Weeping Waters: The Treaty of Waitangi and Constitutional Change

By Huia Publishers

Weeping Waters is a must read for anyone who wants to be informed about the current debate regarding the Treaty of Waitangi and a constitution for Aotearoa New Zealand. The book features essays from eighteen well-known and respected Maori figures including Professor Margaret Mutu, Bishop Muru Walters, Judge Caren Fox and lawyer Moana Jackson. This is the first book in recent years to offer a Māori opinion on the subject of constitutional change. It shows how Māori views have been ignored by successive governments and the courts and how Māori have attempted to address constitutional issues in the past. The book also provides suggestions for a pathway forward if the Treaty of Waitangi is to be fully acknowledged as the foundation for a constitution for Aotearoa New Zealand.

• Language: English
• Publisher: Huia Publishers
• Release date: Sep 1, 2017
• ISBN: 9781775503385

Book preview

Introduction

‘It seems to me that there is nothing particularly broken about the way our arrangements work at present, but they are quaint.’¹

Prime Minister Helen Clark,

‘Building the Constitution’ Conference, 2000

If there is one theme to clearly emerge from this collection of chapters, it is that all arrangements that form any sense of a constitution for Aotearoa New Zealand do not meet Māori expectations that stem from the Treaty of Waitangi. Former Prime Minister Helen Clark is wrong in her assumption that the foundation of Aotearoa New Zealand is ‘solid’; in fact for Māori, the Treaty of Waitangi has been severely neglected as the cornerstone of a constitution for this country.

The title of this book is one translation of Waitangi: ‘tangi’ being ‘to weep’, ‘wai’ being ‘water’. It seems somewhat prophetic that the founding document of this country should have been first signed at a place that means ‘weeping waters’. The 6th of February 1840 was to mark a downward spiral for Māori, a loss of political autonomy that would result in the tangata whenua being culturally, socially and economically bereft in their own lands.

Yet all is not lost. The Treaty of Waitangi provides a basis for moving forward as a nation; it is as relevant today as it was 170 years ago. For many contributors to this book, the Treaty is about the distribution of power between the two signatories. Despite the erosion of Māori authority over their own affairs and a changing political landscape that may lead some towards the proposition that things have never been better for Māori, a revolution constitutionally is always possible. A revolution is required, to give justice to our founding fathers who put their name in ink on the founding document of this country.

The motivation for publishing this book comes from two sources: firstly, the need for a Māori opinion to be articulated and distributed among those who are interested. In recent years, there have been several books on the subject penned by Pākehā authors. While Pākehā opinion is important in terms of the Treaty, equally as important is what the tangata whenua think about the Treaty. Secondly, this year, 2010, marks 170 years since the signing of the Treaty, and is a watershed moment in time to revisit constitutional issues and the place of the Treaty.

On reflection, small gains have been made over the past forty years regarding Māori development. Yet there is still a long path to travel should we as a country want to fully realise the potential of the Treaty.

The starting point in a discussion about what a new constitution for Aotearoa New Zealand might look like is to define what a constitution is. As Moana Jackson argues, as soon as the word ‘constitution’ is used, Māori instantly speak within the confines of a foreign concept. Jackson encourages Māori to think in terms of what they know. Thus, perhaps the closest concept Māori have regarding a constitution might be kawa, or Māori law. This is a useful starting point, as Māori are aware of kawa for the marae that dot the landscape. How might those rules and values be extended within and applied to our society? This is where the discussion should begin for Māori.

There is no one written constitution for Aotearoa New Zealand. It is accepted that there is a collection of documents and conventions that form the constitution that governs the nation. Documents include the Treaty of Waitangi, various statutes with constitutional significance, such the Constitution Act 1986 and the Electoral Act 1993, and the decisions of the courts. Conventions include the prerogative powers of the Queen and rules that dictate how institutions of government work. The constitution that Aotearoa New Zealand has inherited originates from ‘Mother Britain’, supposedly from Māori agreeing to allow non-Māori onto their lands under the Treaty of Waitangi. The Queen or King of England reigns supreme as the Aotearoa New Zealand head of state. The Monarchy is represented within Aotearoa New Zealand by the Governor General.

