Treaty of Waitangi

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Treaty of Waitangi
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Wasnt there a Declaration of Independence before
the Treaty?
Seems to be a lot of conflict over the Treaty!
flagpoles, gunpowder. But that was in 1840!
Meaning? Interpretation? who cares?
So where to now?
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Declaration of Independence

• 28 October 1835
• Signed by 34 Chiefs
• Translated by missionaries
• Tribal agreement (mainly Northern tribes)

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Declaration of Independence translation of
Texts?

• English Text-Article 1
• Independence
• Independent State
• English Text-Article 2
• All sovereign power and authority
• Legislative authority
• Government

• Maori Text-Article 1
• Rangatiratanga
• Wenua Rangatira
• Maori Text-Article 2
• Ko te Kingitanga ko te mana
• Wakarite ture
• kawanatanga

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Moves to establish Brit Sovereignty

• June 1839 Letters Patent issued, annexed NZ to
  NSW
• Hobson appointed Queens Consul in NZ to
  establish Brit sovereignty
• Assume complete control over land matters and
• Establish a settled form of government
• Suggest protection of Maori interests high
  priority in decision to colonise and enter into
  treaty negotiations

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Moves to establish Brit Sovereignty

• Gipps NSW Governor proclaimed himself Lieutenant
  Governor of NZ
• Jan 1840 further proclamations by Gipps
• Declared NZ dependency of NSW
• Titles to future land purchases would not be
  recognised by Crown
• Hobson made similar proclamations when he arrived
  in NZ. Legality dubious. Why?
• At time of proclamations, cession of sovereignty
  to Britain not yet taken place
• Assumed by Britain that measures necessary to
  protect their interests in NZ

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Treaty of Waitangi / Tiriti o Waitangi

• 6 February 1840
• 2 texts
• English Text signed by 39 Chiefs
• Maori Text signed by 530-540 Chiefs
• British Colonisation Policy

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Treaty of Waitangi Note translation of Texts

• English Preamble
• sovereign authority
• establish a settled form of Civil Government
• English Article 1
• cedeabsolutely and without reservation all the
  rights and powers of Sovereignty

• Maori Preamble
• kawanatanga
• kawanatanga
• Maori Article 1
• te Kawanatanga katoa o o ratou wenua

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Treaty of Waitangi Note translation of Texts

• English Article 2
• the full exclusive and undisturbed possession
  of their Lands and Estates Forests Fisheries and
  other properties which they may collectively or
  individually possess
• Maori yield to the Queen the exclusive
  right of Preemption

• Maori Article 2
• te tino rangatiratanga o o ratou wenua o ratou
  kainga me o ratou taonga katoa.
• te hokonga o era wahi wenua

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Treaty of Waitangi Note translation of Texts

• English Article 3
• the Queen...
• extends to the Natives of New Zealand Her royal
  protection and imparts to them all the Rights and
  Privileges of British subjects

• Maori Article 3
• Ka tiakina e te Kuini nga tangata Maori
  katoaka tukua ki a rite tahi ki ana mea ki nga
  tangata o Ingarani

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Interpretations of the Text

• English Preamble
• Sets out desire and justification for the estab
  of Brit sov and civil govt in NZ
• English Article 1
• Required Maori chiefs to cede absolute sov to
  Crown
• Sov would estab Crowns jurisdiction abililty
  to make laws for NZ that would be recognised
  nationally internationally

• Maori Preamble
• kawanatanga used to denote both Sovereign
  authority and civil government
• Maori Article 1
• kawanatanga used to denote sov
• On strict interp kawanatanga means
  governance, implies lower standard of authority
  than Sovereign rulers
• Therefore, Maori version cedes less to Crown and
  reserves much more to chiefs, than English
  version

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Interpretation of the Text

• English Article 2
• Queen confirms and guarantees to Maori full,
  exclusive undisturbed possession of properties

• Maori Article 2
• tino rangatiratanga used to convey meaning of
  undisturbed possession of properties.
• Literal translation
• the unqualified exercise of chieftainship over
  their properties

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Interpretation of the Text

• Maori Article 2
• tino rangatiratanga denotes concept closer to
  sovereignty than kawanatanga
• Involves more than concept of possession
  described in English text
• Waitangi Tribunal meaning tantamount to the
  sovereignty of lands
• When viewed in conjunction with Article 1, Maori
  Text irreconcilable with English Text
• Maori Text can be interpreted to mean Maori were
  to maintain their sov, with lesser concession of
  authority to Crown

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Interpretation of the Text

• English Article 2 contd
• Purports to secure to Crown exclusive right of
  preemption
• Technical term, grants first right of purchase to
  Crown before anyone else

• Maori Article 2 contd
• No equivalent Maori term for preemption
• Hokonga meaning buying or selling was used
• But full implications of Crowns exclusive right
  never conveyed

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Interpretation of the Text

• Article 3
• Extends to Maori the rights privileges of Brit
  subjects
• Maori Pakeha equal before the law

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Status
Okay, so what is the status of the Treaty today?
What do the statutes say?
What does the case law say?
Is it an interpretative aid?
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Wi Parata v Bishop of Wellington (1877) 3 NZ Jur
SC 72

