Treaty Trickery – Why does the New Zealand Government use the Wrong ‘version’ of the Treaty of Waitangi?

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The Treaty of Waitangi

The Treaty of Waitangi

By 1839, decades of savage inter-tribal fighting had decimated the Maori population in New Zealand to approximately 70,000 while there were about 2000 settlers. Thirteen northern Maori chiefs in 1831 sent a petition to King William IV of England asking for protection and recognition of their trade and missionary contacts with Britain. The New Zealand Company in 1839 had bought land and had sent six ships full of colonists. Captain William Hobson was sent to act for the British Crown to negotiate a treaty with Maori. The Colonial Secretary, Lord Normanby, instructed Hobson that:

I have already stated that we acknowledge New Zealand as a sovereign and independent state so far at least as is possible to make that acknowledgement in favour of a people composed of numerous dispersed and petty tribes, who possess few political relations to each other, and are incompetent to act or even deliberate in concert. But the admission of their rights, though inevitably qualified by this consideration, is binding on the faith of the British Crown. The Queen, in common with Her Majesty’s predecessor, disclaims for herself and Her subjects every pretension to seize on the Islands of New Zealand, or to govern them as a part of the Dominions of Great Britain unless the free intelligent consent of the natives, expressed according to their established usages, shall first be obtained. Believing, however, that their own welfare would, under the circumstances I have mentioned, be best promoted by the surrender to Her Majesty of a right now so precarious and little more than nominal, and persuaded that the benefits of British protection and laws administered by British judges would far more than compensate for the sacrifice by the natives of a national independence which they are no longer able to maintain, Her Majesty’s Government have resolved to authorise you to treat with the aborigines of New Zealand in the recognition of Her Majesty’s sovereign authority over the whole or any part of those Islands which they may be willing to place under Her Majesty’s dominion.

On February 6, 1840, Hobson, several English residents, and 45 Maori chiefs, signed the Maori text of the Treaty of Waitangi at Waitangi in the Bay of Islands with Hone Heke being the first. A total of 512 chiefs, including 13 women, signed the nine copies of the Treaty of Waitangi, mostly the Maori language text, at 34 locations around New Zealand between February 6 and May 21, 1840. Only 39 chiefs signed the English language version at Waikato Heads and at Manukau.

The Treaty of Waitangi is on permanent display in the Constitution Room at National Archives in Wellington.

The meaning of the treaty

Introduction

The Treaty of Waitangi has two texts, one Maori and one English. The English text that has been taken as the official version differs from the Maori text. Because he treaty was drafted in English and translated into Maori, the meaning and intent of the treaty would be quite clear in the final English draft. That draft was lost, and what has been taken as the official English version was created by Hobson’s secretary James Stuart Freeman, who cobbled together pieces of discarded earlier versions. Despite the problems caused by the different versions and the missing final draft, all the treaty says is that the Queen is sovereign and Maori are her subjects, with the rights of subjects, including possession of property. Since then, the Queen and her successors have exercised sovereignty for over 173 years.

Preamble

The preamble says the Queen of England, who considerately wishes to maintain peace among Maori and preserve their land, has sent Hobson to negotiate cession of sovereignty and set up a government to protect both settlers and Maori.

The Waitangi Tribunal asserts that there is a difference of meaning between the English and Maori versions, — the Maori version promised to “secure tribal rangatiratanga” and “secure Maori land ownership”.

The Waitangi Tribunal fails to say that the word “rangatiratanga” translates into the word “possession” and the word “kawanatanga” translates into “sovereignty”. Failing to clarify the meanings of these words, the tribunal asserts there is a fundamental difference in meaning between the two texts when, apart from differences in phrasing, extra words, and a formal or slightly pompous style, no fundamental difference actually exists.

Article 1

Article 1 simply says that the chiefs of the Confederation of the United Tribes, a group of 34 Far North chiefs set up in 1835 by British Resident James Busby, and other chiefs, cede sovereignty to the Queen of England.

The Waitangi Tribunal continues with its semantic argument by asserting that by using the word “kawanatanga” in the Maori text to translate “sovereignty” chiefs must have believed that they only “ceded to the Queen a right of governance in return for the promise of protection, while retaining the authority they always had to manage their own affairs.”

