Tuesday, June 21, 2011

The Treaty of Waitangi

In the late 1830’s there were about 2,000 settlers and approximately 125,000 Maori in New Zealand.  William Hobson was appointed as New Zealand counsel.  He was sent on behalf of the British Crown to obtain sovereignty over all or part of New Zealand with the consent of a sufficient number of Maori chiefs.

And so was born the second most quoted document in the history of New Zealand.  The Treaty of Waitangi was signed at Waitangi (which is why it’s called the Treaty of Waitangi) on 6 February 1840.

The Treaty was signed by Hobson, some English residents and 40-45 Maori chiefs.  The document has two texts.  One Maori and one English.  The Maori text of the Treaty was taken around the northern parts of New Zealand to obtain additional Maori signatures.  Copies were sent around the rest of the country for signing.  By the end of the year over 500 Maori had signed the Treaty.  Today the Treaty of Waitangi is on permanent display in the National Archives in Wellington.

On 21 May 1840 William Hobson proclaimed sovereignty over New Zealand’s North Island through the Treaty of Waitangi.  He claimed sovereignty over the South Island by right of discovery.

As I mentioned above, the Treaty of Waitangi has two texts.  One in Maori.  One in English.  What makes it a little difficult is that the English text is not an exact translation of the Maori text.  Boiled down to essentials, the Treaty is an agreement in which Maori gave the Crown rights to govern and to develop British settlement.  The Crown guaranteed Maori full protection of their interests and status, as well as full citizenship rights.

One of the fundamental differences between expectations is found in Article 2.  The Maori version uses the word “rangatiratanga”.  It promises to uphold the authority that tribes had always had over the lands and taonga (roughly “precious things”).

The English text is thought to emphasise property and ownership rights.  The Queen guaranteed to Maori the undisturbed possession of their properties, including their lands, forests, and fisheries, for as long as they wished to retain them.

 The Treaty of Waitangi Act 1975 established a Waitangi Tribunal.  The role of the Tribunal is to make recommendations on claims brought by Maori relating to actions or omissions of the Crown that breach promises made in the Treaty of Waitangi.

The Tribunal has authority only to make recommendations.  In most cases its recommendations do not bind the Crown.  Its process is inquisitorial rather than adversarial.  It is able to conduct its own research rather than decide a matter solely on evidence and legal arguments presented to it.

Next month we are going to see a decision issue on the 262nd claim brought before the Waitangi Tribunal.  The genesis of WAI 262 is concern at the ease with which native flora and fauna can be lost to overseas interests.  This claim puts under the spotlight the Maori rights of tino rangatiratanga (authority) and kaitiakitanga (guardianship) over indigenous flora and fauna.

It is expected to be a significant decision that will have a profound effect on our approach to intellectual property rights.

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