Dame Claudia Orange reflects on the past and the present of the Treaty of Waitangi. Video / NZ Herald
Dame Claudia Orange says the Treaty of Waitangi committed NZ to a shared authority.
What that shared authority means today and how it might develop further is a matter of ongoing debate, she says in a keynote lecture. Read the full lecture below.
Her childhood experiences gave her a lifelong interest in Māori-related policy and the Treaty.
She was Claudia Bell, a schoolgirl at St Mary’s, on College Hill, Auckland.
Her father, Mon Bell, a Pākehā and a fluentMāori speaker, had heard that Auckland Council was conducting mass relocations of Ngāti Whātua Ōrākei people housed on the flat at Ōkahu Bay, on the grounds it would be an eyesore for the new Queen.
Young Claudia and her father drove down to Ōkahu Bay from their home in Ponsonby and saw that people had not only been evicted, their houses were being engulfed by fire.
It was a distressing sight. Claudia remembers the wailing of the people and her father putting his head on the steering wheel and crying.
“It was an indelible memory,” she tells the Herald.
She recounted the story in a recent lecture to Friends of the Turnbull Library in which she set out why she believed the coalition Government’s initiatives around the Treaty and its principles are threatening years of work and good faith in Māori – Crown relations.
She also explained how she became interested in history and the Treaty of Waitangi.
Her father had worked for the Department of Māori Affairs all his life and had become fluent in Māori when he first worked in Gisborne, with former Māori Affairs Minister Sir Apirana Ngata among his coaches.
“Ngata would put dad in the car, according to dad, and they would travel the coast to go up to Ngata’s home at Waiomatatini, which is at the East Cape almost.”
Ngata sent Bell north to work with Te Rarawa on land consolidation projects with Bill Cooper, who later married Whina, later Dame Whina Cooper, the leader of the 1975 land march.
Ngata sent Bell to the Cook Islands for three years in the 1930s and he returned to become Commissioner of Māori Affairs in Auckland.
Bell and Cooper remained best friends and it was not uncommon for the young Claudia to see them sitting around the kitchen table conversing in Māori as they sought to turn fragments of Māori land into workable farms, or to hear Whina on the phone.
“I still keep in touch with Whina’s daughter who actually, for a while, was with me at St Mary’s School in Auckland.”
Dame Whina Cooper speaking to protestors at a hui on February 5, 1985. Photo / NZ Herald
Growing up with such a close perspective of Māori land loss added to Claudia’s strong sense of social justice. She did not go to university straight after school but trained as a dental nurse and practised briefly.
She married Rod Orange, a teacher, and they had three children. They moved to Bangkok for three years where Rod set up an English-language institute for the Thai Government.
By the time they returned to New Zealand, Claudia was aged 30 and she had decided to study history at Auckland University, first concentrating on Asian countries and then on New Zealand.
The history department was full of history luminaries including Keith Sinclair, Keith Sorrenson, Russell Stone, Raewyn Dalziel, Ruth Ross and Judith Binney.
Her master’s thesis looked at Māori inequality from 1935 to 1949, coinciding with the years of the first Labour Government. For example, Māori were paid lower unemployment benefits in the 1930s Depression than non-Māori. And some of the promises made before the 1935 election to address Treaty grievances were not enacted for another 50 years when the Waitangi Tribunal was established in 1975.
That work led Orange to embark on a PhD: The Treaty of Waitangi: A study of its making, interpretation and role in New Zealand, which she finished in 1984.
Because there was a wealth of information in te reo in Māori newspapers and Government records, she also took Māori at university to help with basic translation (always to be further checked, she says) and used oral histories as well.
Orange was asked to provide one of the affidavits submitted to the Court of Appeal in the famous Lands case of 1987. There is a reference to her evidence in the final judgment and in particular her view that from the explanation of the Māori text that rangatira were given, they might naturally have drawn the conclusion they were being asked to share some of their authority with a British administration, that it was a protectorate kind of relationship, “one in which power and authority would be shared”.
Orange’s PhD thesis was edited by publisher Bridget Williams to become the best-selling 1987 book The Treaty of Waitangi.
