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. Hongi Hika and Waikato had already reported that they had done that, and that the alliance could then be confi rmed by the King sending his representative, the British Resident, to live among the hapū. Furthermore, in doing this the King acknowledged the mana of the rangatira as equivalent to his.14 He subsequently formally confi rmed this by acknowledging He Whakaputanga.15 He Whakaputanga He Whakaputanga was drawn up by the English, and was a declaration of the rangatiratanga and the mana of the rangatira of Te Whakaminenga in respect of all their lands. It declared that the rangatira would not allow any other persons or any other ‘kāwanatanga’ to have law-making powers over their lands. Te Whakaminenga undertook to meet every autumn at Waitangi for law-making purposes, thanked the King of England for recognising their fl ag and asked him to send them a mentor to help them understand his people for whom they were responsible.16 Th e English version sent to the King of England was not an accurate translation. It stated that New Zealand was an independent state under the name of the United Tribes of New Zealand; that sovereignty lay with the chiefs of those tribes, who forbade any other legislative authority or function of government to exist in their territories; that the tribes would meet at Waitangi each autumn to set down laws; and that the tribes thanked the King of England for acknowledging their fl ag and asked him to be a parent to their infant state.17 He Whakaputanga and the Declaration of Independence laid the foundation for the Treaty, the document agreed to and signed by the rangatira at Waitangi. I will refer to the document signed at Waitangi by its own title, Te Tiriti o Waitangi (Te Tiriti). I will refer to the document in English as the Treaty of Waitangi. Like He

18 Constitutional Intentions:the Treaty of Waitangi Texts

Whakaputanga, Te Tiriti was drawn up by the English, with their authorised translator certifying it as a true and accurate translation of the Treaty as it had been drafted in English.18 Th e fact that it is not an accurate translation, but instead a serious mistranslation, caused problems that have plagued New Zealand ever since. Th e English language document, which bears the title the Treaty of Waitangi and is included in the New Zealand statutes, was the document used at various hui in Port Waikato in the absence of the Tiriti, which did not arrive in time for the signing.19 Th e offi cial Treaty – Te Tiriti o Waitangi Te Tiriti was fi rst signed on 6 February 1840 at Waitangi some four and a half years after He Whakaputanga was fi rst signed there. In the following months, more than 500 rangatira inscribed their signatures or marks on it, with fewer than forty inscribing the English language Treaty at Port Waikato and Manakau. Th e question immediately arises as to why the rangatira there were asked to sign something written in a foreign language that they did not understand. Th e answer appears to lie in the fact that Maunsell, the missionary charged with gathering signatures at Port Waikato, received one of the 200 printed versions of Te Tiriti produced at Paihia on 17 February 1840 at the same time that he received the English version with Hobson’s signature attached. Th e printed Tiriti would have helped him to explain the Treaty in Māori. Th ere are fi ve signatories to this printed version.20 In the minds of the rangatira and Hobson’s superiors in England,21 as well as some Pākehā historians,22 and for some time now at international law,23 it is Te Tiriti and not the English language document that is the offi cial treaty – it was the only document the rangatira understood and the one almost all of them signed. Te Tiriti as it was read and explained to the rangatira at Waitangi confi rmed the paramount authority and power, or sovereignty, of the rangatira and concentrated on promising to deal with the problems created

19 Weeping Waters: Th e Treaty of Waitangi and Constitutional Change by the lawlessness of Pākehā immigrants.24 It was these problems that gave rise to the need for the rangatira to enter into a treaty with the paramount chief of the Pākehā, the Queen of England. Th e document as read out made a solemn promise to address these problems to the satisfaction of the rangatira. Th e rangatira used both the Resident and the missionaries to communicate with the King and subsequently Queen Victoria. However, by the time the Queen sent her emissary, Hobson, to negotiate a treaty with Māori, the trust that had been built up between the Anglican missionaries and the hapū was starting to be challenged. Colenso records Hobson saying clearly and unambiguously at Waitangi on 5 February 1840, ‘Her Majesty the Queen asks you to sign this treaty, and so give her that power which shall enable her to restrain them’. Th e ‘them’ he is referring to are clearly stated as being ‘the people of Great Britain’. 25 While Colenso’s reporting does need to be treated with caution,26 it seems clear that opposition to the signing of the Treaty was expressed after Hobson had spoken because of suspicions the rangatira held that, despite what the Treaty said and how the missionaries as interpreters and translators explained it, it was perhaps not about the Queen controlling her lawless subjects but rather about trying to remove the mana of Māori and stealing their land.27 However, others, according to Colenso, believed the assurances and assertions of the missionaries that this was not the case, and asked Hobson to remain as governor.28 Colenso also reports repeated and publicly expressed criticism of those missionaries by other Pākehā present that day for mistranslating and misinterpreting to Māori the intent of the Treaty that had been drafted in English.29 Orange points out ‘Th e treaty was presented in a manner calculated to secure Maori agreement … Maori were told the Crown needed their agreement in order to establish eff ective law and order – primarily for controlling Europeans, or Pakeha as they called them.’30 Certainly the wording of Te Tiriti conveys the agreement that Māori had been seeking for some time, despite the language used.

