Shaky Foundations: The fundamental flaw at the heart of a “model” treaty involving New Zealand and the Indigenous Māori community

Carving at the Waitangi Treaty Grounds

SIDS1 / JESSICA SPENGLER

British Captain James Cook first arrived in New Zealand in 1769

In 1840, English officials on behalf of the British crown signed the Treaty of Waitangi—also known as Te Tiriti o Waitangi—with the Indigenous Māori population, affirming Māori sovereignty and guaranteeing their collective rights to the country’s land and resources. Since the 1700s, English settlers had been arriving in Aotearoa (the Māori name for New Zealand) to capitalize on the seal and whale trade. As the number of settlers increased, reports flowed back to Britain of general lawlessness and dubious private land deals, and the crown was forced to consider how best to control its citizens. A treaty with the Māori, officials decided, was the way to do so. The agreement, which established the basis for the relationship between the Māori and the British, is commonly cited as a shining example of how a treaty can recognize and protect Indigenous peoples’ rights by curtailing the reach of the state. But does te Tiriti live up to its sterling reputation? The answer, of course, is complicated.

There are several distinct aspects of te Tiriti. Unlike the land treaties and the peace and friendship that were being signed in North America between settlers and Indigenous peoples during the 16th and 17th centuries, te Tiriti was explicitly about governance. It also reflected an idea that was rare in English colonial documents—that sovereignty must be ceded, and could not be assumed. But perhaps the most significant thing about the treaty is the differences between the text in English and the text in the Māori language, te reo Māori. The original version of the treaty was drafted over four days by English officials and translated overnight into te reo Māori by local missionaries who used biblical terms to explain political concepts. In the English version, Māori chiefs agreed to cede sovereignty to the British in exchange for full ownership of their lands, forests, fisheries, and other possessions, as well as receiving the rights and privileges of British subjects. In te Tiriti, Māori retain their rangatiratanga (sovereignty) and taonga (treasures), but cede kawanatanga (governance) to Britain. In other words, from a Māori perspective, te Tiriti affirms and upholds Māori sovereignty while carving out a space wherein the British crown could control its own citizens. Historical records indicate that the Māori were told that they were not relinquishing their authority, and that, in accordance with their wishes, the crown would only govern the settler population. More than 500 Māori chiefs signed te Tiriti, the overwhelming majority of whom signed the Māori version. Despite this, English officials used the English version to later assert sovereignty over New Zealand.

Despite its guarantees, te Tiriti did not stop, or even mitigate, the effects of colonization and colonial policy on the Māori. Settlers disregarded te Tiriti, quickly establishing their own parliament and confiscating Māori territory via war, legislation, and the privatization of collectively held lands. By the late 1870s, all pretenses of equality were dropped and te Tiriti was declared a legal nullity after the colonial authority determined that the Māori could not cede sovereignty that they did not have in the first place. In the words of Judge James Prendergast of the Supreme Court of New Zealand: “no body politic existed capable of making a cession of sovereignty, nor could the thing itself exist.” In that same 1877 case, the court refused to hold the executive accountable for Britain’s negotiations over Māori lands, maintaining that it did not have the jurisdiction to examine acts of state. In 1941, the Privy Council, New Zealand’s highest appellate court at the time, ruled that the treaty was unenforceable unless incorporated into legislation. This remains the legal status of the treaty today.

In constitutional rhetoric...