E oho! The English text of the Treaty of Waitangi

Speakers

Ned Fletcher, Tanja Schubert-McArthur

Mihi and acknowledgements

Ned Fletcher: Tēnā koutou katoa

Thanks very much for that kind introduction, Tanja and Nate, for the beautiful mihi. Thanks also to those who joined in the waiata. You'll be glad that both that I didn't know that particular waiata and that I was on mute.

Thank you also to the National Library for the opportunity to speak today about my book. Obviously, I'm incredibly disappointed not to be in Wellington presenting to the live audience today. Like many of you, I really thought I was finished with Zoom.

I was also-- I guess, looking forward to the change from Auckland weather. But then saw as you all will have on the television last night, the devastation in other parts of the country. So, I hope you're doing all OK.

I guess, we're all thinking of those who might have wanted to participate in today's lecture but can't because of cyclone Gabriel. Another reason I'm disappointed not to be in Wellington today is that I was hoping to take the opportunity and go and see the Treaty, Te Tiriti, in the document room in the He Tohu Exhibition space, upstairs at the National Library.

Now, by the Treaty, I don't just mean the parchment that was first signed at Waitangi on 6 February, 1840. I also mean the seven other Māori and one English language treaty sheets, which taken together about 540 rangatira of signed between February and September 1840, all around the country.

These nine sheets that together comprise the Treaty of Waitangi are kept company in the document room by many of our other important constitutional documents, including the Declaration of Independence 1835, He Whakaputanga, the 1893 Women's Suffrage Petition, and the English drafts of the Treaty of Waitangi, from which the translation into Māori was made.

It's sometime since I've been in the document room, not – since well before my book on the English text of the Treaty of Waitangi was published. So it was going to be nice completion of the journey in some respects.

If you haven't been in there, you should go into the document room next time you're in Wellington or near the National Library. It's a beautiful, curved room with a rimu ceiling and walls and carved tukutuku.

As I understand it, the design is inspired by a waka huia treasure box. And together with all the fancy modern lighting and humidity controls and temperature controls, shows the care what with which these precious taonga are now both preserved and made accessible to the public by their joint custodians archives, New Zealand and the National Library.

Historical overview of Te Tiriti o Waitangi/Treaty of Waitangi

But it wasn't always this way. In 1841, the treaty documents narrowly avoided destruction by fire, when the government offices in Auckland-- a simple wooden cottage, burnt down. The record clerk, George Eliot arrived just in the nick of time to rescue the iron box in which they and the seal of the colony were kept.

At this point, they were transferred into the safekeeping of the colonial secretary's office, the forerunner of the Department of Internal Affairs, under which the National Library and Archives New Zealand sits today. When the capital shifted to Wellington in 1865, so too did the treaty documents, evidently into the basement of the Colonial secretary's office.

After a while, it seems that the officials lost sight of where they were or even what they had stored down in the basement. When in 1869, the legislative council asked to have tabled the English draft of the Treaty as may have been prepared for translation by Governor Hobson or on his authority.

The answer came back that it was not on record and the Colonial secretary's office. However, by 1877, the fragments that together make up the English draft of the Treaty had been located because photo lithographs of them, as well as the nine treaty sheets and He Whakaputanga were published by the Reverend Henry Hansen Turton and the government printer as facsimiles of the Declaration of Independence and the Treaty of Waitangi. And that's this volume here.

And if I were down in Wellington with you, I would attempt to open that up and to take you, for example, to the Waitangi Treaty sheet and show you how in Turton's 1877 facsimile that treaty sheet concertinas out, so that it's probably something like five feet long and a couple of feet wide, showing the whole of that document. And I'll explain why that is important in a minute.

In the preface to his facsimiles, Turton wrote that with the publication, these foundational documents were for the first time exhibited to the public as being both curious and important. But this interest in the Treaty didn't last. In about 1908, the original sheets were discovered by Thomas Hocken in the basement of government buildings damaged by water and by rats, the original Waitangi parchment in particular.

They were sent to the Dominion Museum to see if they could be restored. In 1913, this involved the fateful step of gluing the sheets onto canvas and reproducing the rat-eaten portions using Turton's 1877 facsimiles. So but for Turton's facsimiles, the names of many of the Māori signatories to the Treaty would not be known to us today. Despite the 1913 restoration work, the treaty again slid from view.

In 1934, an internal affairs official instituting a new system for keeping the department's records was astonished to discover in tin boxes in a safe a number of treaty documents, the original Declaration of Independence and other important records, such as the letters patent appointing Hobson as governor. The department kept this discovery to itself until February 1837-- sorry, 1937-- when it finally indicated it was in possession of New Zealand's early constitutional documents.

