Māori, Pacific and Indigenous StudiesMāori, Pacific and Indigenous Studies

( MAOR 102)( MAOR 102)

TREATY OF WAITANGITREATY OF WAITANGI

DR. PAERAU WARBRICKDR. PAERAU WARBRICK

LECTURERLECTURER

Te Tumu: School of Māori, Pacific and Indigenous Studies Te Tumu: School of Māori, Pacific and Indigenous Studies

BARRISTERBARRISTERBarrister and Solicitor of the High Court of New ZealandBarrister and Solicitor of the High Court of New Zealand

Legal Practitioner of the Supreme Court of New South WalesLegal Practitioner of the Supreme Court of New South Wales

First New Zealand Governor 1840-1841First New Zealand Governor 1840-1841

Captain William HobsonCaptain William Hobson

Drafted the Treaty and Drafted the Treaty and responsible for ensuring Māori responsible for ensuring Māori signatories signatories

(First meeting of chiefs 6 (First meeting of chiefs 6 February 1840 at Waitangi, then February 1840 at Waitangi, then further meetings around NZ)further meetings around NZ)

544 chiefs sign the Treaty544 chiefs sign the Treaty (505 sign the Māori Version)(505 sign the Māori Version) (39 sign the English Version)(39 sign the English Version)

Died in September 1841Died in September 1841 Responsible for beginning the Responsible for beginning the

Westminster system of Westminster system of government into New Zealandgovernment into New Zealand

Treaty of WaitangiTreaty of Waitangi

Māori Text & English TextMāori Text & English Text

Made up of four partsMade up of four parts Preamble (Introduction)Preamble (Introduction) Article 1Article 1 Article 2Article 2 Article 3Article 3

(Fourth Article) referred to by some writers like retired (Fourth Article) referred to by some writers like retired High Court judge Justice Eddie DurieHigh Court judge Justice Eddie Durie

Article IArticle I

Māori versionMāori version Chiefs gave the Queen “Kawanatanga”Chiefs gave the Queen “Kawanatanga”

English versionEnglish version Chiefs gave the Queen “Sovereignty”Chiefs gave the Queen “Sovereignty”

Article IIArticle II

Māori versionMāori version Guarantees o ratou w[h]enua o ratou kainga me Guarantees o ratou w[h]enua o ratou kainga me

o ratou taonga katoao ratou taonga katoa

English versionEnglish version Guarantees the chiefs and their respective Guarantees the chiefs and their respective

families and individuals “full exclusive and families and individuals “full exclusive and undisturbed possession of their Lands and undisturbed possession of their Lands and Estates, Forests Fisheries and other Estates, Forests Fisheries and other properties…”properties…”

Article IIIArticle III

Queen extended to the Natives Her Royal Queen extended to the Natives Her Royal protection and imparts to them all the Rights protection and imparts to them all the Rights and Privileges of British Subjects.and Privileges of British Subjects.

Branches of GovernmentBranches of Government

Sovereign(Queen)

ExecutiveBranch

LegislativeBranch

JudicialBranch

Executive BranchExecutive Branch

This branch carries out the lawThis branch carries out the law It includesIt includes

- Governor General, Prime Minister, Cabinet - Governor General, Prime Minister, Cabinet members (eg. Minister of Police), members (eg. Minister of Police),

- Government Departments- Government Departments

(StudyLink, Police, Housing Corp, Army, Customs (StudyLink, Police, Housing Corp, Army, Customs University of Otago)University of Otago)

Legislative BranchLegislative Branch

This branch makes legislationThis branch makes legislation

(Education Act 1989 etc.)(Education Act 1989 etc.) Parliament Parliament

(which comprises Governor General and the House of (which comprises Governor General and the House of Representatives)Representatives)

House of RepresentativesHouse of Representatives

(M.Ps Members of Parliament, whether list or electorate (M.Ps Members of Parliament, whether list or electorate eg. Rahui Katene, Pete Hodgson, Michael Woodhouse, eg. Rahui Katene, Pete Hodgson, Michael Woodhouse, Metiria Turei)Metiria Turei)

Judicial branchJudicial branch

This branch interprets the lawThis branch interprets the law Courts (Judiciary)Courts (Judiciary) Supreme Court, Supreme Court, Court of AppealCourt of Appeal High Court, District Court, Disputes Tribunal, Māori High Court, District Court, Disputes Tribunal, Māori

Land Court, Environment Court, Employment Court Land Court, Environment Court, Employment Court etc.etc.

