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ARTICLES
THE TREATY OF WAITANGI:
A TEXT FOR THE PERFORMANCE OF NATION
PHILIP AJOSEPH*
A INTRODUCTION
The Treaty of Waitangi was first signed in the Treaty House at Waitangi in the
northern part of New Zealand, on 6 February 1840. The signatories were Captain
William Hobson RN on behalf of the British Crown and Rangatira (chiefs) of the
indigenous peoples of New Zealand the tangata tthenua (people of the land
Maori). As each Rangatira signed, Hobson shook hands and repeated: 'He iwi tol
taton We are now one people'.1 For New Zealand, the instrument has been var-
iously described as a 'founding document', a 'partnership between races', an
'approximation of a fundamental charter', 'part of the essence of the national life',
and so on.2 New Zealand's foremost judge, Robin Cooke, said of the Treaty: 'It is
simply the most important document in New Zealand's history'.3 The Treaty is an
instrument of cession between Maori and the British Crown, having enduring
constitutional significance.4 It is a compact that exacts the concept of the honour
of the Crown and the duty of active protection of Maori culture and taonga (prized
possessions/treasures). And in the national context it is a lightning-rod, exciting
and directing dialogue between Maori and Pakeha New Zealanders.' The Treaty
is, in short, a text for the performance of nation.
* Professor of Law, University of Canterbury (NZ); Barrister and Solicitor of the High Court of New
Zealand. This is a revised vrsion of' a plenary papr delivered at the Pericformance Studies
International Conference, 'Field Station, New Zealand: nixviroiimeiit/Performant e', University of
Canterbury (NZ), 7 12 April 2003.
C Orang e 77 Treay olfaitangi (Bridget 'Ailliams Books 'ellington 1987) 56 57. Other accounts of
6 February 1840 rcord Hobson's words as: 'Heiwi otahi tatuo'. An altrnative translation is: 'We two
)eoples together make a nation'.
For these (1e riptions see R Cooke u roduction' (1990 91) 14 New Zealand Unix rsities T, Rev 1,
1 8. For Cooke P's reference to a 'partnership between races', see Vew Zealand AfIaoi Council v A G
(the L, ase [I987] 1 NZIR 641 (CA) 664.
Cooke 'litroduction' (n 2). Cooke retired as President of the New Zealand Court of Appeal in
February 1!'6 and was elevated to the British peerage, where he sat on the \ppellate (ommittee of
the House of Lords as The Lord Cooke of Thorildon.
SFor analysis of' the legal, historical and constittitional significance of the Treaty, see P \ Joseph
Coastitutional and Admnttrt1ah2 e Laz in Aew 4ealand (2nd edn Brookers \ellington 2001) ch 3.
The \[aori word 'Paklia* dnotes the British settler coninunities that colonized New Zealand, co-
prising English, Scots and Irish settlers. Some non-Maori have reacted to use of the term 'PaTkea', as
SUMMER 2004](ViewImageLocal?handle=hein.journals/oxuclwj4&div=1&collection=&method=preview&ext=.png&size=3)
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