Ned Fletcher spent seven years of PhD study researching the intentions of those who wrote the English text of the Treaty of Waitangi. He concluded that both the English and Māori texts sought to protect Māori rights of rangatiratanga and self-government. (Photo supplied)

It’s widely accepted that the English text of the Treaty of Waitangi is different to the version signed by Māori chiefs.

Many people today refer only to Te Tiriti, the reo Māori text, to reflect the true nature of what was agreed in 1840 — which is that Māori didn’t cede sovereignty to the Crown and retained the right to tino rangatiratanga.

Now, a new book published by Bridget Williams Books, The English Text of the Treaty of Waitangi, argues that those who wrote the English version saw “sovereignty” as compatible with continued Māori self-government.

In this conversation with Connie Buchanan, the book’s author Ned Fletcher, a historian and lawyer, explains how he came to believe that both versions of the Treaty reconcile, rather than clash.

 

Like too many people, I didn’t study New Zealand history at school.

But for my master’s thesis, I looked at how English law was brought to New Zealand, which sent me into the archives to read papers from the Colonial Office.

I’d never done any original research before, and I just loved it. It sparked an interest in 1830s New Zealand and the period leading up to the Treaty in 1840.

In the Colonial Office records, I read proposals for British intervention in New Zealand which contemplated plural systems of government and law. For example, James Busby had the idea that a British protectorate, using the model of the Ionian Islands in Greece, could be established here.

When I came across Busby’s dispatch about that on the microfilm, I remember almost shaking because what he seemed to be describing was similar to the division between kāwanatanga and tino rangatiratanga that appeared in the Māori text of the Treaty just a few years later.

It suggested that he potentially thought the concept of sovereignty was compatible with ongoing tribal self-government. That’s quite different to the view that later developed in our law that the British notion of sovereignty is absolute and indivisible.

In 1972, Ruth Ross wrote a really important article reminding people of what our history and law had by then lost sight of — that there were two texts to the Treaty, and if either of them should be regarded as authoritative, it was the Māori one, given that, with one exception, it was copies of the Māori text that were signed by chiefs all around the country.

Then she did a comparison of the two versions. No doubt she had in mind the idea, which had been developed by then in law, that sovereignty was absolute. And so, it seemed apparent to her that the two texts were in disagreement and the only explanation could be mistranslation. That’s how we got the view that the Treaty was hastily and inexpertly drawn up, that it was ambiguous and contradictory, and a fraud. We have very much been locked into that view for 50 years.

That approach all hangs together so long as the underlying assumption is correct — that sovereignty is indivisible.

But the dispatch from Busby hinted at other understandings of sovereignty which existed in 1840. Even though what I discovered wasn’t new — other historians had noted Busby’s views — I wanted to more fully understand the views at the time the Treaty was being drafted, without reference to the body of law that came afterward.

That turned into seven years of study for a PhD. During that time, I kept an open mind and avoided coming up with answers and theories for as long as I could. I didn’t think about the present-day implications of what I was researching because of the distorting impact that it could have. I really just wanted to understand the past on its own terms.

It was only in writing up the conclusion that I convinced myself that the two texts of the Treaty are, in fact, reconcilable. That those who wrote the English version understood Māori cessation of sovereignty to be consistent with Māori retaining rangatiratanga and self-government.

There were obviously a number of people who had a hand in framing the English text. Each of them had their own perspectives and their own motivations.

So, for example, I argue that Captain William Hobson personally doubted that Māori had sovereignty to cede and he was pro-colonisation. And James Busby had another view, which he promoted in the Declaration of Independence 1835, of chiefs and tribes retaining control of their own internal affairs, while banding together to bring into existence national powers of government to deal with issues that were beyond their individual capacities to address.

But I think what really counts are the motives of the British government and the Colonial Office, and of James Stephen as the author of the Instructions given to Hobson for negotiating a Treaty with Māori. And I found those motives were fairly straightforward and clear. They had an unfavourable view of British settlers in New Zealand. They were very concerned about reports of European lawlessness and land-sharking.

This concern was felt against the backdrop of considerable interest in the United Kingdom about the position of Indigenous peoples in the Empire. There was a lot of soul-searching going on about that.

In particular, there was a House of Commons Select Committee on Aboriginal peoples in British settlements which condemned a lot of the history of British colonisation to that point. Those criticisms were felt very strongly by James Stephen because of his evangelical and humanitarian background, and his family’s involvement in the anti-slavery movement.

