Any mention of the Treaty evokes a feeling of utter confusion stretching from 1840 to 2023. To add to that confusion I have just discovered another issue of major significance.
Let us go back to 1975
In 1975 the Treaty of Waitangi Act set up the Waitangi Tribunal to consider Maori claims of prejudice arising from acts of the Crown that were inconsistent with “the principles of the Treaty of Waitangi”. The principles of the Treaty were not listed in the Act because they did not exist at that stage.
The inclusion of the two versions of the Treaty in the Schedule did not make the rights and duties under the Treaty binding in New Zealand law. The wording of the Treaty in its two versions was referred to but there was no operative clause in the body of the Act incorporating the rights and duties under the Treaty into New Zealand law. (See https://thetreatyfacts.blogspot.com/p/the-articles-of-treaty-are-not-binding.html especially Justice McKay in the Broadcasting case in 1992.)
However, the two versions of the Treaty in the First Schedule of the Act became the authoritative and legal versions of the Treaty in New Zealand law. If any reference was made to the Treaty in statute law then the reference was to the Treaty “as set out in the First Schedule to the Treaty of Waitangi Act 1975”.
The Treaty of Waitangi Act 1975, in its original enacted format in 1975, can be seen here:
http://www.nzlii.org/nz/legis/hist_act/towa19751975n114226/
This article is concerned with the first sentence of Article 2 of the Treaty, in the Maori version. This is how it is shown in the First Schedule in the original 1975 version of the Act:
Ko te Tuarua
Ko te Kuini o Ingarani ka wakarita ka wakaae ki nga tangata katoa o Nu Tirani te tino rangatiratanga o o ratou kainga me o ratou taonga katoa.
Those who are conversant with the Treaty and the Maori version will immediately notice some serious omissions.
Let us now compare that 1975 version of the Act, above, to the current 2023 version of the Act (updated to 17 December 2022). It can be seen here:
https://www.legislation.govt.nz/act/public/1975/0114/latest/DLM435834.html
In the First Schedule the first sentence of Article 2 is:
Ko te Tuarua
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.
The words in red have been added to Article 2. Or perhaps, more correctly, those words were omitted from the 1975 version.
The change in meaning is substantial. In the 1975 version the Crown agrees to protect all the people of New Zealand - Nga tangata katoa o Nu Tirani – in the absolute ownership – te tino rangatiratanga – of all their dwellings/villages – o ratou kainga – and all their personal possessions - o ratou taonga katoa.
Note that in te reo a rangatira could also be an owner and rangatiratanga could be ownership. Tino signified absolute. Taonga can mean personal possessions or treasures, but the former would clearly be more appropriate in this context.
Also, in the current version the rangatira and the hapu are included with all the people of New Zealand. And, all their land - o ratou wenua – is added to kainga and taonga.
Which is the correct version?
It also begs the question of how an incorrect version could have been incorporated into legislation in 1975, in an Act that was so pivotal to the meaning of the Treaty. After all the Waitangi Tribunal was set up to inquire into claims based on breaches of the principles of the “Treaty”. Those principles did not exist in their own right in 1975. They had to be defined by considering the wording of the “Treaty”, and the “Treaty” wording was as set out in the First Schedule to the 1975 Act.
Detective work
It took some detective work to find out what had happened.
Go to Schedule 1 in the current Act at:https://www.legislation.govt.nz/act/public/1975/0114/latest/DLM435834.html
Scroll down to the bottom of the page. You will see a note at the very bottom of the page stating:
Schedule 1 Text in Maori: replaced, on 6 January 1986, by section 4 of the Treaty of Waitangi Amendment Act 1985 (1985 No 148).
Treaty of Waitangi Amendment Act 1985
http://www.nzlii.org/nz/legis/hist_act/towaa19851985n148306/
Section 4 of the Act states:
4. New Maori text substituted in principal Act-The First Schedule to the principal Act is hereby amended by omitting the text in Maori, and substituting the text set out in the Schedule to this Act.
Section 10 states:
10. New Maori text substituted in Waitangi Day Act 1976-The Schedule to the Waitangi Day Act 1976 is hereby amended by omitting the text in Maori, and substituting the text set out in the Schedule to this Act.
The version in the Schedule replaces the Maori version of the Treaty in both the Treaty of Waitangi Act 1975 and the Waitangi Day Act. This is the latest version of the Maori text.
Ko te Tuarua
Ko te Kuini 0 Ingarani ka wakarite ka wakaae ki nga Rangatira ki nga hapu·ki nga tangata katoa 0 Nu Tirani te tino rangatiratanga 0 0 ratou wenua 0 ratou kainga me 0 ratou taonga katoa
This newly discovered failure to get the wording of the Treaty right (in two separate statutes) illustrates the incompetence of those responsible for one of the most important pieces of legislation in New Zealand’s legal and constitutional history.
Timeline
The incorrect version of the Treaty was therefore legally binding in law from 10 October 1975 when the original Act came into effect, until 6 January 1986 when the 1985 Amendment Act became law.
Effect of the error
The first court decision based on the Treaty post 1975 was probably the Lands case 1987, by which time the error had been corrected.
https://waitangitribunal.govt.nz/publications-and-resources/waitangi-tribunal-reports/
There were approximately 7 claims reported on from 1978 to 1985.