I've seen it said that the Waitangi Treaty sheet was displayed to the public for the first time as part of the 1940 Centennial celebrations. But if that's correct, its time on show was short-lived. Michael Bassett in his history of the Department of Internal Affairs writes, "In the months before Pearl Harbour, alarm spread about possible attack on New Zealand. In October 1941, the Department Secretary, Joseph Henon, took steps to safeguard the country's most precious constitutional documents.

The original Treaty of Waitangi and the 1835 Declaration of Independence were carefully cased and sent to Masterton, where they were to be stored. Owing to an oversight, nobody seems to have been detailed to receive the case when it arrived. Henon was shocked to receive a letter from the Masterton public trustee some weeks later telling him that the case had been placed some time ago at the entrance to the office where it was blocking a passageway and causing inconvenience to staff."

"The country's most precious documents," writes Bassett, "were duly retrieved and properly stored until they were returned to Wellington at the end of the war. The Treaty sheets continued in storage after the war. There was concern that exposure to light would cause the writing on them to fade.

In 1956, they were given into the care of the Alexander Turnbull Library, now part of the National Library. And in 1961, after a special display case was made, the Waitangi Treaty sheet finally went on public display. Further preservation work to undo detrimental effects of the 1913 restorations occurred in the '60s, '70s, and '80s. Meanwhile, the Treaty documents returned to the care of National Archives. It was decided that long term security and display facilities were needed.

While the so-called Constitution Room was being constructed at Archives House, the documents went into the vault at the Reserve Bank until 1991. Finally, in 2017, the Treaty and the Declaration made the 200-meter walk down Aitken Street to He Tohu.I understand it that the Suffrage Petition, which as you probably know, is about 270-odd meters long and well, the website says weighs 7 kilos-- but surely it weighs more than that. But as I understand it, the Suffrage Petition didn't make the walk, but instead came by truck.

As I've said in He Tohu with the eight te reo Māori and one English treaty sheets are the surviving English drafts of the Treaty. The final draft given to the missionary Henry Williams, to translate is lost. But its contents can be established with confidence from these antecedent drafts in He Tohu from the one English language treaty sheet signed at the Waikato heads in Manakau and from subsequent fair copies sent to Sydney and London by Hobson.

Introduction to the English text of the Treaty of Waitangi

It's this English text and the British understandings of it that I want to talk about today. Although much has been written about the Treaty, it's my view that the English text and its meaning has been relatively neglected, not unlike the physical drafts themselves, hidden and forgotten in boxes and safes in basements for most of their lives. Even after 183 years of up and down history, I feel these original British understandings possibly shared on the Māori side may yet provide a sure foundation for the nation.

For a very long time now, this has not been the view in our history. The Treaty has been disparaged by historians as incoherent and a deceit upon Māori. An influential verdict delivered by Ruth Ross in 1972 is that the Treaty was hastily and inexpertly drawn up, ambiguous, and contradictory in content, chaotic in its execution, and says whatever we want it to say. It's widely accepted that sovereignty was mistranslated as kāwanatanga in the end. And that the session of sovereignty in the English text was incompatible with the guarantee of Rangatiratanga in the Māori version.

It's said that British representations said the motive in seeking sovereignty was to protect Māori society masked an intention to promote settlement and to assimilate Māori into settler society. It's been suggested that the British government did not believe that Māori had sovereignty to cede, but found it convenient in fending off Māori opposition and the interests of other European powers to treat with them on the basis that they did.

The guarantee of property is said to have obscured the real position that Māori were not full owners of their lands with enforceable legal title in the new legal order. Now, if these assessments are right, the Treaty would be a rotten foundation for the nation. But I don't think they are. In brief, my position is that the English and Māori texts reconcile the basis of British sovereignty was the Treaty.

British intervention in New Zealand was to establish government over British settlers for the protection of Māori. British settlement was to be promoted only to the extent that Māori protection was not compromised. Māori tribal government and custom were to be maintained. British sovereignty wasn't seen as inconsistent with plurality in government and law.

Māori were recognized as the full owners of all their lands, whether or not occupied by them according to custom. So in this talk, I'd like to take these propositions one by one, beginning with why the British treated for sovereignty. Obtaining assertion of sovereignty from Māori was treated by the colonial office as a necessary precondition for the assumption by Britain of sovereignty.

This was what wasn't a matter of show. The instructions given by the Colonial Secretary, the Marquess of Normanby, to the British consul, Captain William Hobson, in August 1839 maintained that Māori titled to the sovereignty of New Zealand is indisputable. New Zealand was acknowledged as a sovereign and independent state. And the British crown disclaimed every pretension to seize on the islands of New Zealand unless the free and intelligent consent of the natives expressed according to their established usages shall be first obtained.

