by Michael King
The declaration of independence had no constitutional status and an official in the Foreign Office in London referred to it as ‘silly and unauthorised’. It also had no reality, since there was in fact no national indigenous power structure within New Zealand at that time, tribal authority – or rangatiratanga, as it would come to be called after Henry Williams invented the word – being far more akin to a collection of ‘nations’. Indeed, some of the ‘United Tribes’ were at war with one another within a year of signing the document. Nevertheless, the declaration became a foundation for the assertion of indigenous rights, and it was another step in the direction of a formal constitutional relationship with Great Britain.
In the years that followed, alarmist reports from Busby alleging the ‘accumulating evils of permanent anarchy’ and ‘depopulation’ as a result of tribal wars arrived at the Colonial Office in London at the same time as petitions from Sydney and New Zealand traders – all asking the British Government to intervene more strongly in New Zealand affairs to ensure safety and stability in the interests of British subjects and of Maori. There was also at this time in London disquiet that a private firm, the New Zealand Company – brainchild of the heiress-abductor and former convict Edward Gibbon Wakefield – was about to implement a plan for the formal colonisation of the country and set up some form of government of its own.
As a consequence of these concurrent concerns, the British Government, on the advice of its officials in the Colonial Office, decided to act. A naval officer in fragile health who had previously been to New Zealand, William Hobson, was despatched from London in August 1839 with instructions to take the constitutional steps necessary to establish a British colony. He was told to negotiate a voluntary transfer of sovereignty from Maori to the British Crown, so that there might be no doubt under international law about the validity of the annexation that would follow. In Sydney, Hobson was sworn in as Lieutenant-Governor of New South Wales, because the new colony would initially be a dependency of the Australian one. Hobson also recruited a handful of men to make up the nucleus of a civil service, almost all of whom would turn out to be ill-equipped for and ill-suited to the tasks allotted to them. He then sailed on to New Zealand, arriving in the Bay of Islands on 29 January 1840 to initiate what would come to be seen as the most important chapter in the country’s history.
Waitangi, the name of the estuarine river that emerges below the site of James Busby’s house into the western side of the Bay of Islands, means ‘waters of lamentation’. It would turn out to be an appropriate label to attach to the Treaty signed in its vicinity in February 1840. While that Treaty was in part a product of the most benevolent instincts of British humanitarianism, and those who signed it on 6 February had the highest possible hopes for benign outcomes, the document would turn out to be the most contentious and problematic ingredient in New Zealand’s national life.
The decision to annex New Zealand, and the instructions drawn up for the man who would become its first Governor, were deeply influenced by the evangelical religious beliefs of Colonial Office officials such as James Stephen (Colonial Under-Secretary) and Lord Glenelg (Colonial Secretary). These men were part of the same movement which had agitated for and brought about an end to slavery in the British Empire. Their concern for the welfare of Maori was genuine and profound. As time passed, however, and those same officials learned of the New Zealand Company’s private-enterprise plan to colonise parts of New Zealand, the emphasis changed. By 1839, as Claudia Orange has noted, the Colonial Office was no longer contemplating its original plan, a Maori New Zealand in which European settlers had somehow to be accommodated, but instead ‘a settler New Zealand in which a place had to be kept for Maori’. Inevitably, Maori interests would suffer as a consequence of being moved down the priority list.
While Lord Normanby, Secretary of State for the Colonies, insisted that Hobson was to negotiate a willing transfer of sovereignty from Maori to the Crown, problems would arise from the manner and speed with which the would-be Governor drafted the Treaty to accomplish this transfer. Hobson was given no draft document prepared by lawyers or Colonial Office functionaries. Instead, he had to cobble together his own treaty, with the help of his secretary, James Freeman, and British Resident James Busby, neither of whom was a lawyer. That done, Hobson recognised that a treaty in English alone could scarcely be understood, agreed to or even debated by Maori, so he had the missionary Henry Williams and his son Edward hastily translate the English version into Maori. All this occurred over four days, with the Maori version being prepared overnight on 4 February.
On 5 February copies of the Treaty in both languages were put before a gathering of northern chiefs inside an enormous marquee on the lawn in front of Busby’s house. Present were hundreds of Maori, Hobson’s entourage of officials and English and French missionaries, along with a solid phalanx of local Pakeha residents who were not allowed either to debate the text or to sign the document, except as witnesses, because it concerned only Maori relations with the British Crown. Hobson read the Treaty aloud in English, Henry Williams in Maori, and discussion between the proposers and the intended signatories followed. Because of his facility in Maori and because the other CMS missionaries supported both the Treaty and its constitutional consequences, it was inevitable that Williams spoke most often in defence of the document when asked by Maori about the meanings and implications of its clauses.
