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First published on Spectator.co.nz…

The Treaty of Waitangi: Government and Trusteeship

By Nigel Kearney

More than 80 laws passed by Parliament refer to the 'principles of the Treaty of Waitangi'. No law, however, lists these principles, nor have our lawmakers issued any definitive statement as to what the principles are. In order for us to know what those 80 laws mean, we must make an effort to examine the Treaty and try to determine what principles it contains.

It's important to understand that despite the countless references to 'The Treaty of Waitangi', there are actually two treaties, one in English and one in Maori. There are significant differences between the two treaties and they were signed by different people. The full text of the Maori treaty, the English Version and the English translation of the Maori version are here:
www.govt.nz/aboutnz/treaty

There are two concepts that are essential to an accurate understanding of the meaning of the Treaty. The first is 'kawanatanga' in the Maori version, or 'sovereignty' in the English version. Sovereignty has somewhat complex historical and legal ramifications which are not part of the Maori concept of kawanatanga and probably could not have been anticipated by the Maori signatories to the Treaty.

Sir Hugh Kawharu is a leading Maori academic and was made a member of the Order of New Zealand in the recent Queen's Birthday Honours list. His use of the word 'government' probably best captures the spirit and intent of the concept of kawanatanga or sovereignty as mentioned in the Treaty.

The second important concept is 'rangatiratanga'. This is not directly translated in the English version but is represented by phrases such as 'protection of just Rights and Property' and 'possession of their Lands and Estates Forests Fisheries and other properties'.

Sir Hugh Kawharu translates rangatiratanga as 'chieftainship' and goes on to say that the Maori concept of chieftainship is most closely aligned with the modern concept of trusteeship. This is consistent with the English version of the treaty since trusteeship is primarily concerned with the protection and maintenance of property. Trusteeship certainly does not include the right to make or enforce laws, so any claim that rangatiratanga implies a right of government or sovereignty must be mistaken.

The first and second articles of the Treaty make it abundantly clear that kawanatanga or government is ceded by Maori to the Crown, while rangatiratanga or trusteeship of property is retained by Maori. It's important to remember that at the time the Treaty was signed, government interference in people's lives was only a fraction of what it is today. Sayings such as 'An Englishman's home is his castle' accurately capture the state of private property rights in 1840.

Since then, property rights have been steadily eroded. The passage of the Resource Management Act means that in some parts of New Zealand, a property 'owner' cannot even prune a tree without asking permission from the government.

When the authors of the Treaty granted Maori 'full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties', they could never have imagined that British settlers and their descendants would not enjoy exactly the same rights. This is supported by Article three of the Treaty which grants Maori 'all the Rights and Privileges of British Subjects'.

The Maori version uses the word 'tikanga' which tends to imply responsibilities as well as rights. In addition, for reasons of fairness and equality, it's desirable that all New Zealanders have the same rights, privileges and responsibilities.

The only interpretation that is consistent with natural justice and the text and intent of the Treaty is that all New Zealanders should enjoy a very high degree of rangatiratanga or rights to the exclusive and undisturbed use and disposition of their land and property. At the same time, we should all be subject to kawanatanga or government by the Crown and be accorded the associated rights, privileges and responsibilities.

There is no need to regard rangatiratanga as a special right exclusively for Maori. Let's all demand that the government give us back our rangatiratanga.

Nigel Kearney
Wellington

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