At present, the focus of constitutional change appears to be for Aotearoa New Zealand to become a republic. Should this occur, the Queen would be abandoned as the head of state, thus making the position of Governor General redundant. The wider debate surrounding the place of the Treaty of Waitangi, should this country no longer be a member of the Commonwealth, would then focus on what that would mean in terms of the relationship between the Crown and Māori. The Monarchy has had very little to do with governance in Aotearoa New Zealand. If anything, their most lasting legacy was to delegate authority to the British Parliament, who, in turn, delegated their authority to the current New Zealand Government.

If we accept this as being the case, and one would assume that we do, given the role that successive governments have played in apologising to Māori regarding Treaty claims, then it can be argued that the Treaty partners are Māori and the New Zealand Government. This concept forms a starting point for the discussions contained within the individual chapters of this book.

Each chapter within this book is placed under one of three themes, as follows.

Part One: Evolution begins with a fresh look at the Treaty of Waitangi text. It then looks at government institutions, our Pacific neighbours and historical Māori responses to the evolution of a constitutional framework for Aotearoa New Zealand.

Part Two: Identities investigates the position of Māori and organisations they are associated with in terms of the debate surrounding a constitution based on the Treaty of Waitangi.

Part Three: Developments looks at issues that require attention should Aotearoa New Zealand formally adopt the Treaty of Waitangi as its constitution.

In her chapter in Part One, Professor Margaret Mutu provides a fresh analysis of the Treaty of Waitangi text, updating the interpretation offered by Sir Hugh Kawharu. Mutu contextualises the environment in which the Treaty was signed and concludes that the British Resident deliberately wrote the English version as a treaty of cession of sovereignty. What the Treaty did signify was that the British Crown and rangatira intended to have a peaceful relationship; it was intended to establish the conditions under which Pākehā could settle in Aotearoa New Zealand. The theme of Māori not having ceded sovereignty is strong throughout all the chapters of this book.

Judge Caren Fox looks at the development of Māori movements and their attempts at asserting autonomy, and arguments regarding constitutional change. Her chapter brings the reader up to date with the most recent attempts for Māori to be recognised under the Treaty of Waitangi, identifying opportunities for the Treaty partners to have a conversation about constitutional arrangements, and raising some poignant questions that will require answering within such an exchange. The need for recognition of Māori autonomy under the Treaty is yet another thesis that lends itself to many of these chapters.

Constitution-making in the Pacific is discussed in the chapter penned by Professor Arohia Durie. Given our country’s close proximity to our Pacific neighbours, much can be learned from their experiences. Within the Pacific community notions of democracy are drawn from Indigenous contexts, and Pacific constitutions are defined by values such as interdependence, reciprocity and mutuality that underpin the overarching concept of guardianship. Several chapters speak of common values as being vitally important to underpin any constitution mooted for Aotearoa New Zealand.

The Treaty in legislation and the legislature has been dominated by three distinct periods, which Tama Potaka labels ‘Lost at sea’ (1840–1975), ‘The tide turns’ (1975–1999) and ‘Uncharted waters’ (1999–2010). Potaka provides a description of how the Treaty has been recognised, or not, through legislation. He then looks at how Parliament could give improved meaning to the Treaty of Waitangi through a multi-cameral system, which would alter procedures to better reflect our bicultural past.

Given the absence of the Treaty from legislation over a 135-year period, Linda Te Aho charts the journey undertaken by the Treaty in the courts. Like the legislation, the judicial system has failed to acknowledge (and has in fact denied) Treaty rights for the majority of this country’s history. Te Aho argues that the now famed ‘Lands’ (or ‘SOE’) case of 1987 was an exercise of blatant judicial creativity, as opposed to judicial activism. The recent debacle involving the foreshore and seabed, in which a decision of the court was overturned by the Labour Government, is highlighted as an unfortunate step backwards, towards our colonial past.