In English, the preamble announced that Queen Victoria regarded the ‘Native Chiefs and Tribes of New Zealand’ with favour and was ‘anxious to protect their just Rights and Property and to secure to them the enjoyment of Peace and Good Order …’ Because of this, and because of the continuing influx of British immigrants into the country, the Queen wished to ‘appoint a functionary properly authorized to treat with the Aborigines of New Zealand [rendered in Maori as ‘nga Tangata maori o Nu Tirani’] for the recognition of Her Majesty’s Sovereign authority over … those islands …’ The establishment of such authority would lead to ‘a settled form of Civil Government with a view to avert the evil consequences which must result from the absence of the necessary Laws and Institutions alike to the native population and to Her subjects …’ To bring all this about, the ‘confederated and independent Chiefs of New Zealand’ – a deliberate echo of Busby’s earlier declaration of independence – were invited to ‘concur with three Articles and Conditions’.
The first article, and the key one for securing what was to follow, declared that the ‘Chiefs of the Confederation of the United Tribes of New Zealand’, and those who had not become members of the confederation, ‘cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty … over their respective Territories …’
Under the second article in English, which in time would become the most contentious, the Queen guaranteed to the chiefs and tribes and their families ‘the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties … so long as it is their wish and desire to retain the same in their possession’. At the same time the chiefs would give exclusive rights to the sale of land to the Queen and her representatives.
In the third article, the Queen extended to the ‘Natives of New Zealand Her royal protection and imparts to them all the Rights and Privileges of British Subjects’. A final clause noted that the chiefs, ‘having been made fully to understand the Provisions of the foregoing Treaty’, accepted the spirit and the meaning of the document and would attach their signatures or marks to it.
There was much in this document alone that would have been difficult to convey to members of a culture which did not share the same concepts, vocabulary and political and legal structures – especially the notion of sovereignty. These difficulties were compounded by the fact that the Maori translation of the Treaty, the one most Maori would be addressing and debating and (if they thought they were in accord with it) signing, did not correspond to the English version in several key
respects.
In the first place, the word used for sovereignty – that which the chiefs were asked to give away to the Queen of England – was rendered as ‘kawanatanga’. Kawanatanga was an abstraction from the word kawana, itself a transliteration of ‘governor’, and hence meant literally ‘governorship’. In the Declaration of the Independence of New Zealand, however, the word used for sovereignty had been ‘mana’, in the sense of ‘authority over’. Future critics of the Treaty would thus be able to argue that the chiefs believed that they were retaining sovereignty, ‘mana’, and giving away only the right to ‘governorship’ of the country as a whole.
This impression would have been reinforced by the Maori wording of article two, which assured them that they retained ‘te tino rangatiratanga o ratou wenua kainga me o ratou taonga katoa’ – meaning ‘the unqualified exercise of their chieftainship over their lands, villages and all their treasures’. This was rather more than the same article offered in English: ‘full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties …’ Indeed, in future years, Maori debate would focus on the implications of the words ‘tino rangatiratanga’, which some would claim was an even more accurate rendition of ‘sovereignty’ than mana; they would further argue that, in guaranteeing Maori ‘tino rangatiratanga’, the Treaty was in fact guaranteeing Maori the right to continue to manage and govern their own affairs without interference by a civil or military authority.
Further confusion would arise over the term in article two ‘ratou taonga katoa’. In the English version this supposedly corresponded to ‘other properties’ which Maori would be allowed to retain, but in fact the expression came to have far wider meaning: ‘all their treasures’. It would be used in the future to argue Maori rights to material and cultural resources that were in no way envisaged by the English version or by those who proposed it.
None of these confusions was adequately identified or addressed in the discussion that took place in the marquee on 5 February. On the contrary, missionary explanations of the terms and concepts, particularly those given by Henry Williams, fudged precise meanings and potential contradictions and emphasised instead the protective and benevolent intentions of the document as it would affect Maori. ‘I told them … it was an act of love towards them on the part of [Queen Victoria],’ Williams recalled. Clearly Hobson and his party, and apparently all the missionaries apart from the CMS printer William Colenso and the French Catholic Bishop Jean-Baptiste Pompallier, wanted the chiefs to sign as soon as possible and with a minimum of fuss. Most of the missionaries clearly believed that the Treaty was in their interests, and they almost certainly believed that it was also in the best interests of Maori, possibly ‘the only way that the Maori could be saved from physical or spiritual extinction at the hands of the agents of vice’, as one historian put it.
As might have been expected, different chiefs put forward a variety of reasons for supporting or opposing the signing of the document. At first the voices of opposition predominated. ‘What do we want of a governor?’ asked Rewa of the Ngai Tawake hapu of Ngapuhi. ‘We are not whites nor foreigners. We are the governor – we the chiefs of this land of our ancestors … Return! Governor, I, Rewa, say to you, go back.’ Rewa was supported by Kawiti of Ngati Hine. ‘What do you want here? … We do not want to be tied up and trodden down. We are free. Let the missionaries remain, but as for you, return to your own country.’
If Hobson was becoming increasingly concerned about the tenor of the debate, he need not have been. It was a convention of whaikorero (Maori discussion) that all arguments, positive and negative, should be put. And about the real weaknesses in the Treaty, its ambiguities and contradictions, nothing was said. Many of them would become apparent only from a comparison of the Maori and English versions, and Maori were examining and discussing the Maori text only.
