Treaty of Waitangi
The Waitangi Sheet of the Treaty of Waitangi
|Context||Treaty to establish a British Governor of New Zealand, consider Māori ownership of their lands and other properties, and give Māori the rights of British subjects.|
|Drafted||4–5 February 1840 by William Hobson with the help of his secretary, James Freeman, and British Resident James Busby|
|Signed||6 February 1840|
|Location||Waitangi, Bay of Islands, New Zealand, and various other locations. Currently held at Archives New Zealand, Wellington.|
|Signatories||Representatives of the British Crown, various Māori chiefs from the northern North Island, and later a further 500 signatories.|
|Treaty of Waitangi at Wikisource|
The Treaty of Waitangi (Māori: Te Tiriti o Waitangi) is a treaty first signed on 6 February 1840 by representatives of the British Crown and Māori chiefs (Rangatira) from the North Island of New Zealand. It is a document of central importance to the history and political constitution of the state of New Zealand, and has been highly significant in framing the political relations between New Zealand's government and the Māori population.
The Treaty was written at a time when British colonists were pressuring the Crown to establish a colony in New Zealand, and when some Māori leaders had petitioned the British for protection against French forces, it was drafted with the intention of establishing a British Governor of New Zealand, recognising Māori ownership of their lands, forests and other possessions, and giving Māori the rights of British subjects. It was intended to ensure that when the declaration of British sovereignty over New Zealand was made by Lieutenant Governor William Hobson in May 1840, the Māori people would not feel that their rights had been ignored. Once it had been written and translated, it was first signed by Northern Māori leaders at Waitangi, and subsequently copies of the Treaty were taken around New Zealand and over the following months many other chiefs signed, around 530 to 540 Māori, at least 13 of them women, signed the Treaty of Waitangi, despite some Māori leaders cautioning against it. An immediate result of the Treaty was that Queen Victoria's government gained the sole right to purchase land; in total there are nine signed copies of the Treaty of Waitangi including the sheet signed on 6 February 1840 at Waitangi.
The text of the Treaty includes a preamble and three articles, it is bilingual, with the Māori text translated from the English. Article one of the English text cedes "all rights and powers of sovereignty" to the Crown. Article two establishes the continued ownership of the Māori over their lands, and establishes the exclusive right of pre-emption of the Crown. Article three gives Māori people full rights and protections as British subjects. However, the English text and the Māori text differ, particularly in relation to the meaning of having and ceding sovereignty, these discrepancies led to disagreements in the decades following the signing, eventually culminating in the New Zealand Wars.
During the second half of the 19th century, Māori generally lost control of the land they had owned, some through legitimate sale, but often due to unfair land deals or outright seizure in the aftermath of the New Zealand War; in the period following the New Zealand Wars, the New Zealand government mostly ignored the Treaty and a court case judgement in 1877 declared it to be "a simple nullity". Beginning in the 1950s, Māori increasingly sought to use the Treaty as a platform for claiming additional rights to sovereignty and to reclaim lost land, and governments in the 1960s and 1970s were responsive to these arguments, giving the Treaty an increasingly central role in the interpretation of land rights and relations between Māori people and the state; in 1975, the Waitangi Tribunal was established as a permanent commission of inquiry tasked with interpreting the Treaty, researching breaches of the Treaty by the British Crown or its agents, and to suggest means of redress. In most cases, recommendations of the Tribunal are not binding on the Crown, but settlements totalling almost $1 billion have been awarded to various Māori groups. Various legislation passed in the later part of the 20th century has made reference to the Treaty, but the Treaty has never been made part of New Zealand municipal law. Nonetheless, the Treaty is regarded as the founding document of New Zealand.
- 1 Early history
- 2 Drafting of the Treaty
- 3 Debate and signing
- 4 Extant copies
- 5 Treaty text, meaning and interpretation
- 6 Role in New Zealand society
- 7 Waitangi Tribunal claims
- 8 Commemoration
- 9 See also
- 10 References
- 11 Further reading
- 12 External links
The first contact between the Māori and Europeans was in 1642, when Dutch explorer Abel Tasman arrived and was fought off, and again in 1769 when the English navigator Captain James Cook claimed New Zealand for Britain at the Mercury Islands. Nevertheless, the British government showed little interest in following up this claim for over half a century, the first mention of New Zealand in British statutes is in the Murders Abroad Act of 1817, which clarified that New Zealand was not a British colony (despite being claimed by Captain Cook) and "not within His Majesty's dominions." Between 1795 and 1830 a steady flow of sealing and then whaling ships visited New Zealand, mainly stopping at the Bay of Islands for food supplies and recreation. Many of the ships came from Sydney. Trade between Sydney and New Zealand increased as traders sought kauri timber and flax and missionaries purchased large areas of land in the Bay of Islands, this trade was seen as mutually advantageous, and Māori tribes competed for access to the services of Europeans that had chosen to live on the islands because they brought goods and knowledge that were essential to the local iwi (the Māori word for the social unit often called "tribe" or "people"). At the same time, Europeans living in New Zealand needed the protection that Māori chiefs could provide, as a result of trade, Māori society changed drastically up to the 1840s. They changed their society from one of subsistence farming and gathering to cultivating useful trade crops.