It was standard British imperial practice to treat with Indigenous peoples for sovereignty. As Normanby's predecessor, Lord Glenelg, had said in December 1837, no colony had been founded in derogation of the rights of sovereignty of property such as were possessed by the chiefs and people of New Zealand. When after Hobson's departure for New Zealand the New Zealand Company claimed that New Zealand was already British in sovereignty, James Stephen, the permanent Under-secretary for the colonies wrote in a memo that later became a cabinet paper that the New Zealand Company are either being ill-informed as to the facts or very ill-disposed to make a fair statement of them.

He set out the background and concluded that the proofs are overwhelming and superabundant that Great Britain has recognized New Zealand as a foreign and independent state. Now, Stephen was a civil servant who headed the colonial office, the architect of British policy towards New Zealand, and the actual author of Normanby's instructions on which the Treaty was based. At the Treaty signings, Māori were told that the British crown could exercise no civil powers in New Zealand without their consent.

One of Hobson’s officials, Felton Matthew, recorded in his journal on 5, February 1814 an evident reference to British recognition of the Declaration of Independence 1835, that a voluntary cession of sovereignty had been rendered necessary by the British government having some years ago formally recognized the independence of the country. On 5, February 1840, a British colony hung in the balance.

Its establishment depended, Matthew wrote, on the success of our negotiations with the chiefs today. After the Treaty was signed, the colonial office maintained that it was the basis of British sovereignty. As Lord John Russell, Normanby’s successor as Colonial Secretary, told Hobson, it is on the deliberate act and session of the chiefs on behalf of the people at large that our title rests. For his part, Stephen wrote that it was in virtue of the treaty so made with them and on that basis alone that her Majesty’s title to sovereignty in New Zealand at this moment rests.

When in 1843 the New Zealand Company said the Treaty was a “praiseworthy device for amusing and pacifying savages” the official response was that the Colonial Secretary, by then Lord Stanley, was not prepared to join with the company in setting aside the Treaty of Waitangi after obtaining the advantages guaranteed by it. The treaty then was the foundation of all government and laws in New Zealand from 1840.

Reasons for British Intervention

The reasons for British intervention given in the preamble of the English text of the Treaty were that Britain was anxious to protect the “just rights and property of the chiefs and tribes” and to secure to them the enjoyment of peace and good order. This protection was deemed necessary because of the British and European settlement which had already occurred or was in prospect. Cession of sovereignty would allow the establishment of a settled form of civil government with a view to avert the evil consequences that must result from the absence of necessary laws and institutions alike to the native population and to the Queen's subjects.

These reasons express in condensed form the explanation given in Normanby's instructions to Hobson. The instructions spelt out the belief that unless British settlers were restrained by necessary laws and institutions in New Zealand, the experience of colonization was that Māori would not survive. The solution looked to was the establishment amongst the settlers of a settled form of civil government.

The sovereignty sought from Māori to establish such government was, if not for the whole country, at least of those districts within or adjacent to which her Majesty's subjects may acquire lands or habitations. While the Colonial Office plans evolve from January 1839 as reflected in January and February drafts of the instructions, which were eventually finalized in July and formally issued in August, the underlying purpose for intervention remained constant.

So in the January draft of the instructions, it was said that the British government had decided to establish a settled form of government for her subjects in New Zealand. Hobson was to explain to Māori that the proposal for cession was in their interest, so the queen could exercise effective control over lawless British subjects. He was to use his authority for establishing and enforcing law and order amongst the British inhabitants and for protecting the natives from violence and injustice.

In the February draft of the instructions similarly, the lawless Europeans were to be subjugated to law and Māori secured against the perils of their vicinity. Colonial Office leaders to the law offices and Treasury in May and June 1839 also spoke of the need to set up a system of government over British subjects living in New Zealand. A Treasury reply later expressed in a minute tabled in parliament referred to the proposal as being to establish some British authority for the government of the Queen's subjects resident in or resorting to those islands.

The Colonial Office itself used this Treasury minute to explain British policy in response to queries and also attached the correspondence with the Treasury to the eventual instructions to Hobson and Governor George Gipps in Sydney to whom Hobson was subordinate until New Zealand became a separate colony. Hobson's 15, August dispatch to Gipps-- sorry, Normanby's 15, August dispatch to Gipps-- referred him to the 14, August instructions, which were described as having been given to Hobson on his embarkation to assume the government of the British settlements in progress in New Zealand.

For his part, Gipps authorized payment of the expenses of the new administration in New Zealand on the basis that the British government had directed the establishment of a settled form of civil government over British subjects in New Zealand. This language was carried through into the two proclamations prepared in Sydney for Hobson to publish on arrival in New Zealand.

The proclamations read at Kororāreka on 30 January 1840 described Hobson as Lieutenant Governor of the British settlements in progress in New Zealand. The first announces that measures shall be taken for the establishment of a settled form of civil government over those of her Majesty's subjects who are already settled in New Zealand or who may hereafter resort hither. In my view, there's no good reason to doubt that the motive for British intervention in New Zealand was to establish government over British settlers for the protection of Māori.

