessness of the Pākehā living among them,12 and had come together over a period of many years as Te Whakaminenga in an eff ort to fi nd a solution. In some of the northern traditions, the impetus came from leaders including Hongi Hika and Waikato, who had travelled to England on a trading mission. While they were there they not only met with the King of England but they also assisted Professor Lee at Cambridge University in writing the fi rst scholarly grammar of the Māori language.13 It was Hongi, the traditions say, who returned to Aotearoa with suggestions of how the hapū could deal with the increasing lawlessness of the Pākehā. His suggestions included the hapū coming together for that and many other purposes, including Māori international trade, which fl ourished for many years. Te Whakaminenga had been operational for many years before the signing of He Whakaputanga and the subsequent Treaty of Waitangi. By that time Māori were making increasing demands for the Pākehā to control their own people. For this they looked to those Europeans they considered to be the most capable and responsible to take the lead, and chose the missionaries and the British Resident for what were, to them, obvious reasons. Th e British Resident, James Busby, had been appointed by the King of England. Since the King of England was the chief of all English chiefs, he was considered to be of great mana. Hongi and Waikato could confi rm that that was the case from their meeting with the King and the observance of his subjects’ attitude towards him. To hold such mana he was thought to be able to ensure that his people lived under the tikanga or laws passed down from their ancestors, laws Hongi and Waikato had seen in action in England. Such a person, in Māori eyes, must also be of the highest honour and integrity, and 17 Weeping Waters: Th e Treaty of Waitangi and Constitutional Change be the appropriate person with whom the rangatira could forge a personal, aristocratic and necessarily international alliance.

Load more