The Waitangi Tribunal has provided the most jurisprudence in terms of the Treaty of Waitangi. It remains the most respected and prolific forum whereby Treaty grievances are heard, giving rise to debates and discussions involving the Treaty. Jacinta Ruru argues that the principles developed via the Tribunal could provide a valuable blueprint in seeking a way forward regarding constitutional change for Aotearoa New Zealand.

A perspective offered on behalf of Ngāti Porou begins the section that looks at identities. What might the view of iwi be towards a body that looks to join all iwi to represent Māori interests under a possible Treaty of Waitangi arrangement? Dr Apirana Mahuika, Chairman of Te Rūnanga O Ngāti Porou, warns against the disavowal of the mana of iwi and hapū, whereby individual hapū or iwi rights are supplanted by the needs of a larger pan-Māori organisation. The mechanisms by which internal leaders are appointed within Ngāti Porou are illustrated, with clear examples.

There are two specific chapters that look at Māori movements that have highlighted Treaty of Waitangi rights for Māori in the past: the Kīngitanga and Kotahitanga. Speaker of the Waikato-Tainui Te Kauhanganui (Tainui Parliament), Tom Roa, provides an insight into the purpose of the Parliament, as well as an historical overview of the Kīngitanga Movement. He highlights discussions that were held at the 150th celebration of the Kīngitanga regarding constitutional change, most notably concluding that their constitution is underpinned by tikanga, whereas written law is the overarching basis of the Aotearoa New Zealand Parliament. The Kīngitanga are very much looking forward to having a discussion with the Government about what constitutional change may mean in terms of the relationship they share with central Parliament.

Kotahitanga was a movement that sought to achieve several goals: firstly, it attempted to unite Māori politically under one umbrella; and secondly, it attempted to replicate the model of governance being practised by the government of the day, via a separate Māori Parliament, or Pāremata Māori. As Basil Keane notes, the fact that the movement was so short-lived ultimately boiled down to the non-recognition of the movement by the New Zealand Government. What it provides, however, is a successive model of a pan-Māori organisation established to give recognition to the rights of Article Two in the Treaty of Waitangi.

Urban Māori are a modern-day phenomenon within Māori and Aotearoa New Zealand society. Tania Rangiheuea provides an oversight of how Māori society has changed since the time of pre-European society. She then looks at the fight urban Māori authorities have endured to be acknowledged as rangatira under Article Two of the Treaty of Waitangi. Her chapter concludes by stating that urban Māori should be a part of any discussion or structure addressing constitutional change.

Kaapua Smith tracks the development of Māori political parties – those who have promoted tino rangatiratanga, or Māori autonomy, under both first past the post and mixed member proportional representation systems.

What becomes clear is that at the heart of every Māori political party is the desire to not only further Māori cultural, social and economic aspirations, but also to influence Aotearoa New Zealand at the highest level, motivated by what was promised to Māori under the Treaty of Waitangi: tino rangatiratanga.

Over the past two decades, the Anglican Church model has often been heralded as an example that could be replicated on a constitutional level to create a structure truly based on the Treaty of Waitangi, with a Tikanga Māori House and a Tikanga Pākehā House, and a Treaty House sitting above both. Bishop Muru Walters provides an insight into the workings of the Anglican Church under this model, as well as the history of discussions towards its implementation on a national scale.

Malcolm Mulholland begins the section on developments. He argues that our current symbols of nationhood are actually symbols of colonisation, including the national name, flag and anthem. He states that these symbols will require change based on conversations between the two Treaty signatories and offers a range of possibilities, including completely changing each symbol or amalgamating the old with the new.

Associate Professor Ann Sullivan’s chapter addresses Māori representation within the House of Representatives, which has long been a contentious issue. Some have argued that Māori do not receive enough recognition under the system of separate Māori seats, whereas others have said that the separate seats are an antiquated measure that should be abolished. Tension between democracy and the rights of a collective is often highlighted in debate about the most appropriate political system for Māori representation. Sullivan also tracks the change in the Aotearoa New Zealand political system from first past the post representation to mixed member proportional, and how Māori have fared within both.