This interpretation is incorrect because an eyewitness account by missionary printer William Colenso, who was at the February 5, 1840, discussion at Waitangi, as well as the February 6 signing, recorded several chiefs disagreeing with the idea that they would become subject to the Queen of England, a position they accepted the very next day.

Article 2

Article 2 says the Queen confirms to the chiefs and the tribes and to all the people of New Zealand, the possession of their lands, dwellings and all their property, while the chiefs grant to the Queen the exclusive right of buying such lands as the proprietors may want to sell at agreed prices.

The word “possession” in the original English draft of the treaty was translated as “rangatiratanga” and the word “property” was translated as “taonga”.

But the Waitangi Tribunal says “rangatiratanga” does not mean “possession”. It says it means as “promising to uphold the authority that tribes had always had over their lands and taonga”.

The tribunal goes on to conclude that by reading Article 2 together with a part of Normanby’s instructions to Hobson that advises against purchasing any territory the retention of which by them would be essential, article 2 was to ensure that “each tribe retained sufficient land”.

The tribunal thus creates the fiction that chiefs were wrongly denied the right to carry on with self-governance. In its National Overview, the tribunal asserts that the “loss of rangatiratanga”, which includes the loss of resources, and the exclusion of Maori from the decision-making institutions, is the No. 1 grievance.

Similarly, the tribunal’s assertion about “sufficient land” provides an all-encompassing treaty justification for grievance No. 2, that is purchases under the Native Lands Act, and grievance No. 3, Crown purchases from 1840 to 1865.

Article 3

Article 3 says that in return for the cession of sovereignty, the Queen shall protect the people of New Zealand who will have the rights and privileges of British subjects.

The Waitangi Tribunal says that this text emphasises equality. Few would have any problem with this until “equality” is transmogrified into race-based affirmative action.

The Epilogue

In the epilogue, the chiefs affirm that they have understood the meaning of the articles, accept them, and agree to them all, and sign their names.

The Waitangi Tribunal does its final bit of treaty twisting by citing a phrase that only appears in the cobbled-together Freeman English language version of the treaty, which says the chiefs “enter into the same in the full spirit and meaning thereof”, to assert “these words are important, for it is the treaty’s principles, rather than the meaning of its strict terms, that the Waitangi Tribunal must determine today”. In this way, the tribunal imports a series of principles that were created in 1987. A further justification for the use of the 1980s “principles” is to make the variations between the two texts less problematic.

Treaty texts

Busby February 4, 1840, draft aka

Littlewood Draft

The Busby February 4 draft was found by chance in a drawer in March 1989. The handwriting was confirmed in 2000 as that of British Resident James Busby. The historian who did an official appraisal in 2006 concluded that it was either a back translation of the Maori text of the treaty, because U.S. Consul James Clendon described it as a translation when he forwarded a transcription of the February 4 draft to the United States on February 20, 1840, or it is a copy of the missing final draft. Either way, it is the English version of the Treaty of Waitangi that is closest to the Maori text. The Busby February 4 draft is on display in the Constitution Room at National Archives in Wellington.

Preamble

Her Majesty Victoria, Queen of England in her gracious consideration for the chiefs and people of New Zealand, and her desire to preserve them their land and to maintain peace and order amongst them, has been pleased to appoint an officer to treat with them for the cession of the Sovreignty [sic] of their country and of the islands adjacent to the Queen. Seeing that already many of Her Majesty’s subjects have already settled in the country and are constantly arriving: And that it is desirable for their protection as well as the protection of the natives to establish a government amongst them.

Her Majesty has accordingly been pleased to appoint me William Hobson a captain in the Royal Navy to be Governor of such parts of New Zealand as may now or hereafter be ceded to Her Majesty and proposes to the chiefs of the Confederation of United Tribes of New Zealand and the other chiefs to agree to the following articles.-

Article first

The chiefs of the Confederation of the United Tribes and the other chiefs who have not joined the confederation, cede to the Queen of England for ever the entire Sovreignty [sic] of their country.

Article second

The Queen of England confirms and guarantees to the chiefs and the tribes and to all the people of New Zealand, the possession of their lands, dwellings and all their property. But the chiefs of the Confederation of United Tribes and the other chiefs grant to the Queen, the exclusive rights of purchasing such lands as the proprietors thereof may be disposed to sell at such prices as may be agreed upon between them and the person appointed by the Queen to purchase from them.

