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The Treaty of Waitangi and a New Zealand republic
This page looks at the issues around the position of the Treaty of Waitangi (Ti Titiri o Waitangi) in a New Zealand republic. The Treaty is a key issue in the republic debate. There are two sub-issues - the constitutional position of the Treaty in a republic, and the standing or mana of the Treaty. The Republican Movement's position is that the transition to a New Zealand republic will not affect the current standing of the Treaty of Waitangi.
A republic and the Treaty of Waitangi
"In strict legal terms, if New Zealand became a republic tomorrow it would make no difference to the Treaty of Waitangi. Speaking as a lawyer, it’s a long-established principle that successive governments take on responsibility for previous agreements.
— former Monarchy NZ Chairman Professor Noel Cox.
The Treaty of Waitangi, Te Tiriti o Waitangi, is an agreement signed in 1840 between representatives of the British Crown and Māori iwi (tribes).
The Treaty of Waitangi is an issue often raised in the republic debate. It is seen by some as a "deal breaker"; they support a republic on the condition it does not interfere with the Treaty.
Some opponents of a republic have tried to raise fears that becoming a republic will override the Treaty or that it will somehow undermine the settlement of Treaty claims. These fears are ill-founded. The issue of the Treaty is not actually that complicated. The Treaty is not a barrier to becoming a republic and a republic would not change or undermine the Treaty’s status.
Becoming a republic is an opportunity to improve the relationship between Māori and Pakeha and the ongoing debate over becoming a republic will help clarify the Treaty issue.
Māori views on the Crown and a republic
A majority of Māori support a republic. But like all New Zealanders, Māori opinion on a republic is divided. The overall number of New Zealanders who support a republic is about 40%. A 2000 New Zealand Herald poll found 63% of Māori respondents favoured a republic, while the 1996 New Zealand Study of Values found 65% of Māori respondents supported a republic. Māori voters are more likely to support becoming a republic than Pakeha voters.
The Treaty of Waitangi, Te Tiriti o Waitangi, is an agreement signed in 1840 between representatives of the British Crown and Māori iwi (tribes). The Treaty came about because the British War and Colonial Office was determined to annex New Zealand. It believed the only legal way to do so was to initiate a treaty of cessation whereby Māori leaders would cede their sovereignty to Britain. This was because the same Māori leaders had declared their independence in 1835.
By 1840, the British Monarchy had ceased to have any real political power. The newly crowned Queen Victoria was a constitutional monarch and the government of the day was led by the Whig party Prime Minister Lord Melbourne. In 1839 his Colonial Secretary, the Marquess of Normanby, sent Captain William Hobson to the Bay of Islands with detailed instructions on establishing New Zealand as a British colony.
On February 5, Hobson presented English and Māori versions of the Treaty to Māori. Following some discussion as to what the Treaty would do for Māori, it was signed by a gathering of Iwi leaders on February 6. It was then circulated more widely among other Māori leaders.
Since that time there has been considerable conflict and debate over what the Treaty promised Māori. The problems have been caused primarily by the differences between the English and Māori versions of the Treaty. The exact nature of the authority that Iwi ceded to the Crown is still an ongoing debate. This page does not look at that wider issue. It instead seeks to clarify whether becoming a republic will affect the status of the Treaty of Waitangi.
Did Queen Victoria actually sign the Treaty?
Queen Victoria never signed the Treaty of Waitangi - the agreement was between the British Crown and Māori.
At the time of the Treaty, Queen Victoria was twenty years old and had been on the throne for only three years. Like the Queen today, she was only a figurehead. Britain was actually run by the British Parliament.
In discussions held with Māori prior to signing the Treaty, a great deal was made of Queen Victoria's wishes and of her ability to protect Māori. The British representatives spoke in terms they knew Māori would understand and emphasised Victoria as a great Ariki. The concept of Victoria as a constitutional monarch, with only nominal powers, was never fully explained.
When William Hobson signed the Treaty on behalf of ‘Victoria, Queen of Great Britain’, he was, in effect, signing on behalf of the British Government under instruction from the Colonial Secretary. The Treaty was originally an agreement between the British Crown and Māori iwi. It was not an agreement between the Royal family and Māori.
Why are there two Crowns in the Treaty relationship?
"[O]ne British official put it to me… there are "two Crowns" when it comes to the Treaty."
— Historian Paul Moon on the Treaty of Waitangi
In 1947 New Zealand adopted the Statute of Westminster. King George VI became the King of New Zealand independent of his role as the British Monarch, and the New Zealand Crown was legally divided from the British Crown.
The sovereignty originally vested in Queen Victoria by the Treaty passed from the British Crown to the New Zealand crown. With the passing of that statute "the Crown" became "the Crown in right of New Zealand". This legal process is nothing new and happens all the time in international law. For example, in 1992 the Russian Federation acquired all of the responsibilities for the treaties of the former Soviet Union when the country was broken up.
Becoming a republic would mean transferring the Treaty's responsibilities again, as was done in 1947, to the new head of state. This would leave responsibility for the Treaty where it has always laid: with the New Zealand Parliament and its executive Government. Successive Governments have both ignored the Treaty and, more recently, set about making amends. It has been the New Zealand Parliament that has made apologies and paid reparations to Iwi, not the British Parliament.
With the establishment of colonial self-government in 1853, Great Britain delegated the colony’s governance to the colonial settlers. Confiscations carried out by ‘the Crown’ during this period were prompted by the colonial government, not by the British Parliament. While the British-appointed Governor often fought with colonial Premiers over their policies towards Māori, it was the New Zealand government that ignored the Treaty.
There were several Māori delegations (including one led by King Tāwhiao) to London in the years following the Treaty of Waitangi. They were all dismissed, and sent back to the Colonial government in New Zealand, which ignored them. This has led some, such as Māori lawyer and academic Moana Jackson, to argue that the real party to the Treaty is not “the Crown” in a practical sense, but “Kawanatanga”, as defined by the Treaty: the New Zealand Government, formerly the Colonial Government.
What happens to the Treaty in a republic?
"[T]he belief that the Queen provided [Māori] special protection was more imagined than real"
— Muriwhenua leader and Labour MP Shane Jones.
If New Zealand becomes a republic, responsibility for the Treaty will be transferred from the New Zealand Crown to New Zealand's new head of state. Even the former Chairperson of Monarchy New Zealand, Professor Noel Cox, has stated that this is the case (see the quote above).
There are a number of benefits to the Treaty relationship from becoming a republic. In Treaty terms, am elected head of state would have increased mana to act as an independent arbiter in the relationship between Government and Māori.
- F. M. (Jock) Brookfield: Waitangi & Indigenous Rights - Revolution, Law & Legitimation, Auckland University Press, 1999.
- Dr Andrew Stockley: Becoming a Republic? Issues of Law; from Republicanism in New Zealand, edited by Luke Trainor, 1996.
- Professor Bruce Harris: The Constitutional Future of New Zealand  NZLR 267