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Mori, Pacific and Indigenous Studies

( MAOR 102)

TREATY OF WAITANGI
DR. PAERAU WARBRICK

LECTURER Te Tumu: School of Mori, Pacific and Indigenous Studies BARRISTER


Barrister and Solicitor of the High Court of New Zealand Legal Practitioner of the Supreme Court of New South Wales

First New Zealand Governor 1840-1841

Captain William Hobson Drafted the Treaty and responsible for ensuring Mori signatories (First meeting of chiefs 6 February 1840 at Waitangi, then further meetings around NZ) 544 chiefs sign the Treaty (505 sign the Mori Version) (39 sign the English Version) Died in September 1841 Responsible for beginning the Westminster system of government into New Zealand

Treaty of Waitangi

Mori Text & English Text Made up of four parts Preamble (Introduction) Article 1 Article 2 Article 3 (Fourth Article) referred to by some writers like retired High Court judge Justice Eddie Durie

Article I

Mori version Chiefs gave the Queen Kawanatanga

English version Chiefs gave the Queen Sovereignty

Article II

Mori version Guarantees o ratou w[h]enua o ratou kainga me o ratou taonga katoa English version Guarantees the chiefs and their respective families and individuals full exclusive and undisturbed possession of their Lands and Estates, Forests Fisheries and other properties

Article III

Queen extended to the Natives Her Royal protection and imparts to them all the Rights and Privileges of British Subjects.

Branches of Government
Sovereign (Queen)

Executive Branch

Legislative Branch

Judicial Branch

Executive Branch
This branch carries out the law It includes - Governor General, Prime Minister, Cabinet members (eg. Minister of Police), - Government Departments (StudyLink, Police, Housing Corp, Army, Customs University of Otago)

Legislative Branch
This branch makes legislation (Education Act 1989 etc.) Parliament (which comprises Governor General and the House of Representatives)

House of Representatives (M.Ps Members of Parliament, whether list or electorate eg. Rahui Katene, Pete Hodgson, Michael Woodhouse, Metiria Turei)

Judicial branch

This branch interprets the law Courts (Judiciary) Supreme Court, Court of Appeal High Court, District Court, Disputes Tribunal, Mori Land Court, Environment Court, Employment Court etc.

Westminster System of Government


Parliament is Supreme (Parliamentary Sovereignty) (Parliamentary Supremacy) A. V. Dicey, An Introduction to the Study of the Law of the Constitution (1885) Parliament can pass any law whatsoever Courts must interpret Parliaments wishes (legislation) Executive branch must carry out the law

Three major NZ court cases regarding the Treaty


Wi Parata v Bishop of Wellington (1877) Mori Council v Attorney General (1986) Attorney General v Ngati Apa (2003)

Wi Parata v Bishop of Wellington (1877)

Wi Parata challenges the Bishop of Wellington (Octavius Hadfield) to give surplus land back. He uses the Treaty of Waitangi as an argument.

Wi Parata v Bishop of Wellington (1877)

Chief Justice James Prendergast (top) along with Justice C. W. Richmond (below) declares that

the treaty ....is a mere nullity

Mori Council v Attorney General (1986)

Late 1980s, Government decides to transfer all Crown land to Landcorp (A State Owned enterprise) Mori Council states that this will breach the State Owned Enterprises Act 1986

Section 9 states Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.

Attorney General v Ngati Apa (2003)

This is the foreshore and seabed case. Ngati Apa wanted the Maori Land Court to investigate who really owned the foreshore around Marlborough; Mori or the Crown? Government did not want the Maori Land Court to investigate who owns the foreshore because they believed the Crown owned it. Court of Appeal rules that the Mori Land Court can investigate who owns the foreshore.

Treaty of Waitangi did not transfer ownership of all land to the Crown

Points to ponder

Where does prejudice and racism fit into the Treaty debates? In terms of our legal structure in New Zealand, should we elevate the Treaty to supreme law status? If we elevate the Treaty to supreme law status what will that mean for democracy? Is there a better option for Mori and Non Mori than the Treaty?

Readings

Malcolm Mulholland & Veronica Tawhai, Weeping Waters: The Treaty of Waitangi and Constitutional Change, Huia Publishers, Wellington, 2010. Claudia, Orange, An Illustrated History of the Treaty of Waitangi, Bridget Williams Books, Wellington, 2004. Claudia, Orange, The Treaty of Waitangi, Allen & Unwin, Wellington, 1987.

Marcia, Stenson, The Treaty: Every New Zealanders Guide to the Treaty of Waitangi, Random House new Zealand, Auckland, 2004.