Lecture 3 Notes - He Whakaputanga & Te Tiriti: Comprehensive Lecture Notes

He Whakaputanga (Declaration of Independence – $1835$)

• Background
  • Drafted and signed entirely in te reo Māori.
  • $34$ rangatira originally signed (northern chiefs, predominantly Ngāpuhi).
  • Document later translated into English and forwarded to the Colonial Office (Britain’s “Ministry” for overseas possessions).
• Key Māori-language terms & possible renderings
  • Rangatiratanga – independence / sovereignty.
  • Whenua rangatira – independent state / chiefly land.
  • Kīngitanga – sovereignty (used in Article 2 of He Whakaputanga).
• Core articles
  1. Assertion that Aotearoa is an independent state; all sovereign power rests collectively with the chiefs.
  2. Sole right of the rangatira to make laws and to refuse foreign governance without consent.
  3. Annual congress at Waitangi; invitation to southern iwi to join a collective deliberative body.
  4. Copy to be sent to the British monarch, requesting the monarch to act as “parent”/protector (kaitiaki debated translation).
• Significance
  • Early intersection of Māori and British constitutional ideas.
  • James Busby dubbed it “New Zealand’s Magna Carta,” yet Māori institutions remained dominant; British norms were not adopted.

Post-Declaration Context (Late $1830s$)

• Busby’s growing alarm: dispatches citing conflict, foreign sailors ignoring tikanga, and mounting settler disorder.
• Private colonisation already underway (e.g.
  • Edward Gibbon Wakefield & New Zealand Company mass land purchases).
• British fears
  • French interest in annexation.
  • Reputation of Kororāreka/Russell as the “hell-hole of the Pacific.”
  • Charles Darwin’s description of Pākehā settlers as “the most degraded and lawless” Brits he had met.

Why Britain Finally Intervened

• Humanitarian current
  • Influence of the Aborigines Protection Society; push for “humane colonisation.”
  • Parliamentary reports detailing disastrous impacts of empire on Indigenous peoples.
• Strategic & economic considerations
  • Desire to pre-empt French, American or private settler control.
  • Free-trade economists arguing colonies cost more than they earn.
• Domestic constraints
  • Imperial forces stretched thin; numerous global conflicts.
  • Reluctance after loss of American colonies; preference for “hands-off” imperialism.
• Māori requests
  • Some rangatira sought protection from misbehaving Pākehā.
• Scholarly consensus: British statesmen viewed intervention as a “lesser evil.”

Establishing Sovereignty: Options Considered

• Legal doctrines (simplified):
  1. Conquest – militarily implausible (distance, $200$ settlers vs. $70{,}000–90{,}000$ Māori).
  2. Cession (treaty) – negotiated agreement.
  3. Occupation of terra nullius – invalid because He Whakaputanga signalled an existing state.
  4. Discovery – contested; many jurists said discovery right removed by $1835$ declaration.
• Result: Lord Normanby’s instructions (Aug $1839$) send Captain William Hobson to “acquire sovereignty by treaty.”
  • Māori described as a “numerous and inoffensive people whose title to the soil and to the sovereignty of New Zealand is indisputable.”
  • Hobson to obtain “free and intelligent consent … according to established usages.”

Drafting Te Tiriti o Waitangi / The Treaty (Jan–Feb $1840$)

• Hobson + Busby craft English draft.
• Henry Williams & son translate into Māori overnight.
  • A missionary register of te reo; acknowledged “awkward and inaccurate.”
• Debates over intent
  • Allegations of deliberate vagueness; scholars remain divided.
• Waitangi hui (5 Feb $1840$)
  • ~$5$ hours of whaikōrero; challenges about land already taken & need for a governor.
  • Food shortages pressured an early vote; Hobson reputedly woken from his ship without time for uniform.
• Signatures
  • 6 Feb $1840$: initial sign-on with blankets + tobacco gifts.
  • Māori text circulated nationwide; $512$ rangatira eventually sign Māori texts, $39$ sign a single English sheet at Port Waikato.
  • Multiple copies (at least $9$ extant; $8$ in Māori).
  • Hobson wrongly reports “unanimous consent.” Many chiefs declined or were never asked.

Side-by-Side Analysis of Articles

Article 1

• Te Tiriti (Māori text)
  • Māori grant the Queen “kawanatanga” – a governor/limited governorship.
  • Kawanatanga = transliteration of “governor” + “-ship”; not a classical Māori concept.
• English Treaty
  • Māori cede “absolutely and without reservation all the rights and powers of sovereignty.”
• Debates
  • Scholars (e.g., Mutu, Modlik) insist ceding mana or rangatiratanga was unimaginable.
  • View: Crown to govern its own subjects only.

Article 2

• Te Tiriti
  • Guarantees Māori “tino rangatiratanga” over lands, villages, treasures.
  • Allows Crown exclusive right (pre-emption) to purchase land Māori wish to sell.
• English Treaty
  • Guarantees “full, exclusive & undisturbed possession” of lands, forests, fisheries; Crown pre-emption right.
• Key point: Tino rangatiratanga = self-determination, autonomy, akin (but not identical) to sovereignty.

Article 3

• Te Tiriti & English versions essentially align.
  • Māori receive the “rights and privileges of British subjects” & royal protection.
  • Purpose: extend rights already enjoyed by settlers to Māori.

