< February 2024 newsletter


The Treaty of Waitangi – a force for unity or division?

The anniversary of the signing of the Treaty of Waitangi on 6 February is an appropriate time to reflect on the Treaty, and what it means for New Zealand today.

The signing of the Treaty marked the beginning of the formation of the modern nation of New Zealand. Today New Zealand is a multi-ethnic liberal democracy where discrimination based on ethnicity, race or national origin is illegal. Like the Bill of Rights, the Treaty places ‘nga tangata katoa o Nu Tirani’ (all the people of New Zealand) on an equal footing.

The right to equal representation and freedom from discrimination are fundamental constitutional principles in New Zealand. However, this fact is at odds with the argument that the Treaty created a partnership between Maori and the Crown, with calls for the co-governance of Aotearoa New Zealand in a separate and parallel legal and political system - with authority equal to that of the state - for those of Maori heritage. But such a profoundly undemocratic political arrangement is only an argument, one which creates winners and losers and overlooks inconvenient facts, such as no mention of partnership or co-governance in the Treaty, and the fact that it is constitutionally impossible for the Crown to enter into a partnership with its subjects.

During his Bruce Jesson Memorial Lecture in the year 2000, former Labour Prime Minister David Lange warned about the risk to our democratic values posed by the notion of a separate sovereignty:

“Democratic government can accommodate Maori political aspiration in many ways. It can allocate resources in ways which reflect the particular interests of Maori people. It can delegate authority, and allow the exercise of degrees of Maori autonomy. What it cannot do is acknowledge the existence of a separate sovereignty. As soon as it does that, it isn’t a democracy. We can have a democratic form of government or we can have indigenous sovereignty. They can’t coexist and we can’t have them both.”

 The text of Te Tiriti o Waitangi / the Treaty of Waitangi 

The Treaty of Waitangi as signed in 1840 was an agreement between the British Crown and over 500 Maori chiefs. The terms of the Treaty are contained in three simple articles, which Sir Apirana Ngata, a prominent lawyer, and politician for 30 years, stated in his iconic booklet published in 1922 “The Treaty of Waitangi”:

“The first article states, The Chiefs assembled including Chiefs not present at the assembly hereby cede absolutely to the Queen of England for ever the government of all of their land.

The second article states, The Queen of England confirms and guarantees to the Chiefs and Tribes and to all the people of New Zealand the full possession of their lands, their homes and all their possessions…

The third article states, 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.”

The Treaty of Waitangi was drafted in English by James Busby, the first British Resident of New Zealand, under the instructions of Captain William Hobson, who had been tasked by Lord Normanby, (Britain’s secretary of state for the colonies), to gain freely given Maori recognition of British sovereignty over New Zealand. The final English draft was translated into Maori by missionary Henry Williams and his son Edward, who were fluent te reo speakers, having lived amongst the tribes for 17 years. Henry then had a crucial role in explaining it to the chiefs who met Captain Hobson at Waitangi on 5 February.

The terms of the Treaty are contained in three simple articles. The texts herein are James Busby’s February 4 text and Te Tiriti, the Maori language text. Te Tiriti was the only version present on the 6 February 1840, and was the text signed by the vast majority of chiefs around the country. The Maori language text is virtually identical in all respects to the James Busby final draft, except for the date, and the insertion of the word ‘maori’ in Article third.

Busby February 4, 1840, draft (commonly known as the Littlewood Treaty)

Article first

The chiefs of the Confederation of the United Tribes and the other chiefs who have not joined the confederation, cede to the Queen of England for ever the entire Sovreignty [sic] of their country.

Article second

The Queen of England confirms and guarantees to the chiefs and the tribes and to all the people of New Zealand, the possession of their lands, dwellings and all their property. But the chiefs of the Confederation of United Tribes and the other chiefs grant to the Queen, the exclusive rights of purchasing such lands as the proprietors thereof may be disposed to sell at such prices as may be agreed upon between them and the person appointed by the Queen to purchase from them.

Article third

In return for the cession of their Sovreignty [sic] to the Queen, the people of New Zealand shall be protected by the Queen of England and the rights and privileges of British subjects will be granted to them. Signed, William Hobson Consul and Lieut. Governor. Now we the chiefs of the Confederation of United Tribes of New Zealand assembled at Waitangi, and we the other tribes of New Zealand, having understood the meaning of these articles, accept them and agree to them all. In witness whereof our names or marks are affixed. Done at Waitangi on the 4th of February, 1840.

A meeting of European and Maori inhabitants of Hawke’s Bay Province. Engraving, 1863.
https://en.wikipedia.org

Te Tiriti o Waitangi Maori language translation February 5, 1840

Ko te tuatahi

Ko nga Rangatira o te wakaminenga me nga Rangatira katoa hoki ki hai i uru ki taua wakaminenga ka tuku rawa atu ki te Kuini o Ingarani ake tonu atu – te Kawanatanga katoa o o ratou wenua.

Ko te tuarua

Ko te Kuini o Ingarani ka wakarite ka wakaae ki nga Rangitira 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.

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.

(signed) William Hobson,

Consul and Lieutenant-Governor.

 Na ko matou ko nga Rangatira o te Wakaminenga o nga hapu o Nu Tirani 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 te kau o to tatou Ariki.

What of the Treaty today?

In recent times, Te Tiriti o Waitangi, as agreed upon and signed by more than 500 chiefs in 1840, has been re-interpreted to carry meanings that are vastly different from the original. Such re-interpretations are putting our fundamental constitutional principles at risk, such as our democracy and the equality of citizenship on which it is based.

As we commemorate the signing of the Treaty on 6th February, it is timely to ask what kind of country do the citizens of New Zealand want to live in? One that holds everyone equal before the law in a democratic system of equality and accountability, or one that supports greater rights for some citizens determined along racial lines. 

References

New Zealand Bill of Rights Act 1990: https://legislation.govt. nz/act/public/1990/0109/latest/DLM224792.html

David Lange 2000: https://www.brucejesson.com/davidlange- 2000/

This article first appeared in the February 2024 edition of elocal magazine. Click here to view.

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