20 Constitutional Intentions:the Treaty of Waitangi Texts

Th e language of the fi rst sentence of the preamble (and of the entire Tiriti) is not that of a fl uent speaker of Māori, and others have commented on its clumsiness.31 It is rather an attempt to translate as closely as possible the quasi-legal and very formal English of one of the several drafts of the Treaty.32 As such it attempts to mimic that formal English language style rather than formal Māori, with the result that there are none of the metaphorical and oratorical markers of formal Māori. Th e language is therefore stilted and unnatural, but it is still clear in its meaning: Ko Wikitoria, te Kuini o Ingarani, i tana [sic] mahara atawai33 ki nga Rangatira me nga Hapu o Nu Tirani i tana hiahia hoki kia tohungia ki a ratou o ratou rangatiratanga, me to ratou wenua, a kia mau tonu hoki te Rongo ki a ratou me te Atanoho hoki kua wakaaro ra he mea tika kia tukua mai tetahi Rangatira hei kai wakarite ki nga Tangata maori o Nu Tirani – kia wakaaetia e nga Rangatira maori te Kawanatanga o te Kuini ki nga wahi katoa o te Wenua nei me nga Motu – na te mea hoki he tokomaha ke nga tangata o tona iwi kua noho ki tenei wenua, a e haere mai nei. Th is translates very literally as: Now, Victoria, the Queen of England, in her well-meaning thoughts for the heads of the tribal groupings and the tribal groupings of New Zealand, and out of her desire also to signal to them their paramount authority and their lands, and so as to maintain peace with them and peaceful habitation also, has thought that it is a right thing to send a head of a tribal grouping as an arranger with the Māori people of New Zealand – so that the kāwanatanga of the Queen to all places of this land and the islands will be agreed by the heads of the tribal groupings of the Māori because indeed of the many of her people who are already living on this land, and are coming. Th e language used is respectful and polite, as is appropriate and required between leaders of two independent and sovereign nations.

21 Weeping Waters: Th e Treaty of Waitangi and Constitutional Change

Th is fi rst sentence sets out clearly that this is an international agreement between the Queen of England and the rangatira. Th e Queen not only acknowledges the rangatiratanga and hence the mana of the rangatira and the hapū, she confi rms it. She also emphasises that her message is one of peace. She wants the chiefs to agree to her having kāwanatanga over all lands of New Zealand for the sake of her British subjects here now and yet to come. Much has been said about kāwanatanga and what it may have meant to Māori.34 Biggs concludes that Māori were unlikely to have understood the word in the way the missionaries intended it to be understood. Kawharu35 likewise notes ‘“Government”: “kāwanatanga”. Th ere could be no possibility of the Māori signatories having any understanding of government in the sense of “sovereignty”: ie, any understanding on the basis of experience or cultural precedent.’ Th e reason for that is that kāwanatanga is not a Māori word, but rather a word created by missionaries by borrowing from the English word ‘governor’ to form the word ‘kāwana’ and then appending to that the derived noun suffi x ‘tanga’. It is used in He Whakaputanga in the context of not allowing any kāwanatanga to have any law- making power over the lands of the rangatira of Te Whakaminenga. Most translations of Te Tiriti translate kāwanantanga as government or governance.36 But for Māori in 1840 having little or, for most, no experience of a governor or of the practicalities of government, the word would have had little if any meaning. Th e question they needed to answer was: What was this thing the Pākehā paramount chief wanted? Th e answer for Māori was clear: control over her lawless subjects living throughout the lands of New Zealand. Th at is what Māori wanted her to have, and this sentence conveys that notion, provided it was understood that the English word for the control the Queen needed was kāwanatanga. Missionaries gave assurances that the role of a governor – kāwana – was to control the Queen’s people on her behalf; hence there appeared to be no problem. If

22 Constitutional Intentions:the Treaty of Waitangi Texts kāwanatanga was in fact something diff erent from this, it is not at all evident here or anywhere else in Te Tiriti, for that matter. Th e second sentence appears to confi rm this understanding of kāwanatanga as the mechanism that would control lawless Pākehā. It reads: Na ko te Kuini e hiahia ana kia wakarite te Kawanatanga kia kaua ai nga kino e puta mai ki te tangata Maori ki te Pakeha e noho ture kore ana. Th is translates literally as: Now the Queen desires to arrange the kāwanatanga so that no evil will come to Māori, and to European living in a state of lawlessness. Th is sentence clearly articulated what Māori were seeking – that the Pākehā’s paramount chief take control of her lawless subjects so that no further harm would come to either them or to Māori whom they had been cheating, robbing and murdering.37 Th e third and last sentence of the preamble reads: Na, kua pai te Kuini kia tukua ahau a Wiremu Hopihona he Kapitana i te Roiara Nawi hei Kawana mo nga wahi katoa o Nu Tirani e tukua aianei, amua atu ki te Kuini e mea atu ana ia ki nga Rangatira o te wakaminenga o nga hapu o Nu Tirani me era Rangatira atu enei ture ka korerotia nei. Th is translates literally as: So the Queen is agreeable to send me, Wiremu Hopihana, a Captain in the Royal Navy, to be Governor for all parts of New Zealand (both those) being allocated now and in the future to the Queen and says to the leaders of the tribal groupings of the Confederation of the tribal groupings of New Zealand and other chiefs these laws spoken of here. Th is sentence conveys a notion that the Queen takes the matter of controlling her subjects seriously and has sent one of her senior rangatira to ensure her wishes are carried out, and that the Confederation be made aware. Th is was the same Confederation