Article third

In return for the cession of their Sovreignty [sic] to the Queen, the people of New Zealand shall be protected by the Queen of England and the rights and privileges of British subjects will be granted to them.

Signed, William Hobson

Consul and Lieut. Governor.

Now we the chiefs of the Confederation of United Tribes of New Zealand assembled at Waitangi, and we the other tribes of New Zealand, having understood the meaning of these articles, accept them and agree to them all. In witness whereof our names or marks are affixed. Done at Waitangi on the 4th of February, 1840.”

Te Tiriti o Waitangi Maori language translation February 5, 1840

KO WIKITORIA te Kuini o Ingarani i tana mahara atawai ki nga Rangatira me nga Hapu o Nu Tirani i tana hiahia hoki kia tohungia ki a ratou o ratou rangatiratanga me to ratou wenua, a kia mau tonu hoki te Rongo ki a ratou me te Atanoho hoki kua wakaaro ia he mea tika kia tukua mai tetahi Rangatira – hei kai wakarite ki nga Tangata maori o Nu Tirani – kia wakaaetia e nga Rangatira Maori te Kawanatanga o te Kuini ki nga wahikatoa o te wenua nei me nga motu – na te mea hoki he tokomaha ke nga tangata o tona Iwi Kua noho ki tenei wenua, a e haere mai nei.

Na ko te Kuini e hiahia ana kia wakaritea te Kawanatanga kia kaua ai nga kino e puta mai ki te tangata Maori ki te Pakeha e noho ture kore ana. Na kua pai te Kuini kia tukua a hau a Wiremu Hopihona he Kapitana i te Roiara Nawi hei Kawana mo nga wahi katoa o Nu Tirani e tukua aianei amua atu ki te Kuini, e mea atu ana ia ki nga Rangatira o te wakaminenga o nga hapu o Nu Tirani me era Rangatira atu enei ture ka korerotia nei.

Ko te tuatahi

Ko nga Rangatira o te wakaminenga me nga Rangatira katoa hoki ki hai i uru ki taua wakaminenga ka tuku rawa atu ki te Kuini o Ingarani ake tonu atu – te Kawanatanga katoa o o ratou wenua.

Ko te tuarua

Ko te Kuini o Ingarani ka wakarite ka wakaae ki nga Rangitira ki nga hapu – ki nga tangata katoa o Nu Tirani te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa. Otiia ko nga Rangatira o te wakaminenga me nga Rangatira katoa atu ka tuku ki te Kuini te hokonga o era wahi wenua e pai ai te tangata nona te Wenua – ki te ritenga o te utu e wakaritea ai e ratou ko te kai hoko e meatia nei e te Kuini hei kai hoko mona.

Ko te tuatoru

Hei wakaritenga mai hoki tenei mo te wakaaetanga ki te Kawanatanga o te Kuini – Ka tiakina e te Kuini o Ingarani nga tangata maori katoa o Nu Tirani ka tukua ki a ratou nga tikanga katoa rite tahi ki ana mea ki nga tangata o Ingarani.

(signed) William Hobson, Consul and Lieutenant-Governor.

Na ko matou ko nga Rangatira o te Wakaminenga o nga hapu o Nu Tirani ka huihui nei ki Waitangi ko matou hoki ko nga Rangatira o Nu Tirani ka kite nei i te ritenga o enei kupu, ka tangohia ka wakaaetia katoatia e matou, koia ka tohungia ai o matou ingoa o matou tohu.

Ka meatia tenei ki Waitangi i te ono o nga ra o Pepueri i te tau kotahi mano, e waru rau e wa te kau o to tatou Ariki.

The official English version

The following version of the treaty is taken from the first schedule to the Treaty of Waitangi Act 1975. Hobson’s secretary James Stuart Freeman compiled this version from earlier discarded drafts. The language has been described as written in a “royal style” because of its pretentious legal phrasing that does not appear in the Busby draft of the Maori text.

