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The Treaty of Waitangi, an explanation; Te Tiriti o Waitangi, he whakamarama.

Article the Second

[ko te tohutoro i roto i te reo Māori]

Article the Second

This is the second article of the Treaty of Waitangi. The Second:

"The Queen of England confirms and guarantees to the Chiefs and Tribes and to all the people of New Zealand the full possession of their lands, their homes and all their possessions, but the chiefs assembled and all other chiefs yield to the Queen the right to alienate such lands which the owners desire to dispose of at a price agreed upon between the owners and person or persons appointed by the Queen to purchase on her behalf".

I said at the beginning of my explanations that the Maori version was not a good translation of the English terms in the Treaty. There were small parts left out. Young students from among you can see for yourselves the English version of the second article of the Treaty as follows:

"Article the Second"

"Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand, and to the respective families and individuals thereof, the full, exclusive, and undisturbed possession of their Lands and Estates, Forests, Fisheries, and other properties which they may collectively or individually possess, so long as it is their wish and desire to retain the same in their possession; but the Chiefs of the United Tribes and the Individual Chiefs yield to Her Majesty the exclusive right of Pre-emption over such lands as the proprietors thereof may be disposed to alienate, at such prices as may be agreed upon between the respective Proprietors and persons appointed by Her Majesty to treat with them in that behalf".

Now it will be seen there are several words in the English version which were not adequately rendered into the Maori language. This is my translation:

"Ko te Kuini o Ingarangi ka whakapumau, ka whakaoati kia whaka-tuturutia ki nga Rangatira, ki nga Hapu o Niu Tireni, a ki ia whanau, ki ia tangata ranei o ratou, te mana te rangatiratanga o o ratou whenua, page 8o o ratou ngahere, o o ratou taunga-ika, o era atu taonga ranei a ratou, a ia tangata ranei o ratou mo te wa e hiahia ai ratou ki te pupuri i aua mea; Oti ia e whakaae ana nga Rangatira o te Whakaminenga, me era atu rangatira katoa ki te tuku atu ki te Kuini i te mana motuhake ki te hoko i nga warhi whenua e hiahiatia ana e nga tangata no ratou aua whenua kia hokona, mo nga utu e whakaritea i waenganui i nga tangata no ratou aua whenua me nga tangata e whakaritea e te Kuini hei kai hoko mana".

This is the article from which stems the matters which are discussed throughout the maraes in regard to the Treaty of Waitangi. When a bad law is made it is said to contravene the Treaty of Waitangi. The Government confiscates the land, it is said this is wrong, because it contravenes the guarantee of the Queen under this article of the Treaty. This has given rise to wishful thinking on the part of many Maori groups, for the formation of Absolute Maori Authorities, variously called Kotahitanga (United Group) Kauhanganui (Open Forum) Maori Parliament or other designations. All this wishful thinking goes back to this article in the Treaty. Indeed these ideas were due to confusion as the authority of the Maori was set aside for ever by the first article of the Treaty.

What is this authority, this sovreignty that is referred to in the second article? It is quite clear, the right of a Maori to his land, to his property, to his individual right to such possessions whereby he could declare, "This is my land, there are the boundaries, descended from my ancestor so and so, or conquered by him, or as the first occupier, or so and so gave it to him, or it had been occupied by his descendants down to me. These properties are mine, this canoe, that taiaha (combination spear and club), that greenstone patu (club), that kumara (sweet potato) pit, that cultivation. These things are mine and do not belong to anyone else".

At the time of the Treaty both islands were widely inhabited by Maori tribes. They had partitioned all the lands and had named all the various parts. At the time of the Treaty the chiefs and tribes were disputing among themselves the titles and the boundaries between their lands. They fought with guns, with patu (clubs), to take by conquest the lands of the others, or to bar the way of others intent on conquest.

The Queen did not do anything, to take away the rights of the Maori over his lands, instead she made the ownership permanent and truly established. This is the reason dear old lady you appear before the Maori Land Court to show your rights, whether of land not yet clothed with title, or by long occupation, when you related the trails, the fern root hills, the tawhara (young shoots of kiekie) swamps or other token and relics of your ancestors.

There are two main provisions in this article of the Treaty, they are:

(1)The permanent establishment to the Maori of title to his land and his property
(2)The giving of the right to the Queen to acquire Maori land.

I shall first explain the provisions affecting Maori land. You are all page 9fully aware of our rights to land. It is not just now that disputes have arisen between Maori and Maori over land. "Is it mine or is it yours?" and claims would go back to the realms of darkness and to ancient ancestral rights.

