The Treaty of Waitangi Act 1975 defined (in section 2) the Treaty as “the Treaty of Waitangi as set out in English and in Maori in Schedule 1”. The two versions jointly make up the Treaty.
The task is made more difficult by the accepted fact that the Maori version was not a translation of the English version. This was accepted by the Tribunal in Waitangi Tribunal Motunui-Waitara Report (Wai 6, 1983) at page 49:
In a consideration of the specific terms of the Treaty it is important to appreciate that the Māori text is not a translation of the English text and conversely, nor is the English version a translation of the Māori.
It is believed that the English text was mistakenly taken from James Freeman’s “Royal Style” English text, which he created by taking bits and pieces from the early draft notes and stringing them together with linking text. Or it was taken from the wrong English draft of the Treaty.
Article 2
The Tribunal faced this very difficult task of aligning the two texts in its report on the Motunui-Waitara claim. Motunui-Waitara Report 1983.pdf (justice.govt.nz)
Taonga and fisheries
In Article 2 there is a significant difference between the two texts in respect of the property that was subject to the Crown’s guarantee. This is in the first sentence:
English version
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 ..."
Maori version
Ko te Kuini o Ingarani ka wakarite ka wakaae ki nga Rangatira 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.
Kawharu translation of Maori version
The Queen of England agrees to protect the chiefs, the subtribes and all the people of New Zealand in the unqualified exercise of their chieftainship over their lands, villages and all their treasures.
The Maori version – which should be the preferred version – refers to o ratou wenua –their land, o ratou kainga – their houses, and o ratou taonga katoa – all their taonga.
The Kawharu translation suggests that taonga means treasures. That is certainly one of its meanings. But is it the appropriate translation in this context? The primary meaning of taonga is property, goods, possession, effects, or object. ( As examples, taonga mahi means tool, instrument or apparatus. Taonga tinani means personal effects.)
The previous references, to land and villages, both refer to real estate, interests in land. It seems logical that taonga should in that context be interpreted as possessions or personal possessions. The English version lends support to this view with its reference to “other properties”.
…. 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;
Note also the use of the word possess and possession (twice) which suggests that the “other properties” relates to things that one can possess. Treasures are not possessed, and they are certainly not possessed individually. Likewise the possession of treasures (in the more abstract sense like te reo) cannot be sold as suggested in the following sentence.
It is also clear that Article 2 refers to land and possessions that were owned at the time of the Treaty. Their continuing ownership was guaranteed unless the option to sell was triggered. It was clearly not intended that the provision would be extended to land (or treasures) for centuries into the future. Article 3 granted equal citizenship which meant that all dealings with land in the future would be covered by the rules and laws applicable to all citizens.
The English version is clearly not a translation of the Maori text. It is considerably longer, uses words and expressions which are very different, and in the last couple of lines includes wording that was omitted altogether from the Maori text.
The properties referred to are their Lands and Estates Forests Fisheries and other properties. Land/s is in both texts. Villages in the Maori text is omitted from the English text and replaced with Estates Forests Fisheries. These are all omitted from the Maori text.
So how are these fundamental anomalies reconciled? The obvious solution was to adopt the Maori version, the signed copy.
In the Motunui-Waitara claim Motunui-Waitara Report 1983.pdf (justice.govt.nz) this is how the Tribunal resolved the disparity. (Page 50)
The Te Atiawa people gave us examples of their use of the word "taonga" and illustrated for us that to them, the general word "taonga" embraces all things treasured by their ancestors, and includes specifically the treasures of the forests and fisheries. We accept that approach.
It seems that the Te Atiawa people did not mention the normal meaning of taonga - objects or possessions. The Tribunal based its conclusion on a generous consideration of the metaphorical nature of the Maori language:
We note that tribal fishing grounds, like specific areas that were renowned as sources of food, were regarded as part and parcel of tribal treasure troves, and were often the cause of tribal conflict. Tamaki isthmus for example, which was renowned for its rich fowl and fish resources, was referred to as "Tamaki, sought as a bride by a thousand lovers".
A remarkable feature of the English language is its facility to use words of precision so as to define arguments and delineate the differences that may exist. The Maori language is generally metaphorical and idiomatic. It is remarkable for the tendency to use words capable of more than one meaning in order to establish the areas of common ground, and for its use of words to avoid an emphasis on differences in order to achieve a degree of consensus or at least a continuing dialogue and debate.
The use of the word "taonga" in a metaphorical sense to cover a variety of possibilities rather than itemised specifics is consistent with the Maori use of language. It would be entirely inappropriate to apply English canons of construction to the translation of a Maori text and so to argue that the failure to make specific reference to "fishing grounds" in the Maori text indicated that fishing grounds were not within the purview of the Treaty. Applying also the canons of construction in the interpretation of bilingual treaties as submitted by the Department of Maori Affairs, we conclude that in this respect the difference between the English and Maori texts is not as substantial as may at first be thought. We consider that the Treaty envisaged protection for Maori fishing grounds because the English text specifically provided for that while the Maori text implied it.
