The Treaty of Waitangi: Motivations, Drafting, and Legal Interpretation

Posted on Oct 18, 2025 in Law

Māori Motivations for Signing the Treaty

  • Protection from unruly settlers and lawlessness.
  • Protection from unfair private land purchases.
  • Stopping fighting between tribes.
  • Guarantee of trading relations with Britain.

These motivations failed to deliver.

Crown Motivations for Signing the Treaty

  • Colonial competition with the French.
  • Financial motives (trade in whales, seals, timber, flax).
  • The 1835 Declaration of Independence.

During the time of Cook’s rediscovery of NZ (1769–1830s), Britain was not interested in making NZ part of the British Empire. This changed in the 1830s because:

  1. Financial Motives: Colonies were often a financial burden, but NZ offered financial benefits in terms of trade; Māori were highly skilled in this area.
  2. Colonial Competition (French interests): The French were already in NZ. Britain did not want the French to gain the upper hand, especially given the presence of French Catholic missionaries in the Far North Island (Bay of Plenty) and French influence in Akaroa (South Island).
  3. Humanitarian Issues: Concerns arose in Britain regarding the bad behavior of settlers (e.g., whalers, sealers), lawlessness, alcohol abuse, prostitution, and violence. This necessitated regulation. Another concern was private British land purchases, where settlers acquired huge amounts of land for minimal value, often resulting in unequal transactions.
  4. The 1835 Declaration of Independence: This gave more power and authority to Māori, which the British disliked.

The 1835 Declaration of Independence

  1. It was drafted by 34 Northern Māori chiefs alongside James Busby and Henry Williams. George Clarke translated the declaration.
  2. The 1835 Declaration of Independence had 4 articles: it asserted the sovereignty of the Confederation of United Tribes, constituting and declaring NZ as an independent State under the United Tribes.
  3. This led to a significant change in Māori society, granting them considerable power. It was not received well by the Colonial Office, which decided that the Treaty was needed to correct the declaration.

1840 Treaty: Drafting and Signing

  • The Treaty was set up, drafted, and signed in less than a week. Lord Normanby (Colonial Secretary in London) sent instructions to Lieutenant Governor William Hobson to draft and obtain agreement on the Treaty.
  • Normanby wanted to obtain “The free intelligent consent of the natives expressed according to their established usages.” (Meaning that Māori consent was central to the Treaty process.)
  • Hobson arrived in NZ on 29 January 1840 and drafted notes about the Treaty’s content.
  • James Busby (who assisted in drafting the Declaration of Independence) wrote the English version of the Treaty on 3rd February.
  • On 4th February, Henry Williams helped translate the English version into Te Reo Māori. (They had less than 24 hours to translate it.)
  • On 5th February, approximately 500 Māori people met at Waitangi with Hobson and debated the Treaty.
  • The big debate was on 5th February, with input from people like Tāmati Wāka Nene and Hōne Heke. Each Rangatira signed Te Tiriti (the Māori version of the Treaty). Approximately 40 people signed the Māori version at Waitangi.
  • There were 50 signing meetings around the country, and by the end of the year, Te Tiriti had 520 signatures. The English version had 40 signatures.
  • There were 9 different copies of the Māori version, but only 1 English version.

What the Two Versions of the Treaty Mean

The English Version

Asserts that Māori give the Crown “absolutely and without reservation all the rights and powers of sovereignty over their lands,” but guarantees “undisturbed possession of their forests, lands, and other properties.” Focused on Cession (the act of giving up something).

The Māori Version (Te Tiriti)

Asserts that Māori would have Rangatiratanga (total control) over all their lands and Taonga (everything important to them) for as long as they wished. If Māori wished to sell land, they must sell it to the Crown first (the pre-emptive clause), who could then sell it to settlers.

The Three Articles

  • Article 1: Te Kāwanatanga | Complete Government, Sovereignty, Partnership (Giving up power of sovereignty to the Crown).
  • Article 2: Tino Rangatiratanga, Unqualified exercise of Chieftainship, Exclusive and undisturbed possession of their properties | Protection. (Gave Māori safeguards, such as for their land and taonga.)
  • Article 3: Tikanga Katoa rite tahi ki ana mea ki ngā tangata o Ingarani | Rights and Duties of Citizenship. Rights and Privileges of British Subjects | Participation.

Did Māori Cede Full Sovereignty to the Crown?

Yes & No. Māori did not cede sovereignty; the English version of the Treaty says they did.

Which Version of the Treaty Should Prevail?

By International Law, the Māori version should prevail because of the doctrine Contra proferentem (interpreting ambiguous clauses against the party who drafted them). In NZ, we interpret the Treaty in accordance with the spirit in which it was made. Looking at the broader context, the spirit of the Treaty was true partnership, rather than British Empire dominance.

Treaty Principles: Past vs. Today

  • Treaty Principles (1987): Partnership, Protection, Participation.
  • Core Principles Today: Partnership, Active protection, Right of redress, Right of the Crown to govern, Māori Rangatiratanga over lands, resources, and taonga.

After the Treaty: Consequences

Was the promise of the Treaty upheld? No. Consequences included:

  • Unequal land sales and land disputes.
  • NZ Land Wars (1860s) and land confiscations.
  • Land loss through the Native Land Court.
  • Impact on taonga, e.g., loss of language.
  • Lack of equality.

Historic Cases

R v Symonds (1847) NZPCC 387 (SC)

Parties: Māori landowner, Mr. McIntosh, Mr. Symonds.