Month: November 2024

Recently, there has been increasing discussion about the te Tiriti o Waitangi (te Tiriti)/Treaty of Waitangi (the Treaty) and what it means.  As a foundational document for Aotearoa New Zealand, it is important to understand what it says, the spirit and intent of te Tiriti, and what it means today.

How did te Tiriti o Waitangi come about?

Te Tiriti was first signed at Waitangi on 6 February 1840 by 43-46 rangatira, Captain William Hobson and other English settlers.  It was later signed at various other locations throughout Aotearoa.  By the end of 1840, over 500 Māori had signed Te Tiriti (the Māori text) and 39 rangatira had signed the Treaty (the English text).

Te Tiriti was intended to unite Māori and the British who settled in Aotearoa, and to enable the establishment of a British government in Aotearoa to control the increasing number of British settling here.

It is also important to note that the signing of te Tiriti/the Treaty followed the signing of He Whakaputanga (the Declaration of Independence) signed in 1835 which declared New Zealand a sovereign state.

Why did they enter into te Tiriti o Waitangi?

Te Tiriti is a binding agreement between two sovereign nations.  The preamble to the Treaty (English text) recorded the intentions as being to:

• protect Māori/tribal interests from the encroaching British settlement.
• provide for British settlement.
• establish a government to maintain peace and order.

Te Tiriti included similar statements but with a focus on securing tribal rangatiratanga and Māori land ownership.

It is clear from the wording of te Tiriti/the Treaty and from the historical record that, in the context of the time, rangatira and the British Crown agreed to share power and authority.  Both would retain their respective roles and different spheres of influence – the Crown (Governor Hobson) with authority only to control Pākehā within Aotearoa, and rangatira retaining their authority over their hapū and territories.

What does te Tiriti o Waitangi/the Treaty of Waitangi say?

It is well known that the Māori text and the English text have different meanings.  Where there is a difference of interpretation between two versions of a document like this – the law says that the preferred meaning is the one that works against the drafter.  This is called the contra proferentem rule.  This means that the Māori text – which over 500 Māori signed – is the version which is binding on the parties.

In short, te Tiriti says:

• Rangatira Māori gave the British “kāwanatanga”, the right of governance.  In the English text, Māori ceded “sovereignty” but there was no direct translation for this in Māori.  For this to have been the case, perhaps words like rangatiratanga or mana would have been used.
• Hapū were guaranteed rangatiratanga over their lands and taonga.  Land would be sold to the Queen at agreed prices.  In the English text, they were guaranteed the undisturbed possession of their properties, including their lands, forests, and fisheries, for as long as they wished to retain them but only the Crown could purchase land from Māori.
• Māori were promised the same rights and duties of citizenship as the people of England.  Similarly, in English, Māori were promised the benefits of royal protection and full citizenship.

Te Tiriti does not take anything away from the Crown or settlers to Aotearoa.  It records existing rights which Māori had prior to the establishment of the government here and their protection by the Crown.  It makes guarantees to Māori in recognition of the fact that the British were coming into their whenua, their country.

What do people mean by “Treaty principles”?

Over time, our Courts and the Waitangi Tribunal have developed and interpreted Treaty principles to guide the relationship between the Crown and Māori.  This reflects the fact that the Treaty is a binding agreement between the Crown and Māori that applies in various settings today.  Accordingly, the Treaty principles are not static, they evolve to reflect our society, in line with the spirit and intention of te Tiriti.

While there are a number of specific Treaty principles, the key principles include:

• Partnership – a central Treaty principle based on the relationship created by te Tiriti akin to a partnership with mutual obligations to act reasonably and with the utmost good faith.
• Active protection – this requires honourable conduct by the Crown and fair processes, including full consultation and – at times – decision-making by those whose interests are to be protected.  It applies to all interests guaranteed to Māori, including intangible properties.
• Tino rangatiratanga – Māori have mana or chiefly authority over their own lands, people, affairs and resources in line with their pre-existing sovereign authority.
• Good government – the Crown’s actions must be just and fair in order to demonstrate good government or good governance, in particular keeping its own laws, rules and standards.
• Equity – the Crown is to act fairly as between Māori and non-Māori citizens, and to remove the longstanding barriers preventing Māori from having a level playing field.  This is not about equal treatment, but rather equitable treatment in the context.
• Redress – when the Crown breaches te Tiriti/the Treaty, it has a duty to provide redress for those breaches.

This is but a snapshot of what te Tiriti says and the context which it was developed and signed within.  It is a foundational document for Aotearoa and an agreement which – although breached by the Crown on numerous occasions – remains today.  It is important to understand what the texts of te Tiriti/the Treaty say and what they mean.  Various reports from the Waitangi Tribunal provide useful guidance in this respect, including He Whakaputanga me te Tiriti (2014) and Ngā Mātāpono – The Principles (2023/2024).

For assistance with matters relating to potential Treaty breaches and constitutional advice, please contact our Kahurangi Tiriti Team led by Executive Director, Renika Siciliano.