Claudia Orange: Questions of sovereignty

It’s 29 January 1840, and William Hobson, British consul, soon to become the first Governor of New Zealand, arrives in Kororāreka (Russell) with instructions from the British government to form a treaty with Māori. Although it’s just over 70 years since Captain James Cook first visited this country, the growing European presence  (around 2000 by this time) has already brought immense changes for Māori and is becoming increasingly problematic.

In this extract from the updated edition of her award-winning book The Treaty of Waitangi / Te Tiriti o Waitangi: An Illustrated History, Claudia Orange details the progress of British plans to establish New Zealand as a colony, leading up to the drafting and signing of the Treaty of Waitangi/Te Tiriti o Waitangi on February 6.

 

In 1837, Governor Richard Bourke of New South Wales had sent a naval captain, William Hobson, to the Bay of Islands to investigate an outbreak of fighting among Māori that was thought to be a threat to trade as well as to lives. Bourke asked both Hobson and [James] Busby to write reports on the situation in New Zealand.

Knowing Britain’s reluctance to become too involved, Hobson suggested that the Crown might take over several coastal sites for settlements, along the lines of the early British “trading factories” in India. A treaty would first have to be made with local Māori leaders. A factory head would be officially recognised by the Confederation chiefs as political agent or consul, but the rest of the country would remain in Māori control.

Busby, who had earlier dismissed the factory concept as unsuitable, suggested a protectorate over the whole country, with the Crown administering affairs in trust for all inhabitants. The protectorate would be established gradually, with the assistance of chiefs, who would continue to lead their people and deal with Europeans, but under the guidance of British officials, who in many ways would be the real rulers of the country — or so Busby argued.

The two reports, with letters and petitions from traders to back them up, arrived at the Colonial Office in London in December 1837 and early 1838.

They painted a sad (although somewhat exaggerated) picture of a country troubled by Māori fighting, crimes committed by British subjects, and disagreements between Māori and Pākehā over, for example, theft, trade deals, and European-owned livestock straying on to Māori cultivations.

As Resident, Busby could not solve these problems because he had no force to back him. And he had no means of stopping the activities of the speculators who, in the late 1830s, were active in pressing Māori to sell land.

Around the same time, London officials were looking at the plans of a group formed in 1837 as the New Zealand Association and transformed in 1838 into the New Zealand Company.

Its aim was to establish a New Zealand colony on the systematic principles of Edward Gibbon Wakefield. The scheme depended on the company acquiring cheap land in New Zealand that would then be sold to make a profit for shareholders and to fund colonisation. The company hoped for official approval, but did not want undue interference in carrying out its plans.

Officials at the Colonial Office were opposed to this scheme and to New Zealand colonisation generally, fearing that Māori would resist settlement on any large scale. They were also afraid that violence might erupt as groups of settlers tried to live permanently alongside Māori.

The British record of dealings with native peoples in British settlements elsewhere had been the subject of a parliamentary committee report in 1837: ill-treatment and disease were shown to be common, leading to the near-extinction of indigenous peoples.

The British government did not want this new expansion of empire to have a detrimental impact on Māori — if indeed it decided to intervene in New Zealand. For intervention was also costly. It was with reluctance that the Colonial Office finally resolved to act on the New Zealand situation.

As the New Zealand Company became aware of the British government’s position and the likely consequence in New Zealand, it moved fast.

In May 1839, the company’s ship Tory sailed from Britain with a group on board who were to buy land for settlement at Te Whanganui-a-Tara (Wellington/Port Nicholson) and elsewhere. In September that year, the company dispatched the first of several shiploads of emigrants, with no assurance that land had actually been purchased.

Questions of sovereignty

The British government had made a decision about New Zealand before the Tory departed, but the official pace was deliberate. Early in 1839, Hobson (then back in England) had been appointed Consul to an independent New Zealand. At the same time, he had discussions with the Colonial Office about setting up a British colony there — and, by implication, claiming sovereignty over the country. Officials spent the next eight months debating this issue.

They considered the international angle. Aware that large French and American whaling fleets were working in waters around New Zealand and using its harbours, they expected those nations to be resentful if Britain ended the country’s independence. In October 1838, the trader James Clendon was appointed American Consul at the Bay of Islands. British authorities also knew of plans for a French settlement (established at Akaroa in 1840).

British officials sought legal opinions on the international status of New Zealand. They did not view the country as a fully fledged nation-state, as it lacked the attributes by which such matters were officially measured (such as a recognisable authority or central government).

