The relationships between the Crown and Māori in New Zealand have been uneasy since first contact. In 1835, 34 northern chiefs, encouraged by official British Resident James Busby, signed the Declaration of Independence, a document which asserted their rangatiratanga (sovereignty).
In 1840, British Consul William Hobson oversaw the drafting of the Treaty of Waitangi in English and Māori. More than 500 chiefs signed the treaty during the course of the year, but some refused to sign.
In May 1840, the British Crown asserted that it had sovereignty over New Zealand. It is that assertion that is important legally, rather than the treaty itself, which was the moral or political justification used by the Crown for its assertion.
In 1839 prospective New Zealand Company settlers drew up a constitution in England before leaving for Port Nicholson (Wellington). After arriving in early 1840 they arranged a meeting with Māori chiefs in order to ratify and confirm the constitution. William Hobson saw this as a treasonous act and it prompted his assertion of the British Crown’s sovereignty over the whole of New Zealand on the basis of the Treaty of Waitangi.
Versions of the Treaty of Waitangi
The English version of the Treaty of Waitangi guaranteed to Māori the full, exclusive and undisturbed possession of their lands, forests, fisheries and other properties, in exchange for ceding their sovereignty to the Crown.
The Māori version of the treaty, which was the version most Māori signed, preserved to Māori their rangatiratanga (literally ‘chieftainship’) over their lands, villages and all their taonga (treasures), in exchange for their gift to the Crown of their kāwanatanga (literally, ‘governorship’). In both versions the Crown guaranteed Māori its protection and conferred upon them the rights and privileges, or tikanga, of British subjects.
The Treaty of Waitangi represented an agreement between the Crown and many Māori chiefs to share power in some way. But exactly how was probably unclear in 1840, and remained unclear. As increasing numbers of settlers came to New Zealand, and promises in either version of the treaty went unfulfilled, conflict was inevitable. Fighting ensued, especially in the 1860s. The overall result was that the Crown’s sovereignty was confirmed, though in some areas of New Zealand that was as late as the 1880s and probably, in Te Urewera, the 1920s. It was also resented by many Māori.
Until the end of the 20th century the Treaty of Waitangi was virtually invisible to New Zealand law. However, its meaning and significance were reinterpreted by official institutions between 1973 and 1993. Parliament created the Waitangi Tribunal in 1975 and gave it the task of resolving the meaning of the treaty, treating each language version as of equal status. The Waitangi Tribunal issued four reports – from 1983 to 1986 – offering a general meaning of the treaty based on relationships and procedural fairness.
Parliament referred to the treaty in legislation from 1986. The courts adopted the tribunal’s meaning in a series of cases from 1987 to 1993. The executive government went along with that meaning.
General meaning of the treaty
The Treaty of Waitangi today occupies an uneasy, uncertain, place in New Zealand’s constitution. Its general meaning is commonly interpreted by official institutions and the law as being about relationships and procedural fairness. Despite these general principles, its meaning in particular cases can be unclear, and it is also unclear which institutions have the job of providing clarity.