Matthew Cunningham, a historian who’s worked for the Waitangi Tribunal, has been reading what supporters of the Principles of the Treaty of Waitangi Bill have been saying. This is his open letter to them.

 

Dear supporters of the Treaty principles bill.

If you think all New Zealand historians harbour a woke agenda to corrupt the Treaty of Waitangi, this article probably isn’t for you. After all, I’m a qualified, professional historian who’s worked for the Waitangi Tribunal. I must be in thrall to the liberal elites, right? And no doubt I’m also riding the Treaty gravy train and conspiring with all my woke colleagues to hide evidence of the ancient red-haired Celts who lived here before Māori (a claim I’ve seen worryingly often).

Still, I think most New Zealanders are pretty fair and open-minded, even the ones I disagree with. I’ve read and listened to what many of you have been saying about the Principles of the Treaty of Waitangi Bill, and I understand where you’re coming from.

You’ve seen the banners proclaiming that Māori never ceded sovereignty, and you’ve struggled to reconcile it with the (apparently) clear cession of sovereignty in Article 1 of the English text of the Treaty. You know the word “partnership” isn’t in the Treaty, and you doubt that the mighty British Empire would ever have contemplated sharing sovereignty with hundreds of Māori chiefs on the far side of the world.

Perhaps you’ve read William Colenso’s account of the kōrero at Waitangi on February 5, 1840, where Tamati Waka Nene asked Hobson to remain as “a father, a judge, a peacemaker”. You might also have heard of the 1860 Kohimarama Conference, where around 200 rangatira declared their “recognition of the Queen’s sovereignty”. Or maybe you’ve read Apirana Ngata’s 1922 essay on the Treaty, which he describes as a “complete cession” of sovereignty.

And if that wasn’t proof enough for you, there’s the fact that there were no “principles of the Treaty” before 1975, nor any statutory obligation to uphold them before the 1987 Lands case.

So, why wouldn’t you conclude that all this talk of “partnership” must be a modern (mis)interpretation of an otherwise straightforward document?

Because context is everything.

One of the great ironies of the Treaty principles bill is that it proposes to protect the rights of hapū and iwi “at the time they signed” the Treaty — but, rather perversely, only when recognised via contemporary Treaty settlement legislation.

I suspect this is limited to property rights, in line with the Act Party’s libertarian leanings, although this isn’t specifically stated.

To David Seymour’s credit, his views on property rights in te ao Māori are more nuanced than might seem. He has previously used property rights to justify existing co-governance arrangements for natural resources, including those Act voted against — even going so far as to suggest that “those assets should have been returned in full”. Of course, this ignores the fact that these arrangements involve regulatory and decision-making powers, not just property rights. Seymour has also suggested that the perennial policy problem of Māori rights and interests in freshwater could be recognised through water allocation rights.

The irony is not in the Treaty bill’s selective recognition of hapū and iwi rights, but in that it captures one of history’s most important maxims: Context is everything.

Our forebears, both Māori and Pākehā, understood their world far differently than we do, and it’s the job of historians to strive to understand their actions on their terms rather than ours.

Context is the dictionary by which we can decipher what they meant (noting, of course, that “they” held multiple and conflicting views of what they were experiencing). And the historical record is never complete. Historians are obliged to piece things together from biased, incomplete and often contradictory sources, coupled with a liberal dose of educated inference and reasoned argument. Thus, context is also the illustration of a jigsaw puzzle where some of the pieces are missing.

It’s therefore unsurprising that history evolves as new sources come to light or are interpreted in new ways, and our understanding of the past becomes more sophisticated. Think of it as updating the vocabulary in our dictionary or substituting one jigsaw illustration for another that better matches the pieces. Historians regularly build on the work of others, critiquing their conclusions and building new orthodoxies.

The more history is written, the more we push the frontiers of what is known — just like any other discipline. The historical discipline is also still relatively young in New Zealand. It’s no coincidence that Ruth Ross’s well-known 1972 article on the Treaty was the first time historians had seriously engaged with the Māori text (although it’s important to note that the genesis of her conclusions emerged partially from discussions with Māori in the 1950s). She was expanding our contextual dictionary, not tearing it to pieces.

The examples I opened with (including Ngata and Kohimarama) are regularly raised by those who are sceptical of modern understandings of the Treaty, including Winston Peters. However, they rarely take account of the broader historical context. Some bad-faith actors wilfully ignore it.