23 Weeping Waters: Th e Treaty of Waitangi and Constitutional Change or ‘United Tribes of New Zealand’ that her father had recognised as the sovereign authorities of New Zealand when he formally acknowledged the 1835 Declaration of Independence. Th is then was the formal recognition of He Whakaputanga and Māori sovereignty, and the undertaking of the King of England at that time that in return for the friendship and protection the rangatira of the Confederation had aff orded his subjects who had settled in their country, he would support and protect them in respect of his subjects and be New Zealand’s ‘Protector from all attempts on its independence’.38 It was assurance for the rangatira that the Queen intended to carry out her father’s wishes. For the English, support of the rangatira of Te Whakaminenga for Te Tiriti was essential, and it is signifi cant that over half of the Waitangi signatories were the same people who had signed He Whakaputanga.39 It is also signifi cant that while the acknowledgement of Te Whakaminenga and hence He Whakaputanga is clear, nowhere in either Te Tiriti or the Treaty is He Whakaputanga or any part of it rejected or nullifi ed. Th e impression conveyed would have been the opposite – that He Whakaputanga was confi rmed. We turn now to the articles. KO TE TUATAHI Ko nga Rangatira o te Wakaminenga me nga Rangatira katoa hoki kihai i uru ki taua wakaminenga ka tuku rawa atu ki te Kuini o Ingarani ake tonu atu – te Kawanatanga katoa o o ratou wenua. A literal translation is: THE FIRST Th e heads of the tribal groupings of the Confederation and all the leaders of tribal groupings who have not entered that confederation allow the Queen of England all the kāwanatanga /(control of her subjects?) of their lands. In a similar fashion to that noted in the discussion of the preamble, this was what the rangatira had been seeking for some

24 Constitutional Intentions:the Treaty of Waitangi Texts time: that the Queen of England take control of her subjects now living throughout New Zealand. KO TE TUARUA Ko te Kuini o Ingarani ka wakarite ka wakaae ki nga Rangatira –ki nga hapu ki nga tangata katoa o Nu Tirani te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa. Otiia ko nga Rangatira o te Wakaminenga me nga Rangatira katoa atu ka tuku ki te Kuini te hokonga o era wahi wenua e pai ai te tangata nona te wenua –ki te ritenga o te utu e wakaritea ai e ratou ko te kai hoko e meatia nei e te Kuini hei kai hoko mona. Th is translates literally as: THE SECOND Th e Queen of England agrees and arranges for the heads of the tribal groupings, for the tribal groupings and all the people of New Zealand, their paramount and ultimate power and authority over their lands, their villages and all their treasured possessions. However, the Chiefs of the Confederation and all the Chiefs will allow the Queen to trade for [the use of] those parts of land which those whose land it is consent to, and at an equivalence of price as arranged by them and by the person trading for it (the latter being) appointed by the Queen as her trading agent. Once again this confi rms the Queen’s formal recognition of the paramount power and authority of the rangatira throughout the country. It also confi rmed that in terms of the allocation of rights to use lands, the rangatira would allow the Queen or her agent to trade for those rights with those whose land it was, but only for a price that had been arranged between the land owners and the Queen’s agent. Th is would carry on the practice of allocating temporary land use rights that was a very old Māori and Pacifi c custom.40 Māori in the North in particular had been using this custom with Pākehā for several years. Yet there were indications that Pākehā were trying to redefi ne the custom as something other than what it was. Th is is evidenced not