Orange followed Williams when she set up her own company, BWB, and her Treaty books have been continuously in print and updated since then, in either fuller or more compact books. The latest book, Story of a Treaty/ Korero o te Tiriti, was published in 2022.
Claudia Orange's latest BWB book. Her books have been in print continuously since 1987.
Now aged 86, she has by and large steered clear of controversy as an historian and not put her head too far above the parapet.
She has always seen the Crown-Māori relationship and Treaty rights as an evolutionary process and has been dismayed by some of the Government’s policies “that hit Māori so hard”.
She said that perhaps there needed to be some reduction in the “huge drive” the previous Labour Government had undertaken.
“But you can’t go too far. You need something to evolve as a process and we have been very lucky in New Zealand with what we’ve done.”
She was asked before last year’s election to deliver the Founder’s Lecture to the Friends of the Turnbull Library and it worried her.
“It has dogged me for the last eight months or so before I gave it, thinking ‘should I be confident enough to lift my head above the parapet to say what I think?’”
She is referring to policies such as redefining the principles of the Treaty of Waitangi, reviewing the role of the Waitangi Tribunal, repealing the ability of councils to create Māori wards without a local referendum, and repealing section 7AA of the Oranga Tamariki Act.
Dame Claudia Orange, historian and Treaty of Waitangi expert, at her home in Takapuna. 8th August 2024, New Zealand Herald photograph by Sylvie Whinray
“What is the coalition Government trying to do? Is it to rebalance the situation in the country? I don’t have too much worry with that as long as they are more cautious about what they are trying to get rid of. But it seems that they’re not.”
Raising the ire of people to the extent it had “is not conducive to cohesion in the country”.
“Eventually, when this coalition goes out, the pendulum will swing the other way.”
“I’d like in 2040 to feel we had gone far enough in righting the imbalance in the country, one way or another.”
Orange’s Treaty research was broadened with her work on the Dictionary of New Zealand Biography, including Māori biographies, which later became part of Te Ara: The Encyclopedia of New Zealand. She has been acting chief historian of the historical branch of Internal Affairs, director of history and Pacific cultures at Te Papa, and head of research at Te Papa, where she remains an honorary research fellow.
Dame Claudia Orange, aged 86, at home in Takapuna. Photo / Sylvie Whinray
The following is an abridged copy of the lecture Claudia Orange gave to the Friends of the Turnbull Library in Wellington at the end of June:
What does Te Tiriti/Treaty tell us?
I have traced the thread of my research and writing on the Treaty from the 1980s to the present day – so what do I think now about the conclusions I drew in the PhD? Well, my ongoing research has confirmed what I wrote then: that the 1840 Tiriti/Treaty commits us to a shared authority in New Zealand, and this is what we are trying to give effect to today. What that shared authority already is, and how it might develop further, is a matter of ongoing debate – and challenge, especially now with a coalition government.
Since the 1970s, the work on Treaty matters by our elected governments, both Labour and National, has been significant and essential. ‘The Treaty is here to stay’ is a phrase I used when talking to journalist Audrey Young in 2023.[i] But this confidence has been shaken by last year’s election, and by the urgency with which the coalition government has since acted on a range of issues relating to Māori, the Treaty and its principles. That these actions are seen as hostile is manifest in the wide-ranging and powerful Māori response.
I can’t help but ask: What sort of re-setting of the Treaty and its principles is the coalition aiming at? Is it an effort to undo the evolutionary progress on Treaty rights of the last 50 years, made under several governments?
The pre-election period of 2023 saw an upswing of tension around Treaty-related matters. Some 50 years of growing Māori–Crown relationships seemed less secure than I would have expected. New and inaccurate interpretations were promoted by certain groups through well-financed publications and websites. Labour government initiatives designed to improve outcomes for Māori or to recognise Māori rights had sometimes exacerbated public anxieties.