The Māori generally respected the British, partially due to encouragement from missionaries and also due to British status as a major maritime power, which had been made apparent to Māori travelling outside New Zealand, the other major powers in the area around the 1830s included American whalers, whom the Māori accepted as cousins of the British, and French Catholics who came for trade and as missionaries. The Māori were still deeply distrustful of the French, due to a massacre of 250 people that had occurred in 1772, when they retaliated for the killing of Marion du Fresne and some of his crew. While the threat of the French never materialised, in 1831 it prompted thirteen rangatira (major chiefs) from the far north of the country to meet at Kerikeri to compose a letter to King William IV asking for help to guard their lands. It is the first known plea for British intervention written by Māori; in response, the British government sent James Busby in 1832 to be the British Resident in New Zealand. In 1834 Busby drafted a document known as the Declaration of the Independence of New Zealand which he and 35 northern Māori chiefs signed at Waitangi on 28 October 1835, establishing those chiefs as representatives of a proto-state under the title of the "United Tribes of New Zealand". This document was not well received by the Colonial Office in Britain, and it was decided that a new policy for New Zealand was needed.
From May to July 1836, Royal Navy officer Captain William Hobson, under instruction from Sir Richard Bourke, visited New Zealand to investigate claims of lawlessness in its settlements. Hobson recommended in his report that British sovereignty be established over New Zealand, in small pockets similar to the Hudson's Bay Company in Canada. Hobson's report was forwarded to the Colonial Office, from April to May 1838, the House of Lords held a select committee into the "State of the Islands of New Zealand". The New Zealand Association (later the New Zealand Company), missionaries, Joel Samuel Polack, and the Royal Navy made submissions to the committee.
On 15 June 1839 new Letters Patent were issued to expand the territory of New South Wales to include the entire territory of New Zealand, from latitude 34° South to 47° 10' South, and from longitude 166° 5' East to 179° East. Governor of New South Wales George Gipps was appointed Governor over New Zealand. This was the first clear expression of British intent to annex New Zealand.
Hobson was called to the Colonial Office on the evening of 14 August 1839 and given instructions to take the constitutional steps needed to establish a British colony, he was appointed Consul to New Zealand and was instructed to negotiate a voluntary transfer of sovereignty from the Māori to the British Crown as the House of Lords select committee had recommended in 1837. Normanby gave Hobson three instructions – to seek a cession of sovereignty, to assume complete control over land matters, and to establish a form of civil government, but he did not provide a draft of the Treaty. Normanby wrote at length about the need for British intervention as essential to protect Māori interests, but this was somewhat deceptive. Hobson's instructions gave no provision for Māori government of any kind nor any Māori involvement in the administrative structure of the new colony.
Historian Claudia Orange argues that prior to 1839 the Colonial Office had initially planned a "Māori New Zealand" in which European settlers would be accommodated without a full colony where Māori might retain ownership and authority over much of the land and cede some land to settlers as part of a colony governed by the Crown. However, Normanby's instructions in 1839 show that the Colonial Office had shifted their stance toward colonisation and "a settler New Zealand in which a place had to be kept for Māori", primarily due to pressure from increasing numbers of British colonists, the Colonial Office was forced to accelerate its plans because of both the New Zealand Company's hurried dispatch of the Tory to New Zealand on 12 May 1839 to purchase land, and plans by French Captain Jean François L'Anglois to establish a French colony in Akaroa. After examining Colonial office documents and correspondence (both private and public) of those who developed the policies that led to the development of the Treaty, historian Paul Moon similarly argues that Treaty was not envisioned with deliberate intent to assert sovereignty over Māori, but that the Crown originally only intended to apply rule over British subjects living in the fledgling colony, and these rights were later expanded by subsequent governors through perceived necessity.
Hobson left London on 15 August 1839 and was sworn in as Lieutenant-Governor in Sydney on 14 January, finally arriving in the Bay of Islands on 29 January 1840. Meanwhile, a second New Zealand Company ship, the Cuba, had arrived in Port Nicholson on 3 January with a survey party to prepare for settlement, the Aurora, the first ship carrying immigrants, arrived on 22 January.