The end result was that by adopting the meaning of treasures for taonga the Tribunal reconciled it with Forests Fisheries (which are taonga) in the English text. In reality the Tribunal selected the best bits from each version.
However, the adoption of the treasures version of taonga opened the flood-gates to a huge number of Treaty claims based on Treaty breaches that related to a myriad of treasures that were not even contemplated in 1840. It also has led to popular claims that the possession or ongoing enjoyment of these treasures was guaranteed by the Crown under Article 2.
Rangatiratanga
The Tribunal acknowledges the importance of the use of this word at page 50:
The essence of the second article in the Maori text of the Treaty of Waitangi is in the use of the word "rangatiratanga".
The English text of Article 2 states
"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 ..."
The Maori text goes further. It confirms to the Chiefs and the hapu, "te tino rangatiratanga" of their lands etc. The Kawharu translation suggests that this means the unqualified exercise of their chieftainship.
There is now a substantial body of thought which suggests that "te tino rangatiratanga" equates to sovereignty and that Article 2 means that the chiefs retained sovereignty not just over their land but over their own people, although people are not referred to. This is based on an opinion from the Tribunal and is the basis for the increasingly common claim that the chiefs did not cede sovereignty to the Crown in Article 2.
I have virtually no knowledge of the Maori language but it seems possible that the wrong translation of rangatiratanga is used. The word rangatira can mean chief, but it also has several more colloquial meanings such as master, mistress, boss, supervisor, employer, landlord, owner, or proprietor (Te Aka dictionary). The suffix –tanga signifies authority or the suffix –ship. The Te Aka dictionary states that rangatiratanga can equate to ownership. With tino meaning absolute, tino rangatiratanga could mean absolute/unfettered ownership. This would accord perfectly with the English text: the full exclusive and undisturbed possession. The Maori version could read: The Queen of England agrees to protect/guarantee the chiefs, the subtribes and all the people of New Zealand in the absolute ownership of their lands, villages and all their possessions. This would tie in perfectly with the second part of Article 2 which covers the procedure where land is to be transferred.
There is another important consideration. The Maori text states that the tino rangatiratanga is exercised by ki nga Rangatira ki nga hapu-ki nga tangata katoa o Nu Tirani. That is, the chiefs, the hapu, and all the people of New Zealand. The question then arises as to how all the people of New Zealand, not just the chiefs, can exercise tino rangatiratanga in the sense of sovereignty, as advanced by the Tribunal.
An alternative view
An alternative view is that Article 2 applies to all Maori and all settlers and the property rights of all New Zealanders. Just as Article 3 grants to nga tangata maori katoa o Nu Tirani – all the ordinary people of New Zealand - British citizenship. In other words, the Treaty promoted the equality of the two races and also created property rights for the settlers – many were misfits from all over the world – and granted them the rights of British citizens. The English version of the Preamble makes several references to the settlers
….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
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.
That suggests very strongly that the aim of the Treaty was to provide a civil government equally for Maori and settlers.
The Maori version (followed by Sir Hugh Kawharu’s translation) has similar references:
…mea hoki he tokomaha ke nga tangata o tona Iwi Kua noho ki tenei wenua, a e haere mai nei.
…..and also because there are many of her subjects already living on this land and others yet to come.
And:
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.So the Queen desires to establish a government so that no evil will come to Maori and European living in a state of lawlessness.
It is rather sad that the liberal interpretations of tino rangatiratanga and taonga have combined to suggest that the Treaty guarantees Maori chiefs the absolute sovereignty over their lands, their people, and virtually everything pertaining to Maori, when in fact a more modest interpretation of the Maori text of the Treaty could have resulted in a Treaty where Maori and settlers were afforded equal rights under the British Crown.
See: Bruce Moon's view of this issue:
https://breakingviewsnz.blogspot.com/2023/04/bruce-moon-meanwhile-in-our-funny.html
Sir Apirana Ngata
Sir Apirana Ngata was one of the most respected figures in New Zealand history and hailed by Willie Jackson, no less, in 2010 as Maoridom's greatest politician and social engineer.
In his 1922 book The Treaty of Waitangi: An Explanation Sir Apirana Ngata translated the Maori text of Article 2 of the Treaty as follows:
"The Queen of England confirms and guarantees to the Chiefs and Tribes and to all the people of New Zealand the full possession of their lands, their homes and all their possessions......"
