Deciphering Treaty of Waitangi & Aboriginal Title in NZ Legal Landscape

Categories: Rights

The historical and contemporary interpretation of the treaty of Waitangi and the Doctrine of aboriginal title in New Zealand case law and statute, reflects the pattern of what Moana Jackson refers to as the “colonizing context” the treaty itself came into being on 6th February 1840. It was signed between the British crown representatives and different Maori chiefs who were from the Northern North Island. With the signing of the treaty, a British governor post was established in this region and Maori people became the British subjects.

In this research paper I’ll analyze the circumstances surrounding the signing of the treaty, effects of the treaty and various tribunals and cases involving the treaty. I’ll also discuss how clear understanding of the colonizing context can lead to adjustment of the constitution.

The basis of Moana Jackson’s argument is as a result of the difference between the British’s and Maori language with reference to the treaty of Waitangi. The interpretation between the two languages differed and so there is no agreement as to what the original treaty was because it was differently interpreted.

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To the British, the treaty mandated them to rule New Zealand and created the post of a governor who was bestowed with full powers to run all affairs affecting this territory but on the other hand, the Maori had a different understanding. Both parties disagreed on various issues even after the treaty was signed. The treaty also gave these people the right to maintain their properties and land.

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Since the treaty was signed in 1840, the treaty was never valued and existed in ‘darkness’ up to 1970s. All this time the courts never recognized it. It did not address their ownership rights plus they were not fairly treated by the British government.

Form the 1960s up to date, the Waitangi treaty has been reviewed a number of times and so many problems have been brought to the light. A commission to inquire on the treaty was formed in 1975 to address the affected areas and this is what came to be referred to as the Waitangi Tribunal. It was supposed to establish and solve the breaches that were committed by the crown or by its agents.

To many, the treaty is referred to as the founding document of the state of New Zealand though there are various reasons that made Moana Jackson to refer to it as a “Colonizing Context” and one of this reason was that, though the treaty was as a result of mutual understanding between British and Maori, the treaty was not recognized until recently when it received limited acknowledgement. In the past, the New Zealand governors and the colonial office clearly supported the treaty for it gave to rule over Maori people as well as to be the leader of New Zealand.

After the 19th century case, the treaty was declared null and void and this meant that the treaty was not to be honored both by the government and courts. This declaration was entrenched by the claim that was being advanced by the British’s that New Zealand became a colony after the January’s proclamation of 1840 was passed.

The treaty only worked in favor of British and Hobson used the treaty as a pretext to claim leadership of North Island. They breached the terms of agreement to the treaty and denied Maori people the ownership right of the island. They claimed that it was uninhabited when they first arrived in that region arguing that maori’s population was small and sparsely distributed and this did not give them any right to do that and arguing that they Maori of that time were not organized is racism and Euro centrism.

According to the doctoring of aboriginal title these people had a right to maintain their soveignity as it was something that had persisted as customary and native rights. The aboriginal title was analogous to “freehold ownership” also meant not complete ownership. To make a valid constitution, both parties must sit down argue and reason together. The question over whether the treaty was binding or not was decided over a number of court cases such as WI parata versus Bishop Wellington in 1877. In this case the judge dismissed the treaty as neither binding nor valid. In the case of Te Heuhen Tukino Vaotea district Maori land board, the treaty was ruled to be valid in 1938 especially where it talked about the transfer of power and sovereignty but was he was quick to add that it was not what that was agreed

“All dealings with the aborigines for their land must be conducted on the same principles of sincerity, justice and good faith as must govern your transactions with them for the recognition of… they must not be permitted to enter in to any contracts in which they might be the ignorant and unintentional authors of injuries to them serves.”

The treaty according to the crown led to the establishment of fair relationship between the two groups. Cooperation determined the relationship between the community and distinctive development but it should be known that there could be no cooperation without mutual understanding.

The Waitangi tribunal was created under the 1975’s Act of the Treaty. Its main aim was to investigate complains that were made by the Maori people on the violation of the treaty by the crown. Also in 1988, through the amendments that were made, the tribunal was supposed to investigate whether the treaty was feasible and whether some activities that were being done by the crown were consistent with the treaty. The treaty according to Moana Jackson was a ‘colonial context’ as it led the Maori not to lose land to other people except to the crown. This made British to buy more and more land due to the competitive amount that they paid for a piece of land. This attracted many settlers from England for they were sure that from then the land was theirs. Thus it is evident that the treaty was a vehicle to colonization.

The signing of this treaty paved way for colonization of New Zealand by Britain. They spread their culture to every facet until it became the culture of the 19th and 20th centuries. Many colonialists migrated to New Zealand after being enticed by their counterparts with pieces of land in this region. The colonialisation process followed the views of the British governor Gibbon Wakefield who wanted the colonial settlement to emulate those in their mother country.

When a large number of colonialists arrived, land started to become a scarce commodity and as a result disputes emerged over land between the local people and the British’s. Maori became angry and started making complains over lack of adherence to the Waitangi treaty and in 1860s, the colonialists with the help of troops from Britain steadied themselves in the region by suppressing these rebellions. As wars persisted many Maori died in the process and this worked to the advantage of the colonialists who took these pieces of land.

Loosing sovereignty was a big blow to the liberty of Maori. The signing of the treaty led chiefs to pass their mandate to the European authority. They were forced to do that so that they would be offered protection and citizenship as well as duties and privileges given to the British. The Maori’s were allowed to sell their land only to the British something that made other European nations to keep off.

By knowing the colonizing context of this treaty, it is possible to make adjustments to the constitutional framework. Before any amendment is made or before a new law could be made, the impact of the same must be weighed. Because it is clear now that the treaty of Waitangi led to the alienation of land for the Maori people. Safe in this knowledge, some provisions could be passed so that this problem can be addressed so as to prevent further alienation.

The findings of this research paper are that the treaty was signed on understanding that the British personnel would rule over Maori people but their rights to own properties. The British violated the contract and used it a tool for advancing their politics. All complains that were made by the Maori people should be addressed in the constitution as it is the governing body that protects the interest of all citizens. A policy like selling land only to the British should be abolished as everybody has a right to do whatever they want.


  1. Adams P. 1977. Fatal Necessity: British Intervention in New Zealand 1830- 1847.Auckland University Press.
  2. Christchurch library. Treaty of Waitangi: The Waitangi Tribunal. Accessed at on March 28, 2008.
  3. Claudia O. 1990. An Illustrated History of the Treaty of Waitangi. Welling Allen and Union
  4. Manutukutuku T.E. 1989. Newsletter of the Waitangi Tribunal Macmillan Brown Library HD 1120.5 AL- M294
  5. Mc Neil K.1989. Common Law Aboriginal Title. L4NZULR 97.
  6. Ministry for Culture and Heritage, 2007. Waitangi Tribunal claim - Maori Language Week Retrieved at week/waitangi-tribunal-claim on Monday, March 31, 2008.
  7. Wakalahama T. 1993.A Guide to the Waitangi Tribunal. 2nd Edition. Km 78 Z7- N5328 Macmillan Brown Library.
Updated: Apr 29, 2023
Cite this page

Deciphering Treaty of Waitangi & Aboriginal Title in NZ Legal Landscape. (2017, Mar 20). Retrieved from

Deciphering Treaty of Waitangi & Aboriginal Title in NZ Legal Landscape essay
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