The Treaty of Waitangi (Lectures 7-9)

Question 1

Treaty of Waitangi Signed

Answer 1

February 4th 1840

Question 2

The Original Treaty of Waitangi Misplaced

Answer 2

Lost during the late Nineteenth Century, and later rediscovered in the Old Government Buildings’ basement in 1908

Question 3

Reasons why British wanted to sign the Treaty of Waitangi

Answer 3

Humanitarian Concern (for those in Britain concerned with New Zealand affairs, particularly the protection of Māori interests and the position of the Christian missionaries already operating in New Zealand)
Financial Motive (exploitation of natural resources to provide a guaranteed trading network)
Colonial Competition
The Control of Land Sales

Question 4

William Hobson

Answer 4

Received instruction from Lord Normandy, the Colonial Secretary, to gain cession of New Zealand from the Māori through the Treaty

Question 5

James Busby

Answer 5

Wrote the actual Treaty of Waitangi on 3 February 1840

Question 6

Henry Williams

Answer 6

Translated the Document into Te Reo Māori on 4 February 1840

Question 7

Translation of the Treaty of Waitangi

Answer 7

Described as being “poor at best.” Many believe that the job was rushed, badly executed, or that the translation was purposely wrote as an inaccurate version that would appeal more to Māori

Question 8

Debates between Māori around whether to sign the Treaty of Waitangi

Answer 8

Some argued that Māori would unnecessarily cede too much to the Crown, others believed that signing the treaty would allow Māori to call upon British protection and increase trade opportunities

Question 9

Tāmati Waka Nene

Answer 9

Argued that Britain was so powerful that its control of New Zealand was a foregone conclusion and that it was better to accept this fact and work with it than to fight in vain against the inevitable. This argument proved to be a turning point in the signing process.

Question 10

Māori Chiefs Who Signed the Treaty of Waitangi

Answer 10

Numbers grew to around 500 Māori chiefs who eventually signed the Treaty

Question 11

Main purpose for the Treaty of Waitangi (British perspective)

Answer 11

Transfer sovereignty from Māori to the Crown

Question 12

Main purpose for the Treaty of Waitangi (Māori perspective)

Answer 12

To retain a degree of chieftain authority and confirm Māori possession of land and taonga

Question 13

The Treaty of Waitangi - Article 1 (English Version)

Answer 13

Māori clearly cede sovereignty to the British Crown

Question 14

The Treaty of Waitangi - Article 1 (Māori Version)

Answer 14

Māori cede kāwanatanga (a limited form of administrative government).

Question 15

The Treaty of Waitangi - Article 2 (English Version)

Answer 15

Guarantees Māori full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties. Also states that the Crown should have the exclusive right of Preemption (exclusive right to purchase land from Māori)

Question 16

The Treaty of Waitangi - Article 2 (Māori Version)

Answer 16

Māori are guaranteed ‘te tino rangatiratanga,’ which denotes absolute sovereignty. Also guaranteed Māori to the undisturbed possession of taonga, which extends to include Te Reo Māori, Māori intellectual property, airwaves, and indigenous flora and fauna

Question 17

Māori Interpretation of Article 2 of the Treaty of Waitangi

Answer 17

Te Tino Rangatiratanga could be seen as a promise to complete sovereignty over land rather than ‘possession’ (which could be subject to the Crown’s ultimate sovereignty). The word ‘Hokonga’ was used in place of preemption, which to Māori meant that the Crown only had the right of first offer and if this right was not exercised, Māori could then sell the land directly to settlers.

Question 18

Māori Interpretation of Article 1 of the Treaty of Waitangi

Answer 18

Essentially, Māori believed that the Governor would only have power limited to British citizens of New Zealand, but subject to the authority of Māori chiefs

Question 19

Article 3 of the Treaty of Waitangi

Answer 19

Provides Māori with the rights of British subjects. While the provision specifically states that Māori will have their legal rights protected by English law, it also implies that Māori will be subject to the expectations deriving from the Western concept of the ‘rule of law’

Question 20

United States Constitution Relevant to the Treaty

Answer 20

The US Constitution clearly sets out the powers of the three branches of government: the legislature (Congress), the executive (the President), and the judiciary (the Courts). The treaty has three brief articles, while the US Constitution comprises of seven articles (divided into sections) and twenty-seven amendments

Question 21

Māori Interpretation of the Treaty

Answer 21

Māori allow the Crown a limited form of sovereignty (as acknowledged in Article 1), while retaining a more powerful form of sovereignty over their own people and environment

Question 22

Treaty of Waitangi as Part of Domestic Law

Answer 22

The controversies surrounding the interpretation of the treaty are key reasons as to why the actual document has not specifically been incorporated into domestic law in recent times. To take away from treaty contradictions, the New Zealand legislature and judiciary have looked instead at the spirit and ‘principles’ of the treaty, because it is believed sovereignty was not ceded to the Crown.

