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The 1835 Declaration of Independence and 1840 Te Tiriti o Waitangi

A central thread woven through this book is a critique of Aotearoa becoming a colony of England. England is a common law2 country where customary rights were founded. New Zealand was annexed (to New South Wales) in 1839 and the laws of England applied as at January 1840 (Webb, Sanders, & Scott, 2010). In international law a settled country must recognize the customary rights of the native people. In 1835 He Wakaputanga o te Rangatiratanga o Nu Tirene: A Declaration of the Independence of New Zealand was signed between the Rangatira (chiefly nobles) and the King of England; sovereignty over Aotearoa/ New Zealand lay with the Chiefs of the United Tribes (Mutu, 2010). That Declaration (drafted by the same person who drafted The Treaty of Waitangi five years later) used the words kingitanga and mana to mean sovereignty and kawanatanga for government. The 1840 Treaty of Waitangi did not.

There were several Treaty versions (referred to as English and Maori texts). They are not translations of each other but distinct documents with, in many respects, oppositional meanings. The Maori text was what the Rangatira (sovereign chiefs) understood and the one almost all of them signed. It is important to understand this pre-treaty context, particularly the words used in the Declaration of Independence to mean sovereignty (kingitanga and mana) and government (kawanatanga) because it provides some clarity around Maori understandings at the time of the signing of the Treaty. The 1835 Declaration of Independence and the 1840 Treaty of Waitangi documents were virtually back to back in time as signatures were still being collected for the Declaration in 1839 when the Treaty of Waitangi was being drafted. By 1839, 52 sovereign powered chiefs (acknowledged by the King and British government) had signed the Declaration of Independence, which was seen by James Busby as a significant mark of Maori national identity, and which would prevent other countries from making formal deals with Maori (The 1835 Declaration of Independence, 2013). It was gazetted internationally by Great Britain, which meant that in international law the world recognized mana Maori (Maori sovereignty) so that the English were at liberty to broker the relationship. While I refer to “the Treaty” in a general sense, it is to the rights and interests validated and guaranteed in “Te Tiriti o Waitangi” (the Maori text) that this chapter refers to.

The preamble to the Maori text establishes preservation of Tino Rangatiratanga (absolute authority) and the nature of the agreement (The Queen’s governance). However, the English text recognizes Her Majesty’s sovereign authority. Kawharu (2013) discusses the differences in the texts and the following articles: Article the First of the Maori text establishes that governance (not ceding sovereignty) was given over to the Queen of England in the Maori text. However, in the English text, whilst simultaneously acknowledging the sovereign rights and powers of the Individual Chiefs “over their respective Territories as the sole sovereigns thereof,” it states that they ceded that sovereignty to the Queen of England. Both English and Maori texts in Article the Second protect the Chiefs and Hapu in the exercise of their Rangatiratanga (sovereignty) over lands, villages, and treasures so long as Maori wish to retain them, establishing pre-emption rights for the Crown. Article the Third guaranteed the protection of Maori dual rights as tangata whenua and the same rights and duties of citizenship as the people of England.

There was no question that the preamble to the Maori text established that a government was being set up and that the sovereign power of chiefs was guaranteed. Arguably the biggest debate around the English and Maori texts is the question of what was ceded in Article II—sovereignty in the English text or governance in the Maori text; but in any event, in international law the Maori text is the legal document and trumps the foreign (English) text (see the Law of Contra Proferentem), settling the moot point—governance was ceded.

In 1840 the Maori chiefs held the mana whenua (land sovereignty); they exercised control over their lands, which spanned the whole country. Aotearoa/New Zealand was Maori land and Maori chieftainship was sovereign. Why would a previously declared independent nation of powerful sovereign chiefs then collaborate in their own subjugation through a treaty of cession as some commentators assert the Treaty of Waitangi purports to be? That simply did not happen. What did happen subsequently was a series of deliberate, fraudulent misrepresentations in duplicitous interactions through the settler system of government established post Treaty. Colenso reported that the English present at Waitangi in 1840 became agitated about the missionaries not translating or explaining the English version of the Treaty that they had drafted (Mutu, 2010). Maori were dubious of the tikanga (rules, values, and procedures of engagement) practiced by the British. As it turned out, deception and misrepresentation were part of that tikanga process by the outsider adventitious British. By placing the Maori language document in front of the Maori chieftainship to sign, whilst deceitfully drawing up a different (English language) version (not put to the Chieftainship) is a show of such deception. There were several legal and political developments in terms of Treaty jurisprudence from the signing of the Treaty of Waitangi in 1840 to the present day that have impacted heavily on Maori political, educational, and social advancements.

It has been shown (see Chapter 1) how in the case of R v Symonds,3 Maori rights to traditional land under customary law were established in 1847 (Mutu, 2010). This case is famous for the common law doctrine of aboriginal (customary) title, meaning the right of Maori to claim a legal interest in their traditional lands must be respected (Webb, Sanders, & Scott, 2010). Chapman J. stated that “if [native title] is entitled to be respected... [it] cannot be extinguished... otherwise than by the free consent of the Native occupiers” (p. 214), and that Maori sovereignty and dominion over land was to be respected. What happened in the ensuing years? The settler population grew exponentially, land wars broke out between Maori and the setter government, and the Kingitanga (Maori King Movement) was established, resulting in British backlash. The reprisal for the establishment of a Maori King Movement was Maori land confiscations on a massive scale. Accompanying the rate of land confiscations

(freed up for successive waves of British settlers to take over) was a shift in Maori language use as a result of linguafaction (see Chapter 1). Maori became increasingly disempowered. Maori language was weakened. Fishman (1991) has argued that, without a doubt, “weakened and endangered languages pertain to cultures that no longer significantly regulate the daily lives of their members” (p. 8). Along with land and language loss we have cultural loss, a loss in unique values and worldview/s and intergenerational trauma as generations of Maori were socio-culturally dislocated via ongoing colonization and through assimilative educational policy. The following is an expose and critical analysis of the policy documents that continue to inhibit Maori language education generally and particularly in the early years.

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