Preamble

HER MAJESTY VICTORIA Queen of the United Kingdom of Great Britain and Ireland regarding with Her Royal Favour the Native Chiefs and Tribes of New Zealand and anxious to protect their just Rights and Property and to secure to them the enjoyment of Peace and Good Order has deemed it necessary in consequence of the great number of Her Majesty’s Subjects who have already settled in New Zealand and the rapid extension of Emigration both from Europe and Australia which is still in progress to constitute and appoint a functionary properly authorized to treat with the Aborigines of New Zealand for the recognition of Her Majesty’s Sovereign authority over the whole or any part of those islands – Her Majesty therefore being desirous to establish a settled form of Civil Government with a view to avert the evil consequences which must result from the absence of the necessary Laws and Institutions alike to the native population and to Her subjects has been graciously pleased to empower and to authorize me William Hobson a Captain in Her Majesty’s Royal Navy Consul and Lieutenant Governor of such parts of New Zealand as may be or hereafter shall be ceded to her Majesty to invite the confederated and independent Chiefs of New Zealand to concur in the following Articles and Conditions.

Article the First

The Chiefs of the Confederation of the United Tribes of New Zealand and the separate and independent Chiefs who have not become members of the Confederation cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty which the said Confederation or Individual Chiefs respectively exercise or possess, or may be supposed to exercise or to possess over their respective Territories as the sole Sovereigns thereof.

Article the Second

Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession; but the Chiefs of the United Tribes and the individual Chiefs yield to Her Majesty the exclusive right of Preemption over such lands as the proprietors thereof may be disposed to alienate at such prices as may be agreed upon between the respective Proprietors and persons appointed by Her Majesty to treat with them in that behalf.

Article the Third

In consideration thereof Her Majesty the Queen of England extends to the Natives of New Zealand Her royal protection and imparts to them all the Rights and Privileges of British Subjects.

W HOBSON

Lieutenant Governor.

Now therefore We the Chiefs of the Confederation of the United Tribes of New Zealand being assembled in Congress at Victoria in Waitangi and We the Separate and Independent Chiefs of New Zealand claiming authority over the Tribes and Territories which are specified after our respective names, having been made fully to understand the Provisions of the foregoing Treaty, accept and enter into the same in the full spirit and meaning thereof: in witness of which we have attached our signatures or marks at the places and the dates respectively specified.

Done at Waitangi this Sixth day of February in the year of Our Lord One thousand eight hundred and forty.

T.E Young’s back-translation of the Maori text into English 1869.

T.E. Young was employed by the Native Department. He made the translation for the Legislative Council. Compare the childlike phrasing of this translation from the Maori with the precision of language in the Busby February 4 draft.

Preamble

Victoria, Queen of England, in her kind thoughtfulness to the Chiefs and Hapus of New Zealand, and her desire to preserve to them their chieftainship and their land, and that peace may always be kept with them and quietness, she has thought it a right thing that a Chief should be sent here as a negotiator with the Maoris of New Zealand – that the Maoris of New Zealand may consent to the Government of the Queen of all parts of this land and the islands, because there are many people of her tribe that have settled on this land and are coming hither.

Now the Queen is desirous to establish the Government, that evil may not come to the Maoris and the Europeans who are living without law.

Now the Queen has been pleased to send me, William Hobson, a Captain in the Royal Navy, to be Governor to all the places of New Zealand which may be given up now or hereafter to the Queen; an he give forth to the Chiefs of the Assembly of the Hapus of New Zealand and other Chiefs the laws spoken here.

The First

The Chiefs of the Assembly, and all Chiefs also who have not joined the Assembly, give up entirely to the Queen of England for ever all the Government of their lands.

The Second

The Queen of England arranges and agrees to give to the Chiefs, the Hapus and all the people of New Zealand, the full chieftainship of their lands, their settlements and their property. But the Chiefs of the Assembly, and all the other Chiefs, gives to the Queen the purchase of those pieces of land which the proprietors may wish, for such payment as may be agreed upon by them and the purchaser who is appointed by the Queen to be her purchaser.

The Third

This is an arrangement for the consent to the Government of the Queen. The Queen of England will protect all the Maoris of New Zealand. All the rights will be given to them the same as her doings to the people of England.

William Hobson Consul and Lieutenant Governor

Now, we the Chiefs of the Assembly of the Hapus of New Zealand, now assembled at Waitangi. We also, the Chiefs of New Zealand, see the meaning of these words: they are taken and consented to altogether by us. Therefore are affixed our names and marks.