There's also no doubt that the policy of intervention was reached reluctantly and with the feeling that it was the lesser evil than unregulated settlement. The preference of the Colonial Office to that point had been that Māori should not be brought into contact with Europeans, but that their social improvement should be left to be worked out by the gradual influence of Christian missions. By December 1837, it was, however, recognized that it was impossible to leave matters on such a basis because colonization to no small extent is already affected in those islands.

By January 1839, the only question was between acquiescence in a lawless colonization and the establishment of a colony placed under the authority of law. Normanby's instructions continued the view contained in earlier drafts that British intervention was essentially unjust and fraught with risk to Māori and which if realized would be injurious to Britain itself. But by then the necessity for the interposition of the government has become too evident to admit of any further inaction.

These repeated expressions of reluctance overcome by the necessity to protect Māori make it clear that British priority was for Māori and that intervention was not seen, as some have argued, as equally a duty owed to British settlers. Rather the British purpose was, as Glenelg told parliament in March 1838, to protect the natives of the country and the British settlers consistently with the interests of the natives.

Early drafts of the instructions painted an unfavourable picture of most British settlers in New Zealand. They were said to be, for the most part, people of disorderly habits and profligate character who were likely if unchecked to exterminate Māori and become the nucleus of piratical adventurers, dangerous to the peaceful commerce of all nations in the southern hemisphere. Although the instructions recognized that settlers would benefit from civil government and that Britain's own national wealth and power would be boosted by annexation because New Zealand offered such good prospects for successful colonization.
It's clear that these ends could be promoted only because they were believed to be reconcilable with the overwhelming object of protecting Māori.

Analysis of context

This belief has to be seen in the context of what was then expected. It's most unlikely that it was envisaged that the European population would reach even the 30,000 it obtained by 1852 or that a form of responsible government would devolve on settlers by that time. In 1840, New Zealand was expected to be a colony of a few maritime settlements focused on whaling, timber, and some agricultural, but not pastoral farming, that is on crops not livestock.

The Crown's monopoly on the purchase of Māori land would ensure that European settlement did not impact adversely on Māori since only land surplus to Māori needs would be purchased and European settlements would be apart from the lands occupied by Māori, which brings me on to property. The Colonial Office consistently treated Māori as owners of land.

Normanby's instructions referred to Māori title to the soil as indisputable. In instructing Hobson to negotiate for a right of Crown pre-emption and in referring to the lawful acquisitions of land already made by British subjects in New Zealand, they assumed proprietary rights capable of being alienated. There are many references in the pre-1840 Colonial Office record which acknowledge either Māori property in the soil or the proprietary rights acquired from them by British subjects.

No one, not the New Zealand Company nor any of the witnesses to the 1838 House of Lords Select Committee on New Zealand took a different view. With this background and with the heightened concern in London and New Zealand about Māori land losses, it's not surprising that the Treaty contained a guarantee of Māori proprietorship in the fullest terms. As a US Senate Committee on Foreign Relations looking into one of the old land claims was to later say, the guarantee of full, exclusive, and undisturbed possession is as clear an expression of perfect ownership as could be devised.

Additionally, the Preemption Clause of Article II referred to Māori as proprietors. James Busby, the British resident who drafted Article II for Hobson, later said that Article II confirmed title to land in the fullest sense which language could convey, so a similar judgment to that of the US Senate Committee. Before the Treaty was received in London, James Stephen had made it clear that contrary to the approach taken by the United States Supreme Court in the case of Johnson and Macintosh, which by now the New Zealand Company was invoking as representing common law doctrine, imperial law and practice did not treat Aborigines as mere possessors of the soil on sufferance of the sovereign.

British law was, said Stephen, far more humane and required crown purchase before the crown could grant to settlers. After the Treaty was received in London, Stephen was dismissive of the idea, again as proposed by the New Zealand Company, that reserving to Māori 1/10 of their own property out of the sale of lands could be characterized as virtuous and liberal, as he said some writers convert a highwayman into a hero. Stephen considered that dealings with Māori over land should embody and recognize the great cardinal principle that the lands are not ours, but theirs, that we have no title to them, except such as we derive from purchase.

The ‘Wastelands’ question

This brings me to what's known as the wastelands question. The wastelands question of whether Māori owned unoccupied lands or whether they were domain lands of the crown didn't arise until December 1842 when the New Zealand Company suggested that the crown should make grants to it of unoccupied lands without first purchasing them from Māori. The controversy was to cast a long shadow. But the consistent Colonial Office response before 1846 was that the extent of Māori property could be determined only by an inquiry into Māori custom.

It was not to be resolved by an inquiry into-- sorry. It was not to be resolved by inquiry into what lands were or were not occupied. In 1844, Stanley instructed Governor Fitzroy that the suggestion that Māori rights to land could be restricted to those actually occupied for cultivation was wholly irreconcilable with the large words of the Treaty of Waitangi. The Colonial Office position was never more clearly expressed than in Lord Stanley's speech to the House of Lords in July 1845.