This is what Sir William Martin, Chief Judge of the Supreme Court said some time ago in regard to the rights over Maori land:

"From what I have seen the rights of the Maori affected the whole face of the land, there is not a part unaffected by the claims of the Maori people except those parts which have been sold by them. I have never seen or heard of any part which is not affected by the claims of the Maori people. There have been many disputes among themselves as to their rights, but no one would be mistaken that the matter under dispute would be in regard to land".

Now having established under this article of the Treaty the rights of the Maori, the law poses a question to the Maori, "Now, to whom does this land belong?" The reply would be noisy, there would be calls from, this one, calls from that one. Blood would be spilt, that was Waitara, the repercussions spread to Waikato, and the fire spread to the far ends of Aotearoa (North Island). The chiefs arose and began selling the lands, whether it was their own or someone else. This was selling without proper title, the Court had not enquired into the ownership of the land that had been sold. There was Heretaunga (Hawkes Bay), Wairarapa, Otaki and many other lands sold before the Maori Land Court sat in any part of these islands. Owing to the many problems which arose it was considered necessary to appoint an authoritative body to enquire and to decide the rights of Maori claimants to their lands. Parliament then enacted the Maori Land Act of the year 1862. This is what was stated by Section 5 of that Act:

"The Governor shall from time to time have the right to set up a court to enquire and to decide who are the Maori people entitled under Maori custom to the Maori lands, to apportion their interests in such land, and issue certificates of Title to them for such lands".

This was the beginning of the Maori Land Court as it is today.' Until it had adjudicated upon lands not clothed with title, and had given judgement, would it carry out the provisions of the second article of the Treaty of Waitangi, which established to us our Maori rights to our lands.

The part that is not clear of this portion of the second article to the Treaty is in regard to fishing grounds. This part should include the lakes, that is, fresh water lakes, mud flats, pipi (cockle) beds and oyster rocks. As to fishing grounds they are out in the open sea or at the mouths of rivers. Parliament and the Courts have been side stepping these matters. In some cases the Courts have given judgement, that is, in regard to oyster rocks and the Maori people have been judged to be in the wrong. The case for the fresh water lakes is at present being considered. I shall hold up my explanations of these matters until the third article of the Treaty.

page 10

In regard to that part of this article of the Treaty affecting the acquisition by the Queen, its main purpose is to confine to the Crown only the right to acquire Maori lands subject to the price being properly arranged between the Maori owners of the land and the Crown Purchase Officer. This has been a matter which successive Governments have greatly disputed in the past and up to the present. As each Government is elected it is mooted that purchases of Maori land should be curtailed, and for all purchases to be confined to the Crown. Another Government is elected and it is mooted that purchases of Maori land should be permitted to enable any European or anybody else to purchase. This was the law from 1862 down to the year 1892. In the year 1892 acquisitions were confined to the Crown only. When the Government wanted to acquire a block of land, a prohibition was placed on the land, it was gazetted in the same way as is being done by the present Government. In the year 1900 there was complete prohibition of purchases by the Crown. In the year 1905 purchases by the Crown began again in various parts of the island and in 1909 purchases by the Crown and Europeans greatly increased. In the year 1913 the present Government enacted the present law which now directs sales to the Crown and confines the sales of land to the Crown only. This takes it back to the position in the year 1892. That was the basis of the Treaty of Waitangi. We object to such purchases as it restricts the Maori owner to the low price offered by the Crown, and it also restricts the land owner in doing what he wishes to do with his land, as he has to wait for very long periods until the Crown has fully bought up the interests of all the willing sellers before it applied for partition of the interests it had acquired. The objections to these oppressive measures are fully justified, but the blame cannot be placed on the Treaty of Waitangi which laid down this basis.

These, dear old lady, are the main features of this part of the Treaty of Waitangi setting forth the conditions affecting these islands, the Maori Land Court and its activities, the purchases by the Crown which are biting into the land.

These are the words of Nopera Panakareao, a Chief of the Rarawa when a copy of the Treaty reached Kaitaia for Te Rarawa and Aupouri Tribes to sign: —

"It is the shadow of the land which had been given to the Queen while the soil remains."

These are very wise words, an old time saying. The saying of the elderly chief has combined the words of the first article with those of the second article of the Treaty. It is the shadow, that is, the main authority covering the land; it is the power to make laws, the power to say this group shall adjudicate, that authority should see that the purchase is right, while that one leads the individual through the many intricacies of the law, that was the shadow ceded to the Queen by the first article of the Treaty. As for the soil, it is yours, it is mine inherited from our ancestors. It was the second article which firmly established this to the Maori people.