On 30 January 1840 Hobson attended the Christ Church at Kororareka (Russell) where he publicly read a number of proclamations, the first was the Letters Patent 1839, in relation to the extension of the boundaries of New South Wales to include the islands of New Zealand. The second was in relation to Hobson's own appointment as Lieutenant-Governor of New Zealand, the third was in relation to land transactions (notably on the issue of pre-emption).
Drafting of the Treaty
Without a draft document prepared by lawyers or Colonial Office officials, Hobson was forced to write his own treaty with the help of his secretary, James Freeman, and British Resident James Busby, neither of whom was a lawyer. Historian Paul Moon believes certain articles of the Treaty resemble the Treaty of Utrecht (1713), the British Sherbro Agreement (1825) and the treaty between Britain and Soombia Soosoos (1826).
The entire Treaty was prepared in four days, in which it underwent many revisions. There were doubts even during the drafting process that the Māori chiefs would be able to understand the concept of relinquishing 'sovereignty'.
Realising that a treaty in English could not be understood, debated or agreed to by Māori, Hobson instructed missionary Henry Williams and his son Edward Marsh Williams, who was more proficient in Te Reo, the Māori language, to translate the document, and this was done overnight on 4 February. The translation of the Treaty was reviewed by James Busby, and he proposed the substitution of the word whakaminenga for huihuinga, to describe the "Confederation" or gathering of the chiefs, this no doubt was a reference to the northern confederation of chiefs with whom Hobson preferred to negotiate, who eventually made up the vast majority of signatories to the Treaty. Hobson believed that elsewhere in the country the Crown could exercise greater freedom over the rights of 'first discoverers', which proved unwise as it led to future difficulties with other tribes in the South Island.
Debate and signing
On 5 February the original English version treaty and its translation into Māori were put before a gathering of northern chiefs inside a large marquee on the lawn in front of Busby's house at Waitangi. Hobson read the Treaty aloud in English and Williams read his Māori version. Māori chiefs (rangatira) then debated the Treaty for five hours, much of which was recorded and translated by the Paihia missionary station printer, William Colenso. Rewa, a Catholic chief, who had been influenced by the French Catholic Bishop Pompallier, said "The Māori people don't want a governor! We aren't European. It's true that we've sold some of our lands, but this country is still ours! We chiefs govern this land of our ancestors". Moka 'Kainga-mataa' argued that all land unjustly purchased by Europeans should be returned. Whai asked: "Yesterday I was cursed by a white man. Is that the way things are going to be?". Protestant Chiefs such as Hōne Heke, Pumuka, Te Wharerahi, Tamati Waka Nene and his brother Eruera Maihi Patuone were accepting of the Governor. Hōne Heke said:
Governor, you should stay with us and be like a father. If you go away then the French or the rum sellers will take us Māori people over. How to you, some of you tell Hobson to go. But that's not going to solve our difficulties. We have already sold so much land here in the north. We have no way of controlling the Europeans who have settled on it. I'm amazed to hear you telling him to go! Why didn't you tell the traders and grog-sellers to go years ago? There are too many Europeans here now and there are children that will unite our races
Bishop Pompallier, who had been counselling the many Catholic Māori in the north concerning the Treaty, urged them to be very wary of the Treaty and not to sign anything, he left after the initial discussions and was not present when the chiefs signed.
For Māori chiefs, the signing at Waitangi would have needed a great deal of trust. Nonetheless, expected benefits of British protection must have outweighed their fears; in particular, the French were also interested in New Zealand, and there were fears that if they did not side with the British that the French would put pressure on them in a similar manner to that of other Pacific Islanders farther north in what would become French Polynesia. Māori at the signing were further encouraged by English Missionaries, who believed that British regulation would be invaluable to the future welfare of Māori as European settlers continued to arrive.
Afterward, the chiefs then moved to a river flat below Busby's house and lawn and continued deliberations late into the night. Busby's house would later become known as the Treaty House and is today New Zealand's most visited historic building.
Hobson had planned for the signing to occur on 7 February however on the morning of 6 February, 45 chiefs were waiting ready to sign, around noon a ship carrying two officers from HMS Herald arrived and were surprised to hear they were waiting for the Governor so a boat was quickly despatched back to let him know. Although the official painting of the signing shows Hobson wearing full naval regalia, he was in fact not expecting the chiefs that day and was wearing his dressing gown or "in plain clothes, except his hat", the Treaty signing began in the afternoon.
Hobson headed the British signatories. Hōne Heke was the first of the Māori chiefs who signed that day, as each chief signed, Hobson said "He iwi tahi tātou", meaning "We are [now] one people". Two chiefs, Marupō and Ruhe, protested strongly against the Treaty as the signing took place but they eventually signed and after Marupō shook the Governor's hand, seized hold of his hat which was on the table and gestured to put it on.