Question 23

R v Symonds (1847)

Answer 23

Contrived situation set up by the Crown to test the preemption clause in Article 2 of the Treaty of Waitangi. The first purchaser of the land in question was a settler, McIntosh, who bought the land directly from Māori. The subsequent owner, Symonds, was a Crown official who had obtained title under a Crown grant. Raising the question as to whose purchase had priority. Governor Fitzroy had briefly waived the preemption clause from 1844 to 1846 and the land in question was purchased by the first party during this period. Chief Justice William Martin and Justice Henry Chapman found that the Crown is the source of all title and has the exclusive right to extinguish native title. While the Treaty was not the basis for the decision, the judges recognised that Article 2 of the Treaty affirmed the settled common law position. Therefore Fitzroy’s waiver was unlawful, and the first settler’s purchase was invalid. (Pre-NZ Civil War, In favour of the Treaty of Waitangi)

Question 24

Native Title

Answer 24

Indigenous people’s right to ownership of their land until such time as they wish to sell it

Question 25

Wi Parata v Bishop of Wellington (1877) (‘Wi Parata)

Answer 25

Gifted land supposedly held under native title to the Crown for the purpose of building a school. After 27 years no school was built, and Māori numbers diminished. Wi Parata, a Māori member of Parliament and Ngāti Toa chief took the case to the Supreme Court in an attempt to recover the entrusted land for his iwi. The complex judgement of Prendergast and Richmond involved both native title and the treaty, two distinct issues. The ruling stated that unless Māori land was supported by a Crown grant, title could not be accepted or enforced by the courts. In this case the treaty was regarded as a ‘simple nullity.’ The effect of the judgement was to minimise the role of the treaty and to emphasise that the treaty in itself had no binding force. According to the judgement, references to Māori customary law found in s 3 of the Native Rights Act 1865 were inapplicable. Therefore, in the opinion of the Court, Māori lacked the capacity to enter into an international treaty and had no right to claim native title. (Post-NZ Civil War, Against the Treaty of Waitangi)

Question 26

Nireaha Tamaki v Baker (1901) and Wallis v Solicitor-General

Answer 26

Privy Council decisions made in favour of the Treaty of Waitangi. Criticising the New Zealand judiciary, though principally in relation to native title.

Question 27

Hoani Te Heuheu Tūkino v Aotea District Māori Land Board [1941]

Answer 27

Case was brought forwards after a Māori chiefs land had a charge placed on it by an Act of Parliament. The decision supported Prendergast and Richmond’s claim in Wi Parata that the Treaty could have no legal affect unless incorporated into statute. According to the plaintiff, the legislation breached the Treaty of Waitangi, but ultimately the Privy Council found that the government legislation trumped the treaty. There was recognition that the treaty was one of cession. This implied that the court recognised Māori as a sovereign group prior to 1840, giving the treaty a place in international law, though not in domestic law.

Question 28

New Zealand Māori Council v Attorney-General (1987)

Answer 28

Addressed the place of the Treaty of Waitangi in the New Zealand legal system. This case concerned the effects of s 9 of the State-Owned Enterprises Act 1986, where state-owned enterprises would be sold to private interests. Once in private hands, the government would have no control over them. Destroying any chance that Māori might have had to obtain the land in settlement. This process as in breach of s 9 of the Act - that is to breach the principles of the treaty.

Question 29

President of the Court of Appeal, Robin Cooke in regards to the Principles of the Treaty of Waitangi

Answer 29

‘Those principles require the Pākehā and Māori treaty partners to act towards each other reasonably and with the utmost good faith.’
‘The differences between the texts and the shades of meaning do not matter for the purposes of this case (NZ Māori Council v Attorney-General). What matters is the spirit… The Treaty has to be seen as an embryo rather than a fully developed and integrated set of ideas. The treaty signified a partnership between races, and it is in the concept that the answer to the present case had to be found”

Question 30

Justice Bisson in regards to the Treaty of Waitangi

Answer 30

‘With the advent of legislation invoking recognition of the principles of the treaty, no longer is it to be regard as a “simple nullity” (as in Wi Parata v Bishop of Wellington)

Question 31

Court of Appeal opinion of the Treaty

Answer 31

Stressed that the treaty does not have legal force except where incorporated by statute.