Dr Janine Hayward looks at what the Treaty of Waitangi means for local government, including the discussion that has taken place regarding this issue within the context of local body reforms. As it stands, the issue requires clarification and an appropriate forum by which to have a meaningful discussion, as highlighted by the recent Auckland ‘super city’ plans. Hayward suggests that central government should lead the debate, and stipulates that all local communities should have Māori representation, rather than entrusting the mechanisms of governance to the whim of local bodies who make demographically based, rather than Treaty-based, decisions.

Citizenship education has gone amiss under successive governments, according to Veronica Tawhai. Her chapter explores the staggering fact that a tailored education package regarding the rights of citizens, including arguments surrounding the Treaty, is not offered to the public of Aotearoa New Zealand. In order to enable wider debate about the place of the Treaty, there needs to be broader understanding in the community. Popularly held views need to shift towards equality of outcomes, as opposed to equal opportunities: this extends to equal political rights for hapū and iwi.

A kaupapa-based constitution is argued for by Hohaia Collier. Collier’s proposal could operate on many different levels – from hapū governance through to a possible Māori Government. Underlying his suggestion is the recognition of kaupapa, or grounding principles, based on the Declaration of Independence and the Treaty of Waitangi.

The book concludes with an interview with Moana Jackson. Moana, without doubt, is the foremost expert on constitutional matters for Māori. His interview provides a parameter within which constitutional transformation for Māori could take place; namely, that Māori should not frame the discussion in terms of what has been inherited from the Westminister system, but rather in terms of what they already know of rules and regulations that govern Māori society – kawa. He contextualises the debate, reminding readers to operate outside of a colonised world and that a framework for constitutional transformation already exists, given to Māori by those tīpuna who signed the Declaration of Independence and the Treaty of Waitangi.

The ‘Relationship and Confidence and Supply Agreement’ between the National and Māori Parties signed in 2008 stated that a group would be established to look at constitutional issues in 2010, 170 years after the Treaty was signed. While this forum may not result in any short-term solutions regarding the place of the Treaty of Waitangi and the constitutional arrangement between Māori and the Crown, it is, at the very least, an acknowledgement by the National Government that they are prepared to enter into dialogue with the public regarding this extremely important matter. It is hoped that the discussions contained within this book will form a basis for debate. Tania Rangiheuea stresses that discussion around constitutional change should not be restricted to academics, the state sector and the Māori elite. Her warning is timely, and serves as a reminder that constitutional change affects the country as a whole.

May Weeping Waters educate and inform people who are interested in the constitutional future of Aotearoa New Zealand.

NOTE

1 Opening speech by Helen Clark, in C James (ed). Building the Constitution, Wellington: Institute of Policy Studies, 2000, p. 38.

PART ONE

EVOLUTION

CHAPTER 1

Constitutional Intentions: The Treaty of Waitangi Texts¹

Professor Margaret Mutu

Introduction

For 170 years Māori have held fast to the Treaty of Waitangi, the sacred covenant between Māori and the Queen of England, signed by the rangatira (tribal leaders) and the Queen’s representative at Waitangi on 6 February 1840. It has always been clear to Māori that the Treaty recorded the conditions under which Pākehā (non-Māori of European descent) could remain in this country they called New Zealand. By signing it, the Queen had finally acceded to the wishes of the rangatira of Te Whakaminenga o ngā Hapū, those rangatira who her father the King had acknowledged held sovereignty over their territories in this country. The rangatira had asked the King of England to take control of his hitherto lawless subjects residing in their territories, prevent their lawlessness, teach them to respect and uphold the mana and the rangatiratanga (paramount power and authority) of the hapū whose lands they were living on, and allow Māori and Pākehā to live in peace. That Pākehā understood the Treaty very differently was something that did concern the rangatira at first, but they were persuaded by the assurances of the missionaries that the Treaty they signed meant what it said. Their descendants to this day believe that the Treaty provides the only constitutional basis on which Pākehā continue to live in New Zealand, despite over a century and a half of brutal oppression at the hands of those Pākehā subjects of the Queen of England. A close examination of the texts of the Treaty explains why that belief is so strongly held.