While Stanley accepted that there might be some districts wholly waste and uncultivated-- although he thought they'd be few in number in the North Island-- with respect to the greater portions of New Zealand, he strongly maintained that the limits and rights of tribes are known and decided upon by native law and custom. This is what he told the House of Lords.

"That law and that custom are well understood among the natives of the islands. By them we have agreed to be bound. And by them we must abide. These laws, these customs, and the right arising from them on the part of the crown we had guaranteed when we accepted the sovereignty of the islands. And be the amount at stake smaller or larger so far as native title has proved, be the land waste or occupied, barren or enjoyed, those rights and titles the crown of England is bound and honoured to maintain. And the interpretation of the Treaty of Waitangi with regard to these rights is that except in the case of the intelligent consent of the natives, the crown has no right to take possession of the land. And having no right to take possession of the land itself, it has no right. And so long as I am Minister of the crown, I shall not advise it to exercise the power of making over to another party that which it does not itself possess."

Finally, and for many, well, certainly most topically and most importantly, British sovereignty and tribal government. The English draft of the Treaty of Waitangi contains no explicit recognition of Māori self-government and custom. The preamble refers to the benefits Māori as well as British settlers will obtain from laws and institutions.

Article III is capable of meaning that Māori under the Treaty became British subjects. These circumstances are often pointed to and supported the view that with sovereignty, British government and laws superseded Māori political organisation and custom. In my book, I discuss how the general practice in empire before 1840 was to accommodate native systems of government and law under British sovereignty referring to the likes of Upper Canada, West Africa, and the Cape Colony.

I also make the argument that the sovereignty ceded in the Treaty was the same sovereignty declared to belong to the Confederation of the United Tribes by the Declaration of Independence 1835. That sovereignty was the functions of government-- that phrase, functions of government, was translated as kāwanatanga in the Declaration of Independence-- the functions of government necessary, again in the words of the Declaration, for the dispensation of justice, the preservation of peace and good order, and the regulation of trade.

Beyond these power-- sorry, beyond these objects, the powers of confederation did not affect tribal authority or independence. So if the sovereignty ceded to the Confederation in the Declaration was the sovereignty ceded to the British crown in the Treaty, there's no necessary inconsistency between the cession of sovereignty or kāwanatanga in Article I and the guarantee of Tino Rangatiratanga in Article II, language which Busby did not take issue with when he reviewed Henry Williams's Māori translation on the morning of 5, February 1840.

Post-1840

Indeed, only a few months after the Treaty was signed, Busby told the legislative council of New South Wales that Rangatiratanga was the closest Māori equivalent for the English word independence. In a later English Beck translation of the treaty in Māori, Busby also rendered Article II as guaranteeing full chieftainship and to the chieftains and nations, their dignities, offices, and properties. Accordingly, Busby said there was no inconsistency between the English and Māori texts of the Treaty.

On this view, the Treaty continued what the Declaration had begun. It provided a government capable of exercising the federal governmental power which the chiefs had recognized to be necessary in 1835. In Busby's pre-1840 plan, there was to be no interference with the rights of the people individually or collectively, except as necessary to secure the objects of confederation. If as seems reasonable to infer, Busby regarded the paramount authority acquired by Britain is similarly delineated by the objects of intervention, themselves the objects that promoted confederation, that was a view later expressed by William Martin, the former Chief Justice of New Zealand, in 1860.

This was in writing in opposition to what the government was doing in Taranaki. Martin treated sovereignty, kāwanatanga, and governorship as identical and as amounting to such rights as were necessary for the government of the country and for the establishment of the new system. This governorship, he said, was a thing previously unknown to Māori, which was in some degree defined by reference to its object of-- and here he quoted from the preamble of the Treaty-- averting the evil consequences which must result from the absence of law.

Martin wrote, 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. Perhaps the most compelling evidence that the Treaty was understood to leave undisturbed intratribal government, except in the matters of law and order for which sovereignty had been ceded, is found in the explanations given at the Treaty signings or recorded in the accounts left by witnesses.

Hobson reported that he had assured the chiefs that their standing amongst their tribes would not be affected by British sovereignty. That assurance is confirmed by the Catholic missionary, Father Catherin-Louis Servants report that the Treaty involved the chiefs giving Hobson authority to maintain good order and protect their respective interests while preserving to them their powers. Major Thomas Bunbury, who Hobson sent around New Zealand on HMS Herald to collect signatures to the Treaty, agreed with the Ngāti Kahungunu chief, Te Hāpuku, at the Hawke's Bay that the literal effect of the Treaty was to place the queen above the chiefs, as they were over their tribes, but said this was only to enable the queen to enforce the execution of justice and good government equally amongst her subjects and that it was not the object of her Majesty's government to lower the chiefs in the estimation of their tribes.

