Review: Good intentions? A treaty text in context

The English Text of the Treaty of Waitangi Nā Ned Fletcher
Review Nā Michael J. Stevens

Loved and loathed, the Treaty of Waitangi is central to New Zealand’s political and constitutional debates. It frames arguments about our past and discussions about our future.

Despite this, most Kiwis continue to know little about the Treaty’s origins, aims, or elements.

Those few who know something of it tend to focus on its two versions, in English and te reo Māori, and the supposed divergences between them. They know much less about the contexts that shaped these texts. Into this situation wades lawyer and historian Ned Fletcher, with a great big book and a great big proposition.

Published by Bridget Williams Books, The English Text of the Treaty of Waitangi is meticulously researched, powerfully reasoned, and beautifully written. It may well indeed shift, as Justice Sir Joe Williams asserts in the foreword, the centre of gravity of our understanding of the Treaty.

Based on his PhD in Law completed at the University of Auckland in 2014, Ned’s interest in the Treaty might be viewed as inevitable: his mother, Dame Sian Elias, acted as counsel for the New Zealand Māori Council in 1987 during the historic Lands case, which thrust the Treaty back into jurisprudential consciousness. Later, as a judge – including a two-decade stint as Chief Justice beginning in 1999 – she presided over several important Treaty-related cases.

However, Ned’s thesis topic appears to have been born out of chance and curiosity. And if there is a pivotal dame, it was the late Judith Binney. Long story short, Ned had hoped to complete an MA on some aspect of the Mexican Revolution, but his plan dissolved when Judith went on sabbatical. His lack of fluency in Spanish also constituted a significant methodological challenge!

Ned’s gaze then shifted from early 20th century Central America to 1830s New Zealand and early attempts to introduce British law within and between resident Pākehā.

The development of the Treaty’s English language text would be a piece of that puzzle. But as Ned poured over records generated by colonial New South Wales and Britain’s Colonial Office, and debates for and against a treaty with Māori, he focused more on the path to the Treaty itself, not that the tighter focus simplified matters.

Ned “upsized” his MA into a PhD. And that doctoral dissertation ran to over 1000 pages. The book is a condensed version of this but is still over 500 pages, excluding appendices, references and the bibliography, which add about another 200 pages. Presented in four parts and 27 chapters, supported with an introduction and conclusion, this is the very definition of a weighty tome. I literally had to recover from hernia surgery before I could read it!

Ned makes three key points early in his book. First, 19th century Britain had no “one imperial policy” by which it ruled its possessions. A diverse empire meant there were diverse types of imperial rule. Legal pluralism was common.

Consequently, and this is his second point, sovereignty did not have a clear fixed and timeless meaning. In Ned’s view, lawyers and legal scholars have misled historians to assume otherwise: that sovereignty can only be absolute and indivisible. This “presentist” understanding has then been read back into the past and distorted that past.

Thirdly, in the 1830s and 1840s, high- ranking British officials and politicians, influential religious figures, and powerful merchants, all had competing visions of empire. Accordingly, they had quite different ideas about what duties, if any, Britain owed to indigenous people within the expanding British World.

What did all this mean for Māori and the New Zealand archipelago in the 1830s? In short, the British Government was torn on whether it should intervene in New Zealand’s affairs. And if so, to what extent, and on what moral and legal basis. It similarly vacillated over possible protection measures for Māori people and property.

This reflected the competing visions of Empire I have referred to, but also changing economic and political conditions at the imperial centre. Ditto those at New South Wales.

Perhaps more than anything, these debates reflected uncertainty over the kind of British colony New Zealand could conceivably become and, quite literally, the place of Māori within that altered state. Was British settlement likely to be limited in terms of demography and geography, or explosive and widely dispersed?

WHAT DID ALL THIS MEAN FOR MĀORI AND THE NEW ZEALAND ARCHIPELAGO IN THE 1830S? IN SHORT, THE BRITISH GOVERNMENT WAS TORN ON WHETHER IT SHOULD INTERVENE IN NEW ZEALAND’S AFFAIRS. AND IF SO, TO WHAT EXTENT, AND ON WHAT MORAL AND LEGAL BASIS. IT SIMILARLY VACILLATED OVER POSSIBLE PROTECTION MEASURES FOR MĀORI PEOPLE AND PROPERTY.

Were hapū facing a few more British bridgeheads or, pun intended, staring down the barrel of a settler colonial society as in North America and parts of the Australian continent?

In the late 1830s, the answers to these questions were unclear. However, the negative consequences of so-called “lawless colonisation” were clear.

The Ngāti Toa capture of Te Maiharanui and sacking of Takapūneke assisted by Captain Stewart and the Elizabeth in 1830 is a case in point. As Ned observes, the then Governor of New South Wales described this shocking event to the Colonial Office as one “in which the character of the [British] Nation was implicated.” The contemporaneous Secretary of State for the Colonies, Viscount Goderich, agreed.