This chapter provides an analysis of the Māori and English texts of the Treaty of Waitangi. Before examining the texts in detail, it provides a brief background to the nature of treaties entered into by the British with Indigenous peoples and the reason and context for Māori wishing to enter into an international agreement with the Queen of England. It also provides an overview of the translations of the Māori text that have been published since 1840, including the work undertaken by Sir Hugh Kawharu. The chapter concludes by summarising what was intended by the two parties upon signing the Treaty as New Zealand’s founding document and the role the Treaty therefore plays as the foundation for the development of a constitution for this country.

British treaties with Indigenous peoples

Treaties entered into between the British and Indigenous peoples usually had the same format as those between European nations.² They record agreements on specific issues reached between two sovereign nations. The parties to the treaty are clearly identified, with the rights and obligations of both spelt out.³ The matters agreed to are set out in the treaty, and can cover a wide range of matters of international significance, including peace and friendship, agreeing to a truce, terms of peaceful co-existence, regulation of trade, cession of sovereignty over land and water, abolition of slavery, religious freedom, shipwreck and salvage rights, cession of mineral rights, legal jurisdiction and abolition of human sacrifices.⁴ Previous studies of treaties between the British and Indigenous peoples indicate that treaties were generally agreed after explaining and debating the terms in the language of the Indigenous peoples.⁵ This was certainly the case with the Treaty of Waitangi.

By the time the English started diplomatic negotiations with Māori concerning the Treaty of Waitangi, they had had experience of negotiating international treaties with Indigenous nations for well over a century.⁶ In North America, the Indian subcontinent and Africa, as in Aotearoa, the English were forced to deal with the Indigenous nations diplomatically rather than trying to take their territories by force. The sparse European populations residing in or visiting those territories were no match for the military force of Indigenous communities. In Aotearoa in particular, in the late eighteenth and early to mid-nineteenth centuries at least, Europeans required the protection of Māori for their own safety and survival.

In North America, the earliest treaties between the English and American Indians for which there are official records or references, beginning in 1722, were negotiated and agreed on using either the English custom of formally written documents to which Indian leaders affixed their marks, or Indian custom wampum belts, the exchange of gifts, and councils to resolve diplomatic issues and record agreements.⁷ However, after 1778, written treaties followed a particular format set down in the Delaware Treaty of 1778 ‘with separate articles for each subject, sometimes special sections, and always much legalistic language’.⁸ The format used by the English for the Treaty of Waitangi follows the format used in North America. The format of the Treaty of Waitangi is a preamble followed by three articles, each dealing with specific subjects. The language of the Treaty is legalistic.

Background and context of the Treaty of Waitangi

In understanding and analysing the texts of a treaty it is essential to understand the background and context to it and, in particular, the discussions that led up to its signing. As Deloria and DeMallie⁹ point out for American Indian treaties, ‘By adopting this expanded understanding of the Indian treaty, one can illuminate the obscure phrases and promises contained in the written document.’

Māori society prior to the signing of the Treaty

The oral traditions of Te Tai Tokerau, the North, record that over the past 1000 years or so, Māori migrated from various parts of Polynesia to a country they called Aotearoa. When Europeans arrived some 700 or so years later they called the country New Zealand, a name which Māori came to associate with English participation in the country. Throughout the 1830s and the 1840s, the entire country was still firmly in the control and under the authority of the myriad of Māori tribal groupings, or hapū, that made up its population. One estimate of the population in 1840 has Māori outnumbering Pākehā by 70,000–90,000 to 2000.¹⁰ It was the hapū, under the leadership of their rangatira, who controlled the lands, seas, waterways, resources and people within the territories over which they held absolute and paramount authority. There were very few European immigrants resident at that time, and almost all of them were English and lived in the northern parts of the country, Te Tai Tokerau, particularly around Pewhairangi (the area the English called the Bay of Islands). The language of communication and trade was Māori, as were all customs and culture. While some English immigrants, particularly traders, married into local hapū and assimilated themselves into Māori society, others, particularly the missionaries, remained somewhat apart. The missionaries’ sole purpose for being in the country was to impose their English religious beliefs on as many Māori as they could. In order to achieve that to their satisfaction they also needed to impose English culture and values on Māori. While Māori welcomed some aspects of English culture, such as literacy and English technology, they firmly rejected other aspects, such as the English notion of their superiority over other races.¹¹

The oral tradition states that the hapū had become increasingly concerned at the lawlessness of the Pākehā living among them,¹² and had come together over a period of many years as Te Whakaminenga in an effort to find a solution. In some of the northern traditions, the impetus came from leaders including Hongi Hika and Waikato, who had travelled to England on a trading mission.

