The Treaty of Waitangi (Te Tiriti o Waitangi) and New Zealand’s constitutional evolution

“Good leaders join networks so that their followers can have greater opportunities. Bad leaders develop walls so that outsiders cannot get in and insiders cannot get out.”
Sir Mason Durie

Unlike the US, New Zealand has no supreme constitution, and has instead an archipelago of laws, treaties, common law principles, articles of association and documents defining the purposes of thousands of community, sporting and other such clubs and collectives.

The 1840 Treaty of Waitangi (Te Tiriti o Waitangi) is a starting point in New Zealand’s constitutional evolution.  It was an international treaty of cession, and by itself not enforceable domestically.  A government system needed to be established for laws and regulations to be made and enforced in New Zealand.  The British Government enacted the New Zealand Constitution Act 1852 to establish representative government, with some provision made “for the time being” for the maintenance of Māori “laws, customs and usages” so far as “they are not repugnant to the general principles of Humanity”. 

The 1852 Act enfranchised propertied males over 21.  This included some Māori, however most were excluded because they failed the property criterion, even though many held collective property in traditional form. This anomaly was addressed by the creation of four Māori seats through the Maori Representation Act 1867.  This enfranchised all Māori males over 21 regardless of their property holdings.  Pakeha males without property were only enfranchised in 1879.

The 1852 Act created one of the oldest continuously operating Parliaments in the world.  The 1840 Treaty as an international agreement and the 1852 Act together started our journey to becoming an outward-looking and independent democracy. 

New Zealand’s decolonisation and transition to an independent country began in 1907 when New Zealand ceased to be a colony and became a Dominion.  The Statute of Westminster in 1931 gave the Dominions responsibility for their own law making, though New Zealand only accepted this in 1947. 

The 1852 Constitution Act was finally replaced by the New Zealand Constitution Act 1986.  This Act is now our key constitutional document. It formally states New Zealand’s constitutional arrangements, including the roles of the executive, the legislature and the judiciary.  It continues to recognise the Queen as the head of state, however in practice the 1986 Act marks the point where the elected Parliament became fully sovereign with the Crown’s only roles being symbolic and procedural.  It is now Parliament not the Crown that makes laws.  It is also the elected government and its executive that have relationships with its citizens, not Queen Victoria or Queen Elizabeth the Second.

The 1996 introduction of MMP helped counter the risk of majoritarian governments overriding minority interests.  The logical next constitutional step for New Zealand may be a republic and/or an even closer relationship with Australia. 

New Zealand’s modern history began with early contact between Europeans and Māori, driven largely by trade interests.  Foresighted Māori leaders from early in the 19th century on were more internationalists than nativists.  Māori were keen to acquire metals, tools, textiles, muskets, new food crops and the know-how to make use of them.   They actively competed for trade contacts and immigrants to facilitate access to new technology.  Mission stations were encouraged and protected, with the missionary schools playing a key role in literacy and the spread of Christianity. 

However, European contact also caused instability through, for example, access to muskets.  The “musket wars” from around 1807 to 1837 killed around 20,000 to 40,000 Māori.  They further altered tribal boundaries that had been fluid in pre-European times as iwi fought among themselves for resources and mana. 

In the years leading up to the Treaty, New Zealand was as lawless and violent as any modern failed state.  European immigrants included ex-convicts, thieves and murderers.  Charles Darwin after his 1835 visit to New Zealand described the (non-missionary) European population as “the very refuse of society”. 

Aware of the disorder, violence and fraudulent land sales, James Stephen an undersecretary in the Colonial Office conceived of a treaty between the Crown and New Zealand’s indigenous people.  Stephen was the son of a prominent abolitionist, and himself a social reformer.  He had strong Christian faith and was concerned to protect indigenous peoples from harm.

When the Treaty was signed in 1840 New Zealand had a population of around 70,000 to 90,000 Māori and less than 2,000 Europeans.  Māori were the strongest party, however they needed European trade and technology and a central authority that could keep the peace. 

The Treaty was initially drafted in English, and the missionary Henry Williams translated it into Māori.  Governor Hobson greeted each chief signing the Treaty with the pledge: “He Iwi Tahi Tatou” (we are now one people).  

When chiefs debated the Māori language Te Tiriti o Waitangi, Williams told Māori they would be “one people with the English, in the suppression of wars, and of every lawless act; under one Sovereign, and one Law, human and divine”.  The “divine” was left out of the final text – the Treaty is secular.  Williams then took the Māori language version that had been discussed with and acceded to by Māori and retranslated it back into English.  This then became the official English language version.

The Treaty consists of a Preamble and three Articles.  The Preamble states the need for the rule of law and for stable government.  It foreshadows further immigration, tacitly inviting Māori acceptance of this.  It states that Civil Government will “avert the evil consequences which must result from the absence of the necessary Laws and Institutions alike to the native population and to her Subjects.” 