So, what did the Treaty mean to the Crown and Māori “at the time they signed” it, to use the language of the Treaty principles bill?

To answer that question would require far more words than an opinion piece would allow, but I’ll do my best. Fortunately, there’s nearly 50 years of research available to draw on, including the works of Claudia Orange, Ranginui Walker, Margaret Mutu, Moana Jackson, Anne Salmond, Merata Kawharu, Bain Attwood, Paul Moon, David Williams, Shaunnagh Dorsett, Ned Fletcher — and, of course, the Waitangi Tribunal.

Before diving into it, four points are worth stressing.

Firstly, and most obviously, there were two Treaty texts — an English one and a Māori one (commonly referred to as Te Tiriti). Most rangatira signed the Māori text, which was verbally explained to them in Māori. Hence, the Māori text is seen as most representative of what Māori understood when they signed. There are some differences between the Māori and English texts, although recent scholarship (including that of Ned Fletcher) suggests the differences were not as vast as we once thought.

Secondly, and unsurprisingly, the Treaty (which will hereafter be used to refer to both the Māori and English texts unless otherwise stated) meant different things to the British and Māori actors involved in crafting and signing it. There was no single understanding, and disputes over its meaning commenced almost immediately after it was signed.

Thirdly, the Treaty was merely one thread in a complex tapestry of engagement between the Crown and Māori that commenced well before 1840, and extended well after it. There were many steps along the road of colonisation, and neither Māori nor the Crown were fundamentally transformed overnight.

And fourthly, the Treaty was not the sole arbiter of the Crown-Māori relationship in the decades after it was signed — nor, in many cases, was it even considered that important. Other arbiters frequently came into play, such as sovereignty, jurisdiction, native title, racism, changing demographics, whenua, mana, and rangatiratanga.

What did the Treaty mean to the Crown?

The British Empire was a hotbed of radical ideas in the 1830s. Classical liberalism, imbued with the ideas of thinkers like John Locke and Adam Smith on individualism, property rights and free markets, clashed with the staid traditions of Tory conservatism on the primacy of the monarch and the church.

Abolitionists had also begun turning their attentions from slavery to the plight of Indigenous peoples who had come into contact with the British Empire. These “humanitarians”, as they came to be known, were closely intertwined with Christian missionary movements. They believed the Crown had a duty to recognise and protect the rights of Indigenous peoples against the depravities wrought by British settlers. The Select Committee on Aboriginal Tribes in the 1830s represented a high point of their influence.

While this was happening, Māori were beginning to engage with the wider world as traders and travellers. The wider world was also beginning to engage with Māori.

By 1839, there were approximately 2,000 immigrants living in New Zealand, ranging from pious missionaries to ship deserters and escaped convicts. Questionable land purchases peaked in the same year, and ranged from small individual plots to the 20 million acres claimed by the New Zealand Company (who despatched several hundred settlers to take up these lands in 1839). Speculators in Sydney and London were already trading in highly specious land claims.

These developments touched on three key British concepts in the 1830s: Sovereignty (the right to make and change laws), jurisdiction (who and what falls under the authority of the sovereign and its organs, such as the judiciary), and native title (whether Indigenous peoples held full property rights in their lands, or merely use rights).

The Crown had already recognised the sovereignty of Māori over New Zealand on several occasions, most notably in 1835 when British Resident James Busby facilitated the signing of He Whakaputanga (the Declaration of Independence of New Zealand). This commitment was viewed with great solemnity at the time, despite subsequent claims that Māori were “incapable of performing the duties, and therefore of assuming the rights, or a civilised community.”

Then and now, authority in te ao Māori resided with hapū. It was intrinsically local and place-based. Whakapapa networks drew hapū together for certain common endeavours, such as facing a threat from a common enemy, but there was no single national sovereign individual or institution in the British sense of the word. He Whakaputanga had proposed an annual congress of chiefs to enact laws (while acknowledging that sovereignty resided with the chiefs), but this did not eventuate (although Ngāpuhi oral tradition suggests such congresses were held in secret from Busby), nor was He Whakaputanga universally signed.

