Category: Treaty of Waitangi

The Treaty of Waitangi, often referred to as the founding document of Aotearoa New Zealand. Signed on 4th February 1840, the treaty formalized the relationship between Maori and the Crown (Kingi 2007). The Treaty of Waitangi consisted of 5 parts namely: the preamble, 3 articles and the postscript and exists in Maori and in English. Issues arose due to poor translation of the treaty and as a result there were different interpretations of the treaty between the English and Maori versions. The English version states that Maori give up sovereignty to the crown whereas in the Maori version it states ‘kawanatanga’ which enables the crown to set up government in New Zealand (course reference).

Both versions have similar objectives emphasizing that Maori and non-Maori share equal health and well-being but the Maori version places emphasis on Maori control over all things Maori (Kingi 2007). A few years thereafter it was evident that the rights promised to the Maori were ignored, resulting in land confiscation, language displacement and a loss of political power and economic control. The loss of Mauri land, control and culture led to Mauri depopulation. In historic fashion Mauri recovered from near extinction with little help from the Treaty or the Crown and platforms for Mauri health development was established (Kingi 2007). The Waitangi tribunal was established in 1975 and served as a platform where treaty related issues could be discussed outside of a court setting. This eventually led to the restoration of the relationship between the Treaty and Mauri health through the establishment of the Treaty principles identified by the Royal Commission of Social Policy (1988).

The three principles namely: partnership, protection and participation were established to create a common ground based on both versions of the Treaty (Kingi 2007). The principle of partnership places an obligation on the Crown to incorporate Mauri in the design of health legislation, health policies and health strategies. This encompasses the involvement of all indigenous communities in the development of strategies for Mauri health gain, appropriate health and disability services (Kingi 2007).

The principle of participation encompasses the requirement for Mauri to participate in all levels of the health and disability sector ensuring that health strategies are in alignment with present-day Mauri realities (Kingi 2007). The final principle of protection serves to eradicate disparities amongst Mauri and non-Mauri ensuring equitable health outcomes as well as protection over Mauri cultural concepts and values. The aim of the Treaty principles lie within the principles, to eradicate any inequalities between Mauri and non- Mauri as well as to preserve Mauri culture and values.

Maori health and well-being are described by a concept called ‘ Te whare tapa wha’ which represents a holistic approach to health consisting of four cornerstones. This concept illustrates that each of the four cornerstones play an equal role in maintaining complete health and well-being. Therefore if one of the four cornerstones are weak, a person is considered as unwell (Pistacchi 2008). The four cornerstones consist of: physical health (Taha tinana), spiritual health (Taha wairua), family health (Taha whanau) and mental health (Taha hinengaro).

Physical health (Taha tinana) refers to the ability for physical development. According to Pistacchi (2008) Maori believe that body, mind and soul are closely related and has an effect on physical health. Spiritual health (Taha wairua) refers to the ability for faith and what makes a person uniquely Maori, by providing a link to their ancestors (Pistacchi 2008). Family health (Taha whanau) refers to the ability to belong. Maori believes that family gives them strength to be who they are, and it is what connects them to their ancestors. The final dimension is mental health (Taha hinengaro), which refers to the thoughts, feelings and emotions and how a person feels about their state of health (Pistacchi 2008).

The Treaty of Waitangi places an obligation on the health care system of New Zealand to provide equitable health care to all. New Zealand has a multicultural society consisting of many ethnic groups. Providing equitable healthcare to a multicultural society requires a certain level of cultural competency. The Health Practitioners Competency Assurance Act 2003 created a legislative framework whereby ensuring cultural competency of health practitioners (Ratima, Waetford et al. 2006). Its significance was to address long standing cultural inequalities and to provide a culture supportive environment through creating an understanding of the Treaty of Waitangi. (Ratima, Waetford et al. 2006). Other culturally relevant Acts include: NZ Health and Disability Commissioner Act 1994, NZ Health and Disability Act 2000 and the Treaty of Waitangi.

Cultural competency is a prevalent factor in addressing longstanding disparities faced by Mauri and the indigenous people of New Zealand and plays a pivotal role in achieving the best clinical outcomes (Ratima, Waetford et al. 2006).

A healthcare professional it is my responsibility to meet all competency requirements set out by HPCAA 2003, more so cultural competency. Equipped with knowledge of the Treaty of Waitangi and the history Aotearoa New Zealand, I have gained understanding about the longstanding disparities that exist within the healthcare sector between Mauri and non- Mauri. I have learned the significance of being a culturally competent health practitioner and how cultural competency is a pivotal factor to actively diffuse the longstanding cultural inequalities as well as how it can be beneficial in achieving the best clinical outcomes. Therefore I will ensure that my practice is in line with the defining characteristics of a culturally competent health practitioner according to Ratima, Waetford et al. (2006).

