In the 1970s and 80s, the question “Māori got the Treaty of Waitangi, what more do they want?” was asked outright, and today it still lingers, perhaps covertly.
Fundamentally, what the question misses is that Māori didn’t “get” anything from te tiriti that wasn’t already theirs in the first place. It was Britain that wanted to get the sole right to buy land. So Article Two of te tiriti includes a “right of pre-emption” – which means Māori agreement to only sell land to the Queen [Victoria, who was on the throne at the time].
Obviously, Māori could only legally give a right of pre-emption to sell land they owned. So, te tiriti simply reflects the reality that Māori discovered Aotearoa and were the original land-owners (Moriori discovered Rekohu Chatham Islands).
Māori also didn’t give anything away in signing te tiriti. The right of pre-emption only applied to land they wanted to sell by choice. Te tiriti explicitly recognised Māori had tino rangatiratanga – or in other words, “total authority” over their lands, resources and way of life and would keep them.
But if they wanted to sell land, they promised to sell it to the Queen.
Britain obtained the right of pre-emption through promises in meetings with rangatira to bring more settlers to trade with Māori and British advancements like hospitals and schools. That was the quid pro quo.
Another promise made to rangatira that was included in Article One of te tiriti was to bring under control and govern British people in Aotearoa, some of whom were not behaving well at the time. Article Three promised Māori protection like British citizens.
Te tiriti was not simply translated into English. Instead, the English version, the treaty, said the Queen would have sovereignty, the Crown power to make laws over all people in Aotearoa, including Māori. This was never discussed or agreed.
The problem with “one law for all” was it harmed Māori from the outset.
The Crown passes laws about crime that apply to everyone, but police and courts have always applied those laws to stop, charge and imprison Māori much more than anyone else. The disproportionate data speaks for itself.
Likewise, so-called child protection laws are still most often used to take Māori babies and children from their families – often on a without-notice basis, so New Zealand’s stolen generation has, in fact, spanned multiple generations and has not yet ended.
The Crown controls our education system, and has done since 1867 when the Native Schools Act was passed. This established an education system so Māori could be assimilated into Pākehā society and made it compulsory for English to be the only written or spoken language used in schools.
Unless Māori children are in Māori medium education, they often suffer from the low expectations of their teachers. They receive fewer opportunities than other students to show their full potential, blocking many from tertiary education. University quotas to address this are often viewed as special treatment, when in fact they are a response to unfair treatment in school.
In the arena of health, the wisdom of Māori healers, some of which included what would today be described as very much in vogue “wellness”, was outlawed through the Tohunga Suppression Act 1907. That’s right, laws were made banning Māori from using traditional healing practices that have since undergone a revival.
In the 1920s, Princess Te Puea built a hospital at Tūrangawaewae but the Health Department blocked her from using it. Māori were dying, and today evidence shows that they continue to die at least seven years earlier, under a Crown controlled health system that diminishes Māori solutions.
Te tiriti and the treaty matched on one point: both said Māori would retain their land unless they chose to sell. Despite this, Crown representatives often obtained agreement from only some landowners, paying minimal amounts for land and selling it to British settlers for 50 times as much.
In response to discontent, the Crown confiscated large areas of land, raupatu, even from “loyal” Māori. The Native Land Court facilitated easier land acquisition through a rule allowing only 10 of the many owners to be listed on the title - allowing the Crown to buy from those 10 alone.
All this resulted in the loss of nearly 97% of the 66 million acres of Māori land, forcing many to leave their homes and traditional way of life. Yet the nature of the Māori connection to their land meant that they still retain their obligations to it, including kaitiakitanga.
Rather than “getting” something from te tiriti, Māori gave everything that we as a nation enjoy today.
The Crown used profits from the sale of Māori land to fund immigration and the infrastructure of Aotearoa. The recent return of small amounts of land through treaty settlements does not remove the connection of Māori to the rest. So, for example, we regularly see Māori spearheading protection of our environment as kaitiaki for future generations.
This is not the only area where Māori demonstrate leadership.
We are used to seeing marae welcoming everyone in times of need. Cyclone Gabrielle in 2023 was a prime example, as was the phenomenal response by marae up and down the country testing and vaccinating during the Covid-19 pandemic.
Māori assertions of tino rangatiratanga, such as wānanga, kura kaupapa, kōhanga reo, Māori health providers and marae courts provide models of excellence for Aotearoa, and the world, that consistently welcome and benefit non-Māori.
Yet these Māori models regularly face Crown interference.
Reference to te tiriti is not a demand for more for Māori, rather, after all Māori have given, it is a call for te tiriti to be finally honoured and the tino rangatiratanga of Māori to be recognised.
Roimata Smail (Ngāti Maniapoto, Tainui, England, Scotland, Ireland) is a barrister specialising in human rights, Te Tiriti o Waitangi and public law. She has recently released the pocket guide Understanding Te Tiriti – a handbook about Te Tiriti o Waitangi.