The concept of “co-governance” in particular raised hostility and fear. Christopher Finlayson, a Minister of Treaty Negotiations in the National government of 2008–17, tried to counter this, explaining in the media that he had used the term co-management in many Treaty settlements for the sharing of authority, but the word had morphed into co-governance, and for many this sounded too close to co-government.[ii]
By the time of the election last October, two of the parties bidding for Parliament – NZ First and Act – had policy platforms that put at risk the Tiriti/Treaty and its principles. Act proposed a referendum to redefine the principles of the Treaty, using both the Treaty texts – English and te reo Māori. A broad spectrum of voices have since opposed the referendum. Ngāti Kahungunu and Te Aitanga-a-Māhaki scholar Carwyn Jones has highlighted how it risks being “incredibly unsettling for the law. . . It would create a whole lot of work for lawyers, and not much benefit for anyone.”[iii]
Political commentator Matthew Hooton has said it would generate “significant constitutional, political, social, economic and environmental risks, so that a prudent conservative would not just judge it as radical but as reckless in the extreme.”[iv] Christopher Finlayson agrees, and fears that a referendum would “derail years of good faith bargaining”.[v] I agree with these assessments.
Where does it leave us in considering Te Tiriti – the Treaty itself?
At public talks over the years I have regularly been asked what the intentions were of those involved in 1840. Many historians (and lawyers) have tracked over the same documents, covering the years leading up to 1840. Each has tended to stress different factors in the final decisions that the British government made to intervene in New Zealand. But interest has tended to settle, as my research has, on Te Tiriti, the text in te reo Māori first signed at Waitangi and finally by rangatira around the country.
In his recent award-winning book, The English Text of the Treaty of Waitangi (BWB), Ned Fletcher has looked instead at the English text of the Treaty [vi]. As a lawyer and historian whose master’s thesis was on British law, he also brings to his writing a sharp grasp of the British Government’s law and decision-making. Ned has included details that earlier works possibly missed and has looked at events and people in new ways to draw his conclusions. He reminds us that there were several parties involved at Waitangi on 5 and 6 February – William Hobson, James Busby, Henry Williams, London’s strongly humanitarian Colonial Office – and many Māori rangatira.
(There was also the Catholic Bishop Pompallier who ensured that freedom of faiths in New Zealand would be accepted,) But that is another story and I will return to the main participants of the Treaty story, starting with Māori.
The making of Te Tiriti, the Treaty
It is important to recognise, first, that New Zealand was still a Māori world, although one that was changing fast. Northern rangatira had already been negotiating with British officials, and these relationships laid the ground for He Whakaputanga o te Rangatiratanga o Nu Tireni – the Declaration of Independence.
This document asked the British monarch “to continue to be the parent of their infant State” and “to become its Protector from all attempts upon its independence” [vii]. Developed with missionary Henry Williams, it was written in te reo by a Māori scribe, Pare Hongi, and signed by over 30 rangatira on 28 October 1835 at a meeting organised by British representative James Busby. By the end of 1839 it had 52 signatures. The rangatira asked for an English copy to be sent to the British monarch, and the British Government acknowledged it.
What were Māori seeking? At the time, northern rangatira were conscious of changes that were impacting on many of their hapū. They were aware of a need for laws to control European land purchasers. The 1835 confederation (called a whakaminenga) that grew out of the signing of the Declaration of Independence was their move to form a government or congress. Busby saw it as akin to the Magna Carta, where authority would be shared by many hapū. But further development was overtaken by the arrival of William Hobson on 29 January 1840 in his dual roles as consul to an independent New Zealand and Lieutenant Governor in waiting.
Hobson hoped to secure sovereignty of the whole country by treaty, or at least parts of it. He knew from an 1837 visit that New Zealand was widely recognised as a Māori country; also that the 1835 Declaration of Independence had been acknowledged by Britain. Securing agreement from those who had signed the Declaration was therefore important. As Hobson wrote to his wife Eliza in 1837, his own future would be better served as governor of New Zealand as a British colony.
The Colonial Office provided Hobson with instructions that would largely form the preamble to the Treaty; these stressed that Britain could not protect Māori from unruly British settlers unless Māori gave them authority by treaty. Ned Fletcher sees protection of Māori as the primary motive for the British Government’s decision to establish a presence in New Zealand. I too had focused on the preamble, noting the humanitarian nature of its tenor, but had been sceptical of Hobson’s and the Government’s intentions. I saw the New Zealand Company as the primary stimulus for Britain finally acting.
The key man at the Colonial Office, James Stephen, was humanitarian in outlook and clearly sought to protect Māori from the negative impacts of British immigration. And it was Stephen’s hand that continued to draft the instructions as officials in London debated the situation in New Zealand.