Ensure that assessments, treatment plans are culturally relevant to each client. Seek to create a trustworthy environment between health care provider and client through communication, actively seeking client preferences and feedback, educate clients about what to expect during physiotherapy and the active participation of their family. I would seek to create networks for informed referrals as well as creating client awareness of relevant services to ensure that each client receives holistic care. I will ensure the collection of quality ethnicity data as well as reflect on my practice in all aspects ensuring that I am actively working to reduce cultural inequalities (Ratima, Waetford et al. 2006).

History has played a significant role in shaping New Zealand’s current constitutional system. New Zealand has no entrenched single document that forms our constitution. Rather, history has shaped the evolution of New Zealand’s current constitutional system. Since colonial times New Zealand’s legal history has had a marked effect on the development of our constitution. A number of significant historical events have helped shape this. These include the 1840 signing of the Treaty of Waitangi which enabled New Zealand to inherit Britain’s key constitutional features, the passing of the 1931 Statute of Westminster which streamlined our process of law making, and the 1984 Constitutional Crisis which led to the passing of New Zealand’s current Constitution Act. These three key events in our legal history have played a significant role in shaping New Zealand’s current constitutional system.

The Treaty of Waitangi is regarded by many as New Zealand’s ‘founding document’. The treaty has had a significant effect on the evolution of New Zealand’s constitutional system. Britain gained interest in annexing New Zealand territory to expand its Empire. Prior to the signing of the treaty in 1840, Britain had no legal power over New Zealand. Although New Zealand was recognized as a British Colony through the Declaration of Independence in 1835, for Britain to obtain sovereignty over New Zealand, an agreement needed to be constructed. Signed on 6 February 1840, the Treaty of Waitangi effectively provided a blueprint which continues to underpin New Zealand’s current constitutional system. The treaty allowed New Zealand to adopt all British law prior to 1840, and allowed the British to embed their legal history in the foundations of New Zealand’s constitution, thus making English legal history essential to understand how the New Zealand constitution evolved. The legal history of England can be viewed as a battle for supremacy between parliament and the Crown. Over the long duration of this struggle, key documents shaped the formation of the English constitutional system such as the Magna Carta in 1215 and the Bill of Rights in 1689 . It was not until the mid-1970s that the Labour government set up the Waitangi Tribunal under the Treaty of Waitangi Act 1975. Initially the tribunal had very limited powers to make findings of facts and recommendations only. In a significant move, the Act was amended in 1985 to enable it to investigate Treaty breaches back to 1840. The lands case heard in the Court of Appeal in 1987 was the first to determine and define the principles of the Treaty of Waitangi. The case concerned the issue of transferring land to state-owned enterprises and was described by the then President of the Court of Appeal, Justice Sir Robin Cooke, as ‘perhaps as important for the future of our country as any that has come before a New Zealand Court.’ This case established the principle that if the treaty is mentioned in strong terms in a piece of legislation, it takes precedence over other parts of that legislation should they come into conflict. The court’s judgment became a precedent for later judgments and Waitangi Tribunal reports. Another case involving the determination of the Treaty’s principles was New Zealand Maori Council v AttorneyGeneral 1987 (a case involving forestry). These cases marked the beginning of the common law development of the principles of the Treaty of Waitangi. Although it was more than 140 years since the signing of Treaty of Waitangi, the case law developed in the 1980s had a significant effect on the evolution of New Zealand’s constitutional system.