Hobson considered the signing at Waitangi to be highly significant, he noted that twenty-six of the forty-six 'head chiefs' had signed. Hobson had no intention of requiring the unanimous assent of Māori to the Treaty, but was willing to accept a majority, as he reported that the signings at Waitangi represented "Clear recognition of the sovereign rights of Her Majesty over the northern parts of this island". However, those that signed at Waitangi did not even represent the north as a whole; an analysis of the signatures shows that most were from the Bay of Islands only, and that not many of the chiefs of the highest rank had signed on that day. Hobson considered the initial signing at Waitangi to be the "de facto" treaty, while later signings merely "ratified and confirmed it",
To enhance the Treaty's authority, eight additional copies were sent around the country to gather additional signatures:
- the Manukau-Kawhia copy,
- the Waikato-Manukau copy,
- the Tauranga copy,
- the Bay of Plenty copy,
- the Herald-Bunbury copy,
- the Henry Williams copy,
- the Tūranga (East Coast) copy, and
- the Printed copy.
About 50 meetings were held from February to September 1840 to discuss and sign the copies, and a further 500 signatures were added to the Treaty. While most did eventually sign, especially in the far north where most Māori lived, a number of chiefs and some tribal groups ultimately refused, including Pōtatau Te Wherowhero (Waikato iwi), Tuhoe, Te Arawa and Ngāti Tuwharetoa and possibly Moka 'Kainga-mataa'. A number of non-signatory Waikato and Central North Island chiefs would later form a kind of confederacy with an elected monarch called the Kīngitanga. (The Kīngitanga Movement would later form a primary anti-government force in the New Zealand Wars.) While copies were moved around the country to give as many tribal leaders as possible the opportunity to sign, some missed out, especially in the South Island, where inclement weather prevented copies from reaching Otago or Stewart Island. Assent to the Treaty was unanimous in Kaitaia, as well as possibly the Wellington to Whanganui region, but there were at least some holdouts in every other part of New Zealand.
Nonetheless, on 21 May 1840, Lieutenant-Governor Hobson proclaimed sovereignty over the whole country, (the North Island by Treaty and the South Island and Stewart Island by discovery) and New Zealand was constituted as a colony separate from New South Wales on 16 November 1840, the British government was told that the North Island had been ceded with "unanimous adherence" (which was not accurate) and while Hobson claimed the South Island by discovery based on the "uncivilised state of the natives", in actuality he had no basis to make such a claim. In reality, Hobson issued the proclamation because he felt it was forced on him by settlers from the New Zealand Company who had attempted to form an independent settlement government at Port Nicholson and claimed legality from local chiefs. Hobson also failed to report to the British government that the Māori version of the Treaty was substantially different from the English one (which he might not have known at the time) and also reported that both versions had received 512 signatures, where in truth the majority of signatures had been on the Māori copies that had been sent around the country, rather than on the single English copy. Basing their decision on this information, on October 2, 1840, the Colonial Office approved Hobson's proclamation, they did not have second thoughts when later reports revealed more detail about the inadequacies of the Treaty negotiations, and they did not take issue with the fact that large areas of the North Island had not signed. The government had never asked for Hobson to obtain unanimous agreement from the indigenous people.
In 1841, Treaty documents, housed in an iron box, narrowly escaped damage when the government offices at Official Bay in Auckland were destroyed by fire, they disappeared from sight until 1865 when a Native Department officer worked on them in Wellington at the request of parliament and produced an erroneous list of signatories. The papers were fastened together and then deposited in a safe in the Colonial Secretary's office.
In 1877, the English language rough draft of the Treaty was published along with photolithographic facsimiles, and the originals were returned to storage; in 1908, historian and bibliographer Dr Thomas Hocken, searching for historical documents, found the Treaty papers in poor condition, damaged at the edges by water and partly eaten by rodents. The papers were restored by the Dominion Museum in 1913 and kept in special boxes from then on; in February 1940, the Treaty documents were taken to Waitangi for display in the Treaty House during the Centenary celebrations. It was possibly the first time the Treaty document had been on public display since it was signed, after the outbreak of war with Japan, they were placed with other state documents in an outsize luggage trunk and deposited for secure custody with the Public Trustee at Palmerston North by the local MP, who did not tell staff what was in the case. However, as the case was too large to fit in the safe, the Treaty documents spent the war at the side of a back corridor in the Public Trust office.
In 1956, the Department of Internal Affairs placed the Treaty documents in the care of the Alexander Turnbull Library and they were displayed in 1961. Further preservation steps were taken in 1966, with improvements to the display conditions, from 1977 to 1980, the library extensively restored the documents before the Treaty was deposited in the Reserve Bank.