Parliament is Supreme (Parliamentary Sovereignty)Parliament is Supreme (Parliamentary Sovereignty)

(Parliamentary Supremacy)(Parliamentary Supremacy)

A. V. Dicey, A. V. Dicey, An Introduction to the Study of the Law of the An Introduction to the Study of the Law of the ConstitutionConstitution (1885) (1885)

Parliament can pass any law whatsoeverParliament can pass any law whatsoever

Courts must interpret Parliament’s wishes (legislation)Courts must interpret Parliament’s wishes (legislation)

Executive branch must carry out the law Executive branch must carry out the law

Westminster System of GovernmentWestminster System of Government

Three major NZ court cases regarding the TreatyThree major NZ court cases regarding the Treaty

Wi Parata v Bishop of Wellington (1877)Wi Parata v Bishop of Wellington (1877)

Māori Council v Attorney General (1986)Māori Council v Attorney General (1986)

Attorney General v Ngati Apa (2003)Attorney General v Ngati Apa (2003)

Wi Parata v Bishop of Wellington (1877)Wi Parata v Bishop of Wellington (1877)

Wi Parata challenges Wi Parata challenges the Bishop of the Bishop of Wellington (Octavius Wellington (Octavius Hadfield) to give Hadfield) to give surplus land back.surplus land back.

He uses the Treaty of He uses the Treaty of Waitangi as an Waitangi as an argument. argument.

Wi Parata v Bishop of Wellington (1877)Wi Parata v Bishop of Wellington (1877)

Chief Justice James Chief Justice James Prendergast (top) along Prendergast (top) along with Justice C. W. with Justice C. W. Richmond (below) Richmond (below) declares thatdeclares that

““the treaty ....is a mere the treaty ....is a mere nullity”nullity”

Māori Council v Attorney General (1986)Māori Council v Attorney General (1986)

Late 1980s, Government decides to transfer all Late 1980s, Government decides to transfer all Crown land to Landcorp (A State Owned enterprise)Crown land to Landcorp (A State Owned enterprise)

Māori Council states that this will breach the State Māori Council states that this will breach the State Owned Enterprises Act 1986Owned Enterprises Act 1986

Section 9 states Section 9 states Nothing in this Act shall Nothing in this Act shall permit the Crown to act in a manner that is permit the Crown to act in a manner that is inconsistent with the principles of the inconsistent with the principles of the Treaty of Waitangi..

Attorney General v Ngati Apa (2003)Attorney General v Ngati Apa (2003) This is the foreshore and seabed case.This is the foreshore and seabed case.

Ngati Apa wanted the Maori Land Court to investigate who Ngati Apa wanted the Maori Land Court to investigate who really owned the foreshore around Marlborough; Māori or the really owned the foreshore around Marlborough; Māori or the Crown?Crown?

Government did not want the Maori Land Court to investigate Government did not want the Maori Land Court to investigate who owns the foreshore because they believed the Crown who owns the foreshore because they believed the Crown owned it.owned it.

Court of Appeal rules that the Māori Land Court can investigate Court of Appeal rules that the Māori Land Court can investigate who owns the foreshore.who owns the foreshore.

Treaty of Waitangi did not transfer ownership of all land to the Treaty of Waitangi did not transfer ownership of all land to the

CrownCrown

Points to ponderPoints to ponder

Where does prejudice and racism fit into the Treaty Where does prejudice and racism fit into the Treaty debates?debates?

In terms of our legal structure in New Zealand, should In terms of our legal structure in New Zealand, should we elevate the Treaty to supreme law status?we elevate the Treaty to supreme law status?

If we elevate the Treaty to supreme law status what will If we elevate the Treaty to supreme law status what will that mean for democracy?that mean for democracy?

Is there a better option for Māori and Non Māori than Is there a better option for Māori and Non Māori than the Treaty?the Treaty?

ReadingsReadings Malcolm Mulholland & Veronica Tawhai, Malcolm Mulholland & Veronica Tawhai, Weeping Waters: The Weeping Waters: The

Treaty of Waitangi and Constitutional ChangeTreaty of Waitangi and Constitutional Change, Huia Publishers, , Huia Publishers, Wellington, 2010.Wellington, 2010.

Claudia, Orange, Claudia, Orange, An Illustrated History of the Treaty of An Illustrated History of the Treaty of WaitangiWaitangi, Bridget Williams Books, Wellington, 2004., Bridget Williams Books, Wellington, 2004.

   Claudia, Orange, Claudia, Orange, The Treaty of Waitangi The Treaty of Waitangi, Allen & Unwin, , Allen & Unwin,

Wellington, 1987.Wellington, 1987.

   Marcia, Stenson,Marcia, Stenson, The Treaty: Every New Zealander’s Guide to The Treaty: Every New Zealander’s Guide to

the Treaty of Waitangithe Treaty of Waitangi, Random House new Zealand, Auckland, , Random House new Zealand, Auckland, 2004.2004.