Discussions included the question of Māori ownership of land and whether this applied to all the land in the country, but it was concluded that Māori rights had to be maintained in full (a point well made by Busby’s reports since 1835).
Officials also considered whether a treaty might provide for parts of New Zealand to continue under Māori authority or government – at the time, settlement was mainly a coastal development, and it was thought that the hinterland could perhaps remain under Māori control.
Ned Fletcher concludes that “settlement was to be promoted only to the extent that Māori protection was not compromised”. Further, Māori tribal government and custom were to be maintained; British sovereignty was not seen as inconsistent with plurality in government and law.
That may have been the view of the Colonial Office, but James Stephen was also realistic that New Zealand would be a settlement colony and that settlers’ expectations would ultimately lead to a British form of government in New Zealand. So the Colonial Office sought powers to control the purchase of land and its sale to settlers. Hobson announced this at Kororāreka several days before the Treaty meetings.
This arrangement would enable any colonial government to fund more settlement and government infrastructure. The Colonial Office intention would be secured as part of the Treaty’s second article.
James Busby, who was a complicated character always keen to advance his own interests, had played a key part in the 1835 meeting at Waitangi. He was aware of Māori hapū strength and inter-hapū competitive relations, and doubted that rangatira would be able to form a government; he also thought that no chief would agree to chair the whakaminenga, the governing congress or confederation of rangatira who had signed He Whakaputanga. Nonetheless, he was keen to convene a meeting of the rangatira for the treaty discussions.
So when Hobson dropped anchor in the Bay of Islands on 29 January 1840, Busby quickly organised a hundred invitations to be printed and despatched to the 52 chiefs who had signed He Whakaputanga, along with a few more. The meeting was to be held at Waitangi on 5 February.
Within those few days of early February, Hobson and his secretary drafted a text for the proposed treaty, based on his instructions from the Colonial Office. Hobson had no legal training, and the Colonial Office had not provided a treaty text.
Busby felt that Hobson’s text was inadequate and added to it. On 4 February, the missionary Henry Williams received a final text to translate [into Māori] – to be ready for the following day.
It was Henry Williams’ text – Te Tiriti o Waitangi – that was presented and debated on 5 February. A clean copy on parchment was signed on 6 February by over 40 senior rangatira, 26 of whom had signed the 1835 Declaration of Independence. Within a week, meetings followed at Waimate North and Hokianga, adding 60 to 70 further signatures.
Te Tiriti o Waitangi – the text in te reo Māori that was signed at Waitangi – was then printed on the mission press on 17 February 1840. This was the only official printing of the text in te reo. Hobson intended to travel the country himself, seeking more signatures to Te Tiriti, but he suffered a stroke aboard ship in Auckland Harbour on 1 March 1840.
Alternative arrangements had to be made: several missionaries and two army men were provided with handwritten copies of Te Tiriti to secure agreements. An English copy was sent to Waikato Heads, probably with one of the printed te reo texts attached. This English copy has become the English Treaty we know, its text confirmed by other English copies sent to Sydney and London.
Over the next seven to eight months, at more than 50 signings, rangatira in hapū around the country added their agreement – with ta moko, a signature or a cross – to one of nine Tiriti/Treaty copies which have a total of 542 names, including those of 12 to 16 women.
Apart from the one copy in English, Māori were signing Te Tiriti o Waitangi (the text in te reo). The dates and places of signings are now often acknowledged; some are well known but others less so – such as at Karaka Bay in Auckland, where two signings took place. Te Tiriti was signed as far south as near Ruapuke Island [southeast of Bluff], but most of the signings were in coastal areas, with inland iwi less accessible and sometimes declining to sign (Ngati Tuwharetoa is said to have declined.)
The two texts reconcile
The Crown was therefore granted by Te Tiriti the right to set up government or “governmental authority” in the word “kawanatanga”. He Whakaputanga had foreshadowed this in 1835, because Ngāpuhi had seen the need for a form of governance relating to laws and justice. At the same time, Te Tiriti guaranteed Māori their absolute chieftainship and authority in “tino rangatiratanga”, a concept they knew.