25 only in Colenso’s report of the vociferous objection of the rangatira at Waitangi to Pākehā, and in particular the missionaries, stealing land41 but also in the disingenuous use of the English term ‘land sale’, which was the language being used on the ground at the time.42 Th e notion of sale or permanent and complete alienation of land is not conveyed in this article of Te Tiriti. Te tino rangatiratanga in this article is often translated as Māori sovereignty. Rangatiratanga and hence mana are not, however, the same as the English notion of sovereignty. Mana as described by my kaumātua can be translated, albeit rather simplistically, as power and authority that is endowed by the gods to human beings to enable them to achieve their potential, indeed to excel, and, where appropriate, to lead.43 It is high-order leadership, the ability to keep the people together, that is an essential quality in a rangatira. Th e exercise of such leadership in order to maintain and enhance the mana of the people is rangatiratanga. Tino rangatiratanga is the exercise of paramount and spiritually sanctioned power and authority. It includes aspects of the English notions of ownership, status, infl uence, dignity, respect and sovereignty, and has strong spiritual connotations.44 Th e English notion of sovereignty does refer to ultimate power and authority, but only that which derives from human sources and manifests itself in man-made rules and laws. It is therefore essentially diff erent and much more restricted in its nature than mana and tino rangatiratanga. KO TE TUATORU Hei wakaritenga mai hoki tenei mo te wakaaetanga ki te Kawanatanga o te Kuini – Ka tiakina e te Kuini o Ingarani nga tangata maori katoa o Nu Tirani ka tukua ki a ratou nga tikanga katoa rite tahi ki ana mea ki nga tangata o Ingarani. Th is translates literally as: THE THIRD Th is is also the arrangement for the agreement to the Kāwanatanga/(control of her subjects?) of the Queen – the Queen of England will care for all the Māori people of New Zealand and will allow them all the same customs as the people of England. In this third article the Queen of England made an undertaking that even though her main purpose for entering the agreement was to be allowed to control her own subjects living in New Zealand, she would still reciprocate the care that Māori had aff orded Pākehā who came here and care for Māori as well, ensuring that they could access the ways of her English subjects. Th is again is something the rangatira sought for their people at this time: reciprocity that gave Māori access to those Pākehā technologies and skills that could be welcome additions to and complement those of Māori, in exchange for Pākehā continuing to reside in the territories and under the mana of the hapū and their rangatira. [POSTSCRIPT] Na ko matou ko nga Rangatira o te Wakaminenga o nga hapu o Nu Tireni ka huihui nei ki Waitangi ko matou hoki ko nga Rangatira o Nu Tirani ka kite nei i te ritenga o enei kupu, ka tangohia ka wakaaetia katoatia e matou, koia ka tohungia ai o matou ingoa o matou tohu. Ka meatia tenei ki Waitangi i te ono o nga ra o Pepueri i te tau kotahi mano e waru rau e wa tekau o to tatou Ariki. Ko nga Rangatira o te Wakaminenga Th is translates literally as: We the heads of the tribal groupings of the Confederation of the tribal groupings of New Zealand who met here at Waitangi, along with the heads of the tribal groupings of New Zealand, see the likeness of these words, they are taken and all agreed to by us and so our names and our marks are indicated. Th is was done at Waitangi on the 6th day of February in the year of our Lord eighteen hundred and forty. Th e Chiefs of the Confederation

27 Weeping Waters: Th e Treaty of Waitangi and Constitutional Change

In summary then, there is nothing in this document to indicate that the Queen of England was seeking agreement to anything other than what the rangatira had been seeking for several years – that she control her lawless Pākehā subjects who had come to live in Aotearoa; that she respect and uphold the mana and rangatiratanga of the rangatira and their hapū; and that she make all aspects of English culture available to Māori. Translations of Te Tiriti o Waitangi Th ere are various published translations of Te Tiriti into English. In 1869 the Native Department produced a translation completed at the request of a member of the Legislative Council of Parliament.45 Th is was then followed in 1876 by a translation ‘prepared with great accuracy’ published in the Māori language newspaper Te Wananga46as the result of frequent requests ‘to see the terms of the treaty of Waitangi, which is regarded by our Maori fellow- countrymen as the “Magna Carta” of their constitutional rights’. In 1963 Michael Rotohiko Jones’ translation of Sir Apirana Ngata’s Te Tiriti o Waitangi: He Whakamarama was published. Biggs describes Ngata’s ‘explanation’ of the Treaty as an apologia, an attempt to dampen down Māori protest at violations of the Treaty rather than to explain its terms.47 Orange points out that despite being cited as if it were a reliable, authoritative statement of the understanding of Māori in 1840, it is not.48 Ngata nevertheless quotes Te Tiriti in its entirety, and in translating the work, Jones provides a native speaker’s translation of Te Tiriti. In 1989 Sir Hugh Kawharu published his literal translation,49 which had been hastily prepared for the Court of Appeal case taken by the New Zealand Māori Council in respect of lands being transferred to state-owned enterprises.50 It was quoted in full in the decision of the Court.

28 Constitutional Intentions:the Treaty of Waitangi Texts

Problems with the translations Biggs explains the diffi culties that beset translators, especially when the languages concerned are those of very diff erent cultures.51 His examples of the English to Japanese to English route having produced ‘angry raisins’ from ‘grapes of wrath’ and ‘license to commit lustful pleasures’ from ‘liberty and the pursuit of happiness’ illustrate the problem well. While all the translations of Te Tiriti are accurate for most parts, problems do arise with key terms where the choice of word in English translation conveys something diff erent from that intended in the original Māori. Th e result is that where translations do this, they tend to distort the overall meaning of Te Tiriti. Take for example the word rangatiratanga. All except Matiu and Mutu52 translate this as chieftainship. Th is is based on the logic that because rangatiratanga is the derived noun from rangatira and rangatira translates into English as chief, the derived noun in English from chief, that is, chieftainship, will adequately translate as rangatiratanga. Underlying this logic is an assumption that deriving rangatiratanga from rangatira in Māori produces the same result as deriving chieftainship from chief in English. Th e assumption is wrong: chieftainship is not a good translation of rangatiratanga. Kawharu is aware of the problem, and notes ‘“Chieftainship”: this concept has to be understood in the context of Māori social and political organisation as at 1840.’53 He then adds ‘Th e accepted approximation today is “trusteeship”’, a comment which needs to read and understood in conjunction with his explanation of rangatiratanga earlier in the volume, which I refer to above.54 Matiu and Mutu translate rangatiratanga as paramount authority.55 While rangatiratanga is a key term in Te Tiriti that has been discussed at length elsewhere, another key term in the second article, hokonga, has received very little attention. All of the translations of Te Tiriti except that of Matiu and Mutu56 translate this using a word or phrase which implies permanent alienation. Th e y g ive eit her pu rc h a s e, 57 alienate58 or sale and purchase.59 Matiu and Mutu translate it as trade