Tino rangatiratanga is translated as full possession and taonga is translated as possessions. Sir Apirana considered that Article 2 related solely to the possessions of Maori. The sentiment behind this is explained as follows:
What is this authority, this sovereignty that is referred to in the second article? It is quite clear, the right of a Maori to his land, to his property, to his individual right to such possessions whereby he could declare, "This is my land, there are the boundaries, descended from my ancestor so and so, or conquered by him, or as the first occupier, or so and so gave it to him, or it had been occupied by his descendants down to me. These properties are mine, this canoe, that taiaha (combination spear and club), that greenstone patu (club), that kumara (sweet potato) pit, that cultivation. These things are mine and do not belong to anyone else".
At the time of the Treaty both islands were widely inhabited by Maori tribes. They had partitioned all the lands and had named all the various parts. At the time of the Treaty the chiefs and tribes were disputing among themselves the titles and the boundaries between their lands. They fought with guns, with patu (clubs), to take by conquest the lands of the others, or to bar the way of others intent on conquest.
The Queen did not do anything, to take away the rights of the Maori over his lands, instead she made the ownership permanent and truly established. This is the reason dear old lady you appear before the Maori Land Court to show your rights, whether of land not yet clothed with title, or by long occupation, when you related the trails, the fern root hills, the tawhara (young shoots of kiekie) swamps or other token and relics of your ancestors.
The Maori of 1840 considered their immediate possessions as their taonga. Life was very basic and the few things that they possessed (their treasures) they cherished. That is the reality. The current clamour to elevate the meaning of treasures to encapsulate their language and other abstract concepts is a fabrication. It is all part of the strategy to reinvent the Treaty and give it a meaning and significance that it never had.
The Court of Appeal
In the Land’s case, New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641, (1987) 6 NZAR 353, Cooke P acknowledged the differences between the two versions of the Treaty:
As is well known, the English and Maori texts in the First Schedule to the Treaty of Waitangi Act 1975 are not translations the one of the other and do not necessarily convey precisely the same meaning.
Richardson J agreed:
First, it is not a case of one agreed text. There were drafts and copies and there are some differences. What is much more important and of continuing significance, the Maori language text signed at Waitangi is not an exact translation of the original English language text approved by Hobson. (Page 9 of his judgment)
In that regard the Royal Commission on the Electoral System (1986) has noted that " ... what should be included in the concepts of 'rangatiratanga ' and of ‘ratou taonga katoa' have not yet been settled" (para 3.101) and the Chairman of the Waitangi Tribunal speaking extra-judicially has observed (Part II and Clause 26 of the Draft New Zealand Bill of Rights at p 190) that “…. it [the Treaty] can mean different things to different people. It lacks the precision of a legal contract and is more in the nature of an agreement to seek arrangements along broad guidelines". (Page 11)
He added the comment:
And the New Zealand Maori Council in its paper Kaupapa - Te Wahanqa Tuatahi published in February 1983 concluded that “… the Treaty was drawn up by amateurs on the one side and signed by those on the other side who understood little of its implications". (Page 10)
That view of the Maori Council is highly quotable but rather unfair. The Treaty as drafted in its Maori version was perfectly understandable and suitable for the circumstances. It is the subsequent interpretation of that text that has created the problems, as well as the subsequent mistaken adoption of an English draft with its many differences as the official English version.
Somers J highlighted the fact that there was no reference to “fisheries” in the Maori text. He also raised the issue of the meaning of te tino rangatiratanga and taonga, but added:
I do not think it necessary to discuss the differences between the two texts and the possible different understandings of the Crown and the Maori in 1840 as to the meaning of the Treaty. They are issues best determined by the Waitangi Tribunal to whom they have been committed by Parliament. The instant case is about land and for present purposes the undisputed tenor of each text is agreement that indigenous possession or control of land was guaranteed by the Crown. (Page 16 of his judgment)
The Court considered that there was no dispute in the Treaty about the provisions relating to the possession and control of land in the Treaty, so the Court was free to resolve the land issues in the case before it. It therefore refused to venture into resolving the differences between the Treaty texts.
To some extent the outcome should be rather academic because the Articles of the Treaty, irrespective of how they are interpreted, are not part of New Zealand law. They do not create legal rights or create legal responsibilities. There is a line of cases which establish that the provisions of a treaty must be incorporated into legislation to be enforceable in law. See The Articles of the Treaty are not binding In New Zealand Law.
However, the invention of the "principles of the Treaty" in the Treaty of Waitangi Act 1975, and the inclusion of Treaty clauses in subsequent legislation, has enabled the New Zealand Court of Appeal to effectively set in concrete the meaning of taonga to include treasures that go way beyond what could ever have been anticipated when the Treaty was signed in 1840.
See: The Waitangi Tribunal and the Principles of the Treaty
Treaty Principles and the Decisions of the Courts