• Facts
• Ngati Toa owned land at Whitireia, Wgtn wanted
  to build school to educate iwi children
• 1848 verbal agmt with Bishop for land to be
  gifted on trust to build school no school built
• 1850 - Crown w/out knowledge of iwi, issued grant
  to Bishop to build a college no college built

• Land not used for intended purpose
• Trust failed
• Plaintiff on behalf of iwi sought return of the
  land
• Basis of action
• Native title to land never extinguished, Crown
  grant invalid
• Outcome
• Iwis claim denied

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Wi Parata v Bishop of Wellington (1837)

• Status of Treaty
• so far as it purported to cede sovereigntythe
  Treaty must be regarded as a simple nullity
• The Maori tribes were
• incapable of performing
• and assuming the rights of a civilised
  communityno body politic existed capable of
  making a cession of sovereignty

• Ct concluded NZ uninhabited territory, acquired
  by discovery occupation
• Prendergasts comments directed at concept of sov
  in Article 1 of Treaty
• Brit sov achieved by Treaty (in part), settlement
  various acts of state
• Aboriginal Title
• Denied existence of AT

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Hoani Te Heuheu Tukino v Aotea District Maori
Land Board 1941 NZLR 590

• Te Heuheu estab extent to which Treaty could be
  enforceable in court
• Rule any rights purporting to be conferred
  bya Treaty of cession cannot be enforced in the
  courts, exceptif incorporated in the municipal
  law
• Status of Treaty Treaty not direct source of
  Maori legal rights unless incorporated into
  statute (in this case, the statute had been
  repealed)

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NZ Maori Council v AG 1987 1 NZLR 641

• Facts
• 1986 - Labour govt reorganises public sector,
  estab state-owned enterprises (SOEs)
• Transfer of Crown assets to SOEs eg Electricorp
  via SOE Act 1986
• SOEs first step in privatisn/corporatisn prog
• WTrib hearing Muriwhenua claim, recom Crown not
  transfer assets until findings delivered. Why?
  

• Maori Council
• Once assets transferred, WTrib have no juris re
  that asset added risk that SOE may dispose of
  it, impossible to retrieve for claimants
• Ss9 27 inserted into SOE Bill
• S9 Nothing in Act shall permit the Crown to act
  in a manner inconsistent with the principles of
  the Treaty
• S27 no sale of SOE assets to private interests if
  subj to claim lodged prior to assent date 18 Dec
  1986

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NZ Maori Council v AG 1987 - Decision

• What was the relationship between ss 9 27?
• NZMC argued
• S9 offered protection re any transfer of Crown
  assets
• Crown argued
• s27 code which overrides s9, therefore Crown
  entitled to transfer assets
• S9 did not apply to land
• Decision
• Court upheld NZMCs claim

• -s27 cannot be used as a code to defeat s9
• -Wording of s 9 did not exclude land
• -Failure to set up monitoring system of transfer
  of assets without regard to principles, Crown
  breached s9
• Judgment
• Treaty cannot be enforced unless incorp into
  domestic statutory law Te Heuheu affirmed
• This claim only able to be made because
  principles referred to in s9 of SOE Act

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NZ Maori Council v AG 1987 Principles of the
Treaty of Waitangi

• Partnership
• Analogous to fiduciary relationship
• Implies mutual obligations of
• Utmost good faith
• Reasonableness
• cooperation

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NZ Maori Council v AG 1987 Duties

• Crown Duties
• To act towards Maori reas with utmost good
  faith, ensuring govt powers under SOE Act not
  used in manner inconsistent with Treaty
  principles
• To actively protect Maori in the use of lands
  waters to fullest extent practicable
• Provide right of redress for valid claims

• Limitations on Crown Duties
• No duty to consult Maori
• No unreas restrictions on right of govt to follow
  its chosen policy
• Maori Duties
• Loyalty to Queen
• Full acceptance of her govt
• Reas cooperation with govt

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NZ Maori Council v AG 1987 Outcome

• Crown NZMC ordered to negotiate system of
  safeguards to ensure Crown land could still be
  subject to Maori claim

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Treaty as Interpretative Aid

• Huakina Development Trust v Waikato Valley
  Authority 1987 2 NZLR 188
• Justice Chilwell took Treaty into account when
  deciding whether to grant water right under Water
  and Soil Conservation Act 1967
• Treaty was not specifically provided for in the
  Act. Why did the court take Treaty into account?
• Treaty is part of fabric of NZ society,
  therefore Treaty can be used as interpretive aid
  , even to statutes that make no reference to it.

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Legislation

• Treaty received some but not full legislative
  recognition
• These statutes do not expressly incorporate
  specific Treaty rights but provisions require
  decision-makers to allow or have regard to
  Treaty rights eg SOE Act 1986 s9, Environment Act
  1986 (long title), Conservation Act1987 s4,
  Resource Management Act 1991
• Statutes that make no specific mention of Treaty
  but may give effect to matters of Maori culture
  tradition, e.g Maori Fisheries Act 1989 (grants
  10 quota to Maori), Maori Language Act 1987
  (Maori as an official language)

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Constitutionalising the Treaty

• Only Parliament has power to fully
  constitutionalise Treaty
• Has given some recog to pervasive nature of
  Treaty Maori issues
• Increased legislative recognition
• Acknowledgment of Treatys founding status
• Cabinet Office Manual requires principles of
  Treaty to be taken into account re development of
  policy