In anticipation of a decision to exhibit the document in 1990 (the sesquicentennial of the signing), full documentation and reproduction photography was carried out. Several years of planning culminated with the opening of the climate-controlled Constitution Room at the National Archives by Mike Moore, Prime Minister of New Zealand, in November 1990. It was announced in 2012 that the nine Treaty of Waitangi sheets would be relocated to the National Library of New Zealand in 2013.
Treaty text, meaning and interpretation
The Treaty itself is short, consisting of a preamble and three articles.
The English version (from which the Māori version is translated) starts with the preamble and presents Queen Victoria "being desirous to establish a settled form of Civil Government", and invites Māori chiefs to concur in the following articles, the first article of the English version grants the Queen of England "absolutely and without reservation all the rights and powers of Sovereignty" over New Zealand. The second article guarantees to the chiefs full "exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties." It also specifies that Māori will sell land only to the Crown (Crown pre-emption). The third article guarantees to all Māori the same rights as all other British subjects.
The Māori version has the same overall structure, with a preamble and three articles, the first article indicates that the Māori chiefs "give absolutely to the Queen of England for ever the complete government over their land" (according to a modern translation by Hugh Kāwharu). With no adequate word available to substitute for 'sovereignty', as it was not a concept in Māori society at the time, the translators instead used kāwanatanga (governorship or government), the second article guarantees all Māori "chieftainship over their lands, villages and all their treasures" (translated), with 'treasures' here translating from taonga to mean more than just physical possessions (as in the English version), but also other elements of cultural heritage. The second article also says: "Chiefs will sell land to the Queen at a price agreed to by the person owning it and by the person buying it (the latter being) appointed by the Queen as her purchase agent" (translated), which does not accurately convey the pre-emption clause of the English version, the third article gives Māori the "same rights and duties of citizenship as the people of England" (translated); roughly the same as the English version.
The differences between the two version of the text have made it difficult to interpret the Treaty and continues to undermine its effect, the most critical difference between the texts revolves around the interpretation of three Māori words: kāwanatanga (governorship), which is ceded to the Queen in the first article; rangatiratanga (chieftainship) not mana (leadership) (which was stated in the Declaration of Independence just five years before the Treaty was signed), which is retained by the chiefs in the second; and taonga (property or valued possessions), which the chiefs are guaranteed ownership and control of, also in the second article. Few Māori involved with The Treaty negotiations understood the concepts of sovereignty or "governorship", as they were used by 19th-century Europeans, and lawyer Moana Jackson has stated that "ceding mana or sovereignty in a treaty was legally and culturally incomprehensible in Māori terms".
Furthermore, kāwanatanga is a loan translation from 'governorship' and was not part of the Māori language, the term had been used by Henry Williams in his translation of the Declaration of the Independence of New Zealand which was signed by 35 northern Māori chiefs at Waitangi on 28 October 1835. The Declaration of Independence of New Zealand had stated "Ko te Kīngitanga ko te mana i te w[h]enua" to describe "all sovereign power and authority in the land". There is considerable debate about what would have been a more appropriate term, some scholars, notably Ruth Ross, argue that mana (prestige, authority) would have more accurately conveyed the transfer of sovereignty. However, it has more recently been argued by others, including Judith Binney, that mana would not have been appropriate, this is because mana is not the same thing as sovereignty, and also because no-one can give up their mana.
The English-language version recognises Māori rights to "properties", which seems to imply physical and perhaps intellectual property, the Māori version, on the other hand, mentions "taonga", meaning "treasures" or "precious things". In Māori usage the term applies much more broadly than the English concept of legal property, and since the 1980s courts have found that the term can encompass intangible things such as language and culture. Even where physical property such as land is concerned, differing cultural understandings as to what types of land are able to be privately owned have caused problems, as for example in the foreshore and seabed controversy of 2003–04.
The pre-emption clause is generally not well translated. While pre-emption was present in the Treaty from the very first draft, it was translated to hokonga, a word which simply meant 'to buy, sell, or trade'. Many Māori apparently believed that they were simply giving the British Queen first offer on land, after which they could sell it to anyone. Another, less important, difference is that Ingarani, meaning England alone, is used throughout in the Māori version, whereas "the United Kingdom of Great Britain and Ireland" is used in the first paragraph of the English.
The entire issue is further complicated by the fact that, at the time, Māori society was an oral rather than literate one. Māori present at the signing of the Treaty would have placed more value and reliance on what Hobson and the missionaries said, rather than the words of the actual Treaty, at the time of the signing by over 600 "chiefs" only 12 could sign their own name and most of these had a very shaky, uncertain style indicating inexperience with writing. The rest put an X or drew part of their moko (personal facial tattoo).