This done at Waitangi, on the sixth day of February, in the year one thousand eight hundred and forty, of Our Lord.

The Kawharu Translation

The following translation of the Maori text of the Treaty was done by former Tribunal member Professor Sir Hugh Kawharu. Footnotes are those of Kawharu appended on the Waitangi Tribunal website so reflect Waitangi Tribunal thinking. Kawharu makes the unpardonable error of ignoring the source document while trying to interpret the meaning of a translated text. He overlooks the fact that “kawanatanga” translates “sovereignty” and “rangatiratanga” translates “possession” to arrive at the conclusion that the chiefs surrendered governance while retaining the unqualified exercise of their chieftainship over their lands.

Victoria, the Queen of England, in her concern to protect the chiefs and the subtribes of New Zealand and in her desire to preserve their chieftainship(1) and their lands to them and to maintain peace(2) and good order considers it just to appoint an administrator(3) one who will negotiate with the people of New Zealand to the end that their chiefs will agree to the Queen’s Government being established over all parts of this land and (adjoining) islands(4) and also because there are many of her subjects already living on this land and others yet to come. So the Queen desires to establish a government so that no evil will come to Maori and European living in a state of lawlessness. So the Queen has appointed ‘me, William Hobson a Captain’ in the Royal Navy to be Governor for all parts of New Zealand (both those) shortly to be received by the Queen and (those) to be received hereafter and presents5 to the chiefs of the Confederation chiefs of the subtribes of New Zealand and other chiefs these laws set out here.

The first

The Chiefs of the Confederation and all the Chiefs who have not joined that Confederation give absolutely to the Queen of England forever the complete government(6) over their land.

The second

The Queen of England agrees to protect the chiefs, the subtribes and all the people of New Zealand in the unqualified exercise(7) of their chieftainship over their lands, villages and all their treasures.(8) But on the other hand the Chiefs of the Confederation and all the Chiefs will sell(9) land to the Queen at a price agreed to by the person owning it and by the person buying it (the latter being) appointed by the Queen as her purchase agent.

The third

For this agreed arrangement therefore concerning the Government of the Queen, the Queen of England will protect all the ordinary people of New Zealand and will give them the same rights and duties(10) of citizenship as the people of England.(11)

[signed] William Hobson Consul & Lieut Governor

So we, the Chiefs of the Confederation of the subtribes of New Zealand meeting here at Waitangi having seen the shape of these words which we accept and agree to record our names and our marks thus.

 

Was done at Waitangi on the sixth of February in the year of our Lord 1840.

 

Footnotes

1. ‘Chieftainship’: this concept has to be understood in the context of Mäori social and political organisation as at 1840. The accepted approximation today is ‘trusteeship’.↑

2. ‘Peace’: Māori ‘Rongo’, seemingly a missionary usage (rongo – to hear: ie, hear the ‘Word’ – the ‘message’ of peace and goodwill, etc).↑

3. Literally ‘Chief’ (‘Rangatira’) here is of course ambiguous. Clearly, a European could not be a Māori, but the word could well have implied a trustee-like role rather than that of a mere ‘functionary’. Māori speeches at Waitangi in 1840 refer to Hobson being or becoming a ‘father’ for the Māori people. Certainly this attitude has been held towards the person of the Crown down to the present day – hence the continued expectations and commitments entailed in the Treaty.↑

4. ‘Islands’: ie, coastal, not of the Pacific.↑

5. Literally ‘making’: ie, ‘offering’ or ‘saying’ – but not ‘inviting to concur’.↑

6. ‘Government’: ‘kawanatanga’. There could be no possibility of the Māori signatories having any understanding of government in the sense of ‘sovereignty’: ie, any understanding on the basis of experience or cultural precedent.↑

7. ‘Unqualified exercise’ of the chieftainship – would emphasise to a chief the Queen’s intention to give them complete control according to their customs. ‘Tino’ has the connotation of ‘quintessential’.↑

8. ‘Treasures’: ‘taonga’. As submissions to the Waitangi Tribunal concerning the Māori language have made clear, ‘taonga’ refers to all dimensions of a tribal group’s estate, material and non-material – heirlooms and wahi tapu (sacred places), ancestral lore and whakapapa (genealogies), etc.↑

