November 2014 Māori Law Review
He Whakaputanga me te Tiriti: the Declaration and the Treaty
Waitangi Tribunal (2014, Wai 1040)
The Waitangi Tribunal has released its report He Whakaputanga me te Tiriti: the Declaration and the Treaty about the meaning of the Treaty of Waitangi in February 1840 when it was first signed. The Tribunal's report has been made as the first stage of its inquiry into claims made in its Te Paparahi o te Raki (the great land of the north) district inquiry.
Download He Whakaputanga me te Tiriti: the Declaration and the Treaty here.
Overview and result
The following information is from the Ministry of Justice's media release of 14 November 2014 about the Tribunal's report. The report is on the meaning and effect of the Treaty of Waitangi when it was first signed in February 1840.
The rangatira who signed te Tiriti o Waitangi in February 1840 did not cede sovereignty to the British Crown, the Waitangi Tribunal has concluded.
The report concerns the ‘meaning and effect’ of the treaty in February 1840, when the first signings of te Tiriti took place in the Bay of Islands and the Hokianga.
Stage two of the inquiry, which is under way, will consider events after February 1840.
‘Though Britain went into the treaty negotiation intending to acquire sovereignty, and therefore the power to make and enforce law over both Māori and Pākehā, it did not explain this to the rangatira,’ the Tribunal said.
Rather, Britain’s representative William Hobson and his agents explained the treaty as granting Britain ‘the power to control British subjects and thereby to protect Māori’, while rangatira were told that they would retain their ‘tino rangatiratanga’, their independence and full chiefly authority .
‘The rangatira who signed te Tiriti o Waitangi in February 1840 did not cede their sovereignty to Britain,’ the Tribunal concluded. ‘That is, they did not cede authority to make and enforce law over their people or their territories.’
The rangatira did, however, agree ‘to share power and authority with Britain’.
‘They agreed to the Governor having authority to control British subjects in New Zealand, and thereby keep the peace and protect Māori interests,’ the Tribunal said.
‘The rangatira consented to the treaty on the basis that they and the Governor were to be equals, though they were to have different roles and different spheres of influence. The detail of how this relationship would work in practice, especially where the Māori and European populations intermingled, remained to be negotiated over time on a case-by-case basis.’
The Tribunal said that, having considered all of the evidence available to it, the conclusion that Māori did not cede sovereignty in February 1840 was inescapable.
The Tribunal said nothing about how and when the Crown acquired the sovereignty that it exercises today. However, it said, the Crown ‘did not acquire that sovereignty through an informed cession by the rangatira who signed te Tiriti at Waitangi, Waimate, and Mangungu’.
The question of whether the agreement that was reached in February 1840 was honoured in subsequent interactions between the Crown and Māori will be considered during stage two of the inquiry.
Where is Te Paparahi o te Raki?
The Te Paparahi o te Raki inquiry district covers all territories north of Auckland that have not previously been the subject of Waitangi Tribunal historical reports.
The Tribunal has previously completed inquiries into the Muriwhenua (far north), and the Kaipara and Te Roroa districts on the east coast.
The inquiry district therefore covers the remaining Northland territories, including the Hokianga, the Bay of Islands, Whangaroa, Whāngārei, Mahurangi, and the Gulf Islands.
Does this report cover the full Te Paparahi o te Raki inquiry district?
No. This stage one report is particularly focused on the Bay of Islands and Hokianga. These are the districts where te Tiriti was signed in February 1840. (Specifically, the signings took place at Waitangi on 6 February, Waimate on 10 February, and Mangungu in the Hokianga on 12 February.)
Who signed the treaty in February 1840?
Some 43-46 rangatira signed at Waitangi; six signed at Waimate; and 64 signed at Mangungu. Hobson, as Britain’s representative, signed on each occasion.
Almost all of the rangatira who signed on these occasions were from the Bay of Islands and Hokianga areas.
Who are the claimants?
The claimants are descendants of Māori who lived in the inquiry district in February 1840. Most of the claimants identify as Ngāpuhi.
Why is the inquiry being conducted in two stages?
The Crown and the claimants agreed to a two-stage inquiry.
Stage one is about the ‘meaning and effect’ of the treaty, including the question of whether sovereignty was ceded. It also covers the meaning and effect of the 1835 declaration He Whakaputanga o te Rangatiratanga o Nu Tireni, the Declaration of Independence of New Zealand.
Stage two is considering claims that, since February 1840, the Crown has acted inconsistently with the principles of the treaty. Hearings for stage two of the inquiry have been under way since 2013.
How was the treaty made?
The treaty was drafted in English, then translated into Māori. On 5 February, the Māori text was read to rangatira, and Hobson and his agents also explained the proposed agreement verbally. The rangatira then made speeches in which they sought further explanations and assurances – including assurances that, if they signed, the Governor would be their equal, rather than being above them.
What is the basis for the Tribunal’s conclusion about sovereignty?
Though Britain intended to acquire sovereignty, Hobson and his agents did not explain this clearly. Rather, their emphasis was on the Governor acquiring sufficient authority to control British subjects and so to protect Māori interests. As the party drafting and explaining the treaty, it was up to Britain to make its intentions absolutely clear.
The treaty agreement can only be found in what signatory rangatira (or at least the great majority of them) were prepared to assent to, based on the proposals that Hobson and his agents made to them, and the assurances the rangatira sought and received. The agreement cannot be found in what Britain intended but did not clearly explain.
Based on what was explained to them, the rangatira assented to Hobson having authority over Pākehā, while they would retain their traditional authority over their people and territories. Their expectation was that they and Hobson would be equals with different spheres of influence. The rangatira would have understood that, where the Māori and Pākehā populations intermingled, questions of relative authority would remain to be negotiated on a case-by-case basis.
Did the Tribunal make any other conclusions about the treaty?
Yes. The Tribunal concluded that the rangatira who signed in February 1840 agreed to enter land transactions with the Crown. They also appear to have agreed that the Crown would protect them from foreign threats and represent them in international affairs, where that was necessary.
The Crown in February 1840 promised to investigate land transactions that had taken place before the treaty, and to return any land that had not been properly acquired from Māori.
What did the Tribunal conclude about the declaration of independence?
The Tribunal concluded that he Whakaputanga was an unambiguous declaration of Māori sovereignty and independence. The rangatira who signed it declared that rangatiratanga, kīngitanga, and mana in relation to their territories rested only with them on behalf of their hapū; and that no-one else but them could make law within their territories, nor exercise any function of government except under their authority. The rangatira also asked for British protection against threats to their authority.
What do the Tribunal’s conclusions mean for New Zealand today?
The Tribunal’s report is about what the treaty meant to those who signed it in February 1840. In this stage one report, it does not draw conclusions about what the treaty means today. It may draw conclusions on that matter in its stage two report.
The essential conclusion of this report is that in February 1840 the rangatira who signed te Tiriti did not cede sovereignty. Rather, they consented to the Crown having power to control Pākehā, while recognising that in situations where the Māori and Pākehā populations intermingled questions of relative authority would have to be negotiated case by case.