Felton Matthew writing of the Treaty signing at Waitangi-- so this is Hobson's colonial surveyor writing in his journal-- wrote the chiefs in agreeing to cede the sovereignty of their country and in throwing themselves on the protection of the queen had nevertheless retained full power over their own people remaining perfectly independent. He commented on the stipulations the chiefs had made for the preservation of their liberty in perfect independence and expressed the expectation that if Māori didn't disappear as a result of colonization, they might in after centuries become an enlightened and powerful a nation as we are ourselves.

The New Zealand Gazette, the mouthpiece of the New Zealand Company, regarded the Treaty as a union or a confederation between a civilized and a savage state by treaty. Because of continuing anxiety among Māori about the protection of custom, Hobson's circular letter of 27, April 1840 promised Māori that the governor will ever strive to assure unto you the customs belonging to the Māori. Similar assurance was given by his deputy, Willoughby Shortland, at Kaitaia.

He told the chiefs that Hobson had been sent to protect them from lawless white men. And the queen would not interfere with their native laws nor customs. All this suggests that the implications of the English text were understood in the same sense as the division between kāwanatanga and Rangatiratanga in the Māori text. On this view, Rangatiratanga refers to independence in internal affairs leaving kāwanatanga or sovereignty defined and limited, as William Martin maintained, by reference to its object as applying to foreign relations, justice, peace and good order, and trade.

In the Colonial Office, James Stephen did not treat plurality in government and law as inconsistent with British sovereignty in New Zealand. That's clear from instructions he drew up for Normanby and Russell. Both were structured to deal separately with Māori and settlers. That is Māori were not treated as objects of government in the same way as settlers. Russell's instructions were consistent with the retention by Māori tribes of their laws and institutions not inconsistent with British sovereignty.

They did not authorize interference with Māori tribal organization and custom beyond preventing intertribal warfare, facilitating resolution of intertribal disputes, and punishing crimes that were mala en se, evil in itself, at least in areas of British settlement or cross-racial cases. In Russell's instructions, Hobson was directed to establish and maintain friendly relations with the tribes now to be connected with us, language more indicative of alliance than of subjection.

Subsequent dispatches from the Colonial Office confirmed the policy of acceptance of Māori custom. Lord Stanley made clear to Acting Governor Shortland in June 1843 that there is no apparent reason why the Aborigines should not be exempted from any responsibility to English law or English courts of justice as far as respects their relations and dealings with each other. Except where custom conflicted with the universal laws of morality, Māori could be permitted to live amongst themselves according to their national laws and usages, as is the case with Aboriginal races in other British colonies.

In December 1843, James Stephen expressed impatience at what he called the legal pedantry that subjection to British sovereignty and subjection to English law are convertible terms. It matters purely and to say, purely between themselves, including the definition and punishment of crimes he considered that Māori should be free to live under their own law, as was the case, he said, in Ceylon, India, and Canada.

In 1846, Stephen deprecated interference with Māori custom, writing to Under Secretary Littleton that it had been a great error not to follow the opinion first maintained on the foundation of the colony by Lord John Russell and afterwards maintained by Lord Stanley that Native customs should be respected and there should be no attempt to govern Māori in their relations with each other, except to prevent war and inhuman practices.

Ko te whakarāpopoto | Conclusion

So by way of conclusion, what went wrong? The Treaty and original understandings of its effect came to be eclipsed in politics and law after 1846. That's because arguments originally put forward by the New Zealand Company came to dominate New Zealand law and history. That's despite their having been repudiated by the Colonial Office before representative government and having been contested throughout the 19th century by those involved most closely with the Treaty and the setting up of the New Zealand legal order.

In the end, there were a combination of unstoppable forces, including the retreat of humanitarianism and the rise of racism in Britain and its empire, the conferral of representative and then responsible government on so-called white settlement colonies, like New Zealand, the trend of legal thought away from pluralism, and above all, the tsunami of British emigration to New Zealand, which could not have been anticipated in 1840 and was a phenomenon of the 1850s onwards.

Those original understandings, however, in my view, represent a road not taken by us as a nation, but which could yet be. Thank you very much.

Pātai | Questions

Tanja Schubert-McArthur: Thank you very much to Ned for this amazing talk. And I think it's a really hard task to summarize your book in a 40-minute talk. So well done, you.

How did you come up with the title for the book?

Tanja Schubert-McArthur: While you formulate your questions, I might just start off with one that I had. And that is that, the title of your book is actually quite misleading because you are talking about much more than just the English text of the Treaty of Waitangi. It's really a comparative history of colonialism, the treatment of Indigenous people, and British crown engagement around the world.

So how did you come up with the title? And how much research went into it?