29 Weeping Waters: Th e Treaty of Waitangi and Constitutional Change for (the use of). In 1840 the word hoko did not have the meaning of permanent alienation because at that time there was no word for sell in Māori.60 In respect of land in 1840 and for some time after that, there was no word in Māori for a transaction that permanently alienated land because the concept did not exist in Māori culture.61 Use rights to land could be temporarily allocated: such a transaction was described as tuku whenua. Th e word hoko used in conjunction with land transactions referred to payment made in acknowledgement of the allocation. Th e earliest Māori to English dictionary62 translates hoko as ‘traffi c’. It is not until 1891 that Tregear’s Dictionary listed ‘buy or sell’ as a modern meaning of ‘hook’, and it was not until the later part of the nineteenth century that the term hoko whenua had changed its meaning to include the English concept of land sale.63 Th us the translation of hokonga as purchase, alienate, or sale and purchase may be correct for a document written after the later part of the nineteenth century, but it is an incorrect translation in respect of Te Tiriti. Th e English language Treaty of Waitangi document While it was Te Tiriti that was taken to most hui round the country in 1840 and has the marks or signatures of 502 rangatira, the Treaty was the document taken to Port Waikato and Manakau in March and April 1840, which bears Hobson’s signature and the marks of thirty-six rangatira.64 Th e Treaty is a curious, obscure and rather odd document. Firstly, many have pointed out that it is not a translation of Te Tiriti.65 Apart from having very diff erent meaning and content from Te Tiriti, the manner and tone of this document are also very diff erent. Th e fi rst sentence of the preamble makes that clear. Her Majesty Victoria Queen of the United Kingdom of Great Britain and Ireland regarding with Her Royal Favour the Native Chiefs and Tribes of New Zealand and anxious to protect their just Rights and Property and to secure to them the enjoyment of Peace

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and Good Order has deemed it necessary in consequence of the great number of Her Majesty’s Subjects who have already settled in New Zealand and the rapid extension of Emigration both from Europe and Australia which is still in progress to constitute and appoint a functionary properly authorised 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. In plain English: the Queen of England wants the Indigenous people of New Zealand to agree to her taking control of their country and all people living there, including themselves, because of the number of her subjects who are either here already or who will be arriving. In terms of Māori culture and tikanga (the customary or correct way of doing things), this amounts to the Queen expecting and ultimately demanding the unthinkable in terms of tikanga: that Māori give up their mana and rangatiratanga to her, and thus become subservient to her. No rangatira would entertain such a notion, as it is not possible for a rangatira to allow his or her mana and rangatiratanga to be abused in this manner, especially by a foreigner.66 As such it is clear that they would have dismissed the request out of hand, as was stated in the debates at Waitangi as reported by Colenso.67 Th is also explains why the English present at Waitangi were reported by Colenso as becoming so agitated about the missionaries not translating or explaining the English language draft of the Treaty correctly. An English version similar to the Manakau document was also read at Waitangi. It does not require great fl uency in Māori to establish that what was being said in Māori bore little resemblance to what was written in the document drafted in English. However, what was said in Māori almost certainly pertained to Te Tiriti, a document which did allow the missionaries to counter the opposition expressed and provide the assurances the rangatira sought. Th e second sentence of the Treaty reads:

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Her Majesty therefore being desirous to establish a settled form of Civil Government with a view to avert the evil consequences which must result from the absence of the necessary Laws and Institutions alike to the native population and to Her Subjects has been graciously pleased to empower and authorise me William Hobson a Captain in Her Majesty’s Royal Navy Consul and Lieutenant Governor 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. Again in plain English: William Hobson, a captain in the British Royal Navy and potential governor of those parts of New Zealand that are ceded to the Queen, has been authorised and sent by the Queen to seek agreement from the rangatira of the Confederation of United Tribes (Te Whakaminenga) and other rangatira to the following: ARTICLE THE FIRST Th e Chiefs of the Confederation of the United Tribes of New Zealand and the separate and independent Chiefs who have not become members of the Confederation cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty which the said Confederation or Individual Chiefs respectively exercise or possess, or may be supposed to exercise or to possess over their respective Territories as the sole sovereigns thereof. Th is article says that the rangatira of Te Whakaminenga and all other rangatira of the hapū throughout the country willingly, knowingly and without any reservation give over to the Queen of England those aspects of their mana and rangatiratanga that give them absolute power and authority in respect of all their lands, their resources and their people. Stripped of these aspects of mana and rangatiratanga, these fundamental values of Māori society and culture become almost meaningless.