The Colonial Office came to the view, in about 1838, that intervention was required in New Zealand to do something about unregulated and lawless European settlement. I think their priority was the protection of Māori. They were respectful of Māori rights to govern themselves under their own law. They were respectful of Māori property rights.

They wanted to secure the right of pre-emption, not to give the Crown the ability to purchase large tracts of land and make it available for settlement, but rather to put a stop to land-sharking. They wanted to ensure that if Māori sold land, it was only land that was truly surplus to their needs, and to ensure they could control the locations of European settlement.

The understanding at that time was very much that New Zealand was going to be a colony of a few maritime settlements, focused on whaling, timber extraction and arable farming. So, it was presumed possible to keep the Europeans apart, and to allow Māori to continue to manage their own affairs.

I think the meaning of “sovereignty” in the Treaty must be seen in that context. It amounted to such rights as were necessary for the government of the country, and for the establishment of the new system of authority over Europeans for the protection of Māori. That’s the first part of the context — that the nature of sovereignty turns on the reasons for British intervention. It’s summarised in the preamble to the Treaty:

Her Majesty Victoria . . . regarding with her Royal favour the Native Chiefs and Tribes of New Zealand and anxious to protect their just Rights and Property and to secure to them the enjoyment of peace and good order . . .

Another part of the context is the British dealings with Indigenous peoples in other parts of the Empire around the same time. There was a general practice for sovereignty to accommodate native systems of government and law. Indeed, the first Chief Justice in New Zealand, William Martin, regarded sovereignty that way, as being limited by the rights of rangatiratanga.

Once you get a deeper understanding of those two things — the reasons for British intervention and the form that British intervention took in other parts of the globe — then it becomes clear that the two texts of the Treaty reconcile.

The Māori text simply makes more explicit what was already implicit in the English text and well understood on the British side — that Māori self-government (rangatiratanga) can co-exist with Crown sovereignty (kāwanatanga).

The proof of that is in how key British people described the effect of the Treaty at the time. When James Busby and Henry Williams were asked what the Treaty meant, they would go to the Māori text and provide an English back-translation in which they would emphasise that rights of chieftainship were recognised and guaranteed.

They themselves didn’t see any clash between the versions, and they looked to the Māori text for the clearest explanation of what was intended.

The purpose of British sovereignty, then, was to control matters of foreign affairs, trade, and some areas of justice, such as interracial conflict. The application of English law to Māori for crimes among themselves was limited to only the most serious offences, such as murder, and then possibly only when those were committed in areas of British settlement or where a tribe relinquished control over the perpetrator.

Beyond those things, it may also have been expected that with the sovereign power came the right to raise revenue to defray the costs of government. But that still had to be done in a way that was consistent with tribal independence, meaning that its impact was most likely to fall on Māori who were participating in the settler economy.

From my research, it’s quite unclear whether sovereign power could be used for any additional purposes beyond those matters. There was quite a body of opinion at the time, too, that sovereignty could be limited by the terms of a treaty.

One interesting thing about reading through all the original archival material, is that you just don’t see the Colonial Office and others around that time using the same dreadful racist language that appeared in later periods of our history.

If we look to James Stephen again by way of example — he believed in western civilisation and he believed in Christianity, but he didn’t use stadial language of human beings progressing from savages through to civilised races.

Rather, he believed in the “family of man” in which Indigenous peoples had the same intellectual capacities and moral instincts and qualities as Europeans. He didn’t think that Europeans had a duty to impose their culture on unwilling native peoples. He believed Indigenous populations of the Empire had existing rights which could only be modified by their own agreement. He had a profound fear of bringing Europeans and Indigenous peoples into proximity prematurely.

He also believed that Indigenous populations were better administered by their own people — and not only when they were operating within their own traditional societies. So, for example, he supported Black representation in West Indian legislatures. He championed the claims of William Ferguson to become the first mixed race governor in the British Empire in Sierra Leone in 1842.

Certainly, when it came to British intervention in New Zealand in 1840, James Stephen took great care over the Instructions to Hobson on how to establish sovereignty and undertake a government. That’s because these instructions actually provided him a unique opportunity to frame a native policy according to his own beliefs.