Māori beliefs and attitudes towards ownership and use of land were different from those prevailing in Britain and Europe, the chiefs would traditionally grant permission for the land to be used for a time for a particular purpose. A northern chief, Nōpera Panakareao, also early on summarised his understanding of the Treaty as "Ko te atarau o te whenua i riro i a te kuini, ko te tinana o te whenua i waiho ki ngā Māori" (The shadow of the land will go to the Queen [of England], but the substance of the land will remain with us). Nopera later reversed his earlier statement – feeling that the substance of the land had indeed gone to the Queen; only the shadow remained for the Māori.
Role in New Zealand society
Effects on Māori land and rights (1840–1960)
The short-term effect of the Treaty was to prevent the sale of Māori land to anyone other than the Crown, this was intended to protect Māori from the kinds of shady land purchases which had alienated indigenous peoples in other parts of the world from their land with minimal compensation. However, before the Treaty had been finalised the New Zealand Company had made several hasty land deals and shipped settlers from Great Britain to New Zealand, hoping the British would be forced to accept its land claims as a fait accompli, in which it was largely successful.
In part the Treaty was an attempt to establish a system of property rights for land with the Crown controlling and overseeing land sale to prevent abuse. Initially this worked well with the Governor and his representatives having the sole right to buy and sell land from the Māori. Māori were eager to sell land, and settlers eager to buy.
The Crown was supposed to mediate the process to ensure that the true owners were properly identified (difficult for tribally owned land) and fairly compensated, by the standards of the time; in particular, the Governor had the responsibility to protect Māori interests. Still, Hobson, as Governor of New Zealand, and his successor Robert FitzRoy both took seriously their duty as protectors of Māori from unscrupulous settlers, working actively to prevent shady land deals. Hobson created a group of 'Protectors of the Aborigines'; officials specifically appointed to verify owners, land boundaries, and sales. Lack of funds often prevented land deals at this time, which created discontent among those who were willing but unable to sell. Combined with a growing awareness of the profit margins that the government was receiving by reselling the land at a profit, there was growing discontent among Māori with the pre-emption clause, at this time Māori and others argued that the government's abuse of the pre-emption clause was incompatible with article three of the Treaty which guaranteed Māori equal rights to those of British subjects. FitzRoy was sympathetic to their pleas and decided to waive the pre-emption clause in 1844, allowing land sales directly to individuals.
FitzRoy's successor George Grey was appointed Governor in 1845, he viewed the 'Protectors' as an impediment to land acquisition and replaced them with new officials who's goals were not to protect Māori interests, but rather to purchase as much land as possible. Grey restored pre-emption by passing the Native Land Purchase Act in 1846, which contemporary writers viewed as a "first step towards a negation of the Treaty of Waitangi", this ordinance also tightened government control of Māori lands, prohibiting Māori from leasing their land and restricting the felling of timber and harvesting of flax. A high court case in 1847 (R v Symonds) upheld the Crown's right to pre-emption, and allowed Grey to renegotiate deals made under Fitzroy's waiving of the pre-emption clause. Governor Grey set out to buy large tracts of Māori land in advance of settlement at low prices, later selling it to settlers at higher prices and using the difference to develop land access (roads and bridges). Donald McLean acted as Grey's intermediary and negotiator, and as early as 1840 was aware that Māori had no concept of the sale of land in British sense. Soon Māori became disillusioned and less willing to sell, while the Crown came under increasing pressure from settlers wishing to buy. Consequently, government land agents were involved in a number of dubious land purchases, agreements were sometimes negotiated with only one owner of tribally owned land and in some cases land was purchased from the wrong people altogether, the whole of the South Island was purchased by 1860 in several large deals, and while many of the sales included provisions of 10 percent of the land set aside for native inhabitants, these land area amounts were not honoured or were later transmuted to much smaller numbers. In some cases Grey or his associates bullied the owners into selling by threatening to drive them out with troops or employ rival chiefs to do so.
The growing discontent over sovereignty of the country led to several minor skirmishes and disputes through the 1840s, in which the government cracked down on dissidents, the Māori King Movement (Kīngitanga) began in the 1850s partly as a means of focusing Māori power in a manner which would allow them to negotiate with the Governor and Queen on equal footing. Chiefs justified the King's role by the Treaty's guarantee of rangatiratanga (chieftainship). Tensions continued to escalate in the early 1860s, when the government used the Maori King movement as an excuse to invade lands in the eastern parts of the North Island, culminating in the Crown's confiscation of large parts of the Waikato and Taranaki from the Māori there. These armed conflicts eventually became known as the New Zealand Wars, the Treaty was used to justify the idea that the chiefs of Waikato and Taranaki were rebels against the Crown.
