The Treaty of Waitangi

(for people who don’t know a lot about it)

Conversations around the Treaty of Waitangi tend to generate a lot of heat, but not much light. Some Maori people and their supporters claim that the Treaty has not been honoured. Those with somewhat redder necks say the Treaty should be scrapped because "after all, we're all one people, aren't we?" Many fair-minded people stay silent during these conversations, because they feel the Treaty is too complicated and they don’t have enough knowledge to challenge some of the claims made for or against it. This article is for those people.

In fact, the issues raised by the Treaty are very simple and easy for everyone to understand. The Treaty was an agreement between the British Crown on the one hand and Maori chiefs on the other. For the purposes of the Treaty, the British recognized those Maori who signed it as representing the whole of Maoridom as a nation. It was first signed at Waitangi in the Bay of Islands on February 6, 1840, and there were basically two versions, one in English and one in Maori. Most of the chiefs signed the Maori version.

There are basic differences between the English and the Maori versions, since the Maori version is not a literal translation of the English Treaty. However, under the terms of international law, which governs the signing of agreements between nations, only the Maori version has any legitimacy. This is important, because the differences in the translation are crucial to understanding why many Maori feel the Treaty has not been honoured.

The Treaty of Waitangi consists of a preamble and three basic clauses, called "Articles". (Some Maori signed a version of the Treaty with four articles, but there is little disagreement about the meaning of the fourth, and we can safely ignore it, at least until we have an understanding of the first three.)

In the English version, Article one signs the rights of sovereignty in New Zealand over to the Queen of England. That means that the power to make and enforce laws over the whole country was given to the British Crown. But in the Maori version, something very different, called "kawanatanga", was granted to the Crown in Article I.

An understanding of what is meant by the term kawanatanga is crucial to an understanding of the Treaty, and of the role of Pakeha people and Pakeha institutions in Aotearoa/New Zealand today.

Kawanatanga is a transliteration of the English word "governorship". The difference between kawanatanga and sovereignty is at the heart of many disputes over the Treaty. The present Government cites Article I of the English Treaty as the basis of its claim to sovereignty - the right to rule - in New Zealand. But the claim just doesn’t stand up. Maori who signed the Treaty were led to understand that the status of kawanatanga granted to the British in Article I was a good deal less than that of full sovereignty, or tino rangatiratanga. In their view, they were certainly not signing away their sovereignty when they signed Article I.

So what did they think they were signing? According to records made at the time the Treaty was signed, a missionary by the name of Williams, who had translated the Treaty into Maori, explained the difference between kawanatanga and tino rangatiratanga in terms of the Biblical story of Pontius Pilate. Pilate was the Governor of Judea at the time of Christ’s crucifixion, and as such he was said to exercise "kawanatanga" – governorship. The Maori chiefs were led to understand that Pilate did not have the power of life and death over those he governed. His kawanatanga was something a lot less than the tino rangatiratanga - the chiefly authority - that the Chiefs themselves exercised.

Further, the phrase tino rangatiratanga had previously been used to translate the word "sovereignty" in the 1835 Declaration of Maori Independence. This document, signed five years before the Treaty, was an agreement in which the British Crown had recognized the sovereignty of Maori chiefs in New Zealand. Many of the same chiefs who signed the Declaration also signed the Treaty and would have recognized the use of the phrase from that.

So Article I of the Maori version granted something less than complete sovereign authority to the British, but there is some confusion about what it actually did grant. Fortunately, the confusion is easily cleared up.

The preamble of the Treaty refers to creating good order and harmonious relations between settlers and Maori. That’s because relationships between Europeans and Maori up to that point had been less than ideal. Settlers tended to be a rowdy, uncultured lot who nevertheless considered that the colour of their skin made them superior to the "savages" they encountered in Aotearoa. Maori communities close to European settlements like Kororareka (today called Russell) suffered from frequent looting, rape, general drunkenness and disrespect from white visitors. Defensive measures taken by Maori often resulted in military reprisals. Attempts to bargain with representatives of the British Crown for stricter enforcement of behaviour standards got nowhere because the British Crown was powerless - legally and physically. Despite being able to commandeer the British Navy to punish Maori villages who had dealt summary justice to a lawless whaler, the Crown was unwilling to establish a police force for white folks, because it didn’t have any legal authority in Aotearoa.

The British Resident at the time, a man called James Busby, advised the Chiefs that no-one had any recognized legal authority in Aotearoa. He recommended that the Chiefs get the British Crown to recognize their authority.

That was how the Declaration of Maori Independence came into being. In this document, the British Crown recognized, as noted earlier, that Maori Chiefs exercised sovereignty (tino rangatiratanga) in Aotearoa. But the fact that the British Crown recognized Maori sovereignty did not mean that the settlers were going to follow suit. The lawlessness continued. After another five years, Maori chiefs around Northland had had enough. The Treaty of Waitangi was signed in an attempt to give the British Crown authority over settlers in Aotearoa.

In this way, Article I of the Treaty granted the limited authority of kawanatanga over the Pakeha population of Aotearoa to the British Crown.

Just to make the position absolutely clear, Article II was completely unequivocal in the Maori version. Article II reserved tino rangatiratanga - full sovereign authority - over their lands, forests, fisheries "me o ratou taonga katoa" (and everything they valued) to the chiefs. It further stipulated that any land bought by settlers could not be bought directly from Maori, but had to be acquired by the British Crown first. This carries the clear implication that land acquired by the Crown became land over which British kawanatanga would be exercised. The rest of the land would remain under Maori law.

Article III stated that everyone in Aotearoa would have the rights and privileges of British subjects, but clearly avoided handing Maori any responsibilities or duties to the Crown.

As each chief signed, Governor Hobson is reported to have said to them: "He iwi tahi tatou" (we are one people). It is significant that he said this in Maori, since in the intervening years, most people have taken his words to mean that Maori should become brown-skinned Pakeha, rather than that Pakeha were now to become more like Maori.

After the initial signing at Waitangi, the Treaty was taken to various places around the country and eventually collected signatures from over 500 chiefs. Governor Hobson however, became bored by the process at one stage and claimed the South Island by "right of discovery". Some major tribes, including the Waikato tribes (united in later years under the Maori King) and Tuhoe, to name just two, never signed the Treaty.

Today, many people think that the Treaty gives Maori certain rights. It does not. The rights of sovereignty which Maori exercised for at least 800 years before the arrival of the Pakeha could not and still cannot be "granted" by the Crown. The British Crown officially recognized those rights in the 1835 Declaration of Maori Independence, and that recognition was reaffirmed in Article II of the Treaty. In effect, the Treaty does not give Maori any rights they didn’t already have, but it does give Pakeha certain limited rights - the rights covered by the term kawanatanga.

The Treaty of Waitangi is today the only legal basis for the presence of non-Maori settlers here in Aotearoa/NZ. Maori never gave up their rights (as the Crown claims), nor were they ever conquered, despite several attempts. If we take away the Treaty, the legal right of non-Maori people to live in this country is removed with it. The Treaty of Waitangi is actually about Pakeha rights, not Maori rights. And those rights do not include the right to rule Maori people or Maori land.

That is why many Maori feel the Treaty has not been honoured.