Colonies weren’t being founded every day. Many of them had been inherited from other European powers. But here was almost a blank slate for Stephen to use his experience from all around the empire, and to try to put things on the very best footing he could.

Stephen’s retirement in 1847 spelled the beginning of the end of that original understanding of the Treaty. After that, we start to see a lot of powerful forces at play which eclipsed his vision. The key ones are the tsunami of British immigration, the retreat of humanitarianism, the rise of racism, and the conferral of representative and responsible government, together with a trend in legal thinking away from pluralism toward the idea of one law for all.

But undoubtedly the main one of those was the tidal wave of British immigration.

Between 1840 and 1852, there were 27,500 immigrants to New Zealand. By 1858, settler numbers had doubled and exceeded the Māori population. Then it takes off and goes exponential. The European population was 200,000 in the 1860s and then 300,000 in the 1870s.

It was on a scale that no one could have envisaged in 1840, when everyone thought that New Zealand was going to be a colony of just a few maritime settlements. The runaway train of immigration changed everything because of the pressure for land. We started to see compliant legislators find one means after another to assist Europeans to secure Māori land.

Nonetheless, there was an enormous effort by some British people to fight as hard as they could to preserve the original understandings of the Treaty and to limit the erosion of Māori rights. Busby continued to argue that the Treaty guaranteed Māori custom, and protected Māori property rights and land to the fullest extent possible. Henry Williams and other missionaries spoke out against the land wars and confiscations.

I also quote Henry Sewell towards the end of the book, who was a premier and attorney-general. He found it quite obvious that in the Treaty Māori retained rangatiratanga and were going to continue to live under their own systems of government and law. He saw nothing inconsistent in that with British sovereignty and did not accept that British sovereignty meant one law for all.

So, the arc of my book is quite a sad one, because it’s about how those original understandings came to be overwhelmed. Here was a genuine attempt to achieve in New Zealand something that had eluded Britain and other European powers in colonising other parts of the Empire at the expense of Indigenous peoples. Here was an attempt to do better. And that was defeated.

We’re left with a history that shows how the Treaty was dishonoured and how, for all the promises, rangatiratanga was never truly recognised. Far from being protected on their land, Māori were dispossessed of it.

I do think it’s helpful to remember the original understandings and to look at the path that could have been taken but wasn’t. Because that path is still there. It creates its own standard or yardstick for us in the future.

The idea of co-governance, for example, doesn’t seem at all radical set against the original understandings of rangatiratanga and self-government.

It seems to me that part of the reason why we’ve gone with the idea of having “principles of the Treaty” or reverting to notions of partnership in our law and our politics is possibly because, for so long, we’ve seen the texts as saying different things. Notions of “principles” and “partnership” are techniques to get around that.

But I think it’s important to say that the Treaty created legal rights and we don’t need to put a gloss on its language. It has all the answers we need, whichever language we read it in.

That’s not to say I have any idea what the right arrangements are for us as a country today. It took me seven years of a PhD just to work out what the British understandings of the Treaty in 1840 were. And I’m very conscious that what I’ve written is just one small part of the Treaty story. I didn’t look at the Māori text (Te Tiriti) or the understandings of the chiefs who signed it. And there’s 182 years of history that lie between the Treaty and today which inform what the correct arrangements in the future may be.

What I do know is that sovereignty doesn’t need to mean one law for all. James Stephen called that sort of thinking legal pedantry. If history teaches us anything, it’s that we’ve got a free hand, that there are other options for organising our systems.

The roadblocks that we put in our own way to doing things differently — by saying that sovereignty must be absolute and indivisible, that the world’s going to fall apart if we have plurality in our system — those things just aren’t true.

So, I don’t think we should be scared of doing things differently. Those who established our nation, on both the British and Māori sides, weren’t scared and were open to a range of possibilities.

We could be just as bold in our thinking today.

 

Historian and lawyer Ned Fletcher is a director of the Manukau-based law firm, Kayes Fletcher Walker. Graduating from the University of Oxford with a BA in law, he studied history and law at the University of Auckland. His 2014 PhD thesis, on which his book is based, examined the meaning of the English text of the Treaty of Waitangi. Ned Fletcher is a trustee of the New Zealand Law Foundation and of the Judith Binney Trust, two organisations that support research and writing on (respectively) law and history in Aotearoa New Zealand.

As told to Connie Buchanan, and made possible by the Public Interest Journalism Fund.

© E-Tangata, 2022

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