Thus, the agreement allowed for two authorities to co-exist in a new nation – for a sort of partnership, or at least the basis of one. As Colin James reflected in a National Library Treaty discussion a year or two ago – “the Treaty was and is a great democratic document” [viii].
There has been long-standing debate about whether Williams framed Te Tiriti in terms that he felt rangatira would accept. Did he deliberately mislead rangatira as to British intentions, or was he attempting an accurate although complex translation?
I gave Williams the benefit of the doubt, as I didn’t know how thoroughly he had been briefed by Hobson. Ned Fletcher, however, thinks Williams understood that Britain was looking for a way to create a colony in New Zealand, but one that nonetheless allowed for Māori authority.
Henry Williams knew that the British needed to secure Māori agreement to Te Tiriti, but he was aware too of likely Māori caution. For some time, however, he had been concerned about unscrupulous behaviours amongst arriving settlers and saw British intervention as necessary.
When Hobson arrived on 29 January, Williams had just returned from Wellington, where the New Zealand Company’s many rushed purchases and the anticipated arrival of around 1000 settlers no doubt confirmed his concerns. Māori agreement was essential for a future in which Māori would, at least for some time, be dominant and powerful in numbers and strength.
So Williams’ translation used some key words that had been used in the 1835 Declaration of Independence – such as rangatiratanga for chiefs’ independence and kawanatanga for government authority. According to Ned Fletcher, Williams believed Māori would not understand sovereignty or sovereign rights. At Kaitāia, when Nopera Panakareo asked about sovereignty, missionary William Puckey would explain that it was akin to the moon’s shadow.
In his assessment of the English text, therefore, Ned Fletcher dismisses the argument that the translation is faulty. He says the two texts “reconcile”. In short, the two texts of the Treaty are complementary and must be understood in that way. He argues that the understanding of the several parties involved suggests this. He is probably right. Nevertheless, he agrees that the Māori text should take priority, as it was the one signed. And this understanding reflects the legal doctrine of contra preferentem (meaning that any ambiguity in a contract should be interpreted against the party that drafted or provided the contract, in this case the British Crown).
In 2024 we do need to take both texts into account, and both need to be acknowledged as important. This is why the damaged English copy at Te Papa will be replaced with a projection of the English Treaty text from 1840, alongside Hugh Kawharu’s translation of Te Tiriti into English.
These documents will be displayed alongside Te Tiriti, the document in te reo that was signed at eight of the nine meetings with rangatira in 1840. It is important for Te Papa, the national museum, to present a good understanding of both texts, and especially of what Māori were signing in 1840.
What has changed in understandings over the past 180 years?
Whether Māori at Waitangi in 1840 grasped the full implications of sovereignty as understood by the British is unclear. But rangatira had a strong grasp of the issues at stake. Challenges made by rangatira in the debate at Waitangi were recorded by missionary observers and others; more were recorded at Hokianga, where rangatira were particularly sceptical of the British Government’s intentions and good will. Northern rangatira had been trading with Sydney for some time, and several had travelled across the Tasman; they were familiar with the colonial Government in Sydney and its treatment of Indigenous peoples there.
The fuller implications of Te Tiriti for Māori soon became clear, however. Rangatira in different parts of the country were soon making their case for Treaty promises to be kept, sometimes reaching out to the highest authority, the Queen in England, for support – as Waikato leader Te Wherowhero did in 1848. The struggle for Treaty promises to be fulfilled was to continue for the next two centuries.
Within two or three months of the Waitangi signing, Hobson also realised that there were difficulties in having two authorities in the country. And advice from the Colonial Office stressed that Britain had secured sovereignty in New Zealand – over all Māori, including those who had not signed.
New Zealand was confirmed as a British colony in May 1841. But Māori customs and authority continued over much of the country for the next few years. Land was the contentious issue. The Colonial Office maintained the view that Māori had full ownership of land, whether occupied and used, or not, and continued to hold this position. As settlement gradually extended, conflict was inevitable, and government authority was limited. Attempts were made by settlers and the country’s press to translate Te Tiriti to ascertain its meaning and assess what Crown sovereignty meant.
Aggressive attitudes by New Zealand Company settlers against Te Tiriti were strongly promoted by their leaders. But others thought differently: when a constitution was sent from Britain in 1846, 400 Auckland settlers petitioned for Te Tiriti to be maintained. And early governors did their best to hold to the humanitarian basis on which the country was founded.