Meanwhile, humanitarianism had come to dominate British colonial policy by the end of the 1830s. Its most vocal proponent was James Stephen, permanent under-secretary to the Colonial Office. The report of the Aborigines Select Committee in 1837 had revealed the extent of British lawlessness and land speculation in New Zealand, and the powerlessness of the Crown to intervene. Officials in New South Wales lacked the resources to enforce British laws over British subjects living in New Zealand, despite several local ordinances designed to do just that.

In any case, the Crown had recognised Māori sovereignty over New Zealand, casting doubt over the jurisdiction of British laws and institutions. This was a political question as well as a legal one. Powerful and influential opponents of Crown intervention in New Zealand (including land speculators and the New Zealand Company) argued that sovereignty gave Māori the right to dispose of their lands as they saw fit, without the Crown meddling in their affairs.

Controlling British settlers and speculators required the extension of Crown sovereignty over all or parts of New Zealand. Proclaiming sovereignty by right of discovery was one option (in fact, Hobson later did just that over the South Island), but moral imperatives and political expediency obliged the Crown to honour the Māori sovereignty the Crown had previously recognised.

The Treaty of Waitangi was the result of this conundrum. Hobson’s instructions from Lord Normanby (Secretary of State for the Colonies), which James Stephen drafted, provide invaluable insight into the Crown’s intentions. Normanby acknowledged that Māori “indisputably” held “title to the soil and to the sovereignty to New Zealand”. However, to protect Māori from settlers and land sharks, and “to rescue the emigrants themselves from the evils of a lawless state of society”, the Crown now desired to establish “a settled form of civil Government.”

Hobson was instructed to treat with Māori to recognise the Queen’s sovereignty “over the whole or any part of those Islands which they may be willing to place under Her Majesty’s dominion”, and to agree that all future land sales would be to the Crown only. In addition, all private land sales that had occurred prior to the Treaty would be investigated by an independent commissioner, and recognised with Crown Grants only if the transactions were bona fide.

Crucially, while the instructions envisaged extending British sovereignty, they did not assume that Māori would be subject to British jurisdiction — not at first, anyway. Until Māori could be “brought within the pale of civilised life”, Normanby instructed that they were to be “carefully defended in the observance of their own customs”, except where they contravened “the universal maxims of humanity and morals” (such as cannibalism, human sacrifice and infanticide).

The distinction between sovereignty and jurisdiction is important, and has been stressed by scholars such as Shaunnagh Dorsett and Ned Fletcher. In essence, the Crown sought sovereignty over all or parts of New Zealand, so it could exercise its jurisdiction over British subjects residing and acting in New Zealand, including their interactions with Māori (which revolved primarily around land).

They did not seek to exercise jurisdiction over intra-Māori affairs, except in extreme cases.

This makes perfect sense when you remember that British settlements in 1840 were small, isolated outposts within a vast Māori world. Even if he had wanted to, Hobson’s government in 1840 — which consisted of five officials and 80 troops — lacked the ability to enforce its will outside of those isolated outposts. Hobson and his successors had to rely on moral persuasion and mediation, at least until Māori realised the benefits of “civilisation” on their own.

Bringing Māori within the pale of “civilised” life was the end goal, but it was a long-term one — and, importantly, one where the pace would be set by Māori themselves. Hobson’s instructions after sovereignty was proclaimed were that Māori customs were to be “gradually overcome by the benignant influence of example, instruction, and encouragement . . . until they shall be voluntarily laid aside by a more enlightened generation.”

The English text of the Treaty was designed primarily to acquire the sovereignty necessary to carry out these objects. Hence, the clear use of the word “sovereignty” in Article 1. Article 2 recognised Māori property rights while granting the Crown the sole right of purchase of Māori lands (although some Māori believed this only offered the Crown a right of first refusal). It was Busby who insisted on the specific wording used in Article 2, which explicitly recognised the collective and individual ownership of lands, estates, forests and fisheries.

The Crown’s jurisdiction with regard to Māori was not mentioned in the Treaty, except insofar as Article 3 granted Māori the same rights and privileges as other British subjects. Ned Fletcher’s seminal work on the English text argues that Māori custom was implicitly protected in Article 2, although Peter Cresswell has written an impressive rebuttal on this point. Hobson verbalised it at Waitangi on the morning of February 6 when he promised (in what has been called the Treaty’s “fourth article”) to protect the various Christian faiths, along with “Māori custom”. He also circulated letters to “all chiefs” in April and September 1840 promising to protect their rules and customs.