The 1931 Statute of Westminster is another important component in New Zealand’s legal history which shaped the current constitutional system. New Zealand’s road to Parliamentary Sovereignty was extremely gradual, but had a significant impact on the development of our current constitutional system. The Constitution Act 1852, twelve years after the signing of the Treaty of Waitangi, allowed New Zealand to make laws for the ‘peace, order and good governance of NZ’ provided they did not conflict with British laws. In 1865 the Colonial Laws Validity Act was passed giving New Zealand the opportunity to make laws outside of British boundaries, but only if the British law did not extend to New Zealand. This was a small step towards extending the country’s independence. The Statute of Westminster Act of 1931 molded our current constitutional system by streamlining the process of law making and allowing New Zealand to become a self-governing country. New Zealand was actually hesitant to adopt this statute, as few New Zealanders desired greater independence, instead believing such a development would weaken imperial unity and undermine cultural and economic ties with Britain. Gordon Coates, the Prime Minister of the time, did not want the statute to be passed and openly called it a ‘poisonous document’. Despite this, the Statute of Westminster was passed through British Parliament and Britain’s right to legislate for the dominions was formally abolished. It took until 1947 for the statute to be fully adopted in New Zealand. New Zealand was preoccupied with many issues, including The Great Depression 1929-35 and the Second World War 1939-45. New Zealand entered the Second World War to support Britain. When Britain could not defend New Zealand from attacks, New Zealanders lost confidence on Britain’s ability to protect them. By the end of the war in 1945, New Zealanders began to see themselves as a nation with an independent future moving away from Britain’s sphere of influence. New Zealand wished to abolish the Legislative Council, but in order for this to occur the New Zealand Constitution Act 1852 had to be amended – which in turn required the adoption of the Statute of Westminster. In 1947 the Statute of Westminster was passed in New Zealand. This formally proclaimed New Zealand as an independent country, with few ties to Britain. The adoption of the Statute of Westminster was a significant moment in New Zealand’s legal history and profoundly shaped New Zealand’s current constitutional system.

The 1984 Constitutional Crisis caused significant constitutional developments in New Zealand. Speculation in the media followed a leak that an incoming Labour government may significantly devalue the dollar. The Reserve Bank advised the Prime Minister, Sir Robert Muldoon, that the dollar should be devalued. Muldoon ignored this advice. In June 1984 Muldoon announced a snap election. This caused an immediate run on the dollar, as currency speculators believed a Labour win would mean devaluation. Despite a deepening foreign exchange crisis, Muldoon continued to refuse to devalue even after losing the snap election, thus causing an economic crisis as by constitutional convention an outgoing caretaker government implements the directions of an incoming government. Eventually Muldoon’s own party’s threats towards him caused him to agree with the incoming government’s desire to devalue the dollar and New Zealand’s currency was devalued by 20%. Muldoon’s actions exposed uncertainties in New Zealand’s constitutional arrangements. The new Prime Minister, David Lange, saw a need for legal change to prevent this situation from occurring again. Lange established the Officials Committee on Constitutional Reform to examine the New Zealand Constitution Act 1852 and establish rules to enable the smooth transfer of power after elections. Two reports from this committee eventually resulted the New Zealand Constitution Act 1986 being passed. The 1986 Act stated that the New Zealand Constitution Act 1852 ceased to have a place in New Zealand law and cut the last ties New Zealand had with British provisions and legislations. The 1984 constitutional crisis and the passing of the New Zealand Constitution Act 1986 was the last step towards New Zealand’s parliamentary sovereignty and, as such, was a significant moment in New Zealand’s legal history which substantially shaped New Zealand’s current constitutional system.

Historical events have, to a significant extent, been instrumental in the development of New Zealand’s current constitutional system. Key events in New Zealand’s legal history such as the Treaty of Waitangi which established New Zealand as a British colony, the Statute of Westminster which eventually made New Zealand selfgoverning, and the 1984 Constitutional Crisis which resulting in a review of New Zealand’s constitutional arrangements and cut remaining ties with Britain, have profoundly shaped New Zealand’s constitution. History’s effect on the evolution of New Zealand’s current constitutional system is clear and undeniable.

The British granted New Zealand independence in 1935 but by 1940 it had become obvious that Britain needed to take control of New Zealand, this greater form of control was to come in the treaty of Waitangi in 1840. The motives behind the signing of the treaty vary greatly from Maori and Pakeha. Britain held very little control in New Zealand. Captain William Hobson noticed this when he was sent to investigate the situation on behalf of Governor Bourke of New South Wales. He reported back saying that both Maori and the ever increasing settlements of law abiding British were under threat from lawlessness. This lawlessness refered to drunken sailors and the like apon from whom which British had a gained reputation no where more then at Korakea which became known as the hell hole of the South Pacific. There was also a much more sinister problem which the britsh had to deal with that was the use of Britsh ships in a mercenaries fashion apon which warriors could be transported. The Elizabethan Affair was a prime example of this. It occurred when Captain Stewart sailing the Elizabeth gave Te Rauparaha (a northern chief) and his men safe passage to Akaroa so that they could lay a trap for unsuspecting Ngai Puhi. In return for a payment in flax. New Zealand had no effective force for dealing with these sorts of incidents. People had to be sent from New South Wales and by the time they arrived deed was done and the culprits had absconded as had happened with the elizerbeth affair Captain Stewart was long gone before the authorites were any the wiser. This highlighted the ineffectiveness of this system.