The country’s third governor, George Grey, arrived in late 1845. War had broken out in the north, and settlement was growing apace and moving into the hinterland. Grey enabled the direct purchase of land from Māori, and closed off the option of Māori leasing land (rather than selling it outright to the newcomers). So the land continued to pass out of Māori control for a range of reasons.
Over the next decade, constitutional government gradually shifted from Britain to New Zealand, while settlement steadily increased. By 1858, the Māori and European populations were roughly equal in size. The governor, still representing Britain, continued to hold responsibility for Māori, but the locally elected parliament had the power of the purse.
As governments rotated in Britain, the times were changing, reflecting broader shifts in global perspectives. As Ned Fletcher puts it: “In the end there were a combination of unstoppable forces, including the retreat of humanitarianism and the rise of racism in Britain and its empire, the moves to responsible governments in the white settlement colonies, and the trend of legal thought away from pluralism.”
The constitution sent from Britain in 1852 allowed for separate Māori authority in local settlements, but New Zealand governments did not take this path. Turning away from plurality was later evident in the Government’s responses to Māori political movements such as the Kiingitanga and the Māori parliaments, and to government resistance to and actions at places such as Parihaka and Maungapohatu.
From 1860, a series of conflicts around the middle of the North Island had broken out – starting in Taranaki, spreading soon through the Waikato and across to Tauranga. The New Zealand Wars formed, in effect, the “great war for New Zealand”, in Vincent O’Malley’s words. By the end of the decade, immense tracts of the country had passed from Māori to government or settler ownership – through conquest, confiscation or sale. The consequences of the wars and of land loss were to be felt for generations in Māori communities.
The Treaty continued to form part of the political debate, however. In 1860 some 200 to 300 of New Zealand’s Māori leaders were called to a great government-organised conference at Kohimarama, Auckland, where Governor Gore Brown sought Māori support against the King Movement. While Brown repeated the commitments made in Te Tiriti, Māori speeches made it clear that their understandings in 1840 had been various. And the leadership was not ready to stand as a group with the Government against the Kīngitanga. Further conferences were promised, but did not eventuate. However, in 1867 Parliament agreed to four Māori MPs – at the time seen as a temporary measure, but this representation continues to the present day.
After the wars of the 1860s, Māori would continue to search for a way to work with government, using different strategies. In the 1870s, sons of Ngāpuhi chiefs who had signed Te Tiriti developed the site at Te Tii marae at Waitangi where their fathers had debated Te Tiriti on the night of 5 February 1840. An obelisk featuring words from Te Tiriti was erected (and still stands), and a whare called the Treaty of Waitangi was built.
Several appeals were made to the British monarch and governments, such as one by Ngāpuhi school teacher Sydney Taiwhanga in 1882. The Kīngitanga also mounted appeals – one in 1884 and another in 1914. These were referred back to the New Zealand Government, as all other appeals would be.
Over the following decades, iwi in different parts of the country continued to challenge the Government about Treaty commitments, making claims based on breaches of the Treaty and seeking forms of redress. The Treaty remained a focal point for many Māori through movements like Kotahitanga, the Rātana Church in the 1920s, and the debates on citizenship and nationhood during the World Wars. It was not until the 1970s, however, that concerted efforts were made by government to find ways to “honour the Treaty”.
Gift of Waitangi
While the Treaty slipped largely off the radar for Pākehā New Zealand through these years, in 1932 and 1933, the British Governor-General, Lord Bledisloe, and his wife took a remarkable step – making a gift of the Waitangi grounds to all New Zealanders. Each year the Treaty grounds and Te Tii Waitangi are special places for remembering and reflecting, with representatives of the Government and iwi meeting to acknowledge the significance of Te Tiriti, the Treaty. People from all backgrounds travel to Waitangi for the day, and the significance of the day is marked in the same way in gatherings around the country.