Yet Britain had recognised New Zealand’s independence — through the flag, the Declaration of Independence, and the several pieces of legislation designed to curb ill-treatment of Māori on the high seas. The Colonial Office decided that this sovereign independence should be formally transferred to Britain peacefully, and if possible by means of an agreement or treaty with Māori.

But how could they get Māori to agree? Officials were not sure if Māori leaders would understand what was meant if they were asked to cede sovereignty by signing a treaty. Officials were not always clear about what they expected themselves. There was no one imperial policy: over time and in different territories, British dealings with indigenous governments had varied.

Would Māori leaders think that possession of land was the same as sovereignty? For example, would Māori consider that they had lost all authority over any land purchased by Europeans? Uncertain of their ground, the officials proceeded with caution.

For a while, officials talked about asking Māori leaders for a cession — an entire surrender — of power and authority over certain areas only; these would be established as a Crown colony, with Māori rights to the rest of the country guaranteed and the national flag respected.

After his 1837 visit, however, Hobson had formed the opinion (which he kept to himself) that Britain should try to get sovereignty over the whole country.

When Hobson finally sailed for New Zealand as Consul in August 1839, he was given authority to make a treaty with Māori leaders to secure sovereignty over all or parts of the country that Māori wished to cede. His instructions from Lord Normanby, the Secretary of State for Colonies, were to get the “free and intelligent consent” of chiefs and to deal with them “openly”.

Normanby also explained, apologetically, why Britain had decided to intervene in New Zealand — not because of the small settler population of only two thousand, but to establish authority over the thousands of expected emigrants, and to protect the rights and welfare of the Māori people.

The instructions and additional explanations briefly outlined the business of setting up a colony. They included handling all land transactions: a land fund would cover administration and development of the colony, with any surplus used to finance further British emigration.

These instructions reveal a gradual shift in Colonial Office thinking. The early plans for a British colony envisaged a Māori New Zealand in which settlers would somehow be accommodated. By the time Hobson got his final instructions in August 1839, official thinking was taking into account a settler New Zealand in which the Māori people would have a special “protected” position.

The shift reflected reluctant official acknowledgement that the tide of British colonisation could not be held back forever. The change of stance did not bode well for Māori. The protection of Māori alongside settler interests was an attempt to reconcile what had previously been seen as irreconcilable.

On his way to New Zealand on HMS Druid, with his wife Eliza and three children (a fourth was born on the voyage), Hobson stopped off in Sydney to change ships. There he conferred with Governor George Gipps, who was concerned about claims made by leading Sydney settlers and businessmen that they had bought extensive land tracts in New Zealand, taking in most of the South Island and parts of the North Island’s eastern and northern coastlines.

In anticipation of British sovereignty, Gipps adopted pre-emptive measures, swearing in Hobson as Lieutenant-Governor of any territory he might acquire, and extending New South Wales jurisdiction to cover New Zealand. (Hobson reported initially to Gipps, as well as to London, until New Zealand became a fully fledged British colony in May 1841, with Hobson as Governor.)

Another proclamation declared that title to land would be valid only if derived from the Crown, or confirmed by Crown-appointed commissioners; further private purchases were null and void.

On 30 January, the day after he arrived in the Bay of Islands, Hobson would proclaim these restrictions to a public meeting, mainly of Pākehā (as Europeans were often called), at Kororāreka (Russell).

Meanwhile, with a small, ill-assorted group of officials to form the nucleus of a civil service, Hobson sailed for New Zealand on HMS Herald on 18 January 1840.

. . .

The Herald dropped anchor off Kororāreka on Wednesday, 29 January 1840. Busby hurried on board to welcome Hobson and offered to organise a meeting of chiefs at the Residency (his Waitangi home) on 5 February. A hundred invitations were quickly printed, and on the 30th they went out to Confederation chiefs, to representatives of deceased Confederation chiefs and to a few others who had not signed the 1835 Declaration of Independence.

Over the next few days, Hobson worked on the wording of the treaty he had been instructed to make with Māori. The task was difficult because he had no legal training and the Colonial Office had not provided him with a draft.

There is no evidence that he checked any treaties already made by Britain in West Africa (1827) and Cape Colony (1835, 1836), but he knew well enough what the British government required: a cession of sovereignty over all or parts of the country; absolute control over all land transactions; and authority to impose law and order in New Zealand. Several local missionaries gave advice; and, with the help of his secretary James Freeman, and George Cooper, Collector of Customs, Hobson wrote a rough draft of a treaty, consisting of three articles.

