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

Article the Third

[ko te tohutoro i roto i te reo Māori]

page 11

Article the Third

This is the third article of the Treaty:

"Article The Third"

"In consideration thereof, Her Majesty the Queen of England extends to the Natives of New Zealand Her Royal Protection, and imparts to them all the rights and privileges of British subjects".

This article explains what Her Majesty the Queen gives in return for what the Maori Chiefs have ceded to Her Majesty's Government. Here is the explanation.

(1)The Queen of England extends to the Maori people of New Zealand Her Royal protection.
(2)She imparts to them all the rights and privileges of British subjects.

These are very important and formidable words. The first part is that all the Maori people would receive protection. Looking beyond the shores of New Zealand we find that it was through the Queen and her descendants, through their prestige and might that we have been protected against invasion by foreign powers, namely the French in its time when it attempted to take the South Island and had actually settled at Akaroa; and after that came the Russians and its attempts to conquer us were staved off; and only yesterday we faced up to the Germans and only after a bitter struggle were they defeated; who knows we may have to face up to the Japanese.* The might of England has protected us, the King has given us his protection.

When we look at ourselves we realise the full significance of this protection. The Treaty found us in the throes of cannibalism: that was murder, a crime punishable by death, be the murderer rich or poor. That was the British law which became law for the Maori under the provisions of the second part of the above article "and imparts to them all the rights and privileges of British subjects". The Treaty found the strong committing outrageous acts against the weak, the chiefs against the commoner, the Pakeha against the Maori, and such acts were breaches of the law punishable by imprisonment with hard labour, according to the British code of law adopted as the law for both the Pakeha and the Maori under the provisions of, "and imparts to them all the rights and privileges of British subjects". British law as provided by the Queen did not prevent crimes. Crimes were committed; there were murders, there were thefts, there were libels and defamations and other crimes conceived by the human mind, however, very few escaped the strong arm of the law.

The second part of the Article "and imparts to them (that is, to all the Maori people of New Zealand) all the rights and privileges of British subjects", is the most important part of the Treaty of Waitangi. This is the part that impresses the Maori people most and a part overlooked by the

* Prophetic, considering 1941-45.

page 12advocates of the Maori people in their efforts to interpret the Treaty in years gone by.

This article represents the greatest benefit bestowed upon the Maori people by Her Majesty the Queen. It is in a great measure to balance up what the Maori people had given her under the provisions of article One of the Treaty. Here is a brief explanation. This article states that the Maori and Pakeha are equal before the Law, that is, they are to share the rights and privileges of British subjects. When the Supreme Court was established in New Zealand it declared it was the Treaty of Waitangi under the provisions of Article Three, under discussion, which provided the basis for the administration of British Justice as affecting New Zealand conditions of these times. Now, it is not only the laws made by Parliament that are effective. There are some laws that issue from decisions of Courts of Law. There are some which have originated from British Law and from the Treaty of Waitangi and have become law here in New Zealand. Yes, British Law has been the greatest benefit bestowed by the Queen on the Maori people.

My dear old lady, perhaps, you are not aware that during every hour of the day while you are awake and during every hour of the night while you are asleep there are one hundred laws looking after you. They refer to your way of life, your travels, your hours of sleep, your hours awake, your occupation and what you say; of these one hundred laws, perhaps, ninety five of them apply, equally to your Pakeha friends and perhaps five differentiate. The law pertaining to crimes, the law pertaining to debts, law pertaining to property (except land) and law pertaining to slander are the same, there is one law for Maori and for Pakeha, the Treaty of Waitangi ordained it so.

The laws that differentiate the Maori from the Pakeha are the laws pertaining:
1.Maori representation in Parliament.
2.Maori Lands.

The Maori people have their own special representatives in Parliament elected only by the Maori people. The reasons for this special provision were twofold; Maori problems had their own peculiarities and the Maori people were ignorant of most things pertaining to the Pakeha way of life in those days. My own opinion, however, is that the reason for the four Maori Members was the fear on the part of the Pakeha that as Maori and Pakeha populations in these islands were very much on a parity and that if the Maori people were given the right to vote with the Europeans, there was a possibility many more Maori Members would be elected to Parliament. However, Maori representation in Parliament is one of the few remaining special provisions for the Maori people.

