Gary Judd KC: Treaty of Waitangi “principles” — only one text

A sequel to Treaty of Waitangi “principles”: fiction built on fiction

This day in 1840, the Treaty of Waitangi was signed. To be accurate, this day in 1840, Te Tiriti o Waitangi was signed.

The lead up from 29 January 1840 when Captain William Hobson arrived at the Bay of Islands, from Sydney, may be summarised.

On 30 January, Hobson went ashore at Korarareka, later known as Russell. He issued two proclamations. In the first proclamation, after recitals setting out the background, Hobson declared and proclaimed.

* that he had on 14 January 1840 before Governor Gipps (Governor of the British colony of New South Wales), taken the Oaths of Office as Lieutenant-Governor “in and over any Territory which is or may be acquired in Sovereignty by her Majesty… within that Group of Islands in the Pacific Ocean, commonly called New Zealand [followed by the geographic coordinates defining the area],”

* that he had “this Day Opened and Published” two commissions from the Queen (1) extending the boundaries of the government of New South Wales so “as to comprehend any part of New Zealand, that is, or may be, acquired in the Sovereignty by Her Majesty…,” and (2) appointing himself Lieutenant-Governor, and

* that he had that day entered on the duties of his office as Lieutenant-Governor.

In the second proclamation, after recitals referring to instructions given to him, he proclaimed and declared to the Queen’s subjects that Her Majesty did not “deem it expedient to recognise any Titles to Land in New Zealand, which are not derived from or confirmed by her Majesty,” but in order to dispel any apprehension that it was intended to dispossess the owners of any land acquired “on Equitable Conditions, and not in Extent or otherwise, prejudicial to the Recent or Prospective Interests of the Community,” Her Majesty had directed that a commission be appointed to enquire into and report on Claims to such Lands. Persons making such claims would need to prove the equitable conditions and lack of prejudice. However, all purchases of land in any part of New Zealand which might be made from any of “the Chiefs or Native Tribes thereof, after [30 January 1840], will be considered as absolutely Null and Void, and will not be confirmed or in any way recognised by Her Majesty.”

Article 2 of the Treaty, when it came to be signed a week later, reflected the second proclamation by providing a guarantee to the Chiefs, hapu and people of New Zealand.

Also, on 30 January, the New Zealand Resident, James Busby, who had been sent to New Zealand in 1833 to be the British Crown’s representative, circulated an invitation to a meeting to be held on 5 February. The invitation was in Māori. Translated, it reads:

30 January 1840

My dear friend, I make contact with you again. A war ship has arrived with a chief on board sent by the Queen of England to be a Governor for us both. Now he suggests that all the chiefs of the Confederation of New Zealand, on Wednesday of this holy week coming should gather to meet him. So I ask you my friend to come to this meeting here at Waitangi, at my home. You are a chief of that Confederation.

And so, to conclude.

From your dear friend, Busby1

On 4 February, Hobson gave a draft treaty to the missionary Henry Williams to translate into Māori. The next morning, Williams’ translation was discussed by Williams, Busby and Hobson, whilst the assembly of Māori, missionaries, settlers and others waited. Busby made a careful examination of the translation and proposed a change, which was made. Hobson then requested Williams to read and explain the treaty to the meeting of Chiefs. See Henry Williams’ account here (pp 12-15).

The meeting duly took place on 5 February. The draft Treaty was read, by Hobson in English, and the Māori translation by Williams. See Colenso (printer for the Church Mission, who was present and took notes), here. Colenso also provides an account of the speeches that were given by the Chiefs.

Hobson departed. The Chiefs debated the issue overnight and, although when Hobson left the direction was that the meeting would reconvene on 7 February, by 6 February those who wanted to sign did not want to wait.

Hobson was brought ashore, and Te Tiriti was signed at Waitangi by Hobson and 43 Chiefs. The same day, signatures were affixed elsewhere in the Bay of Islands, and a bit later in February at Waimate and in the Hokianga, with further signatures being added March through to August. Additional sheets, signed by Hobson, were taken around the country, with about 500 in all signatures being affixed.

The document signed at Waitangi was the Māori translation, Te Tiriti. A document in English, which differed from Te Tiriti’s translation into English, was signed at Port Waikato and the Manukau Heads by 39 Chiefs. It is dated 11 April. It was clearly written on paper and has the seal and signature of Hobson, who signed with his left hand because he had a stroke on 1 March. See here.

No other document in English was signed.

It seems to me to be abundantly clear, therefore, that there is only one Treaty text, Te Tiriti. Any documents prepared earlier can be no more than drafts. This was clearly explained by Ruth Ross in a 1972 article. Te Tiriti has material differences to any documents accepted as contributing to the preparation of what Henry Williams translated (and material differences to the Port Waikato/Manukau Heads document). The document that Williams translated appears to have been lost although there are those who argue that the missing document is one found by descendants of solicitor Henry Littlewood.

