Meaning of the Treaty
A Treaty of two texts
The Treaty of Waitangi/Te Tiriti o Waitangi has two texts: one in te reo Māori and one in English.
Under the Treaty of Waitangi Act 1975, the Waitangi Tribunal is tasked with determining the meaning and effect of the Treaty for the purposes of inquiring into Māori claims. However, the Māori text is not an exact translation of the English text. For this reason, the Treaty of Waitangi Act requires the Tribunal to ‘decide issues raised by the differences between them’.
What follows below is a general guide to the meaning of the Treaty texts.
The preamble to the English version states that the British intentions were to:
- protect Māori interests from the encroaching British settlement
- provide for British settlement
- establish a government to maintain peace and order.
The Maori text has a different emphasis. It suggests that the Queen's main promises to Māori were to:
- secure tribal rangatiratanga
- secure Māori land ownership.
In the Māori text of article 1, Māori gave the British ‘kawanatanga’, the right of governance, whereas in the English text, Māori ceded 'sovereignty'.
One of the problems that faced the original drafters of the te reo Māori text of the Treaty was that 'sovereignty' had no direct equivalent in the context of Māori society. Rangatira (chiefs) exercised full authority (‘mana’) over land and resources on behalf of the wider community.
The term used in the te reo Māori version, 'kawanatanga', was a transliteration of the word 'governance', which was then in current use. Māori understanding of this word came from familiar use in the New Testament of the Bible (when referring to the likes of Pontius Pilate), and from their knowledge of the role of the Governor of New South Wales, whom they referred to as 'Kawana'.
The Māori version of article 2 uses the word 'rangatiratanga' in promising to uphold the authority that tribes had always had over their lands and taonga. This choice of wording emphasises status and authority.
In the English text, the Queen guaranteed to Māori the undisturbed possession of their properties, including their lands, forests, and fisheries, for as long as they wished to retain them. This text emphasises property and ownership rights.
Article 2 provides for land sales to be effected through the Crown. This gave the Crown the right of pre-emption in land sales.
In article 3, the Crown promised to Māori the benefits of royal protection and full citizenship. This text emphasises equality.
In the epilogue, the signatories acknowledge that they have entered into the full spirit of the Treaty.
How the Tribunal has interpreted the Treaty
Each Tribunal panel is constituted to determine the meaning and effect of the Treaty based on the claims before it. Readers interested in the Tribunal's interpretation of the Treaty and its principles are directed to the Tribunal’s reports themselves.
The approach to Treaty interpretation set down in the 1987 Report on the Orakei Claim has influenced many Tribunal inquiry panels.
It is reasonable to apply to the interpretation of the Treaty of Waitangi the general principles of treaty interpretation as applicable to municipal law.
Relevant principles are:
a) The primary duty of a tribunal charged with interpreting a treaty is to give effect to the expressed intention of the parties, that is, their intention as expressed in the words used by them in the light of surrounding circumstances.
b) It is necessary to bear in mind the overall aim and purpose of the treaty.
c) In relation to bilingual treaties neither text is superior.
d) Given that almost all Māori signatories signed the Māori text, considerable weight should be given to that version.
e) The contra proferentem rule that in the event of ambiguity such a provision should be construed against the party which drafted or proposed that provision (in this case the Crown) applies.
f) The United States Supreme Court ‘indulgent rule’ that treaties with indigenous people (American Indians) should be construed ‘in the sense which they would naturally be understood by Indians’ supports the principle (d) above.
g) Treaties should be interpreted in the spirit in which they were drawn taking into account the surrounding circumstances and any declared or apparent objects and purposes. (1)
(1) Waitangi Tribunal, Report of the Waitangi Tribunal on the Orakei Claim, pp207-208. Read the Report on the Orakei Claim (external link)
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