The treaty that was drafted, debated, and signed in 1840, was a simple three-article document in which the British Queen obtained sovereignty (first article), and Maori became her subjects, equal to Britons, and possessing all the rights and liberties of subjects (third article), including of course the continued possession of their lawful property (second article). The treaty was drafted in English and translated into Maori. Therefore, the meaning and intent of the treaty is plain to see in the English draft. The word "kawanatanga" was used to translate “sovereignty” and “rangatiratanga" to mean “possession”. This was to change once the Waitangi Tribunal was established and un-elected members were given the exclusive authority to interpret the treaty.

The differences between the Maori Te Tiriti text and the official English text created scope for interpretation.1 No explanation of the differences has so far survived in writings by either Hobson or Busby. The person responsible for dispatching treaty copies was Hobson's secretary James Stuart Freeman, who sent copies to New South Wales governor George Gipps on February 8, and a further “certified copy” version, with three printed Maori copies, to Gipps on February 21. The ornate, legalistic English text that survived as the official English text resembles the draft notes of a discarded version dated February 3.2 The Maori language version of the treaty was rediscovered in the Waitangi Tribunal's 1983 report into the discharge of untreated waste at Motunui in Taranaki, especially the words "taonga", "kawanatanga" and "rangatiratanga".

Sir Hugh Kawharu, who was both a tribunal member and a claimant representing Ngati Whatua o Orakei, re-translated the treaty from the original Maori back to English and in so doing redefined two words – “kawanatanga” and “rangatiratanga”-- to create a treaty that confirms Maori sovereignty over all things Maori while giving to the Crown limited power to control new settlers, which is far away from the 1840 meaning as described above. Kawharu asserted that there could be no possibility of the Maori signatories having any understanding of "kawanatanga" in the sense of "sovereignty". He also wrote that if "tino rangatiratanga" meant "unqualified exercise" of chieftainship this must "emphasise to a chief the Queen's intention to give them complete control according to their customs", although he was silent on whether those customs would include slavery and cannibalism.3

Kawharu also widened the meaning of the word "taonga" away from the 1840 dictionary meaning of "property obtained at the point of a spear", to "all dimensions of a tribal group's estate, material and non-material – heirlooms and wahi tapu (sacred places), ancestral lore and whakapapa (genealogies)".4 Kawharu’s focus on the meaning of the treaty as he thought was understood by chiefs in 1840 shifts the mention of “protection” in the preamble from including settlers and Maori, to applying only to Maori.5

The reinterpreted treaty dramatically widened the scope for compensation. Every claimant could therefore be compensated for not being permitted to carry on exercising their chieftainship even though it was clear from the debate on February 5, 1840, that chiefs understood that they would be accepting the rule of the governor and the Queen of England. The widened definition of the word “taonga” enabled claims for anything not covered by the terms of the three articles of the treaty.

1 The principles of the treaty, Waitangi Tribunal, http://www.justice.govt.nz/tribunals/waitangi-tribunal/treaty-of-waitangi/the-principles-of-the-treaty

2 New Zealand Birth Certificates, Paul Moon, AUT Media 2010. pp45-49

3 The Kawharu translation, Waitangi Tribunal, http://www.justice.govt.nz/tribunals/waitangi-tribunal/treaty-of-waitangi/the-kawharu-translation

4 Kawharu ibid

5 Kawharu ibid

Kawharu’s translation:

Preamble

Victoria, the Queen of England, in her concern to protect the chiefs and the subtribes of New Zealand and in her desire to preserve their chieftainship (1) and their lands to them and to maintain peace (2) and good order considers it just to appoint an administrator (3) one who will negotiate with the people of New Zealand to the end that their chiefs will agree to the Queen's Government being established over all parts of this land and (adjoining) islands (4) and also because there are many of her subjects already living on this land and others yet to come. So the Queen desires to establish a government so that no evil will come to Māori and European living in a state of lawlessness. So the Queen has appointed ‘me, William Hobson a Captain’ in the Royal Navy to be Governor for all parts of New Zealand (both those) shortly to be received by the Queen and (those) to be received hereafter and presents (5) to the chiefs of the Confederation chiefs of the subtribes of New Zealand and other chiefs these laws set out here.

The first

The Chiefs of the Confederation and all the Chiefs who have not joined that Confederation give absolutely to the Queen of England forever the complete government (6) over their land.

The second

The Queen of England agrees to protect the chiefs, the subtribes and all the people of New Zealand in the unqualified exercise (7) of their chieftainship over their lands, villages and all their treasures.(8) But on the other hand the Chiefs of the Confederation and all the Chiefs will sell (9) land to the Queen at a price agreed to by the person owning it and by the person buying it (the latter being) appointed by the Queen as her purchase agent.

The third

For this agreed arrangement therefore concerning the Government of the Queen, the Queen of England will protect all the ordinary people of New Zealand and will give them the same rights and duties (10) of citizenship as the people of England.(11) [signed] William Hobson Consul & Lieut Governor

So we, the Chiefs of the Confederation of the subtribes of New Zealand meeting here at Waitangi having seen the shape of these words which we accept and agree to record our names and our marks thus.

Was done at Waitangi on the sixth of February in the year of our Lord 1840.

Kawharu’s footnotes

1. ‘Chieftainship’: this concept has to be understood in the context of Mäori social and political organisation as at 1840. The accepted approximation today is ‘trusteeship’.

2. ‘Peace’: Māori ‘Rongo’, seemingly a missionary usage (rongo – to hear: ie, hear the ‘Word’ – the ‘message’ of peace and goodwill, etc).

3. Literally ‘Chief’ (‘Rangatira’) here is of course ambiguous. Clearly, a European could not be a Māori, but the word could well have implied a trustee-like role rather than that of a mere ‘functionary’. Māori speeches at Waitangi in 1840 refer to Hobson being or becoming a ‘father’ for the Māori people. Certainly this attitude has been held towards the person of the Crown down to the present day – hence the continued expectations and commitments entailed in the Treaty.

4. ‘Islands’: ie, coastal, not of the Pacific.

5. Literally ‘making’: ie, ‘offering’ or ‘saying’ – but not ‘inviting to concur’.

6. ‘Government’: ‘kawanatanga’. There could be no possibility of the Māori signatories having any understanding of government in the sense of ‘sovereignty’: ie, any understanding on the basis of experience or cultural precedent.

7. ‘Unqualified exercise’ of the chieftainship – would emphasise to a chief the Queen's intention to give them complete control according to their customs. ‘Tino’ has the connotation of ‘quintessential’.

8. ‘Treasures’: ‘taonga’. As submissions to the Waitangi Tribunal concerning the Māori language have made clear, ‘taonga’ refers to all dimensions of a tribal group's estate, material and non-material – heirlooms and wahi tapu (sacred places), ancestral lore and whakapapa (genealogies), etc.

9. Māori ‘hokonga’, literally ‘sale and purchase’. ‘Hoko’ means to buy or sell.

10. ‘Rights and duties’: Māori at Waitangi in 1840 refer to Hobson being or becoming a ‘father’ for the Māori people. Certainly, this attitude has been held towards the person of the Crown down to the present day – hence the continued expectations and commitments entailed in the Treaty.

11. There is, however, a more profound problem about ‘tikanga’. There is a real sense here of the Queen ‘protecting’ (ie, allowing the preservation of) the Māori people’s tikanga (ie, customs) since no Māori could have had any understanding whatever of British tikanga (ie, rights and duties of British subjects). This, then, reinforces the guarantees in article 2.