Looking over the historic record, continuity as well as fluctuations can be seen in Māori understanding of Te Tiriti from 1840 through to the present; and there is no one Māori voice on Treaty rights. Āpirana Ngata argued in support of Te Tiriti in 1922, then in 1940 spoke and wrote angrily in a paper “The Price of Citizenship” about the injustice of the Māori situation. The Māori position on Te Tiriti has tended to be more diverse as more Māori moved into cities after World War 2. The arrival of many people from the Pacific also brought change: with migration, a multicultural society was evolving on its bicultural foundation. As Nanaia Mahuta noted at a Parliamentary conference, “We have to move beyond the bicultural, on to what makes us.” New Zealand was changing – as indeed the world was changing.
Where are we now?
Over the last 50 or more years, the country has found more ways of addressing governments’ historical record in failing to maintain the Treaty compact. In the general public there is a large and growing base of informed and supportive Pākehā – “tangata tiriti” is a term one hears increasingly. Historians and lawyers have played their part in research, writing and publication, and our governments have changed.
Māori challenge has driven these changes. Much began with the 1975 hīkoi or land march from Te Hapua in the far north to Parliament, where the Treaty of Waitangi Act 1975 was close to being passed. Under this Act the Government set up an independent commission of inquiry, which became the Waitangi Tribunal. The act enabled Māori (or a group of Māori) to register claims that they had been prejudicially affected by government action or inaction. The meaning and effect of both Te Tiriti and the Treaty had to be taken into account. Although the act’s effect was limited to issues only after 1975, the first reports from the Chief Judge of the Waitangi Tribunal, Edward Taihakurei Durie, showed that past events had to be considered.
The Waitangi Tribunal
When the Fourth Labour Government took office in 1984, the Tribunal’s mandate was extended back to 6 February 1840. And over the last 40 years, the Tribunal has examined evidence in its district inquiries hearings that have covered the entire country. The impact of the Tribunal’s hearings and reports has been huge; they have documented and heard Māori accounts of Treaty breaches; they have led to settlements that in part provide some redress, through acknowledgement and apology, and through financial, commercial and cultural redress; and they have steadily informed the wider public.
By 2016, district inquiries were drawing to a close, although some reports are still to be concluded. Kaupapa or generic claims continue, along with urgent contemporary claims. The Waitangi Tribunal’s role remains vitally important in a society that is based on the foundational compact, Te Tiriti o Waitangi.
Government policies sometimes have a way of creating conflict. The Fourth Labour Government of 1984–1990 gave the Treaty significant recognition but simultaneously initiated major economic restructuring that impacted particularly on Māori. And in 2003–04, when the Government (again Labour) set out to address the question of ownership of the country’s foreshore and seabed, the public mistakenly interpreted this as a serious threat to free access to the coast and beaches, and Māori protested vehemently. Legislation passed by Labour in 2004 satisfied few.
A later National Government addressed the issue again, replacing the 2004 legislation with the Marine and Coastal Area (Takutai Moana) Act in 2011. Under this Act, Māori rights to the foreshore can be investigated through Māori applications to the High Court and the minister (and a number have been successful). It is clear that significant issues involving Māori and government are complex and bound to continue.
Looking to 2040
In the National-led years from 2008 to 2017, some 59 Treaty settlements were accomplished, and the Crown’s thinking on Te Tiriti showed a significant shift toward accepting Māori perspectives. This was evident in the creation of a legal personality in the Whanganui River, recognised in the Whanganui River settlement. It was evident as well in the Ngāi Tuhoe settlement, with the legislative acknowledgment of mana motuhake – a Tuhoe independent authority. The Ngāi Tuhoe settlement also recognised that Te Urewera is a legal entity in itself. And across the country, Treaty settlements have enabled iwi and hapū to use accumulated capital for development of all kinds.
But successfully achieving settlements for breaches of Te Tiriti is less an end than a beginning for iwi and hapū, and it is incumbent on the Crown (and whatever government is in office) to uphold the settlements. Moreover, the ongoing work is broader than Treaty settlements and is evolutionary in nature, because the Māori–Crown relationship now involves the whole of government. The same applies to local bodies and other agencies.
So once again I ask: What sort of re-setting of the Treaty and its principles is the coalition Government aiming for? Is the goal a reinterpretation of Te Tiriti, an attempt to rewrite at pace the understandings that have been built so carefully and by so many over nearly two hundred years? I hope not. Because the risks are great.