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Th is in eff ect required Māori to surrender being Māori and to become English, a notion that would have been thoroughly repugnant to the rangatira in 1840 and quite incomprehensible. If the missionaries did truly intend to convey accurately the meaning and intent of what was in this document drafted in English when they drew up Te Tiriti, they would not have hesitated to use the words mana and rangatiratanga in Te Tiriti in place of the word kāwanatanga. After all, the same missionary had used those words in He Whakaputanga to express sovereignty. But they did not do so in Te Tiriti, almost certainly because they knew that if they had done so, it would have been a gross insult to the rangatira to which they would never have agreed.68 ARTICLE THE SECOND Her Majesty the Queen of England confi rms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession; but the Chiefs of the United Tribes and the Individual Chiefs yield to her Majesty the exclusive right of Pre-emption over such lands as the proprietors thereof may be disposed to alienate at such prices as may be agreed upon between the respective Proprietors and persons appointed by Her Majesty to treat with them in that behalf. Here the Queen promises that Māori will continue to own all their lands and estates, their forests and their fi sheries for as long as they wish to do so, and that ownership will be full, exclusive and undisturbed. Should they wish to sell their lands they must sell them only to the Queen or her agent, at a price agreed to between the owners and the Queen’s agent. Th e English cultural concept of land ownership does not permit the exercise of mana and rangatiratanga. Ultimate authority and control is instead exercised by the Sovereign and in accordance

33 Weeping Waters: Th e Treaty of Waitangi and Constitutional Change with English custom and law. Ownership without mana and rangatiratanga means an ‘owner’ is simply an occupier of the land. For Māori that is the role of a whānau (extended family) or hapū who are not mana whenua but have been allocated use rights to lands or resources by those who are mana whenua in accordance with the appropriate tikanga. Again, no rangatira could allow his hapū to be reduced to mere occupiers on their own ancestral lands. ARTICLE THE THIRD In consideration thereof Her Majesty the Queen of England extends to the Natives of New Zealand Her royal protection and imparts to them all the Rights and Privileges of British Subjects. Th is article confi rms that the Queen will reciprocate the protection the rangatira have aff orded her subjects and similarly protect Māori. Furthermore she will make available to Māori all the rights and privileges of English culture. Māori were anxious to avail themselves of English technology to complement theirs, and this guaranteed that they could. Th is article is not problematic. It is the only article that appears consistent in meaning and intent with the corresponding article of Te Tiriti. Th e fi nal section of the English language Treaty is: Now therefore We the Chiefs of the Confederation of the United Tribes of New Zealand being assembled in Congress at Victoria in Waitangi and We the Separate and Independent Chiefs of New Zealand claiming authority over the Tribes and Territories which are specifi ed after our respective names, having been made fully to understand the Provisions of the foregoing Treaty, accept and enter into the same in the full spirit and meaning thereof in witness of which we have attached our signatures or marks at the places and the dates respectively specifi ed. Done at Waitangi this sixth day of February in the year of our Lord one thousand eight hundred and forty. Th is simply records that the signatories to the Treaty are the rangatira of hapū of Te Whakaminenga who have gathered at

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Waitangi, along with other rangatira who claim mana whenua for their hapū and the territories that they represent and, lastly, that this was signed on 6 February 1840. Conclusion Th e intentions of both parties, the Queen of England and the rangatira, as set out by the British in Te Tiriti, are very clear. To recap, on the part of the British, the Queen of England wished there to be peace and good order between her subjects and the Māori people, and to achieve that she needed to control her own Pākehā subjects living throughout the land already who were being lawless, as well as those who would be coming in the future. She asked the rangatira of Te Whakaminenga and other rangatira to allow her to do so using a mechanism called kāwanatanga. Th e person to do this on her behalf as the kāwana was Wiremu Hopihana. If the rangatira agreed to this she would respect and uphold their tino rangatiratanga and hence their mana, their ultimate and paramount power and authority over all their territories and people. She asked that in future the Queen or her agent be allowed to trade for use rights to lands of the hapū for prices agreed to by the agent and the owner of the land. Finally, in reciprocation for the care and protection provided by Māori to her Pākehā subjects, she likewise would care for and protect Māori and make available to Māori her own English culture and customs. Wiremu Hopihana then attached his signature on behalf of the Queen to signal her agreement. On the part of the rangatira, they entered their names and signatures, or marks, to signal their agreement. Th e number of signatures collected indicated widespread agreement, although there were many signifi cant rangatira who refused to sign,69 still not trusting assurances given by missionaries. Te Tiriti then is a treaty of peace and friendship between the British Crown and the rangatira, with the terms of peaceful co-existence set out along with the terms of trade in respect of

35 Weeping Waters: Th e Treaty of Waitangi and Constitutional Change allocating lands for Pākehā to live on. It sets out the terms and conditions under which Pākehā could settle in New Zealand. As the country’s founding document, it is the foundation for a written constitution in that it sets out the rights that pertain to both parties to the agreement – the rangatira on behalf of their hapū and Queen of England on behalf of her subjects – and the conditions under which the relationship of peace and friendship that has been agreed to between them will be developed. Th e fact that the English version was crafted by the British Resident as a treaty of cession of sovereignty by the rangatira was a cruel hoax played by the Pākehā living here and those intending to emigrate. Th at was never the intention of the rangatira; they never agreed to it and it is certainly not what Te Tiriti says.