The Native Land Court (later renamed the Māori Land Court) was established under the Native Land Court Act of 1862, which also finally abolished the Crown right to pre-emption, it was through this court that much Māori land was alienated, and the way in which it functioned is much criticised today. A single member of a tribal group could claim ownership of communal tribal land, which would trigger a court battle in which other tribal members were forced to participate in, or else lose out, the accumulation of court fees, lawyers fees, survey costs, and the cost of travelling to attend court proceedings resulted in mounting debts that could only be paid by the eventual sale of the land. In effect, Māori were safe from the court only until a single tribal member broke ranks and triggered a case, which would invariably result in sale of the land. By the end of the century, nearly all of the highest quality Māori land had been sold, with only two million hectares remaining in Māori possession.
Although the Treaty had never been incorporated into New Zealand municipal law, its provisions were first incorporated into legislation as early as the Land Claims Ordinance 1841 and the Native Rights Act 1865. However, in the 1877 Wi Parata v Bishop of Wellington judgement, Judge Prendergast argued that the Treaty was a 'simple nullity' in terms of transferring sovereignty from Māori to the United Kingdom. This remained the legal orthodoxy until at least the 1970s. Māori have since argued that Prendergast's decision, as well as laws later based on it were a politically convenient and deliberate ploy to legitimise the seizure of Māori land and other resources.
Despite this, Māori frequently used the Treaty to argue for a range of demands, including greater independence and return of confiscated and unfairly purchased land, this was especially the case from the mid-19th century, when they lost numerical superiority and generally lost control of most of the country and had little representation in government or the councils where decisions that impacted their affairs were made. Simultaneously, Māori rights over fisheries (guaranteed in article 2 of the Treaty) were similarly degraded by laws passed in the late 19th century.
Over the longer term, the land purchase aspect of the Treaty declined in importance, while the clauses of the Treaty which deal with sovereignty and Māori rights took on greater importance; in 1938, the judgement of the case Te Heuheu Tukino v Aotea District Maori Land Board considered the Treaty as valid in terms of the transfer of sovereignty, but the judge ruled that as it was not part of New Zealand law it was not binding on the Crown.
The Treaty returned to the public eye after the Treaty House and grounds were purchased by the Governor-General, Viscount Bledisloe, in the early 1930s and donated to the nation, the dedication of the site as a national reserve in 1934 was probably the first major event held there since the 1840s. The profile of the Treaty was further raised by the centenary of 1940, for most of the twentieth century, text books, government publicity and many historians touted the Treaty as the moral foundation of colonisation and argued that it set race relations in New Zealand above those of colonies in North America, Africa and Australia. There was some popular acceptance of the idea that the Treaty transferred sovereignty since the early twentieth century. Popular histories of New Zealand and the Treaty often claimed that the Treaty was an example of British benevolence and therefore an honourable contract. However, even though Māori continued to challenge this narrative, its lack of legal significance in 1840 and subsequent breaches tended to be overlooked until the 1970s, when these issues were raised by the Māori protest movement.
Resurgence and place in New Zealand Law (1960–present)
The Waitangi Day Act of 1960 was a token gesture towards acknowledging the Treaty of Waitangi, and somewhat proceeded the Māori protest movement as a whole, it established Waitangi Day, although it did not make it a public holiday, and the English version of the Treaty appeared as a schedule of the Waitangi Day Act but this did not make it a part of statute law. Subsequent amendments to the Act, as well as other legislation, eventually acquiesced to campaigns to make Waitangi Day a national holiday in 1976.
During the late 1960s and 1970s, the Treaty of Waitangi became the focus of a strong Māori protest movement which rallied around calls for the government to "honour the treaty" and to "redress treaty grievances." Maori boycotted Waitangi Day in 1968 over the Māori Affairs Amendment Act (which was perceived as a further land grab) and Māori expressed their frustration about continuing violations of the treaty and subsequent legislation by government officials, as well as inequitable legislation and unsympathetic decisions by the Māori Land Court continuing alienation of Māori land from its owners, the protest movement can be seen as part of the worldwide civil rights movement, which emerged in the 1960s.
As a response to the protest movement, the Treaty finally received limited recognition in 1975 with the passage of the Treaty of Waitangi Act 1975, which established the Waitangi Tribunal, but this initially had very limited powers to make findings of facts and recommendations only. The Act was amended in 1985 to enable it to investigate Treaty breaches back to 1840, and also to increase the Tribunal membership, the membership was further increased in another amendment in 1988.