Ned Fletcher: That's a great question. Thanks, Tanja. The simple answer is that the editor wisely came up with the title. The book is about the English text of the Treaty of Waitangi and what it meant to those who framed it. So I guess if I were trying to defend the title, I'd say that it pretty much delivers on what it says on the can(?). However, you're absolutely right. It's not just about the text. It's also about the context.

And I very much believe that meaning or understanding comes from seeing text in context. So while I think there is more to be gleaned from textual analysis and perhaps we have assumed in the past the focus of the book, as you've said, Tanja, is very much on context. And really as I got more into the topic, really what I came to figure out was how much context there was.

There were really sort of four key elements to it. The need to look closely at the people who had a hand in drafting the Treaty, whether that was directly or indirectly. So really do biography by looking at their backgrounds, their experience, their knowledge of New Zealand, their world view. And then secondly, looking at the ideas and forces that were shaping Britain and its empire in 1840. And then thirdly, looking at Britain's history of dealings with Indigenous peoples in other parts of the empire, especially in the areas of sovereignty, property, and law.

And so that's a key focus of the book. And finally I guess is just all the nitty gritty of the steps by which in 1830 Britain decided to send Hobson to New Zealand to negotiate for sovereignty, the drafting of his instructions, and then the debates, often quite violent debates, over Māori sovereignty and property in New Zealand, and Sydney, and in London before and after 1840. So it's all of that which has come together in trying to answer that simple question. What did the Treaty mean to its British framers?

Was the Treaty a regular dinner conversation in your house?

Tanja Schubert-McArthur: Thank you. That would have been a long journey as well doing the research I can imagine. Could you also speak a bit about your upbringing and what got you interested in this kaupapa. Was the Treaty a regular dinner conversation in your house?

Ned Fletcher: Well, you're alluding, Tanja, to the fact that my mother, Sian Elias, was involved in a lot of the Treaty claims and litigation in the '70s, '80s, and beyond until she became a judge. And then as a judge, much of what she did were treaty cases of one sort or another. So yeah, I very much did grow up in a household where that was the dinner table conversation. And I guess I lived as a child the highs and the lows of that litigation with my mother.

As I remember it, there were more lows than there were highs actually. But there was probably least discussion about the history component of that than you might imagine. And embarrassingly, like too many New Zealanders, I didn't study New Zealand history at school or even at an undergraduate history degree. And it was only because I did a master's thesis on the bringing of English law to New Zealand that I stumbled upon this. And that sort of set me on what's been a 20-year journey, I guess, to the book's publication.

What surprised you the most during your research?

Tanja Schubert-McArthur: Fantastic. What surprised you the most during your research? And we seem to have a national narrative about the signing of the Treaty that's quite oversimplified. But how does this need to be revised perhaps?

Ned Fletcher: Yes, I guess it'd be clear from what I've said before that I don't think that the view that has really hold sway in our history since Ruth Ross published her amazing article in 1972-- so that's 50 years-- that the two texts don't reconcile and that sovereignty isn't compatible with Rangatiratanga. I just think that is a mistake. And so obviously, I'd like to see that revised.

In terms of what surprised me in the research, I'm not sure there was anything really in particular. I was a bit surprised how much I enjoyed and learnt from researching land issues to see, to understand that my topic really was a topic in the history of ideas and that there was a lot of argument shaped around the case law of the United States Supreme Court about the land titles of its own Indian tribes. So that was an interesting discovery. And also, how much debate there was in Sydney about the validity or invalidity of the pre-treaty settler land purchases.

So in mid-1840, there was no bigger topic of debate in Sydney than Governor Gipp's land claims bill. The newspapers were literally full of reporting verbatim the legislative council debates. And I suppose if I'm just picking one discovery that I enjoyed in the book, it was Busby's happened to be in Sydney when these debates were occurring and got leave to address the legislative council. And it was in the course of that presentation in answering a question from Bishop Broughton that he was asked, do Māori have a word for independence? And that's when he said, well, if they do, it's Rangatiratanga, which struck me as fairly significant from an author of the Treaty.

Why wasn't the way land would be resold to settlers explained to the chiefs?

Tanja Schubert-McArthur: Thank you. And we have some comments online coming in as well. So I'll read out this question.

Along with the reasons quoted for British intervention, Normanby also noted that quote, "It can no longer be doubted that an extensive settlement of British subjects will be rapidly established in New Zealand", unquote. He enjoyed Hobson to use preemption to buy Māori land at an exceedingly small proportion to the price for which the same lands will be resold to the settlers. The proceeds after expenses will be applicable to the charge of removing immigrants from Britain to New Zealand. None of this was explained to the chiefs at Waitangi. Why does your interpretation ignore this? A really long one.