Article One establishes Crown sovereignty and its right to govern.  It requires that chiefs “cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty which the said Confederation or Individual Chiefs respectively exercise or possess.”

In William’s translation, “kawanatanga” is the neologism for sovereignty.  It is a transliteration of “governance” or, as Sir Hugh Kawharu translated it, “kawanatanga” means “government”.  At least 700 Māori had visited Sydney alone by 1840 and had observed the effects of Crown governorship in Australia.  The over 500 chiefs that signed the Treaty unequivocally agreed to cede sovereignty completely and forever to the Queen.  Māori were under no illusions about Queen Victoria’s powers.  Te Heu Heu was one of the few chiefs who did not sign the Treaty, because to do so would “place the mana of Te Heu Heu beneath the feet of a woman.”

As Apirana Ngata wrote in 1922:

It was the first article of the Treaty which transferred the chiefly authority of your ancestors, affecting you and future generations for ever (Ngata 1922).

Ngata also wrote that the Treaty:

“…made the one law for the Maori and the Pakeha. If you think these things are wrong and bad then blame our ancestors who gave away their rights in the days when they were powerful” (Ngata 1922).

The Treaty did not even metaphorically create an equal partnership between the Crown and Māori.  Māori could not in the same treaty be both subjects of the Crown and partners with it. 

Treaty Article Two extended to Māori English common law and Magna Carta rights at the individual as well as the tribal levels.  Magna Carta included a fundamental principle that:

“No freeman shall be… stripped of his rights or possessions…except by the lawful judgement of his equals or the law of the land (modern translation).

Article Two protects property rights.  The English language version of Article Two confirms and guarantees rights “to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands, Estates Forests Fisheries and other properties.” This makes clear that individuals as well as Chiefs and Tribes are protected.  In the Māori version “ki nga tangata katoa o Nu Tirani” refers to “all the peoples of New Zealand” being guaranteed ownership rights and powers (“tino rangatiratanga”) over their properties. 

In traditional Māori society “ariki” were first-born chiefs in high-ranking families, whilst “rangatira” were akin to “gentlemen” (Firth, 1929).  That is, tino rangatiratanga protected the rights of propertied individuals and did not privilege ariki over rangatira.  Tino rangatiratanga is about property rights and has nothing whatever to do with sovereignty – an issue clearly determined in Treaty Article One. 

Tino rangatiratanga, in protecting individuals and their whanau, is powerfully anchored in English belief in the strong  relationship between property rights and human rights.  “An Englishman’s home is his castle”, or as the great Prime Minister William Pitt the Elder said in 1763:

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; but the King of England cannot enter.

The Māori version of Article Two does not refer to forests or fisheries.  It states that the “Queen of England confirms and guarantees to the Chiefs and Tribes and to all the people of New Zealand the possession of their lands, dwellings and all their property” (“taonga”).  Some words used in the Treaty have changed in meaning since the mid-19th century.  Hongi Hika used “taonga” to refer to tangible “property procured by the spear.” However, in modern times “taonga” is now claimed to include cultural “properties” such as language.  This wider definition gives litigants and advocates more leverage in Treaty and other claims relating to intangible assets.

When there is conflict between statute law and common law it is statute law that prevails.  If the government makes or exercises laws or regulations that override property rights, the expected norm is that due process should be followed and compensation be paid for property rights takings.  

The Treaty only reduces Māori rights compared to other New Zealanders’ through the Article Two pre-emption clause giving the Crown the exclusive right to buy Māori land.  This right reduced the prices that Māori might have realized from land sales.  This Crown pre-emption clause is now outdated.  However, it was justified in the 1840 context where there was widespread land fraud, and confusion over who owned what and who had rights to trade in land.  

Article Three confers on Māori the rights and privileges of Crown subjects and extends to them the Crown’s protection.  It creates equal rights with other Crown subjects, not different rights. In Article Three the English version refers to the Queen of England extending “to the Natives of New Zealand Her Royal protection and imparts to them all the Rights and Privileges of British Subjects.” 

The Treaty reference to the Queen’s Royal protection included protection against external as well as internal threats.  This was prescient – a hundred years after the Treaty was signed the Japanese Empire posed an existential threat to New Zealand.

Ngata reflected on Treaty Article Three in 1922:

The Treaty found us in the throes of cannibalism: that was murder, a crime punishable by death, be the murderer rich or poor. That was the British law which became law for the Maori under the provisions of the second part of the above article “and imparts to them all the rights and privileges of British subjects”. The Treaty found the strong committing outrageous acts against the weak, the chiefs against the commoner, the Pakeha against the Maori, and such acts were breaches of the law punishable by imprisonment with hard labour, according to the British code of law adopted as the law for both the Pakeha and the Maori…” (Ngata 1922).

The equal rights guarantee in Treaty Article Three might imply but cannot by itself lead to socio-economic equity.  The Waitangi Tribunal process was needed for just restitution and to safeguard the Crown’s honour.  However, it was not designed to close the economic gaps between Māori and other New Zealanders. 

