Historical Background: PDF 142KB

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HE TIROHANGA Ö KAWA KI TE TIRITI O WAITANGINeither official text is a direct translation of the other, and thesedifferences have given rise to different understandings of the Treaty.The main differences follow.PreambleThe preamble outlines the overall purposes and intentions of theTreaty. The English text emphasized the Queen’s concern “to protect[the] just Rights and Property” of the chiefs and tribes, to provide forBritish settlement resulting from “the rapid extension of Emigration”,to secure the “recognition of Her Majesty’s Sovereign authority overthe whole or any part of those lands” and “to establish a settled formof Civil Government” to secure peace, law and order for both settlersand Mäori.In the Mäori text, however, guarantees preserving tino rangatiratangaand Mäori land ownership were emphasized, along with promises ofprotection for Mäori chiefs and sub-tribes, maintaining peace and goodorder, and acknowledging the presence of settlers. Further, in theMäori text the expected influx of settlers was referred to as “others yetto come”. The Queen’s “Sovereign authority” is described in the Mäoritext in words which have been translated as “the Queen’s Governmentbeing established over all parts of this land and (adjoining) islands”. 132Article IArticle I of the Treaty refers to the British Crown’s right to govern inNew Zealand based on the consent of the Mäori signatories. In theEnglish text, Mäori ceded “all the rights and powers of sovereignty” tothe Crown, while in the Mäori text, Mäori agreed to the Crown’s“käwanatanga” over their lands. The term käwanatanga was a recentlycoined word derived from the word governorship. Mäori are likely tohave understood this term in the context of biblical references toPontius Pilate, the governor of Rome, whose authority was subordinatedto that of the Emperor and whose power was more abstract thanconcrete. 133 By contrast “tino rangatiratanga” had been chosen byBusby in the 1835 Declaration of Independence to refer to NewZealand’s “independence”. It seems likely that Mäori felt that theirtribal authority “on the ground” would be confirmed in return for alimited concession of power in the form of käwanatanga. 134 Manycommentators are of the view that the word “mana” is a closer Mäoriequivalent to the word sovereignty than käwanatanga, and in the 1835Declaration of Independence, “mana” is used to describe “all sovereignpower and authority”. In the view of the Waitangi Tribunal no chiefin 1840 would have relinquished his or her mana to the Queen, 135 andthe connection of mana with Mäori gods and spirituality may furtherexplain why the term käwanatanga was favoured. 13638
A GUIDE TO THE PRINCIPLES OF THE TREATY OF WAITANGI AS EXPRESSED BY THE COURTS & THE WAITANGI TRIBUNALThe term sovereignty used in the English text is a complex andculturally embedded European concept, which was unfamiliar to mostMäori and which may not have had any direct parallel with Mäoriconceptions of political and social organisation. The Mäoriunderstandings were almost certainly that something less thansovereignty had been given away, possibly only allowing the Crownthe right to govern its own (British) people in New Zealand andmediate in intertribal disputes. Many Mäori may have believed thatthey were agreeing to a protectorate arrangement in which theirinternal power and authority would be preserved.Article IIIn Article II of the English text, the chiefs were guaranteed the “fullexclusive and undisturbed possession of their Lands and Estates ForestsFisheries and other properties which they may collectively orindividually possess so long as it is their wish and desire to retain thesame in their possession”. Article II of the Mäori text guaranteed thechiefs “te tino rangatiratanga o ö rätou wenua o rätou käinga me orätou taonga katoa”, which has been translated as “the unqualifiedexercise of their chieftainship over their lands, villages and theirtreasures”. 137 The concept of tino rangatiratanga can be interpretedin various ways, and is generally understood to refer to the unqualifiedexercise of chiefly authority. While the English text clearly guaranteesMäori property rights, the tino rangatiratanga guaranteed in the Mäoriversion conveys a broader capacity. Mäori almost certainly understoodthat they would continue to exercise complete authority over theirtribal domains. Similarly, the use of the term “taonga” (translatedvariously as “treasures” or “all things highly prized”) in the Mäori textwas a more abstract and wide-ranging term than the “properties” inthe English text, and is likely to have included intangible valuedpossessions such as genealogical knowledge and important customs. 138Article II also gave the Crown the right to purchase any Mäori landwhich Mäori wished to sell. The English text defines this as theexclusive right of pre-emption, whereby only the Crown can purchaseMäori land and so extinguish customary title. The Mäori text doesnot convey this notion of exclusivity, and it is possible that Mäorithought they were agreeing to give the Crown the first right of refusal.They may not have understood that under the exclusive right of preemptionif the Crown did not want to purchase land, then Mäori wouldbe prevented from negotiating a sale with other parties. 139 In addition,given traditional forms of land tenure, Mäori may also have consideredthat any land transactions would be akin to a leasing arrangement. 14039
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Historical Background: PDF 142KB

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