* Since Sir Apirana wrote this, legal amendments, especially in the Licensing Amendment Act of 1948, have almost entirely removed the differentiation between Maori and Pakeha in this matter.

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The laws pertaining to Maori lands are entirely different from the laws pertaining to European lands. Matters for decision are ownership of lands, and who should succeed to deceased owners. There were no wills, the nearest equivalent being a dying request. There were many restrictions pertaining to the sale, to the leasing and mortgaging of Maori land which do not pertain to European lands. The differences in regard to Crown purchases have already been explained.

In times past, rates were not levied on Maori lands. This was not because of the Treaty of Waitangi. Likewise in days gone by Maori lands were not affected by taxation and again it was not because of any provisions in the Treaty. The Treaty had provided for "all the rights and privileges of British subjects". If the law had adhered to the spirit of the Treaty, Maori land would have borne the burden of rates and taxation long ago. It was in the year 1894 that Maori lands were subjected to rates and then it was half of the rate and it was not until 1910 that full rates as for European lands, were levied.

1.It was only in the year 1893 that Maori lands were taxed, it was a light tax, half of the tax payable by the Pakeha. However, only leasehold Maori lands were taxable. It was in the year 1917 that a heavier tax was levied on leased Maori land equivalent to half the rate of taxation on European lands.
2.At present, if the levies on our lands were in accordance with all that the law provides these would not be anywhere near as heavy as what are levied on Pakeha lands. Maori lands not clothed with title cannot be charged with rates County Councils have very devious procedures to follow to put a charge on Maori land for non payment of rates. Only Maori lands under lease, were subject to taxes and these at half the amount charged against European lands. All other Maori lands that were not under lease, being farmed and occupied by the Maori owners, and Pa areas were not affected by taxation.
3.Various laws made it possible to sidestep many of the levies which should have affected our lands in accordance with the words of the Treaty "all the rights and privileges of British subjects". Could it be the laws were wrong and were contravening the Treaty? To all those who are agitating under the Treaty for remedies for our grievances, I say be careful lest you awaken the legal experts of the Pakeha people, who will say:

"Let them have what they are asking for; let the purport of the Treaty be exercised to the very end: Put the same levies on the Maori as are levied on the Pakeha".

Why the vacillation of Parliament, the maker of the laws? Why have not rates and taxes been levied on Maori land over the fifty years since the Treaty, namely up to the year 1893? And why after that only half the burden carried by the Pakeha was levied on the Maori land? The Pakeha authorities could see the Maori back could not carry the burden page 14because of inexperience and general confusion in his own affairs and for this reason the impact of this part of Pakeha law was to be made gradual. "A bird cannot fly without feathers". This is a saying of the Maori. The Pakeha could similarly say to us "Rating is the life line of the roads which you and your descendants use; it is the life line of our country—there are the railways, schools, hospitals and post offices."

We cannot grasp the Treaty as a shield to use against rating and taxation. It is the leniency of the law which has spared us.

We are conversant with the law pertaining to liquor. Liquor and the Bible came to this country together, if anything, liquor arrived here slightly ahead of the Bible. There would have been no special liquor laws for the Maori if only the Maori had consumed liquor wisely. However, because of the abuse, its use as a lubricant to facilitate land sales, its use to mentally incapacitate the Chiefs so that they wasted their substance and its use for bragging on the maraes, the wise law makers were able to decide for themselves and to say:

"Dear Sirs our beverage is not elevating these people, they are strangers to it, they are still in their infancy, let us put a barrier against the consumption of liquor, let us prohibit some Maori areas, let us prohibit the consumption by the womenfolk, let us prohibit everywhere except on licensed premises and prohibit the consumption on the maraes".

The day may come when these restrictions can be lifted, when the Maori has become accustomed to liquor, when his blood stream can counter the fiery effect of liquor. The Pakeha may on the other hand say, let us prohibit altogether the consumption of liquor in New Zealand.

Let me end here my general explanations of this article of the Treaty. Let me issue a word of warning to those who are in the habit of bandying the name of the Treaty around, to be very careful of this portion of the Treaty lest it be made the means of incurring certain liabilities under the law which we do not know now and which today are being borne only by the Pakeha. If we suffer through being europeanised too quickly and if we can gain some respite by a gradual acceptance of Pakeha ideas, then let those parts of the Treaty sleep on peacefully.