Eventually Tamati Waka Nene of Ngati Hao, a Wesleyan convert who had been protecting European traders in the Hokianga, began to steer discussion in another direction. ‘[Y]ou say [that] the Governor should return home?’ he asked rhetorically. ‘Had you spoken like that when the traders and grog-sellers came – had you turned them away – then you could well say to the Governor, “Go back”, and it would have been right … but now, as things are, no … Governor! Do not go away from us; remain for us – a father, a judge, a peacemaker. You must not allow us to become slaves. You must preserve our customs and never permit land to be taken from us.’ There has been some discussion among Maori and Pakeha scholars about whether Waka Nene had reached these conclusions of his own volition or whether he was parroting the views of his Wesleyan mentors. But such considerations have no relevance. Those were his views on the day. And he carried sufficient mana among his own people as a former fighting chief and more recently as a peacemaker for his arguments to be taken seriously.
As it happened, however, no clear consensus was reached among the chiefs in the course of a five-hour discussion on 5 February. And Maori preferred a consensus if at all possible. They therefore continued their deliberations late into the night on the river flat below Busby’s house and lawn. The following morning 45 of them were ready to sign, either with their names or, as had become customary in such circumstances for those who were not literate, with part of their facial moko patterns. Hobson and his officials were summoned hurriedly to allow this to happen lest official dilatoriness provoke a change of Maori mind (the many paintings and tableaux which show Hobson in full naval uniform serenely accepting Maori signatures is inaccurate; on the morning of 6 February he was wearing civilian clothes).
Shortly before the signing took place, however, Hobson was intercepted by Bishop Pompallier, who was worried that the embryonic state of New Zealand might adopt and entrench the British tradition of an ‘established’ church, and that that church would be the Church of England. He asked Hobson that Maori be told ‘that all who should join the Catholic religion should have the protection of the British government’. Hobson agreed to this proposal with what Henry Williams called ‘much blandness of expression’. To Williams’s further annoyance, the Lieutenant-Governor (as he was until New Zealand became a full Crown Colony in 1841) asked Williams himself to convey this assurance in Maori to the reassembled chiefs.
To take the emphasis off protection for Catholics, Williams drafted a statement which said: ‘The Governor wishes you to understand that all the Maories [sic] who shall join the Church of England, who shall join the Wesleyans, who shall join the Pikopo or Church of Rome, and those who retain their Maori practices, shall have the protection of the British Government.’ Over 130 years later, some analysts would claim that this promise represented a ‘fourth article’ of the Treaty, and that it carried the same constitutional force as the first three. This, of course, is not correct. It was a promise that carried moral weight, and indeed it was carried out. But it had no legal or constitutional significance. The assumption that it might be used to enforce state protection and encouragement of Maori religious practices – ‘ritenga maori’, in Williams’s translation – is misplaced.
The first Maori to sign the Treaty, with his own name, was Hone Heke Pokai, a Bay of Islands CMS convert who was a protégé, although not always a compliant one, of Henry Williams. Among those who followed were, as might have been expected, Tamati Waka Nene and his older brother and tuakana, Patuone. What might have been more of a surprise to Hobson was that the document was also signed by those who had spoken against it – although in the case of Kawiti, the traditional belief is that he did so because his people pressed him to sign (while his mark is with the 6 February signatures, it was added in the second week of May 1840). Subsequent signings with local chiefs took place at Waimate North and the Hokianga in February, and later in nearly 50 other locations in the North and South Islands. Hobson proclaimed British sovereignty over the whole country on 21 May 1840, before the signings were complete, making New Zealand a dependency of New South Wales, and a year later New Zealand’s own
charter came into effect, making the country a separate colony of Great Britain.
While all these steps met internationally recognised constitutional procedures, there were loose ends that would constitute grounds for debate over the following 160 years: the fact that Hobson’s proclamation of sovereignty preceded the collection of Treaty signatures; the fact that some chiefs of large tribes declined to sign the document or were not asked to; the fact that more than one version of the Treaty was in circulation and subsequently signed; the fact that there were inherent contradictions between even the ‘official’ English and Maori versions; the fact that some Maori, with missionary encouragement, regarded the Treaty as being in the nature of a ‘sacred covenant’, in the Biblical sense, between themselves and Queen Victoria.
Almost 150 years later, when New Zealand governments tried to give judicial and moral effect to the document, they would seek to do so by defining yet another version, the ‘spirit’ or ‘intent’ of the Treaty. This was a clear admission that the document itself, in all its manifestations and because of all its manifestations, was neither a firm foundation for the construction of a state nor a blueprint for relations between governments and an indigenous people.
In 1840, however, the document served its original purpose. It enabled William Hobson, as the representative of the British Crown, to proclaim British sovereignty over the country and bring it into that family of nations known as the British Empire. Whether the Treaty meant more than this at the time is debatable. Hobson would have been utterly unable to govern the country, with a mere £4000, 39 officials and eleven ‘alcoholic’ New South Wales police troopers, had Maori not given their consent. At any time Maori could withdraw their consent, as they did on various occasions in the 1840s and 1860s, and the civil and military authorities were unable to establish or fully regain control of those parts of the country where ‘rebellions’ had occurred.