Pre 1940 there was a lack of a real British presence and commitment to New Zealand. This lead to interest from France, Holland and America, as well as greedy entrepreneurs keen to extract whatever they could from New Zealand. The Declaration of Independence in 1935 was a step in the right direction but only really made provisions for protection of maori from large scale colonization. An incident which really worried Britain, was the landing of the Nimrod in 1937 carrying Baron Charles de Thierry and 93 of his subjects. They hoped to colonise the Bay of Islands and name it De Thierry land. This threat was not defeated by Britain but more so by maori who had sold much of the land De Thierry had purchased 15 years earlier. This made the little land they had uneconomical. They had to trade for food and soon ran out of funds. But they did have a lasting effect the theory that Britain would be able to extract resources from New Zealand with out a larger presence no longer held much weight.

Colonisation threats did not only come form other countries. The Wakefeild brothers made this blatently clear. These convicts would buy land from Maori, often very shadily and then divide it up and sell it to incoming settlers, they also tried to set up infrastructure creating small towns. This got up the noses of the Crown for three reasons; the fact that they were kept out of this money making loop, that the Wakefeild brothers would often give settlers unworkable pieces of swamp or hill country which hadn’t been surveyed due to the difficulty. Many of the reasons that had stopped Britain from having a greater presence in New Zealand in the past no longer existed. Settlers and Missionaries aswell as Maori all saw the merits of having a greater British presence. They applied pressure to the crown. They believed this would improve trade and help to cur lawlessness.

It is true that many of the motives behind British and Maori signing the treaty do not align. But in many cases what both sides aimed to achieve lined up very well. The possibility of the French trying to colonise New Zealand was something that both British and Maori wanted to stop but for very different reasons. The British wanted the resources of New Zealand such as Kauri Spars and Gum to themselves but also wanted to stop the spread of Roman Catholicism. The maori had never had a good relationship with the French. This began in 1769, when the the St Jean Baptiste captained by Jean de Surville ransacked a village in Spirit Bay. This was in response to the local maori stealing a “yawl” which is similar to a small row boat. This set the tone for French-Maori relations and is summed up well by Walker who says the Maori would much rather have been taken over by the British than by the Frenc or Dutch. The Declaration of Independence had already promised Maori protection from foreign powers but both British and Maori didn’t mind being reassured of this fact especially after the De Thierry incident. Belich backs up these fears by stating “A French New Zealand was not entirely farcical”. Trade and settlement was also a motive for both Maori and Pakeha. British wanted more greater acess to the natural resources of New Zealand and Maori wanted better acess to British technology. But Maori were unaware of quite what this meant as Belich agues Maori would have known that the Treaty would have lead to an increase in settlement they just wouldn’t have expected it to be as large as it was. They simply saw it as a means to aquire items from the British.

The Maori believed that they would be maintaining substantive sovereignty and that the British would be given nominal sovereignty. This view is summed up well by Horeka who says ” the shadow of the land will go to Victoria while the substance will stay with us”. This is the main way in which the Maori and British differ, British saw the treaty as a right to rule over New Zealand while the Maori saw it as giving Britain the right to rule over its citizens in New Zealand. This is where confusion plays a huge part in the fact that the Treaty was signed at all. Henry Williams was the translator of the treaty, due to the fact that his brother William Williams the more competant translator of the pair was away. This translation said that Maori would maintain “rangitiratanga” or chieftainship but would lose “kiwatana” or governorship. Both Ranginui Walker and Ruth Ross agree that Cheifs would not have signed the treaty if the term manna was used. Whether this was purely due to Henry Williams inadicacies as a translator or that he “obscured” the true meaning of the treaty because the C.M.S. had huge plots of land to gain from it.

In many respects the crown has been cast as the exploiter when there was a strong humanitarian motive behind Britain signing the treaty. This was largly due to the strong humanitarian movement which had taken root in Britain. Hobson applied this to the treaty in a fairly shallow and nave way, he didn’t carry it out quite the way the humanitarian movement including missionaries had intended. The missionaries especially Marsden felt that maori should be educated in British ways and should be protected from out of control British. Hobson saw Maori as not capable of ruling themselves. And he saw it as in the best interests of Maori to be ruled by British who would act as “guardians”, which basicly meant giving British full control. This was not necessarily the view of his superior’s, Belich points out that New Zealand agents were the greatest pressure in getting Britain to consider a full treaty. Suggesting they would hav been happy with a lesser treaty but Hobson went the “Whole Hog”.

So as you can see many factors lead to a change in British views from when the Declaration of Independence was signed in 1935 to when the Treaty was signed five years later. The motives of Maori and Pakeha signing the treaty clashed in some instances whereas in other they aligned harmoniously.