While they were there they not only met with the King of England but they also assisted Professor Lee at Cambridge University in writing the first scholarly grammar of the Māori language.¹³ It was Hongi, the traditions say, who returned to Aotearoa with suggestions of how the hapū could deal with the increasing lawlessness of the Pākehā. His suggestions included the hapū coming together for that and many other purposes, including Māori international trade, which flourished for many years. Te Whakaminenga had been operational for many years before the signing of He Whakaputanga and the subsequent Treaty of Waitangi. By that time Māori were making increasing demands for the Pākehā to control their own people. For this they looked to those Europeans they considered to be the most capable and responsible to take the lead, and chose the missionaries and the British Resident for what were, to them, obvious reasons.

The British Resident, James Busby, had been appointed by the King of England. Since the King of England was the chief of all English chiefs, he was considered to be of great mana. Hongi and Waikato could confirm that that was the case from their meeting with the King and the observance of his subjects’ attitude towards him. To hold such mana he was thought to be able to ensure that his people lived under the tikanga or laws passed down from their ancestors, laws Hongi and Waikato had seen in action in England. Such a person, in Māori eyes, must also be of the highest honour and integrity, and be the appropriate person with whom the rangatira could forge a personal, aristocratic and necessarily international alliance. Hongi Hika and Waikato had already reported that they had done that, and that the alliance could then be confirmed by the King sending his representative, the British Resident, to live among the hapū. Furthermore, in doing this the King acknowledged the mana of the rangatira as equivalent to his.¹⁴ He subsequently formally confirmed this by acknowledging He Whakaputanga.¹⁵

He Whakaputanga

He Whakaputanga was drawn up by the English, and was a declaration of the rangatiratanga and the mana of the rangatira of Te Whakaminenga in respect of all their lands. It declared that the rangatira would not allow any other persons or any other ‘kāwanatanga’ to have law-making powers over their lands. Te Whakaminenga undertook to meet every autumn at Waitangi for law-making purposes, thanked the King of England for recognising their flag and asked him to send them a mentor to help them understand his people for whom they were responsible.¹⁶ The English version sent to the King of England was not an accurate translation.

It stated that New Zealand was an independent state under the name of the United Tribes of New Zealand; that sovereignty lay with the chiefs of those tribes, who forbade any other legislative authority or function of government to exist in their territories; that the tribes would meet at Waitangi each autumn to set down laws; and that the tribes thanked the King of England for acknowledging their flag and asked him to be a parent to their infant state.¹⁷

He Whakaputanga and the Declaration of Independence laid the foundation for the Treaty, the document agreed to and signed by the rangatira at Waitangi. I will refer to the document signed at Waitangi by its own title, Te Tiriti o Waitangi (Te Tiriti). I will refer to the document in English as the Treaty of Waitangi. Like He Whakaputanga, Te Tiriti was drawn up by the English, with their authorised translator certifying it as a true and accurate translation of the Treaty as it had been drafted in English.¹⁸ The fact that it is not an accurate translation, but instead a serious mistranslation, caused problems that have plagued New Zealand ever since. The English language document, which bears the title the Treaty of Waitangi and is included in the New Zealand statutes, was the document used at various hui in Port Waikato in the absence of the Tiriti, which did not arrive in time for the signing.¹⁹