Busby felt the document was inadequate and offered to redraft it. In this text, which Hobson received on 3 February, Busby had added an important promise to the second article: that Britain would confirm and guarantee Māori possession of their lands, their forests, their fisheries and other properties, for as long as they wished to retain them. Without this promise, Busby was certain that no Māori would sign.

The first article of the treaty incorporated the point that Britain wanted to secure: that the chiefs would give up “sovereignty” (that is, the right to exercise power and authority); the second article asserted that Britain would take complete control of all transactions in land (both its purchase from Māori and its sale), and would establish a land fund for administration and development of the country, as well as support further settlement. The third article offered the Māori people “protection” and “all the rights and privileges of British subjects”.

Hobson then asked Henry Williams, the senior CMS missionary, to translate the treaty into te reo Māori, which he did with the help of his twenty-one-year-old son Edward on the evening of 4 February. Although they were comfortable using the Māori language, they were not experienced translators; indeed, there were few people with such skills at the time.

Henry Williams was aware of some of the problems, as he later explained: “In this translation it was necessary to avoid all expressions of the English for which there was no expressive term in the Maori, preserving entire the spirit and tenor of the treaty.”

The exact meaning of this explanation is not certain; nor, from the evidence available, can we be sure of Williams’s intentions. Hobson had been told to keep his official instructions private (they were published late in 1840). One cannot assume that he explained them clearly to Williams and, at this early stage, the extent to which British sovereignty or authority could be established had not been determined.

That Hobson’s instructions acknowledged Māori rights was a positive step in British colonial dealings with indigenous peoples, and this would have pleased Williams. Missionaries had been asked by their superiors to support Hobson’s negotiations; in fact, a request to do so was received by Williams in a letter from Bishop Broughton of Sydney which had only just arrived on the Herald.

Williams already believed (as did most missionaries by this time) that Māori welfare would best be served under a British authority; this opinion was no doubt strengthened for Williams by his recent visit to the Cook Strait and Kāpiti districts, where New Zealand Company purchases were already creating trouble with iwi.

What we do know is that the Māori translation was not an exact rendering of the English draft treaty. Scholarly research suggests that Hobson sought specifically the authority to set up a government (kāwanatanga) which would be only for Europeans, leaving Māori authority guaranteed in the treaty.

This is quite possible. What we don’t know is whether this was discussed with Williams before he worked on a translation. With the English treaty given him to translate, however, the aim was obviously to get Māori agreement to British sovereignty.

Williams may simply have done the best he could under the circumstances. But it is more likely that, in order to secure Māori agreement, Williams selected words that made the transfer of sovereignty, or sovereign powers, less obvious than in the English treaty.

Making this translation was no simple task, however, for the Māori language did not have the words to render precisely every concept in the English draft treaty. Nevertheless, the transfer of sovereignty and its implications could have been clarified.

In the first article, for example, Williams used “kāwanatanga” for the English term “sovereignty”. Kāwanatanga (from “kāwana”, an adaptation of “governor”) literally means “government”, “governance” or “governorship”; it does not convey the many facets of absolute sovereign power and authority.

To translate “possession” in the second article, Williams used “tino rangatiratanga”, words that meant rangatira would retain chiefly authority and rather more power than was likely if the country became a British colony.

It seems, too, that the exclusive right of the Crown in land transactions, as Hobson wanted, was not clearly conveyed to Māori, or at least not fully understood by them. And the third article, which gave Māori royal protection and the rights and privileges of British subjects, was extended in consideration of rangatira agreement for a government to be established.

The treaty therefore encapsulated two authorities: that of the Crown in government and that of chiefs in their customary authority and traditional rights.

 

Dame Claudia Orange is one of New Zealand’s most distinguished historians. After publishing her first, award-winning history The Treaty of Waitangi in 1987, she became General Editor of the Dictionary of New Zealand Biography, released in five volumes with the Māori biographies also in te reo Māori. A director at the Museum of New Zealand Te Papa Tongarewa for many years, she is now an Honorary Research Fellow at the museum. Dame Claudia has received many awards and honours for her contribution to a wider understanding of our history, which includes research for the exhibitions He Tohu at the National Library and Te Kōngahu Museum at Waitangi.

The Treaty of Waitangi / Te Tiriti o Waitangi: An Illustrated History is published by Bridget Williams Books.