Interpreting the Treaty -- Questions of Native Title, Territorial Government and Searching for Constitutional Histories

Originalism and the Treaty of Waitangi

“…48 Yet even the Instructions are insufficient to derive an unambiguous inventory of points that the British intended for the Treaty, which Hickford has identified as being one of the challenges in attempting to construct an originalist interpretation of the (English text of the) Treaty. 49 The teleological basis of the Instructions was to "adopt the most effective measures for establishing amongst them [British immigrants] a settled form of civil Government." This is described in the Instructions as the "principal object" of Hobson's mission, and suggests that this is the way in which the text of the Treaty was originally intended to be interpreted, although it still does not overcome the dilemma evident in the textualist interpretation, in which sovereignty appears to be distributed in ambiguous ways among both Māori and the Crown.…”