At the present time, the coalition Government’s initiatives around the Treaty and its principles are threatening years of work and good faith in Māori–Crown relations. Māori in many quarters, including senior leadership, are making their opposition to these initiatives abundantly clear. A Hui-ā-Motu hosted by Kiingi Tuheitia at Turangawaewae, Ngaruawahia in January saw an estimated 10,000 Māori and non-Māori from around Aotearoa attend. A subsequent Hui Taumata was held last month in Ngāti Kahungunu, invoking the history of the Kotahitanga movement, with more hui anticipated.
The wider public is also expressing concern. That Te Tiriti o Waitangi – the Treaty of Waitangi – has a respected, foundational place in our society has been very clear to me for decades. I would like to think that this will only be strengthened in the years ahead.
At Waitangi itself, the name of the main museum is Te Kongahu, the unborn child. It is a metaphor that indicates the 1840 agreement is yet to be fully shaped and given form. Over the last 50 years, New Zealand has moved steadily toward ways of expressing the shared authority envisaged in 1840 – and to honour a unique democratic agreement. This uniqueness was brought home to me when, some years ago, I met an African student on Oxford railway station. When I told him about the Treaty he said in surprise: “You had no revolution!? Well, few countries can say that they have been established on a founding document like the Treaty.”
In 2009, lawyer Moana Jackson observed: “The challenge today is to rebuild a bridge of interdependence in a constitutional way that honours not just the Treaty but concepts of power and what that means in this land.” [ix] What that could be remains to be worked out by the Crown and Māori.
On Waitangi Day 2017, Prime Minister Bill English said: We are all engaged in a “great enterprise” of building a country based on “fairness, tolerance and respect” [x]. How that evolves depends largely on the New Zealand public.
More immediately, this ideal hangs on how the Coalition’s aims for Māori, Te Tiriti and its principles are addressed so that the country can continue to move forward on Tiriti/Treaty issues. At present, many in the public – Māori and Pākehā – fear that current government policies are taking these matters backwards. We who care need to stand together for joint action for a shared future, as Te Tiriti intended.
Dame Patsy Reddy on Waitangi Day 2019 quoted an old chant that expresses the need: Tuia te muka tangata ki uta – weaving people together for a shared future [xi].
References:
[i] ‘Treaty of Waitangi is here to stay’, New Zealand Herald, 7 February 2023, A7.
[ii] Chris Finlayson, ‘Power Share’, The Listener, 18 February 2023; ‘New Way of Sharing Power’, Tui Motu Interislands, Issue 272, July 2022.
[iii] Ella Stewart, ‘What Stands in the Way of the ACT Party Plan for a Referendum on the Treaty of Waitangi’, RNZ, 2 November 2023.
[iv] Matthew Hooton, ‘A Conservative Analysis of Proposed Codification of the Principles of the Treaty of Waitangi’, Exposure draft, distributed 12 November 2023, p.1.
[v] Chris Finlayson, ‘Former Treaty Minister Chris Finlayson Slams Act’s Treaty Referendum Idea’, New Zealand Herald, 27 March 2024.
[vi] Ned Fletcher, The English Text of the Treaty of Waitangi, Bridget Williams Books, 2022; Ned Fletcher, ‘The English Text of the Treaty of Waitangi’, E oho! series, transcript of National Library event, 15 February 2023.
[vii] Māori and English texts of the Declaration in He Whakaputanga | The Declaration of Independence, 1835, Archives New Zealand Te Rua Mahara o te Kāwanatanga/National Library of New Zealand Te Puna Mātauranga o Aotearoa/Bridget Williams Books, 2017, pp.60–61.
[viii] Colin James, ‘A Short History of the Waitangi Tribunal – Where to from here’, E oho! series, National Library of New Zealand Te Puna Mātauranga o Aotearoa, 19 May 2021.
[ix] Moana Jackson, Māori Parliamentary conference, 8-9 May 2009.
[x] Bill English, cited in Simon Wilson, ‘PM Bill English Gave Two Speeches on Waitangi Day. Both Were Remarkable. Both Were Almost Entirely Ignored’, The Spinoff, 9 February 2017.
[xi] Governor General Dame Patsy Reddy, Government House record, 6 February 2019.