The Treaty was incorporated in a limited way into New Zealand law by the State Owned Enterprises Act 1986. Section 9 of the act said "Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi", the government had proposed a transfer of assets from former Government departments to state-owned enterprises, but because the state-owned enterprises were essentially private firms owned by the government, there was an argument that they would prevent assets which had been given by Māori for use by the state from being returned to Māori by the Waitangi Tribunal and through Treaty settlements. The Act was challenged in court in 1987, and the judgement of New Zealand Maori Council v Attorney-General defined the "Principles of the Treaty" and the proposed sale of government assets was found to be in breach of this proviso. This allowed the courts to consider the Crown's actions in terms of compliance with the Treaty and established the principle that if the Treaty is mentioned in strong terms in a piece of legislation, it takes precedence over other parts of that legislation should they come into conflict, the "Principles of the Treaty" became a common topic in contemporary New Zealand politics, and in 1989, the Fourth Labour Government responded by adopting the "Principles for Crown Action on the Treaty of Waitangi" a similar list of principles to that established in the 1987 court case.
Legislation after the State Owned Enterprises case has followed suit in giving the Treaty an increased legal importance; in New Zealand Maori Council v Attorney General (1990) the case concerned FM radio frequencies and found that the Treaty could be relevant even concerning legislation which did not mention it and that even if references to the Treaty were removed from legislation, the Treaty may still be legally relevant. Examples include the ownership of the radio spectrum and the protection of the Māori language.
Some have argued that the Treaty should be further incorporated as a part of the New Zealand constitution, to help improve relations between the Crown, Māori and other New Zealanders, the Fourth Labour Government's Bill of Rights White Paper proposed that the Treaty be entrenched in the New Zealand Bill of Rights Act 1990. However, this proposal was never carried through to the legislation, with the attitude of many Māori towards it "suspicious, uneasy, doubtful or undecided." Many Māori were concerned that the proposal would relegate the Treaty to a lesser position, and enable the electorate (who under the original Bill of Rights would be able to repeal certain sections by referendum) to remove the Treaty from the Bill of Rights altogether. Geoffrey Palmer commented in 2013 that:
We were obliged, due to Māori opposition, to drop the Treaty from the Bill of Rights, that was a great pity and it is a step that I advocate be taken still in the context of having a superior law Bill of Rights.
During the 1990s there was broad agreement between major political parties that the settlement of historical claims was appropriate, some disagreed however, and claims of a "Treaty of Waitangi Grievance Industry", which profits from making frivolous claims of violations of the Treaty of Waitangi, were made by a number of political figures in the late 1990s and early 2000s, including former National Party leader Don Brash in his 2004 "Orewa Speech". The "Principles of the Treaty of Waitangi Deletion Bill" was introduced in the New Zealand Parliament in 2005 as a private member's bill by New Zealand First MP Doug Woolerton. Winston Peters, the 13th (and current) Deputy Prime Minister of New Zealand, and others supported the bill, which was designed to remove vague references to the Treaty from New Zealand law. The bill failed to pass its second reading in November 2007.
In terms of public opinion, a study in 2008 found that among the 2,700 voting age New Zealanders surveyed, 37.4% wanted the Treaty removed from New Zealand law, 19.7% were neutral, and 36.8% wanted the Treaty kept in law; additionally, 39.7% agreed Māori deserved compensation, 15.7% were neutral, and 41.2% disagreed.
Waitangi Tribunal claims
During the early 1990s, the government began to negotiate settlements of historical (pre-1992) claims, as of September 2008[update], there were 23 such settlements of various sizes, totalling approximately $950 million. Settlements generally include financial redress, a formal Crown apology for breaches of the Treaty, and recognition of the group's cultural associations with various sites, the tribunal has, in some cases, established that the claimants had not given up sovereignty, and there are ongoing discussions with regards to the applicability of land seized in conflicts and obtained through Crown pre-emption. However, the Tribunal's findings do not establish that the Crown does not have sovereignty today, since the Crown has de facto sovereignty in New Zealand regardless and the Tribunal has no authority to rule otherwise. Treaty Settlements minister Chris Finlayson emphasised that: "The Tribunal doesn't reach any conclusion regarding the sovereignty the Crown exercises in New Zealand. Nor does it address the other events considered part of the Crown's acquisition of sovereignty or how the Treaty relationship should operate today". Recommendations of the Tribunal are not binding on the Crown, but have often been followed.
The anniversary of the signing of the Treaty—6 February—is the New Zealand national day, Waitangi Day, the day was first commemorated in 1934, when the site of the original signing, Treaty House, was made a public reserve (along with its grounds). However, it was not until 1974 that the date was made a public holiday. Waitangi Day has been the focus of protest by Māori (as was particularly the case from the 1970s through to the 1990s), but today the day is often used as an opportunity to discuss the history and lasting effects of the Treaty, the anniversary is officially commemorated at the Treaty House at Waitangi, where it was first signed.
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