The Crown’s recognition of Māori custom was an established part of Crown practice until at least the early 1860s. The Crown assumed the right to intervene in any serious disputes between Māori and British settlers (although the limitations of the fledgling bureaucracy and judiciary sometimes prevented them from doing so). Disputes between Māori, however, were to be left to themselves to resolve, although they would be encouraged to make use of the Pākehā courts. This policy was encapsulated in the instructions of the Secretary of State for the Colonies to Acting Governor Willoughby Shortland in 1843:

. . . there is no apparent reason why the aborigines [Māori] should not be exempted from any responsibility to English law or to English courts of justice, as far as respects their relations and their dealings with each other. The native law might be maintained, and the native customs tolerated, in all cases in which no person of European birth or origin had any concern or interest. An exception should indeed be made of such customs as are in conflict with the universal laws of morality, such, for example, as the customs of cannibalism and human sacrifice. But, with this exception, I know not why the native New Zealanders might not be permitted to live among themselves according to their national laws or usages . . .

Governor Hobson and the Chief Protector of Aborigines, George Clarke, developed proposals for “Native Courts” in the early 1840s that would have provided specific judicial forums for Māori to resolve disputes among themselves (Clarke’s proposal envisaged formalising tikanga into a code of native laws, and empowering local Māori as Magistrates to judge disputes alongside Aboriginal Protectors). Neither was ultimately pursued, and, in 1844, Governor Fitzroy passed an ordinance that specifically exempted most intra-Māori matters from English laws.

Fitzroy’s successor, Governor George Grey, was more determined to encourage legal assimilation, albeit by institutionalising some traditional forms of Māori governance. In 1846, he passed an ordinance establishing a system of Resident Magistrates with the power to hear less serious civil and criminal cases. These Magistrates were given sole jurisdiction over disputes between Māori and Europeans. However, where disputes between Māori were brought, the Magistrate was required to sit with two Māori chiefs or “assessors”. It wasn’t compulsory for Māori to bring their disputes to the Magistrates (who were few and unevenly scattered across the country), but Grey hoped to incentivise Māori to do so of their own accord, so that their “traditional customs . . . become obsolete and useless”.

British settlement was still largely limited to the major urban centres in the 1850s, although their total population surpassed Māori by the end of the decade. This was also the time when land-hungry settlers successfully pushed for their own self-government, although the Governor initially retained control over native affairs. The New Zealand Constitution Act 1852 allowed for “Māori districts” to be proclaimed wherein the “Laws, Customs, and Usages” of Māori would remain in force “for the present”, provided they were “not repugnant to the general principles of Humanity”. Although this was never implemented, the Māori King movement (the Kīngitanga) and the Māori Kotahitanga Parliament would later cite it to support their requests for self-governance.

The Kohimarama Conference in 1860 represented the height of the Crown’s pluralistic recognition of Māori autonomy. Treaty sceptics enjoy pointing out that the chiefs who attended resolved to affirm the Queen’s sovereignty, and that the word “mana” was substituted for “kāwanatanga” when the Treaty was explained to them.

They’re right, but they conveniently ignore the broader context. Governor Browne called the conference in part to undermine Taranaki Māori and the Kīngitanga, but he also wished to discuss the administration of law in “native” districts, and a suitable means for establishing Māori land titles. It was proposed to the assembled chiefs that tribal rūnanga (or councils) be established in Māori districts to manage intra-Māori affairs (except for “heinous crimes” like murder), presided over by a Māori Magistrate (or Kaiwhakawā) and two assistants. Committees of “disinterested and influential chiefs” were also proposed to resolve land disputes.

Attendees warmly received the Crown’s proposals, and further requested that the Kohimarama Conference be made an annual affair. Governor Browne was receptive to the idea, and even went as far as circulating an agenda for a second conference. He also explored the idea of establishing a permanent “Native Council” attached to the Legislative Council in Auckland.

Browne was recalled before these ideas came to fruition, and his successor (the assimilation-minded Governor Grey) did not believe it was “wise to call a number of semi-barbarous Natives together to frame a Constitution for themselves.” Instead, he proceeded with a modified version of Browne’s tribal rūnanga proposal. Rather than one powerful “Native Parliament” — which probably seemed a little too like the Kīngitanga for his liking — his local rūnanga would create “twenty Kings in New Zealand . . . and those kings who work with me shall be wealthy kings, and kings of wealthy peoples.”

