Te Tiriti o Waitangi and the Treaty of Waitangi: A contemporary interpretation
In 1835 through He Whakaputanga o Te Rangatira o Nū Tīreni (the Declaration of Independence) the collective independence of Māori was recognised within the international community. This meant for some rangatira signing Te Tiriti was unnecessary.
In 1840 and the weeks and months that followed, when Te Tiriti the document toured Aotearoa, Māori rangatira, after much kōrero in Te Reo Māori, signed the Māori text. Te Reo was the everyday language of this time; English was exotic and other. Over 500 chiefs made the informed decision to enter into relationship with the British to further their strategic aspirations. A handful of rangatira signed the English text at Port Waikato and on the Manukau because the Māori text was unavailable, but only after debating its merits in te Reo with the English officials promoting it.
Te Tiriti (the Māori text) contains five elements. The preamble that notes that hapū (subtribes – the political centre of Te Ao Māori) and the British were entering into a relationship for mutual benefit. On the English side, the agreement was intended to provide for the settlers already in Aotearoa and those yet to come; for Māori, he Whakaputanga already recognised and acknowledged their sovereign status here. In Article One, hapū granted the British the right to govern their (non-Māori peoples) as there had been considerable ‘lawlessness’ by some of the early settlers – far from home – that was concerning to both Māori and the British. Article Two reaffirmed Māori tino rangatiratanga (absolute authority) over all taonga previously outlined in He Whakaputanga. It also included a ‘real estate’ clause to the effect if Māori wanted to sell their land they could do so via the Crown and the Crown would ensure they were not ripped off. Under the third article the British granted Māori the same rights and privileges of British subjects. Although not written down but agreed on at Waitangi due in part to a collection of missionaries, it was agreed there would be cultural and religious freedom.
Given the political and military power of Māori at this time, and critically the demographic composition of Aotearoa, endorsing Te Tiriti consolidated the position of Māori within the international community. The Treaty (the English version) in contrast is illogical – why would an independent sovereign nation in a time of peace surrender their sovereignty to a strange colonial master on the other side of the world.
The Māori text is the authoritative text, through its expression of recognised Maori sovereignty and because of the legal doctrine of contra proferentem. The latter requires that where there is disagreement over any clause of a contract/treaty between nations it should be interpreted against the interests of the party that created it. Under international law te Tiriti is the authoritative text, the one signed by most rangatira and is consistent with He Whakaputanga.
It is unfortunate that the NZ government continues to recognise both the English and Māori texts given that the former undermines the latter, since it is widely held that the English version is a Māori cession of their sovereignty. This misinformation serves the purposes of the Crown as they pursued unjust and brutal colonisation and continue to assert that they are the senior partner in the treaty relationship and have the right to govern all New Zealanders.
In 2014 in WAI 1040 the Waitangi Tribunal ruled that Ngāpuhi never ceded sovereignty a claim they have pursued since before the ink was dry on te Tiriti. This reinforces the centrality of the Māori text. Māori scholars like Moana Jackson and Mason Durie have always argued Māori have much more interest in the Māori text than the English text or any of the 50+ ‘treaty principles’ developed by the Crown, to aid in their self-interested interpretation of Te Tiriti.
Both He Whakaputanga and the Māori text are one-page documents that make it clear that Māori never ceded sovereignty, but rather established the terms and conditions of non-Māori settlement. They established the rules of engagement. The challenge facing Tauiwi whether we work for the Crown or not is to recentre the Māori text. We need to take the time to read the Māori text (or the translation by Margaret Mutu) and do some wayfinding about racial justice and what Te Tiriti means for decolonising all dimensions of our lives.
Recommended reading
Healy, Huygens, I., & Murphy, T. (2012). Ngāpuhi speaks. Whangarei, New Zealand: Network Waitangi Whangarei, Te Kawariki.
Mutu, M. (2010). Constitutional intentions: The Treaty of Waitangi texts. In M. Mulholland & V. M. H. Tawhai (Eds.), Weeping waters: the Treaty of Waitangi and constitutional change. Wellington, New Zealand: Huia Publishers.
O'Sullivan, D., Came, H., McCreanor, T., & Kidd, J. (2021). A critical review of the Cabinet Circular on Treaty of Waitangi and te Tiriti o Waitangi advice for policy-makers Ethnicities, 21(6), 1093–1112. doi:https://doi.org/10.1177/146879682110479
Waitangi Tribunal. (2014). Te paparahi o te raki [Wai 1040]. Wellington, New Zealand: Author.