How to understand the NZ Treaty of Waitangi

Introduction

The Treaty of Waitangi has been the subject of much legal and academic debate in New Zealand in the last two decades. It is a complex area of law and there are still many unresolved issues, in part because of differences between the English and Maori versions of the Treaty.

The question of sovereignty

The English and Maori versions of the Treaty appear to differ on the rights that the Maori chiefs (rangatira) ceded to the British Crown.

Under Article 1 of the English version, the chiefs ceded all their "rights and powers of Sovereignty" to the Crown. However, under the corresponding terms of the Maori version the chiefs ceded "Kawanatanga" – this word, based on a transliteration into Maori of the English "governor", can best be translated as "governorship" or "governance", and is a more limited term than "sovereignty".

At the same time, whereas Article 2 of the English version guaranteed the chiefs "possession" of their lands and other property, Article 2 of the Maori version appeared to preserve more than simply the ownership rights that the word "possession" conveys: it provided that the chiefs retained "te tino rangatiratanga"("chieftanship"), a term that itself conveys elements of political sovereignty.

Maori ownership of land and other taonga (treasures)

Even if the English version of the Treaty were treated as the binding and operative version, it is generally agreed that, under Article 2 of the Treaty, Maori retained all their possessions, including lands, forest and fisheries, unless they freely parted with them.

Article 2 of the English version guaranteed to Maori "the full exclusive and undisturbed possession of their Land and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession". The Maori version of the Treaty guaranteed "te tino rangatiratanga o o ratou wenua or ratou kainga me o ratou taonga katoa", which may be translated as "the unqualified exercise of their chieftanship over their lands over their villages and over their treasures all". (Translation by IH Kawharu in Kawharu (ed) Waitangi: Maori & Pakeha Perspectives of the Treaty of Waitangi (1989) Appendix, pp 319-321.)

The Waitangi Tribunal and the Treaty claims process

Maori rights under the Treaty are not directly enforceable in New Zealand courts. However, the Waitangi Tribunal (established by the TREATY OF WAITANGI ACT 1975) has power to investigate claims of breaches of the Treaty and to make non-binding recommendations to the government.

Initially the Tribunal could investigate only claims dealing with events since 1975, but in 1985 the Act was amended to give the Tribunal jurisdiction to investigate claims relating to events going all the way back to 1840.

Government agencies must act consistently with the Treaty

Government agencies are also placed under an obligation, by section 9 of the STATE-OWNED ENTERPRISES ACT 1986, to act consistently with the principles of the Treaty, unless some other Act permits the agency to do otherwise. The Act does not spell out what those principles are, and therefore leaves it to the courts to decide whether in any particular case a government agency has complied with this obligation.

Cautionary notes

• This area of law and history is complex, and opinions vary on the topic. It is therefore difficult to give concrete legal advice as to whether a "right" under the Treaty has been breached and therefore whether one has a valid claim. It is advisable that you seek advice from a lawyer specialising in this area.