Ned Fletcher: Yeah, no, another great question. And the book, I hope, I think, does deal with parts of that. Well, what was understood by extensive settlement in 1839, 1840, I mean, the settler population of New Zealand at that time was 2,000 people tops. Lord Melbourne, the Prime Minister, thought anyone would be mad to want to emigrate to New Zealand. Do we think that the 30,000 that the population got to in 1852 is extensive?

30,000 was a settler population that could be accommodated with the Māori. The problem came in the 1850s and 1860s with a tsunami of British immigration that couldn't be anticipated. So to take a different sort of example, the whole population of the Australian colonies by 1840 after-- I don't know what that is-- 70 plus years of settlement was only 200,000. But within a couple of decades was up well over a million. And the same explosion of population was experienced in New Zealand. So 1852, only 20,000 or 30,000 settlers. By 1858, parity with the Māori population. By the 1860s, over 200,000. By the 1870s, over 300,000.

Preemption was-- oh, one point before that. You also have to bear in mind the type of settlement that was envisaged. I argue in the book that Britain imagined that New Zealand would be a series of coastal settlements focused on agriculture to a limited extent, and whaling, and timber, and flax. So that it wouldn't be necessary for the settlers to have such large landholding as to bring them into contact with Māori.

But also, pre-emption was seen, crown pre-emption, as a mechanism for ensuring that the two populations could be kept apart because only land that was truly surplus to Māori need would be purchased. So I hope that's some sort of answer.

Is it fair to blame the New Zealand Company and commercial interests for our current state of discord?

Tanja Schubert-McArthur: Thank you. Here is another good question. Is it fair to blame the New Zealand Company and commercial interests for our current state of discord?

Ned Fletcher: Well, every book needs a baddie. And so in my book, that's the New Zealand Company. I think their intellectual legacy is more important than actually perhaps anything that they did on the ground in New Zealand. I think it could be a great study in itself. But many of the ideas that they promoted that the Colonial Office until 1846 rejected took hold in New Zealand politics and law later. And in part that's because some of the officials and judges who promoted those ideas had worked for the New Zealand Company.

So to give an example, Henry Chapman, who along with William Martin was one of the early Supreme Court judges of New Zealand. Yeah, I think blame can be thrown their way for sure.
So we might open up questions from the floor now. If you do have a question, please put your hand up. And the mic will come to you.

Can you talk about the spheres in which British law would apply, the spheres in which Māori law would apply, and the permeability between those two?

Audience member: Thank you, Dr. Fletcher, for an illuminating talk. Clearly a lot of work has gone into the text. And we're all beneficiaries of that. I had a question I think that relates back to the geographic imagination of those who were involved in the Treaty process.

And so I was wondering if you could speak a little bit more about the permeability between any areas of the settled government and civil control and maybe areas that would have remained more under Māori authority. One could imagine a tollbooth or a type of border. So it's just the question of the spheres in which British law would apply, the spheres in which Māori law would apply, and the permeability between those two? Thank you.

Ned Fletcher: What a great question and a nice phrase to geographical imagination. I wish I could take a few minutes to reflect on the question. Obviously, there would be no hard borders. And it could well be that you would have Māori living in British settlements. And British law, English law, might apply to them in a different way from Māori who were living within their own tribes traditionally.

So I think a lot of these things would have just had to have been navigated and indeed were navigated. My book doesn't look at all at what actually happened on the ground in the 1840s and beyond. But as I hope I've sort of made clear in the talk, this was not an unknown phenomena in other parts of the empire. Britain was quite used to a situation where under British sovereignty Indigenous peoples would continue to be self-governing, but that there might be situations in which colonial government applied to them.

So in a New Zealand context, intertribal war would be completely ruled out. Disputes between tribes would need to be mediated by the government because each tribe was ceding by the Treaty their control over foreign relations. And if crimes were committed that were mala en se, then those could potentially be prosecuted by the colonial government. But even then it might depend whether the crimes were committed in areas of British settlement or in relation to a settler.

Tanja Schubert-McArthur: Do we have any other questions from the auditorium? That might be the final question.

How does the Magna Carta come in there when we look at the Treaty, when we're supposed to be giving everybody human rights?

Audience member: In terms of the self-government role, and like you said, letting the Māori majority look after themselves, how does the Magna Carta come in there when we look at the Treaty, when we're supposed to be giving everybody human rights?

Ned Fletcher: Right, that's a great question too. Well, Article III can be interpreted and probably should be interpreted as Britain also giving Māori the rights and privileges of British subjects and British subject status. So what was being promised was those benefits in addition to the benefits of being Māori and being able to continue to be independent to the largest extent possible. So the Magna Carta is part of the inheritance of Māori New Zealanders through the Treaty too.

Tanja Schubert-McArthur: It's been my great pleasure to facilitate and “ngā mihi nui ki a koe, e Ned”

---

Any errors with the transcript, let us know and we will fix them. Email us at digital-services@dia.govt.nz