Grey began rolling out his “new institutions” in the early 1860s, but the renewed outbreak of war in 1863 forestalled its fruition. After the war, the triumphant settler parliament began exerting a more unilateral and singular sovereignty, and the rūnanga system withered away through a lack of resourcing.

Several prominent public figures spoke out in favour of the Crown’s original intent with the Treaty, which was rapidly being sidelined. In 1860, Former Chief Justice William Martin, in a pamphlet reflecting on the outbreak of hostilities in Taranaki, wrote:

The rights which the Natives recognised as belonging to the Crown were such rights as were necessary for the Government of the Country, and for the establishment of the new system. We called them “Sovereignty”; the Natives called them “Kawanatanga”, “Governorship”. This unknown thing, the “Governorship”, was in some degree defined by a reference to its object. The object was expressed to be “to avert the evil consequences which must result from the absence of Law”. To the new and unknown Office they conceded such powers, to them unknown, as might be necessary for its due exercise. To themselves they retained what they understood full well, the “tino Rangatiratanga”, the “full Chiefship”, in respect of all their lands.

Martin was specifically pondering whether the nature of the property guarantee contained in Article 2 protected the custom of collective land tenure (he believed it did). George Clarke wrote the following in response to James Busby’s critique of Martin’s pamphlet:

. . .when the subjects contained in the Treaty were under consideration, the subject of Tribal rights and the full power of the Chiefs over their own tribes and lands was explained to the natives, and fully understood by the Europeans present . . . it was evident that not one Chief would have signed the Treaty had not Tribal rights been fully recognised and protected.

As the war neared its close, Henry Sewell (the former Premier and Attorney-General) wrote:

Did the New Zealanders [Māori], any more than the American Indians, imagine that by placing themselves under the guardianship of the British Empire they forfeited their inherent rights to govern themselves according to their own usages? . . . [I]t is true they surrendered to the Queen the ‘Kawanatanga’ — the governorship — or sovereignty; but they did not understand that they thereby surrendered the right of self-government over their internal affairs, a right which we never have claimed or exercised.

But their views were quickly fading.

What did the Treaty mean to Māori?

We are fortunate that written accounts exist of several Treaty signings, particularly those in the north. However, for most of the signings, we know little or nothing of what was said by the participants. Subsequent recollections and oral traditions help fill some of these gaps, as do Hobson’s instructions to his delegates (he’d suffered a stroke shortly after the first signing at Waitangi).

But for the most part, we have no first-hand evidence of why many Māori signed the Treaty, or how it was explained to them. We also don’t know why some Māori chose not to sign the Treaty when they had the opportunity (with a few notable exceptions).

But context is everything, remember?

We know that Hobson instructed his delegates (who included missionaries and military officers) to carefully explain the purpose and articles of the Treaty, and invite them to make comments or ask questions. We know that the Treaty was explained in Māori, either by the delegates or a translator (this being the lingua franca of New Zealand at the time), and that all but 39 signatories signed the Māori text of the Treaty.

We know that the Māori text conceded “kāwanatanga” to the Crown (the Māori word for “Governor” with the suffix of “tanga”), while guaranteeing “tino rangatiratanga” (full and unqualified chieftainship) over lands (whenua), villages (kāinga), and other treasures (taonga) to the chiefs, hapū, and all New Zealanders (which, in 1840, meant Māori, despite the creative interpretation of some bad faith actors).

Five years earlier, in He Whakaputanga, “Rangatiratanga” had been used to describe “authority and leadership”, while “sovereignty” was translated as “Kīngitanga” and “mana”.

“Rangatiratanga” and “Kīngitanga” had also been used in the Māori translation of the Bible to represent “Kingdom” and “authority”, and (less often) “freedom”. Māori also knew about “Kāwana” from the Bible (particularly Herod and Pilate), and through their interactions with the Governor of New South Wales.

Key participants in drafting and presenting the Treaty later explained how they had described it to Māori.