9. Māori ‘hokonga’, literally ‘sale and purchase’. ‘Hoko’ means to buy or sell.↑

10. ‘Rights and duties’: Māori at Waitangi in 1840 refer to Hobson being or becoming a ‘father’ for the Māori people. Certainly, this attitude has been held towards the person of the Crown down to the present day – hence the continued expectations and commitments entailed in the Treaty.↑

11. There is, however, a more profound problem about ‘tikanga’. There is a real sense here of the Queen ‘protecting’ (ie, allowing the preservation of) the Māori people’s tikanga (ie, customs) since no Māori could have had any understanding whatever of British tikanga (ie, rights and duties of British subjects). This, then, reinforces the guarantees in article 2.

Treaty principles

Although “principles” of the Treaty of Waitangi were referred to in the Treaty of Waitangi Act 1975, no one knew what they actually were until the president of the Court of Appeal, Justice Robin Cooke, enumerated a summary of what he said they were in the 1987 New Zealand Maori Council v Attorney-General decision. Cooke’s summary appears to be little more than a personal opinion given legitimacy by the position he held. Cooke’s six principles were:

(a) ‘[T]he Queen was to govern and the Maoris were to be her subjects; in return their chieftainship and possessions were to be protected, but . . . sales of land to the Crown could be negotiated.’

(b) Because there was some inevitable potential conflict between those principles, both parties had a duty ‘to act reasonably and with the utmost good faith’ towards one another.

(c) The principles of the treaty do not authorise unreasonable restrictions on the right of a duly elected government to follow its chosen policy.’

(d) The Crown assumed a duty of protection towards Maori: ‘the duty is not passive but extends to active protection of Maori people in the use of their lands and waters to the fullest extent practicable.’

(e) The Crown has a duty to remedy past breaches: ‘the Crown should grant at least some form of redress, unless there are good grounds justifying a reasonable Treaty partner in withholding it – which would only be in very special circumstances, if ever.’

(f) The Crown had an obligation to consult with Maori in the exercise of kawanatanga. Justice Cooke was guarded, however, as to the practical extent of that obligation

The government created its own set of treaty principles. Justice Minister Geoffrey Palmer had a treaty unit set up within the Justice Department create a 15-page booklet titled The Principles for Crown Action on the Treaty of Waitangi that was adopted by Cabinet and published on July 4, 1989.

More principles were to appear. They included:

NZ Maori Council to Court of Appeal 1987- 10 principles

Crown to Court of Appeal 1987- 5 principles

Waitangi Tribunal 1983-1988- 12 principles

Royal Commission on Social Policy 1988—3 principles

Hiwi Tauroa (former race relations conciliator) 1989- 4 principles

Office of Treaty Settlements 1999- 4 principles

Douglas Graham(in his book Trick or treaty) –11 principles

Centre for Maori Studies Lincoln University 1994 –4 principles

New Zealand Law Commission 1999-13 principles

NZ Attorney General 2000 – 6 principles

Minister of Health/Privy Council (undated) – 3 principles

The Waitangi Tribunal maintains that it must determine the treaty’s principles rather than the meaning of the treaty’s strict terms even though it has already redefined key words in the treaty to justify the widest range of grievance possible. It appears that the principles, either any of the 13 sets already stated, or any list that may be created in the future, are capable of justifying any tribal demand that may appear at any time.

The Waitangi Tribunal

The Treaty of Waitangi Act 1975 set up the Waitangi Tribunal as a permanent commission of inquiry to examine any claim by Maori over any law, regulation, or acts, omissions, policies, or practices of the Crown that may have given offence. It was an attempt to provide an avenue for Maori grievance and get Maori nationalist protest off the streets. The Act was passed a couple of days before the Maori Land March led by Dame Whina Cooper delivered a 60,000-signature petition to Prime Minister Bill Rowling.

The act also gave a handful of un-elected tribunal members the exclusive authority to interpret the treaty. The Act was the first legal recognition of the treaty.

The Act aimed to examine current policies and practices against principles of the treaty but it did not allow the tribunal to investigate historical breaches. In 1985, Justice Minister Geoffrey Palmer enabled the Waitangi Tribunal to investigate claims back to 1840.