The official Treaty – Te Tiriti o Waitangi

Te Tiriti was first signed on 6 February 1840 at Waitangi some four and a half years after He Whakaputanga was first signed there. In the following months, more than 500 rangatira inscribed their signatures or marks on it, with fewer than forty inscribing the English language Treaty at Port Waikato and Manakau. The question immediately arises as to why the rangatira there were asked to sign something written in a foreign language that they did not understand. The answer appears to lie in the fact that Maunsell, the missionary charged with gathering signatures at Port Waikato, received one of the 200 printed versions of Te Tiriti produced at Paihia on 17 February 1840 at the same time that he received the English version with Hobson’s signature attached. The printed Tiriti would have helped him to explain the Treaty in Māori. There are five signatories to this printed version.²⁰

In the minds of the rangatira and Hobson’s superiors in England,²¹ as well as some Pākehā historians,²² and for some time now at international law,²³ it is Te Tiriti and not the English language document that is the official treaty – it was the only document the rangatira understood and the one almost all of them signed. Te Tiriti as it was read and explained to the rangatira at Waitangi confirmed the paramount authority and power, or sovereignty, of the rangatira and concentrated on promising to deal with the problems created by the lawlessness of Pākehā immigrants.²⁴ It was these problems that gave rise to the need for the rangatira to enter into a treaty with the paramount chief of the Pākehā, the Queen of England. The document as read out made a solemn promise to address these problems to the satisfaction of the rangatira.

The rangatira used both the Resident and the missionaries to communicate with the King and subsequently Queen Victoria. However, by the time the Queen sent her emissary, Hobson, to negotiate a treaty with Māori, the trust that had been built up between the Anglican missionaries and the hapū was starting to be challenged. Colenso records Hobson saying clearly and unambiguously at Waitangi on 5 February 1840, ‘Her Majesty the Queen asks you to sign this treaty, and so give her that power which shall enable her to restrain them’. The ‘them’ he is referring to are clearly stated as being ‘the people of Great Britain’. ²⁵While Colenso’s reporting does need to be treated with caution,²⁶ it seems clear that opposition to the signing of the Treaty was expressed after Hobson had spoken because of suspicions the rangatira held that, despite what the Treaty said and how the missionaries as interpreters and translators explained it, it was perhaps not about the Queen controlling her lawless subjects but rather about trying to remove the mana of Māori and stealing their land.²⁷ However, others, according to Colenso, believed the assurances and assertions of the missionaries that this was not the case, and asked Hobson to remain as governor.²⁸ Colenso also reports repeated and publicly expressed criticism of those missionaries by other Pākehā present that day for mistranslating and misinterpreting to Māori the intent of the Treaty that had been drafted in English.²⁹ Orange points out ‘The treaty was presented in a manner calculated to secure Maori agreement … Maori were told the Crown needed their agreement in order to establish effective law and order – primarily for controlling Europeans, or Pakeha as they called them.’³⁰

Certainly the wording of Te Tiriti conveys the agreement that Māori had been seeking for some time, despite the language used. The language of the first sentence of the preamble (and of the entire Tiriti) is not that of a fluent speaker of Māori, and others have commented on its clumsiness.³¹ It is rather an attempt to translate as closely as possible the quasi-legal and very formal English of one of the several drafts of the Treaty.³² As such it attempts to mimic that formal English language style rather than formal Māori, with the result that there are none of the metaphorical and oratorical markers of formal Māori. The language is therefore stilted and unnatural, but it is still clear in its meaning:

Ko Wikitoria, te Kuini o Ingarani, i tana [sic] mahara atawai³³ ki nga Rangatira me nga Hapu o Nu Tirani i tana hiahia hoki kia tohungia ki a ratou o ratou rangatiratanga, me to ratou wenua, a kia mau tonu hoki te Rongo ki a ratou me te Atanoho hoki kua wakaaro ra he mea tika kia tukua mai tetahi Rangatira hei kai wakarite ki nga Tangata maori o Nu Tirani – kia wakaaetia e nga Rangatira maori te Kawanatanga o te Kuini ki nga wahi katoa o te Wenua nei me nga Motu – na te mea hoki he tokomaha ke nga tangata o tona iwi kua noho ki tenei wenua, a e haere mai nei.

This translates very literally as:

Now, Victoria, the Queen of England, in her well-meaning thoughts for the heads of the tribal groupings and the tribal groupings of New Zealand, and out of her desire also to signal to them their paramount authority and their lands, and so as to