Missionary Henry Williams recalled in 1847 that he had advised Māori that the Queen, who wished “to protect them in their rights as chiefs, and rights of property”, had sent Hobson as “a regulator of affairs with the natives of New Zealand”. The Treaty’s purpose was to “admit the Government of the Queen throughout the country, from the circumstance that numbers of her subjects are residing in the country”; and further, “to establish a settled government, to prevent evil occurring to the natives and Europeans who are now residing in New Zealand without law.” In the Treaty’s first article, Māori were asked to “surrender to the Queen for ever the Government of the country”. In turn, the second article “confirms and guarantees to the chiefs and tribes, and to each individual native, their full rights as chiefs, their rights of possession of their lands, and all their other property of every kind and degree.” Note that Williams stressed the rights of property and rights of chieftainship separately.

The views of George Clarke, the first and only Chief Protector of Aborigines from 1840 until the office was abolished in 1846, shed further light on how Māori viewed the Treaty. When dissent arose within the Executive Council in late 1842 over whether the Crown’s sovereignty extended to hapū who had not signed the Treaty, Clarke advised:

The natives alone who signed the treaty acknowledged the Queen’s sovereignty, and that only in a limited sense, the treaty guaranteeing their own customs to them; they acknowledge a right of interference only in grave cases, such as war and murder, and all disputes and offences between themselves and Europeans, and hitherto they have acted upon this principle. The natives who have not signed the treaty consider that the British Government, in common with themselves, have a right to interfere in all cases of dispute between their tribe and Europeans, but limit British interference to European British subjects.

. . . treating those tribes as British subjects by force, who have refused to cede the sovereignty to Great Britain, would not only be considered by the natives as a breach of faith with the principles originally professed in negotiating for the sovereignty, but would, I am apprehensive, lead to a destructive war . . .

These first-hand accounts complicate the simplistic claim that Māori ceded complete sovereignty to the Crown. Remember, Williams and Clarke were drawing on multiple encounters with Māori to give general advice on what Māori understood by the Treaty. Modern-day Treaty sceptics, in comparison, tend to pull isolated quotes from Colenso’s account of the signing at Waitangi, or Hobson’s (possibly apocryphal) claim after the signing at Waitangi that “he iwi tahi tatou” (we are one people).

Nevertheless, it’s reasonable to infer that Māori understood the Treaty ceded something to the Crown. This included the right to control British settlers, and to intervene to some extent in disputes between settlers and Māori.

They may also have conceded a nebulous cluster of “national” rights, which had heretofore not been practised or given institutional form outside of He Whakaputanga — protecting them from other foreign powers was one commonly recorded concern.

In return, they understood their existing authority and customs would be recognised and protected. Their “parent”, the Governor, would also guide them in engaging with British laws and trade opportunities, much as the missionaries had guided their engagement with God. Crucially, however, they understood that this engagement would be on their terms — a view that had been encouraged by the Crown’s tolerance of Māori custom.

Events on the ground in the following decades bolster this conclusion. As I noted earlier, most districts in New Zealand remained wholly under Māori control until the 1860s. The few Europeans living among them did so on Māori terms. Māori custom continued to govern the rhythms of everyday life: the writings of missionaries and Pākehā traders are full of stories of tapu, makutu (sorcery), taua muru (ritualised plundering), and even murder and localised tribal warfare.

This undermines another simplistic claim often recited by Treaty sceptics: that Māori were desperate to cede their sovereignty in 1840 to escape the destructive cycle of the Musket Wars. While there are anecdotal accounts of Māori expressing weariness with musket warfare, the reality is that the level of death and dislocation in the 1820s had dropped considerably by the late 1830s after parity in arms was achieved.

The fact that Māori continued to resort to traditional means of dispute resolution demonstrates how important this remained. It also explains why tensions inevitably flared whenever the Crown assumed a right that Māori did not believe they had ceded. Land sales were a common cause of tension, and were one of the factors leading to the establishment of the Kīngitanga.

This is not to say that Māori isolated themselves from the Pākehā world. Hapū enthusiastically traded flax, timber, produce and livestock for European goods and technologies, and invested their capital in trading vessels and flour mills. Māori also increasingly engaged with the Pākehā judiciary, particularly the Resident Magistrates’ Courts. Governor Grey’s rūnanga system was also cautiously taken up in the early 1860s, in part because tribal councils were already a customary form of authority for Māori.