Claims started to trickle in, began to multiply, and became more complex. In 1882, chiefs had just nine grievances that they took to England. In contrast, a total of 2034 claims were registered with the Waitangi Tribunal by June 2009. Since more than 2000 claims came into existence after a naïve government created the opportunity make all manner of claims, it appears that the Waitangi Tribunal is in fact somewhat of a claims magnet.

OneLaw4all says the Waitangi Tribunal should be abolished. There are seven reasons why it should go:

1. As a permanent, for-Maori-only complaint body, the Waitangi Tribunal creates a race fault line.

2. The tribunal rewrites history for financial gain.

3. The tribunal is not a dispassionate, fact-finding body. It is heavily biased towards Maori claimants.

4. Tribunal activities undermine private property rights

5. The tribunal has failed to meet public expectations because while it has been in existence, Maori protest has escalated, settlement proceeds have been captured by tribal elites, and Maori under-privilege appears to continue unabated.

6. The tribunal has created a ‘gravy train’

7. The tribunal is used to extract benefits for tribal interests. (See full article)

The Waitangi Tribunal could be abolished by repealing Sections 4-8 of the Treaty of Waitangi Act 1975, leaving any final historic settlements that are still in the pipeline to be negotiated directly with the Crown – since more and more tribes are choosing to do that anyway.

Treaty settlements

A Treaty of Waitangi settlement includes financial redress (cash and/or property), rights of first refusal on the purchase of properties within the claim area, cultural redress, and co-governance arrangements.  Cultural redress and co-governance includes dollar amounts not included in the financial redress total. The financial redress amounts are sometimes “plus interest” where the interest is not specified. The completed settlement total is contentious and was in 2013 the subject of a dispute between the government and two claimant groups – Waikato-Tainui and Ngai Tahu – because of a relativity clause in their settlements that provides for a top-up of a percentage of settlements over $1-billion in 1992 dollars ($1.5-billion in 2012 dollars). The settlements detailed below were compiled from details on the Office of Treaty Settlements website and includes claimant group, date of settlement, and financial redress amount to July 24, 2013:

 

Claimant group

Year

Financial redress ($m)
Commercial Fisheries 1992 170
Ngati Rangiteaorere 1993 0.76
Hauai 1993 0.72
Ngati Whakaue 1994 5.21
Waikato/Tainui 1995 170
Waimakuku 1995 0.38
Rotoma 1995 0.04
Te Maunga 1996 0.13
Ngai Tahu 1998 170
Ngati Turangitukua 1999 5
Pouakani 2000 2.65
Te Uri o Hau 2002 15.6
Ngati Ruanui 2003 41
*Ngati Tama 2003 14.50
Ngati Awa 2005 43.39
Tuwharetoa (Bay of Plenty) 2005 10.5
Ngaa Rauru Kiitahi 2005 31
Te Arawa Lakes 2006 10.4
Ngati Mutunga 2006 14.9
Te Roroa 2008 9.5
Te Pumautanga o Te Arawa 2008 38.9
*Central Nth Island Forests Iwi Collective 2008 149.56
Taranaki Whanui ki Te Upoko o Te Ika 2009 25.03
*Waikato River 2010-12 400.8
Ngati Apa (North Island) 2010 16
Ngati Whare 2012 15.7
*Ngati Manawa 2012 2.6
Ngati Pahauwera 2012 20
Ngati Porou 2012 110
Maraeroa A and B Blocks 2012 1.8
Ngati Makino 2012 11.3
Ngai Tamanuhiri 2012 22.24
Rongawhakaata 2012 22.24
Ngati Whatua o Orakei 2012 20
Ngati Manuhiri 2012 9
Ngati Whatua o Kaipara 2013 22.1
TOTAL 1602.95

 

* Ngati Tama announced in 2012 that it lost its entire $14.5-million settlement citing poor investments

*Central Nth Island Forests Iwi Collective also received $223-million in forest rentals held in trust since 1989. That is not included in the financial redress total because it was regarded as tribal money from 1989. A later Office of Treaty Settlements list records the total amount as $161-million.

*Waikato River. The government argues that this is not historical redress so should not be included in the settlement total. The $400.8-million total includes all payments for 27 years. A total of $130.8-million was paid up front.

*Ngati Manawa also received $12.2-million worth of CNI forestland included in the CNI deal.