Question 32

The greatest achievement of the New Zealand Māori Council

Answer 32

Transform the conflicting versions of the treaty into principles that could serve a modern nation

Question 33

The Principles of the Treaty of Waitangi (Court of Appeal, 1987)

Answer 33

Partnership, including acting reasonably in good faith towards each other
Active protection of the Māori people (by the Crown)
Right of redress in event of a Treaty breach
Right of the Crown to govern
Recognition of Māori rangatiratanga over Māori land and culture

Question 34

Native Title Compared to the Treaty of Waitangi

Answer 34

Older doctrine, that has been applied to a limited extent around the world. The Treaty is a specific document of cession, unique to New Zealand

Question 35

R v Symonds 1847 regarding Native Title

Answer 35

Affirmed the place of Native Title in New Zealand law

Question 36

Wi Parata regarding Native Title

Answer 36

Disputes from the judiciary surrounding how Crown grant could be successfully challenged by Māori on the basis that native title had not been extinguished. In Wi Parata, the Crown grant could be annulled by the Court, and the existence of this grant implied that the Crown had used its sovereign powers to extinguish any existing native title. Land transactions with Māori were a matter for the Crown only, and the court had no jurisdiction to diminish the Crown powers. Prendergast and Richmond did not acknowledge the binding nature of Native Title in New Zealand by saying that “Māori had no customary law, or land ownership system that could be recognised by the government or the courts.”

Question 37

Key Treaty/Native Title Cases

Answer 37

R v Symonds 1847 (After treaty signing)
Wi Parata v Bishop of Wellington 1877 (After NZ Civil Wars)
Nireaha Tamaki v Baker 1901 (Privy Council decision)
Wallis v Solicitor-General 1903 (Privy Council decision)
Hoani Te Heuheu Tūkino v Aotea District Māori Land Board 1941 (During the Second World War)
Re the Bed of the Wanganui River 1962 (Prior to Māori protest movement)
Re the 90-Mile Beach 1962 (Prior to the Māori protest movement)
Te Weehi v Regional Fisheries Officer 1986 (During Māori ‘renaissance’)
New Zealand Māori Council v Attorney-General 1987 (During Māori ‘renaissance’)
Attorney-General v Ngāti Ata 2003 (While treaty settlement process still occurring)

Question 38

The New Zealand Settlements Act 1863

Answer 38

Allowed for the confiscation of land belonging to those Māori fighting the imperial and colonial forces. Land was taken without compensation and then given to military settlers as a reward for their services. Land was also taken from iwi who fought for the Crown.

Question 39

Te Ture Whenua Māori Act 1993

Answer 39

Objective of helping Māori to retain land.

Question 40

Resource Management Act 1991

Answer 40

Provide Māori with special rights as tangata whenua. Regulates the use of natural and physical resources in New Zealand, from waterways to building codes.

Question 41

Foreshore and Seabed Act 2004

Answer 41

Specifically taken Māori rights away

Question 42

Period of the New Zealand Wars

Answer 42

1860 - 1870

Question 43

The Native Land Acts 1862 and 1865

Answer 43

Established the Native Land Court. Aimed to alienate land still owned by Māori and transform communally owned Māori land into individualised freehold title that could easily be sold directly to settlers.

Question 44

The Māori Representation Act 1867

Answer 44

Created four Māori seats in the New Zealand House of Representatives. Māori men could vote for Māori Members of Parliament in these electorates. Giving Māori a voice in Parliament for the first time.

Question 45

The Native Land Act 1909

Answer 45

Enshrined the Wi Parata view of Native Title in legislation. Native title could not be recognised unless supported by a Crown grant. Effectively stating that Native Title had no force in the New Zealand legal system

Question 46

The Māori Affairs Amendment Act 1967

Answer 46

Free up more Māori land for sale. Essentially initiated the Māori civil rights movement of the 1970s

Question 47

Key Native Title/Treaty Statutes

Answer 47

The New Zealand Settlements Act 1863
Native Lands Act 1862/1865
Māori Representation Act 1867
Native Land Act 1909
Māori Affairs Amendment Act 1967
Treaty of Waitangi Act 1975
Treaty of Waitangi Amendment Act 1985
State-Owned Enterprises Act 1986
Resource Management Act 1991 
Te Ture Whenua Māori Act 1993
Foreshore and Seabed Act 2004
Marine and Coastal Area (Takutai Moana) Act 2011

Question 48

The Treaty of Waitangi Act

Answer 48

Established the Waitangi Tribunal

Question 49

The Waitangi Tribunal

Answer 49

A quasi-judicial forum with limited power to address Māori grievances related to the Treaty. Tribunal decisions are not binding.

Question 50

The Waitangi Tribunal (1975 - 1984)

Answer 50

Had the power to only hear claims - that is - breaches of the principles of the Treaty of Waitangi that occurred after 1975 (historical grievances stemming from early land sales, war confiscations and Native Land Court hearings could not be addressed)

Question 51

The Treaty Amendment Act 1985

Answer 51

Allowed the Waitangi Tribunal to investigate alleged breaches that took place between 1840 and 1975

Question 52

The Treaty Settlement Process

Answer 52

Breach of the Principles of the Treaty
Claim filed with the Waitangi Tribunal
Research into claim (by claimants, Crown, Tribunal)
Waitangi Tribunal hearing and decision
If the breach is proven, claimants approach the Office of Treaty Settlements
Mandate organised and recognised by the Crown
Agreement in Principle or Heads of Agreement
Dead of Settlement signed
Settlement legislation passed by Parliament
Resources allocated to tribal authority