However, the circumstances mentioned in the previous paragraph are, to my mind, largely irrelevant because whatever may have been the material used to produce the document that was signed, it is signed document which has official and legal status. As Ruth Ross explains, everything else whether in English or in Māori is no more than a draft.

In my first article, I explained that the idea that the Treaty has principles first surfaced publicly in Labour’s manifesto for the 1972 general election. It subsequently gained legislative status by its inclusion in the Treaty of Waitangi Act 1975.

The legislation indicates that the reason for giving the Waitangi Tribunal jurisdiction to make recommendations based on findings that actions were contrary to or inconsistent with the principles of the Treaty, rather than findings that actions which were a breach of the Treaty itself, was that the treaty has two texts, one in Māori and the other in English. As Richard J noted in the Court of Appeal’s “land” case [1987] 1 NZLR 641, 671,

Here, too, there are various further special features. First, it is not a case of one agreed text. There were drafts and copies and there are some differences. What is much more important and of continuing significance, the Maori language text signed at Waitangi is not an exact translation of the original English language text approved by Hobson. The preamble to the Treaty of Waitangi Act notes that the text in English differs from the text in Maori and, under s 5(2) and for the purposes of the Act, the Waitangi Tribunal has exclusive authority to determine the meaning and effect of the Treaty "as embodied in the 2 texts" and to decide issues raised by the differences between them.

But, as I have shown, there is only one text, the one that was signed at Waitangi. There are two texts only because the Treaty of Waitangi Act 1975 said that there are. Ordinary sensible people, even ordinary sensible lawyers (who are not constrained by Parliament saying that something is, when it is not), would say that the official document is the one that has been signed by the parties involved.

So, the situation is that Parliament said in 1975 that the Treaty has two texts, when it does not, and justified recourse to “principles” of the Treaty because of the fiction that the Treaty has two texts.

Turning to Te Tiriti itself, it does not set out to state principles. It has an introduction — background recitals, three articles (the operative part), and words introducing the signatures by Hobson for the Crown and by the chiefs.

In the operative part, Article 1 states what the Māori side are giving to the British Crown.

Article 2 states that the Crown will protect the Chiefs, the subtribes and all the people of New Zealand in relation to their property.

Article 3 states that the ordinary people of New Zealand will have the same rights and duties as citizens of England. Essentially, this means that the Māori people become British citizens, British subjects.

There are legitimate arguments about what these provisions mean, but the issue is what they mean, not what are principles to be derived from them including the fiction that there are two texts.

Because the Treaty was regarded as unenforceable, prior to the 1975 legislation, not much attention was paid to its meaning. Because the 1975 legislation, which did give it recognition, required consideration not of its meaning but of the principles to be found from a consideration of Te Tiriti and the fictional text in English, no proper consideration has been given to its meaning since 1975.

If a court were asked to ascertain Te Tiriti’s meaning, for the purpose of a case it was deciding, it would approach the task using established interpretative tools (which are largely reflective of the way people seek to understand each other, refined to account for the fact that, two or more people being involved, each side may subjectively have a different view. In short, the court will seek an objective meaning. Courts do not adopt the mystical type of approach which has been allowed in by the twin fictions (see quotation from Ministry of Māori Development publication in Defining Principles of Treaty is not Rewriting the Treaty.

The solution to the problem Parliament created must be either to undo what was done in 1975 upon the basis that what was done was based on flawed reasoning, or to accept that what has been done is done and to remedy the 1975 omission, by Parliament’s doing what it could have done in 1975 and defining the principles to be applied by the Waitangi Tribunal, the courts, and those agencies which are required in some way to observe the principles.

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1 The “Chiefs of the Confederation of New Zealand” were the Chiefs who, in 1935, had signed up to a document prepared by Busby (translated into Māori by the missionary, Henry Williams), declaring New Zealand to be an independent state under the protection of the British Crown, and established the Chiefs themselves as a ‘congress’, a legislative authority which would meet annually at Waitangi to enact laws, dispense justice and regulate trade. The ‘Congress of Chiefs’ was to have all the impediments of Parliamentary proceedings; it was to be based on tribal representation, and a House of assembly was to be built at Waitangi. See, e.g., Note in the New Zealand Journal of History by John O Ross, here.

Signed first by 34 Northern Maori chiefs on 28 October 1835, a further 18 signatures had been collected by 1839, 52 in all. See He Whakaputanga o te Rangatiratanga o Nu Tireni The Declaration of the Independence of New Zealand .

Gary Judd KC is a King's Counsel, former Chairman of ASB and Ports of Auckland and former member APEC Business Advisory Council. Gary blogs at Gary Judd KC Substack where this article was sourced.