the Crown could not use its kawanatanga authority unilaterally to alter Maori customary tenure and provide a new means of alienation of Maori land (in place of the Crown’s right of pre-emption), or to confiscate or compulsorily take Maori land. It needed to consult with the chiefs. This was especially true of the land confiscations discussed in this report, since Maori were unrepresented in the New Zealand Parliament at the time. Nevertheless, we consider that, having consulted the chiefs, the Crown may have had a residual right, inherent in its sovereign authority, to override chiefly authority over land. As the Turangi Township Tribunal Report 1995 put it: ‘if the Crown is ever to be justified in exercising its power to govern in a manner which is inconsistent with and overrides the fundamental rights guaranteed to Maori in article 2 it should be only in exceptional circumstances and as a last resort in the national interest.’⁵⁹ We need to explore whether the confiscation of land and the alteration of tenure in Tauranga were ‘exceptional circumstances’ and ‘in the national interest’.

The Maori text of the Treaty of Waitangi has always been important to Maori, because it was the version signed by nearly all of the 530 or so Maori signatories. But before 1975, the English text was the only officially recognised version of the Treaty, and it was assumed that it gave the Crown unfettered lawmaking power in relation to Maori and their land. The passing of the Treaty of Waitangi Act 1975, with its clear recognition of the two texts of the Treaty, has radically altered the situation. While the Act does not prefer one text over the other, legal rules about the fair interpretation of ambiguous treaty provisions support the view, adopted by the Tribunal in its Report on the Orakei Claim that, where there are differences between the two texts of the Treaty, ‘considerable weight should be given to the Maori text since this is the version assented to by virtually all Maori signatories’.⁶⁰ As a consequence, that Tribunal concluded that the sovereignty ceded to the Crown in article 1 of the Treaty needed to be qualified by the recognition of tino rangatiratanga in article 2. It added that, to Maori, ‘kawanatanga’ (as used in the Maori text) was likely to have meant the right to make laws for peace and good order and to protect the mana of Maori. That meaning, the Tribunal continued, ‘is less than the supreme sovereignty of the English text and does not carry the English cultural assumptions that go with it, the unfettered authority of Parliament or the principles of common law administered by the Queen’s Judges in the Queen’s name’.⁶¹ Subsequent Tribunals have reiterated that view. For instance, in its Ngai Tahu Report 1991, the Tribunal said that tino rangatiratanga ‘necessarily qualifies or limits the authority of the Crown to govern. In exercising its sovereignty it must respect, indeed guarantee, Maori rangatiratanga – mana Maori – in terms of article 2.’⁶² We follow that approach in this report and say that the Crown,

59. Waitangi Tribunal, The Turangi Township Report 1995 (Wellington: Brooker’s Ltd, 1995), p 285

60. Waitangi Tribunal, Report of the Waitangi Tribunal on the Orakei Claim (Wellington: GP Publications, 1987), p 180

61. Ibid, p 189

62. Waitangi Tribunal, The Ngai Tahu Report 1991, 3 vols (Wellington: Brooker and Friend Ltd, 1991), vol 2, pp 236–237