Motunui-Waitara Report (WAI 6) March 1983
Not unsurprisingly the Tribunal picked up the defects in Article 2 of the Maori version of the Treaty. The Tribunal had this to say at page 47:
It seems to us remarkable that the sad history of error, confusion, and inefficiency in the preparation, printing and preservation of the Treaty of Waitangi last century has continued into this. We are required to "have regard to the two texts of the Treaty set out in the First Schedule (to the Treaty of Waitangi Act)” but the text in Maori as printed in the First Schedule contains in Article the Second glaring errors and omissions.
We wondered whether the Maori wairua (spirit) was not in operation to ensure that the true and precise wording of the Treaty should forever be confused.
A Maori approach to the Treaty would imply that its wairua or spirit is something more than a literal construction of the actual words used can provide. The spirit of the Treaty transcends the sum total of its component written words and puts narrow or literal interpretations out of place. Adopting for the moment however the English legal approach, we accept the submission of the Department of Maori Affairs with regard to the errors in the Maori text as follows:
"the Tribunal may have regard to a text of the Treaty acknowledged as being a correct reproduction to supply corrections of the numerous errors and the omission of certain words from Article 2 as reproduced—Maxwell on the Interpretation of Statutes, 12 ed. p. 228 and authorities there cited.”
After considering the authorities on the interpretation of treaties provided by the Department of Maori affairs, the Tribunal decided:
From the standpoint of European legal concepts we incline to the broad approach urged by the Department of Maori Affairs. We consider that approach is also envisaged by the Treaty of Waitangi Act which requires us to determine "whether certain matters are inconsistent with the principles of the Treaty" (rather than “with the provisions of the Treaty") and we refer to the long title, preamble and Section 6 (1) (c) of the Act.
In other words, the Tribunal skirted the issue by accepting that its function was to apply the principles of the Treaty and not the actual provisions of the Treaty. In formulating those principles the Tribunal suggested that it relied on certain provision in the Treaty (including non-operative provisions) but not on the actual wording of Article 2 in the First Schedule.
As a commission of enquiry and not a court of law, and not being bound by the strict rules of evidence (clauses 6 and 8 of Schedule 2 of the Act), the Tribunal’s resolution of this problem has not been criticised. That approach may have been acceptable if such decisions of the Tribunal were confined to Treaty claims and were only presented to the government as recommendations. Unfortunately, the views and decisions of the Tribunal have been given far more authority than they legally merit, and they have become part of the jurisprudence of the Treaty which has been widely adopted in Cabinet papers and beyond.
Having decided to ignore the obvious errors in Article 2 that were in fact legally binding, and after stating that it would not consider the actual wording of the provisions of the Treaty, the Tribunal went on to do just that. It proceeded to make highly important decisions on the interpretation of the Maori version of Article 2 based not on the legal version in the First Schedule to the Act, but on what was considered to be the correct version.
In fact, what followed is one of the most important series of decisions that have been made in respect of the meaning of Articles 1 and 2 of the Treaty.
At 10.2 Particular Aspects of the Treaty on page 50, the Tribunal discusses in detail the meaning of the words of Article 2 based on the correct version and not the legal version, in Schedule 1. The omitted words in Article 2 in the schedule, especially the omission of rangatira, are vital to the interpretation adopted by the Tribunal. Without that word it would have been likely that the sensible meaning of Article 2 was that “the people of New Zealand were guaranteed absolute ownership of their dwellings/villages and personal property (taonga)”. The inclusion of the word rangatira (chiefs) allowed the Tribunal to interpret tino rangatiratanga as chieftainship or sovereignty. In turn, that interpretation automatically demoted the Crown's kawanatanga in Article 1 into meaning something less than sovereignty.
The Tribunal’s reasoning (on page 50) for adopting “treasure” as the meaning of taonga, rather than the far more appropriate “personal possessions” has had a massive financial impact on New Zealand. Likewise the interpretation of rangatiratanga as chieftainship or sovereignty has opened up the current claims relating to partnership and co-governance.
In the same set of circumstances it is highly likely that a court of law would have been bound by the clear terms of the legislation and the wording of the Treaty as stated. It is not the court’s role to second-guess the clear words of Parliament.
It is also concerning that successive government have not treated the decisions of the Tribunal as non-binding recommendations of a commission of inquiry, but have elevated them to the status of legally persuasive Treaty jurisprudence.
Comedy of errors
One thing the Tribunal did get right on this issue was its assessment of the Treaty saga:
“that the sad history of error, confusion, and inefficiency in the preparation, printing and preservation of the Treaty of Waitangi last century has continued into this”.
In the 20th century the Treaty was virtually ignored until the ineptly drafted Treaty of Waitangi Act, with all its errors, was enacted. We then had the equally inept Treaty clauses starting in 1986. And in the 21st century, in 2023, the Treaty is proving to be a source of baseless slogans such a co-governance, partnership, and the mandate of indigenous people. The principles of the Treaty still remain undefined but have become the new religion for Treaty activists.
Kaituna River Claim (WAI 4) November 1984
Over a year and a half after the report for the for Motunui-Waitara claim was issued, the Kaituna River Claim was issued. It noted somewhat tersely at 4.1 (page 12) (here):
The Treaty of Waitangi Act 1975 includes in its Schedule the text of the Treaty in both English and in Maori. (We have already pointed out in the Te Atiawa (Motunui-Waitara) decision that there is a misprint in the Maori version. We do not propose to a(d)vert to it again.)