NOTES 1I would like to acknowledge and thank the large number of people who have helped me in my life-long studies of our Treaty. To my colleagues both here in Aotearoa New Zealand – in particular my colleagues in the Department of Māori Studies and in the central library at the University of Auckland – and overseas – my colleagues in Native American studies and anthropology at Dartmouth College, New Hampshire in the United States and in Hawaiian studies at the University of Hawai‘i – who assisted and advised me and pointed out numerous references to me as I wrote this chapter – too many to name you all here – my sincere thanks. But my greatest debt of gratitude is owed to my own kuia and kaumātua of my whānau, hapū and iwi of Ngāti Kahu, Te Rarawa and Ngāti Whātua and many others from iwi throughout Aotearoa who have mentored and guided me over several decades to ensure that I fully understood the background and true meaning of Te Tiriti o Waitangi. Ka tuku atu ngā mihi whānui, ngā mihi aroha. E kore koutou e warewaretia. 2Bennion, T. ‘Treaty Making in the Pacifi c in the Nineteenth Century and Th e Treaty of Waitangi’, unpublished research paper for administrative law LLM, Victoria University, Wellington, 1987, p. 25; Moana Jackson interviewed by Mike King for Lost in Translation, a television documentary series in ten parts broadcast weekly on the Māori Television Service from 15 February 2009, episode 1. 3Ibid. 4Williams, D V. ‘Te Tiriti o Waitangi – Unique Relationship Between Crown and Tangata Whenua?’, in I H Kawharu (ed). Waitangi: Māori and Pākehā Perspectives of the Treaty of Waitangi, Auckland: Oxford University Press, 1989, p. 65; V Deloria and R J DeMallie. Documents of American Indian Diplomacy: Treaties, Agreements, and Conventions, 1775–1979 (two volumes), Norman, Oklahoma: University of Oklahoma

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Press, 1999, p. 6; Bennion, ‘Treaty Making in the Pacifi c’, p. 25; Jackson, Lost in Translation, 2009. 5Bennion, ‘Treaty Making in the Pacifi c’, p. 27. 6Deloria and DeMallie, Documents of American Indian Diplomacy, p. 3. 7Ibid, p. 6. 8Ibid, p. 11. 9Ibid, p. 8. 10Pool, I. Te Iwi Maori: A New Zealand Population Past, Present and Projected, Auckland: Auckland University Press, 1991, p. 58. 11Mutu, M. ‘Th e Humpty Dumpty Principle at Work’, in S Fenton (ed), For Better or For Worse: Translation as a Tool for Change in the South Pacifi c, Manchester: St Jerome, 2004, p. 14. 12Cox, L. Kotahitanga: Th e Search for Māori Political Unity, Auckland: Oxford University Press, 1993, p. 40; the preamble of Te Tiriti and the Treaty; King, Lost in Translation. 13Lee, S. A Grammar and Vocabulary of the Language of New Zealand, Cambridge: Church Missionary Society, 1820. 14Mutu, ‘Th e Humpty Dumpty Principle’, pp. 16–17. 15Glenelg, Lord C to Sir R Bourke, in Facsimiles of the Treaty of Waitangi, no. 2, 25 May 1836. 16Mutu, ‘Th e Humpty Dumpty Principle’, p. 18. 17Ibid, p. 20. 18Orange, C. Th e Treaty of Waitangi, Wellington, Allen & Unwin, 1987, p. 40. 19Lost in Translation, episode 6. 20Ibid. 21Orange, Th e Treaty of Waitangi, p. 260, describing the copies of the Treaty sent by Hobson to his superiors in England, notes that when the Māori and English versions ‘were printed in GBPP [the Great Britain Parliamentary Papers], 1841 (311), pp. 98–99, “Treaty” was placed over the Maori text and “(Translation)” over the English’. 22Ross, R M. ‘Te Tiriti o Waitangi; Texts and Translations’, in New Zealand Journal of History, vol. 6, no. 2, 1972, p. 129. 23Daes, E-I A. Confi dential Report by Prof. Erica-Irene Daes, Chairman-Rapporteur of the United Nations Working Group on Indigenous Populations on Visit to New Zealand 2–7 January, 1988, Geneva: United Nations, 1988, p. 13. 24Orange, Th e Treaty of Waitangi, p. 46. 25Colenso, W. Th e Authentic and Genuine History of the Signing of the Treaty of Waitangi,