But some scepticism was expressed. Hori Kawakura, a Ngāti Awa rangatira residing in Whakatāne, said:

I do not understand the Pakeha; first he brought us Christianity, then guns to destroy each other with; then came the Government and the law and the Magistrates; then Runangas. Now it is a new thing, and by and bye it will be some other new thing. We are bewildered with all these things, and think we had better be let [sic.] alone. We know that Christianity has done us good, and we are content with that. Does the Governor think to occupy our attention with these new things, while he is contriving plans to get hold of our land?

Te Hura Te Taiwhakaripi, another Ngāti Awa rangatira residing at Matatā in the Bay of Plenty, agreed to try the new institutions, but “should it hereafter appear that they had been deceived, he could as easily renounce his connection with the Government as he now entered into it, and would not scruple to do so.” Such interactions showed that Māori still considered their local authority remained intact on the eve of war.

What about Ngata?

Apirana Ngata was arguably one of the greatest New Zealand statesmen of the 20th century. His tireless efforts to utilise the state apparatus to preserve Māori culture, settle Māori land grievances, and foster Māori economic development remain among the greatest achievements for Māori of their time.

That doesn’t mean his views on the Treaty were correct. Not everything he said should be taken uncritically — he and Peter Buck were both avid proponents of eugenics and racial theory, too.

But, more importantly, context is everything.

Ngata was one of several leading Māori figures of the early 20th century who had been educated under the assimilationist school curriculum of the late 19th century.

Influential educators like James Pope had rolled out a native schooling system under which Māori were encouraged to cast aside much of their culture and rapidly assimilate to stave off extinction as a distinct people. Immense pressure continued to be exerted on Māori to alienate their lands to Pākehā, and to convert what remained into individualised titles, thereby destroying what Henry Sewell called “the principle of communism which ran through the whole of their institutions, upon which their social system was based, and which stood as a barrier in the way of all attempts to amalgamate the Native race into our own social and political system.”

Ngata would also have been aware that decades of Māori protest about the Treaty did not appear to have improved their material circumstances.

Since the 1860s, Māori had continued to push back against the Crown’s increasing intrusion into their affairs. Sometimes, they did so within the political system (such as through letter-writing, parliamentary petitions, and participation in the various proposed incarnations of the native council system). And other times, they went outside the system (as with the Kīngitanga, Te Whitu Tekau, and the land repudiation movement).

Land remained the epicentre of disputes. Various Māori leaders and organisations called for the Native Land Court to be abolished or boycotted, and for its judicial powers to be returned to Māori. Sometimes, Māori drew on the Treaty to justify their claims to autonomy, while at other times, they relied on their inherent rangatiratanga and mana.

The desire of Māori to govern their own lives and affairs was a common factor throughout these forms of resistance. This was not some Lockean individualism, as Peter Cresswell has claimed, but a desire for regulatory and judicial power on their own whenua. When Donald McLean introduced an abortive Native Councils Bill to parliament in 1872 to devolve local self-government to Māori, he said:

There had been for some time past a very great want felt in some parts of the country for more local self-government in Native districts. During the last session of Parliament, a great number of petitions had been presented from Natives requesting that they might be allowed to form themselves into Committees to manage their own local affairs, subject to the advice and direction of the Resident Magistrates in the Native districts. The intention, so far as he could gather from the petitions and letters sent to the Government, was that those Committees should have power to adjust all differences and disputes among themselves, without having recourse to the Courts of law.

Such desires echoed the pluralistic approach to sovereignty that had governed the Crown-Māori relationship before the war. McLean’s bill was ultimately unsuccessful, as the majority felt that it would undermine the work of the Native Land Court in opening up Māori lands for settlement. However, a much watered-down version was passed in 1883.

Many of these threads of protest came together in 1892 under the Kotahitanga Parliament, a national Māori parliament that claimed the right to govern Māori affairs based on He Whakaputanga, the Treaty of Waitangi, and the provisions of the 1852 Constitution Act relating to autonomous native districts.

A petition in favour of the Kotahitanga Parliament received 21,900 signatures — about half the Māori population, and a higher proportion of adult Māori. The parliament sought “to create laws for all the lands held by the Maori people because the Maori people have seen the wrongs in the creation of laws by the Pakeha Parliament.” It also claimed the authority to regulate other aspects of Māori life, including fisheries, farming, and employment.

