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Maranga Mai!
Aotearoa. It was an “innovative declaration of
Indigenous power” that formally asserted the
independence of Aotearoa as a “…Māori state”
where “power resided fully with Māori and …
foreigners would not be allowed to make laws”
(Archives New Zealand, 2021). He Whakaputanga is
the foundational constitutional document articulating
collective iwi and hapū identity grounded upon
independence (Independent Working Group on
Constitutional Transformation, 2018, p. 44).
Te Tiriti o Waitangi (1840)
There are two texts of Te Tiriti o Waitangi, one in te reo
Māori (Te Tiriti) and the Treaty of Waitangi (The Treaty)
in English. Despite many efforts to compare them, the
texts do not readily equate in translation. However, it is
incontrovertible that Te Tiriti is the principal text.
The history is clear that the understanding of the
rangatira who signed Te Tiriti in 1840 was based on
the discussions framed on the text in te reo Māori
(Waitangi Tribunal, 2014, pp. 517-520, 521-525). Equally
clear is that the Europeans who drafted the texts
and led pre-signing discussions and assurances with
rangatira “concealed the full British intentions” as
outlined in the English version (Waitangi Tribunal, 2014,
p. 526). Moreover, it is the text in te reo Māori which
more than 500 rangatira signed in hui held in 1840,
which holds weight for tangata whenua, compared to
the 39 rangatira who signed the English treaty.
The Waitangi Tribunal Report, in its Te Paparahi o Raki
2014 report, affirmed that the rangatira that signed
Te Tiriti in 1840 did not cede their sovereignty to
Britain. That is, rangatira and their hapū (and iwi)
did not cede their authority to make and enforce
law over their people or their territories.ii Te Tiriti is
not a treaty of cession.
International law
With regard to bilingual treaties, McNair in The Law
of Treaties states that neither text is superior to the
other. Lord McNair was a British jurist and judge of
the International Court of Justice and later the first
president of the European Court of Human Rights.
The two texts should help one another so that it is
permissible to interpret one text by reference to the
other. While this approach may help in interpreting
the Treaty (English version) and reconciling differences
between the two texts, we must also have regard to
other principles (Lord McNair, 1986).
Accepting Te Tiriti as the principal text is congruent
with the Vienna Convention on the Law of Treaties
(1969) Article 32, which considers the consideration
of “the preparatory work of the treaty and the
circumstances of its conclusion [signing]” when issues
of ambiguity arise in the terms of a treaty.iii
This is also consistent with the wider body of
international customary law.iv In that regard, we
follow the findings of the Waitangi Tribunal in the
Waitara-Motunui Report (1983) and the Manukau
Report (1985). Both reports reference the United
States Supreme Court that treaties with Indigenous
peoples should be “construed in the sense which
they would naturally be understood by the Indians”
(Jones v Meehan (1899) 175 US 1). This is relevant when
considering the “predominant role the Māori text
played in securing the signatures of the various chiefs”
(Waitangi Tribunal, 1985, p. 65).v
Both reports also accepted the principle of contra
proferentem where, in the case of an ambiguity in the
terms of an agreement between parties, specifically
in the circumstance of unequal bargaining, the
interpretation of the agreement should be read
against the party who provided the wording.
Racism and truth
The elimination of racism is a strategic priority for Te
Kāhui Tika Tangata | the Human Rights Commission.
The first principle in eliminating racism is truth. Truth
requires evidence and the testimony of those subject
to racism. Maranga Mai! focuses on the history of
racism and how racism is experienced by Māori.
A substantial and increasing body of historical
evidence demonstrates that the impacts of
colonisation, white supremacy and racism on Māori
are multi-dimensional, cumulative, inter-generational
and fundamental to the continuing displacement and
marginalisation of Māori and their rights under Te
Tiriti. The evidence confirms that the cascading and