(Spoken) Article 4

• Governor promises protection of Māori customs/beliefs and equal standing for all faiths.
  • Prompted by Bishop Pompallier (French Catholic) fearing an Anglican state.

Four Scholarly Syntheses of Treaty Differences

1. Mutu (2010) – English Treaty about sovereignty; Te Tiriti about peace & a dual-authority future.
2. Makaere – Treaties share “nothing in common”; should not be read together.
3. Sorrenson – Rangatira ceded less than full sovereignty, retained more authority than assumed.
4. Mulholland – Three constitutional principles: (i) sovereignty/governance, (ii) resource protection, (iii) equality.

Why Are the Texts Different?

• Theories
  • Intentional deception (little archival proof among officials, though individual bad faith possible).
  • Linguistic limits & haste – “hastily and inexpertly drawn” (Ruth Ross).
  • Fletcher’s thesis: no contradiction—British intended sovereignty solely over their subjects, leaving Māori authority “unimpaired.”

Legal Status After $1840$

• $1840$ May: Hobson proclaims sovereignty—North Island by cession, South via “discovery” then amended to cession; Stewart Island by discovery remains contested.
• Wi Parata v Bishop of Wellington $1877$ – Chief Justice Prendergast labels Treaty a “simple nullity.”
• Hoani Te Heuheu Tukino $1941$ (Privy Council) – Treaty enforceable only if incorporated into statute.
• Treaty of Waitangi Act $1975$; Tribunal empowered retrospectively in $1985$.
• “Principles of the Treaty” inserted into many statutes, though not defined in the Act.
• Waitangi Tribunal $2014$: Māori text prevails; international norm favours Indigenous-language drafts. Numerical weight $512 : 39$.

Crown Breaches & Methods of Control

• Legislation enabling land alienation
  • Native Lands Acts series – individualises communal title, eases Pākehā purchase.
  • Public Works Acts – compulsory acquisition (often $10\%$ without compensation).
• New Zealand Wars / Confiscations
  • Crown declares iwi “in rebellion,” confiscates millions of acres, often from non-rebellious hapū.
• Suspension of civil rights
  • Parihaka (Nov $1881$): troops invade, arrest passive resisters, loot village; habeas corpus suspended.
• Mission creep / goal-post shifting – successive statutes expand Crown power whenever obstacles appear.

Māori Responses & Resistance

• Alliances with Crown forces (some iwi sought protection or strategic advantage).
• Creation of pan-tribal political structures
  • Kīngitanga (Māori King Movement, est. $1858$, enduring today).
  • Kotahitanga parliament, Te Kotahitanga o Te Tiriti (late $19^{th}$ c.).
• Legal & political petitions
  • Direct appeals to the Queen and Colonial Office for redress or representation in Legislative Council.
• Non-violent direct action
  • Parihaka ploughmen, fencing crews, passive obstruction of surveys.
• Some armed resistance; others maintained neutrality or shifted stance over time.

Ethical & Philosophical Threads

• Paternalistic “humane colonisation” ideal vs. realities of settler greed.
• Clash of constitutional paradigms: rangatiratanga (distributed, kin-based authority) vs. unitary parliamentary sovereignty.
• Ongoing debate: can dual spheres of authority envisioned in Te Tiriti coexist within a Westminster system?

Key Dates (all numerals inside $$)

• $1835$ He Whakaputanga (Declaration of Independence)
• $1839$ Normanby Instructions
• $6\, Feb\, 1840$ Initial Treaty signing
• $1877$ Wi Parata case
• $1941$ Privy Council judgment
• $1975$ Treaty of Waitangi Act
• $1985$ Retrospective mandate for Tribunal
• $2014$ Waitangi Tribunal ruling on Rangatiratanga (Stage 1, Te Pae Tawhiti inquiry)

Numerical Summary

• Māori population (c.$1840$): $70{,}000–90{,}000$
• Pākehā settlers: ~${200}$
• Rangatira signatures: $512$ (Māori texts) + $39$ (English sheet) = $551$ total
• Original He Whakaputanga signatories: $34$
• Surviving Treaty sheets: $9$ ( $8$ Māori + $1$ English )

Conceptual Equations & Mnemonics

• Sovereignty misunderstanding
  $\text{Kawanatanga} \neq \text{Mana} \quad \text{and} \quad \text{Kawanatanga} \not\supseteq \text{Tino Rangatiratanga}$
• Population imbalance
  $\frac{\text{British Military}}{\text{Distance} \times \text{Other Conflicts}} \ll \text{Māori Fighting Capacity}$ → conquest impractical.
• Signature weighting
  $\frac{512}{39} \approx 13:1$ (ratio Māori : English sheets)

Real-World Relevance Today

• Treaty principles clauses influence resource management, health, education, local-government law.
• Waitangi Tribunal findings underpin contemporary settlements and constitutional reform debates (e.g., He Puapua, Matike Mai report).
• Renewal of teaching NZ history incl. He Whakaputanga & Parihaka in national curriculum.

Study Tips

• Distinguish clearly between Te Tiriti (Māori text) and “The Treaty” (English text).
• Memorise article purposes via initials: K(awanatanga) – R(angatiratanga) – R(ights) – C(ustoms) → “K-R-R-C”.
• Trace cause→effect chains: Humanitarian rhetoric → Treaty path; Settler demand → Native Land Acts; Confiscation → Resistance (Parihaka, Kīngitanga).