The Treaty wording, including tino rangatiratanga, creates rights for individuals and whanau.  However the Waitangi Tribunal deliberations have focused on the iwi and hapu level. Treaty settlements have been managed by Māori leaders (“chiefs”) more so than by individuals. Many settlements have been well-managed, but there has been some corruption, and some tribal elitists have captured disproportionate benefits.  The settlements have encouraged some retribalisation, yet it is difficult to identify internationally a tribal or kinship-based society that has ever flourished in modern times. 

The socio-economic gap between Māori and other New Zealanders is a social class issue that can only be addressed through economic interventions, yet the wider Treaty-related discourse often focuses more on constitutional change and culturalism rather than economic wellbeing. 

Group identity politics, separatism, suppression of free speech, and contempt for democracy, science and humanism have shaken Europe and the United States.  They are also challenging New Zealand. 

Advocacy for separate Māori representation, parallel structures or co-leadership in government and non-governmental institutions can amplify the differences between people rather than strengthen the commonalities.  It can exacerbate centrifugal forces that pull people apart, and weaken the centripetal forces that pull people together. 

Achieving socio-economic equity for Māori at the individual and whanau levels would deliver tino rangatiratanga in a tangible rather than rhetorical sense.  When we have achieved this we can then thank rather than blame our ancestors for the wisdom they showed from the lead-up to our 1840 Treaty and onwards.

References

Firth, R.1929: Primitive economics of the New Zealand Maori. London, George Routledge and Sons Ltd.

Ngata, 1922: The Treaty of Waitangi: An Explanation. The Treaty of Waitangi an Explanation | NZETC (victoria.ac.nz)

Relevant earlier blog posts are linked at:

What is matauranga Māori? | Peter Winsley (wordpress.com)

The evolving Treaty of Waitangi discourse and its wider benefits | Peter Winsley (wordpress.com)

Maori, identity and socio-economic development | Peter Winsley (wordpress.com)

The upstart crow and why I feel I belong here | Peter Winsley (wordpress.com)

Occasionally, some of your visitors may see an advertisement here, 
as well as a Privacy & Cookies banner at the bottom of the page.
You can hide ads completely by upgradiShakespeaVitiate.

About Peter Winsley

I’ve worked in policy and economics-related fields in New Zealand for many years. With qualifications and publications in economics, management and literature, I take a multidisciplinary perspective to how people’s lives can be enhanced. I love nature, literature, music, tramping, boating and my family.
This entry was posted in Uncategorized. Bookmark the permalink.

3 Responses to The Treaty of Waitangi (Te Tiriti o Waitangi) and New Zealand’s constitutional evolution

  1. Roys the name Truths the Game says:

    Thank you Peter,
    You have encapsulated what I understand the Whole Treaty thing to be about.
    I could never have expressed it so well.

    At the moment NZ local Government is under pressure to create racially defined wards..Maori Wards. Many are touting the often used(and abused) “”to meet treaty obligations”” mantra.

    Personally I can see no relationship between Local Government creating geographic boundaries for all electors therein and a requirement for a separate race based “ward”” to represent Maori.

    I am in Tauranga which is in that space at the moment where a Council, without consulting with their electors, decided arbitrarily to create such an entity.

    I am familiar with the BOP Regional Council which has 3 Maori “”wards”” which from the outside appears not to benefit the community at large but rather “”special interest”” groups. namely Maori only facilities.

    I have been on boards with maori representatives. I have learnt a lot about their approach, which generally seems to me to be inwardly looking. Having said that I have learnt a lot about screwed up attitudes towards Maori by “”others”” and I have much more sympathy for their general plight.

    Thanks again for your well constructed and thoughtful piece

  2. David Lillis says:

    Minorities in western countries tend to perform less well than others in both education and the workplace. Why? It is difficult to ascribe a single most important reason for such disparities. However, quantitative researchers, such as myself, find that socio-economics is a much stronger predictor of such disparities than ethnicity. The obvious corollary is to find a means of enabling minorities to achieve economic parity. Simple in theory, but how to achieve it? That’s the question and as yet we have no satisfactory answer. Perhaps parity is achievable only over a long period of time – say two or more centuries of encouragement, investment in education, affirmative action etc.

    White people, as the agents who hold the predominance of economic and political power in western nations, must relinquish some of that power and extend a hand to help the other to move forward. In turn, minorities, such as African Americans, must recognize that, while the intergenerational effects of racism and extended marginalization have led to the present disparities, they too have contributed to the problem. For example, the greater engagement in criminal activity and offending of certain minorities, does not help their cause and, just possibly, nucleates a degree of prejudice. To get there, everyone must extend the hand of genuine reconciliation. After that – so much is possible.

  3. Peter Winsley says:

    Thanks David for a wise and measured comment and for teaching me a new word “nucleate”. I agree that socio-economic backgrounnd is the dominant variable. I think there is a lot we can do about that – all is possible if our hearts be so, to paraphrase Shakespeare.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s