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Wellington: Government Printer, 1890, p. 16. 26While there is no reason to doubt his reporting of Hobson and other speakers of English, one would not expect the apparent similarities in the whaikōrero (formal speeches) of the rangatira as Colenso reports them, nor such a clear distinction between either supporting or opposing Hobson remaining as a governor. It is the very nature of whaikōrero on a marae that diff erent speakers will take hugely varying approaches, and messages conveyed through the skilful use of metaphor and analogy will often be lost on those unskilled in and lacking a true understanding of this particularly high form of art. As such, Colenso’s reporting of the contribution of the rangatira needs to be treated with caution. 27Colenso, Th e Authentic and Genuine History, pp. 17–19, 22–4, 27. 28Ibid, pp. 21–3, 25–7. 29Ibid, pp. 20, 23. 30Orange, Th e Treaty of Waitangi, p. 33. 31Ross, ‘Te Tiriti o Waitangi’, p. 136; B Biggs, ‘Humpty Dumpty and the Treaty of Waitangi’, in Kawharu, Waitangi, pp. 301–3. 32Because the Māori text that was signed does not translate any of the surviving drafts of the English Treaty, historians have assumed that the draft Williams was working from has been lost (Williams, ‘Te Tiriti o Waitangi’, p. 78). 33Th roughout Te Tiriti, ‘w’ and ‘wh’ are not distinguished, and both are written as ‘w’. Th us atawhai is written as atawai, whenua as wenua, whakaaro as wakaaro, Whakaminenga and Wakaminenga and so on. I have not corrected these. 34Biggs, ‘Humpty Dumpty and the Treaty of Waitangi’, p. 305; Orange, Th e Treaty of Waitangi, p. 40; Williams, ‘Te Tiriti o Waitangi’, p. 79; R J Walker, ‘Th e Treaty of Waitangi as the Focus of Māori Protest’, in Kawharu, Waitangi, pp. 263–4; A Mikaere, ‘Māori and Self-Determination in Aotearoa/New Zealand’, Working Paper No. 5/2000, Hamilton: University of Waikato, 1999, p. 9. 35Kawharu, Waitangi, p. 319. 36Te Wananga, 22 January 1876, p. 38; M R Jones in A T Ngata, Th e Treaty of Waitangi: An Explanation (translated into English by M R Jones), Wellington: Maori Purposes Fund Board, 1963; Walker, ‘Th e Treaty of Waitangi as the Focus of Māori Protest’, p. 263; Kawharu, Waitangi, p. 321; M Matiu and M Mutu, Te Whānau Moana: Ngā kaupapa me ngā tikanga, Auckland: Reed Publishing, 2003, pp. 221–3. 37Colenso, Th e Authentic and Genuine History, p. 22; Ngata, Th e Treaty of Waitangi: An Explanation, p. 2. 38Facsimiles of the Treaty of Waitangi, no. 2, 25 May 1836, Lord Glenelg to Sir Richard Bourke. 39Orange, Th e Treaty of Waitangi, p. 55. 40Mutu, M. ‘Cultural Misunderstanding or Deliberate Mistranslation? Deeds in Maori of Pre-Treaty Land Transactions in Muriwhenua and their English Translations’, in Te

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Reo: Journal of the Linguistic Society of New Zealand, vol. 35, 1992, pp. 64–7; Waitangi Tribunal, Muriwhenua Land Report (Wai 45), 1997, pp. 12, 24–5. 41Colenso, Th e Authentic and Genuine History, pp. 18–19, 29. 42Mutu, ‘Cultural Misunderstanding or Deliberate Mistranslation?’, pp. 86–7, 91–2, 93–6. 43Kawharu, Waitangi, p. xix. 44Matiu and Mutu, Te Whānau Moana, pp. 156–8. 45Orange, Th e Treaty of Waitangi, p. 182. A copy of the translation is provided in Appendix 5, pp. 265–6. 46Te Wananga, vol. 3, no. 3, 22 January 1876, pp. 38–9. 47Biggs, ‘Humpty Dumpty and the Treaty of Waitangi’, p. 300. 48Orange, Th e Treaty of Waitangi, p. 229. 49Kawharu, Waitangi, pp. 319–21. 50Th is was the famous ‘Lands’ case (New Zealand Maori Council v Attorney General [1987] 1 NZLR 641, pp. 712–14). 51Biggs, ‘Humpty Dumpty and the Treaty of Waitangi’, pp. 303–4. 52Matiu and Mutu, Te Whānau Moana, pp. 221–3. 53Kawharu, Waitangi, p. 319. 54Ibid, p. xix. 55Matiu and Mutu, Te Whānau Moana, pp. 221–3. 56Ibid, p. 223. 57Native Aff airs Department, 1869, in Orange, Th e Treaty of Waitangi, p. 265. 58Te Wananga, 1876, p. 38; Jones, Th e Treaty of Waitangi: An Explanation. 59Kawharu, Waitangi, p. 320. 60Waitangi Tribunal, Muriwhenua Land Report, p. 3. 61Ibid. 62Williams, 1844. 63Mutu, ‘Cultural Misunderstanding or Deliberate Mistranslation?’, p. 92. 64Williams, ‘Te Tiriti o Waitangi’, p. 76. 65Including Williams, ‘Te Tiriti o Waitangi’, p. 76; Biggs, ‘Humpty Dumpty and the Treaty of Waitangi’, p. 310; Ross, ‘Te Tiriti o Waitangi’, p. 129; Orange, Th e Treaty of Waitangi, pp. 39–46, 89 et passim. 66Jackson and H Harawira in Lost in Translation, episode 1.

39 67Colenso, Th e Authentic and Genuine History, pp. 17–19, 22–4, 27. 68Jackson and Harawira, Lost in Translation. 69Lost in Translation, episodes 1–9.