The British settler parliament never recognised the Kotahitanga Parliament, and it held its final sitting in 1902. Some of its objectives were achieved with the passage of legislation in 1900 that introduced a small degree of Māori autonomy over land and other local matters, although this was quickly whittled away by a lack of resourcing and weakening of the legislation. Nevertheless, the Māori committees of the early 20th century laid the foundation for the tribal committees that emerged during World War Two, and the New Zealand Māori Council in 1962.

Ngata was also trying to combat the growing influence of the Rātana movement. Its founder, Tahupōtiki Wiremu Rātana, had spent 1921 and 1922 travelling around the country converting Māori to his new faith. The spiritual and political importance of the Treaty was central to Rātana’s message, and he later petitioned parliament for it to be ratified via legislation (the Treaty of Waitangi Act in 1975 was a partial fulfilment of this, through the long-standing political alliance between the Labour Party and Rātana-aligned Māori members of parliament).

New Zealand also experienced a sharp economic recession in 1920-21, which hit Māori, who were already economically marginalised, hard. Ngata was determined to use every means at his disposal to encourage Māori land retention and development to better their material circumstances. The Treaty, while historically important, was a distraction from achieving his goals.

Ngata’s views on the Treaty in 1922 are historically important. They speak to the dominant attitudes of Pākehā, and undoubtedly some Māori too. But his was not the only voice speaking for Māori.

Thirty years earlier, the Ngāti Whanaunga rangatira Hāmiora Mangakahia described the Treaty to the large gathering where the Kotahitanga Parliament was founded:

By that Treaty the chiefs of the Maori race gave the Queen and her people license to live in Aotearoa and Te Waipounamu, that is, it was an agreement that the mana of the Government of the Queen could obtain in all places in New Zealand. Therefore, it was agreed that the people without shares could have shares in this island, that is, only with the consent of the person owning the land, and to be sold at the price arranged by the buyer together with the landowner.

By that Treaty too it was settled by the two sides that the Maori people alone had mana over the lands. You know our meaning for this word in our own language because this word mana is something exceptional. According to our custom one chieftain would never proceed to arrange conditions for the property under the mana accorded to another chieftain.

Mangakahia was also only one voice, but he spoke with the tongues of nearly 22,000 Māori who signed the petition calling for an independent Māori Parliament. To put that number in perspective, the third women’s suffrage petition of 1893 was signed by just over 30,000 people.

An ongoing relationship

This potted history of the Treaty of Waitangi reveals a common thread of Māori claiming the right to control their affairs — to exercise their rangatiratanga, in other words. The advent of the principles of the Treaty in 1975 can be seen as simply another part of this thread. While this seemed to some as if the Treaty was being distorted, it was merely an affirmation of what generations of Māori had understood all along — and, equally importantly, which the Crown had also understood in the first few decades after 1840, even if its end goal had been for Māori to voluntarily abandon their customs in favour of British laws.

When the Treaty is placed in context, it is clear that it recognised two forms of authority in New Zealand — kāwanatanga and rangatiratanga — and that discerning the boundaries between the two required an ongoing relationship between the two authorities: the Crown and hapū, along with the institutions in which hapū come together, such as iwi. This is not unlike the situation in other English jurisdictions, such as the US, where Congress has devolved some local executive and judicial powers to 574 tribal nations.

It’s not a question of dividing people by race — as David Seymour has framed it. It’s a matter of two polities agreeing on the division of authority between them.

The difficulty that contemporary policy-makers face is that, as Māori and non-Māori have increasingly intermingled and cohabitated, and the bureaucratic reach of the Crown has expanded to include more aspects of our lives, the interests of Māori and the Crown have become heavily intertwined.

Autonomous “native districts” are arguably no longer possible. So how do we give effect to our evolving and sometimes conflicting understandings of the Treaty in the 21st century?

The answer to that question sounds a lot like partnership to me.

 

Matthew Cunningham is a historian specialising in Māori-Crown relations, and a former senior policy analyst at the Ministry for the Environment. He has produced historical evidence for the Waitangi Tribunal in the Porirua ki Manawatū, Te Rohe Pōtae, and Te Paparahi o te Raki inquiries, and for several marine and coastal area applications. He also specialises in the history of radical right-wing groups, and was a co-editor of Histories of Hate: the radical right in Aotearoa New Zealand (2023).

E-Tangata, 2024