In English law, the notion of sovereignty is equated with supreme lawmaking authority, the exercise of which will overrule any inconsistent law made in the exercise of a lesser authority. That understanding of sovereignty would inevitably narrow the meaning attributed to the guarantee given to Maori in article 2 of the English text of ‘the full exclusive and undisturbed possession of their lands and other properties. It is even more at odds with the Maori text. In this, the grant to the Queen of ‘kawanatanga’ in article 1 is made in conjunction with the guarantee to the chiefs in article 2 of their ‘tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa’ (rendered by Kawharu as ‘the unqualified exercise of their chieftainship over their lands, villages and all their treasures’⁵⁷). Whatever vague notions the chiefs may have had of the meaning of kawanatanga over their lands, they certainly knew the meaning of tino rangatiratanga, or full chieftainship, over their lands. To them, the Queen’s guarantee of tino rangatiratanga meant that neither she nor her representatives in New Zealand could take away chiefly control over their land without their assent.

Another relevant difference between the two texts of the Treaty concerns the nature of the properties over which continued Maori control was promised. In the English text of article 2, Maori are guaranteed the ‘full exclusive and undisturbed possession of their Lands and Estates Forests and Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession’, though they yielded to the Crown the sole right to purchase land they wished to sell. The Maori text of article 2 both reduced and enlarged aspects of the English version. On the one hand, it omitted the explicit guarantee of forests and fisheries. On the other hand, ‘taonga’, interpreted as ‘other properties’ in the English text, amounted, in Maori understanding, to more than mere physical objects and included all things that were valuable to Maori, including such intangibles as language. The term ‘taonga’ is not easily defined but, as the Tribunal observed in its Te Whanau o Waipareira Report, it is generally critical that there be a spiritual link between a taonga and the people and an obligation on them to protect it for future benefit. By way of example, that Tribunal cited the following pepeha:

Kia uhia rano te mana, te ihi, te wehi, te tapu a te Atua ki runga, katahi ka waiho ai ki nga kaitiaki hei manaaki ma nga whakatupuranga e tupu ake – he taonga kei reira.

A property (material or non-material) becomes a taonga when, with divine blessing, it is entrusted for the benefit of future generations.⁵⁸

But whether we use the English or Maori text of article 2, it is evident that the Crown could not in normal circumstances unilaterally infringe the ‘full, exclusive and undisturbed possession’ or the ‘tino rangatiratanga’ of Maori over their land (and other possessions or taonga) without their ready assent through their chiefs. As we explain in the main body of this report,

57. Ibid

58. Waitangi Tribunal, Te Whanau o Waipareira Report (Wellington: GP Publications, 1998), p 23