He described the incident, and other outrages committed by British nationals in New Zealand, as casting “shame and indignation” on Britain.

Faced with the prospect of further incidents as well as a private British company seeking to colonise New Zealand, the British Government felt compelled to formally incorporate New Zealand into its empire. Lawful colonisation, it hoped, would be the lesser of two evils.

In the first instance, this formal incorporation was entrusted to the Colonial Office which attempted to regulate settler demand for land and protect Māori from the worst excesses of British settlement.

The Office’s explicit concern for Māori welfare illustrates one of the ways that the prominent humanitarian movement, especially the Aborigines’ Protection Society, sought to safeguard the interests of those who were, in Victorian British parlance, some rungs down the civilisational ladder.

Indeed, a key humanitarian was civil servant Sir James Stephen, who was the Colonial Office’s permanent under-secretary from 1836 until his retirement in 1847.

Ned makes the compelling case that it was the high-minded workaholic Stephen who gave most flavour and form to what became the English text of the Treaty of Waitangi. Less so British resident James Busby and Captain William Hobson whose names are more familiar to New Zealanders.

Ned’s careful reconstruction of Sir James’ concern for Māori, and the ways he sought to preserve Māori interests, speaks directly to one of the book’s greatest virtues: the way it “returns” the British to New Zealand history and historiography, as historian Chris Bayly urged in South Asian contexts. The English Text of the Treaty of Waitangi shows that New Zealand’s colonial history is more coherent when connected to its English-speaking world macrocosm.

OUR PROVERBIAL FOUNDING DOCUMENT HAS BEEN INFLUENCED BY EVENTS AND PERSONALITIES AT STEWART ISLAND AND SYDNEY, WAITANGI AND WHITEHALL, NGAURANGA GORGE AND NEWGATE PRISON, THE SOUTHERN SOUTH ISLAND TOWN OF GORE AND THE SOUTHERN US STATE OF GEORGIA. THIS BOOK DOES THAT COMPLEX STORY JUSTICE.

It is that wider background, combined with events and personalities in 1830s New Zealand, that led to the Treaty. It did not arrive at Waitangi fully formed, but nor did it spring, hermitically sealed, from Pēwhairangi and frontier exigencies. Sure, Hobson and Busby tweaked the Treaty’s final English form, and Busby and CMS missionary Henry Williams were pivotal in translating it into te reo Māori, which is the version most rangatira signed.

However, Sir James is the Treaty’s true parent. Whether or not “Rhodes Must Fall”, let Stephen stand.

To be clear, our proverbial founding document has been influenced by events and personalities at Stewart Island and Sydney, Waitangi and Whitehall, Ngauranga Gorge and Newgate Prison, the southern South Island town of Gore and the southern US state of Georgia.

This book does that complex story justice. It shows that the imperial centre and colonial outposts were not bounded and separate, but instead entangled and mutually constitutive. Ned has heeded the call of the New Imperial History and analysed these pasts within a unified framework, not an insular national one. That said, he also makes a significant contribution to the narrower field of New Zealand historiography. I refer here to his great big proposition, as I termed it earlier: that the English and Māori versions of the Treaty, viewed from a historicist perspective, are not contradictory.

Māori authority was not inherently inconsistent with British sovereignty; the two could co-exist.

As Stephen wrote in an 1843 memorandum, British sovereignty and English law are not synonymous. As with indigenous people in other parts of the British Empire, Māori could be subjected to the former and not the latter. The Crown could assume kāwanatanga and chiefs could retain rangatiratanga.

Now, clearly this did not happen in practice. Why? Simply put, humanitarian power declined and was replaced by a harder-edged, less pluralistic vision of Empire, all of which coincided with a “tsunami of emigration” to British colonies, including New Zealand. In other words, Ned focuses on a very tight time period, roughly 1839-1845, through which he interprets the ambitions that delivered the English treaty text, and the forces that frustrated it.

If this historical interpretation finds support – if scholars, lawmakers and rank-and-file citizens take the idea of reconcilability between the English and Māori Treaty texts seriously – Ned will have upended a long-held orthodoxy.

Established by historian Ruth Ross in the early 1970s, this emphasises the two texts’ incompatibility, around which so much consequent work has been built. Even so, Ned does not slay earlier generations of scholars to find his voice, but instead acknowledges intellectual debts. He usefully extends scholarship by the likes of Trevor Williams, Keith Sinclair, Ian Wards, Peter Adams, Alan Ward and Claudia Orange. And although Ned doesn’t refer to Damon Salesa, I think his excellent 2011 book Racial Crossings: Race, Intermarriage, and the Victorian British Empire can be fruitfully read alongside The English Text of the Treaty of Waitangi.

MANY [19TH CENTURY] PĀKEHĀ SAW THE TREATY AS OFFERING MĀORI SOME PROTECTION FROM FULL ASSIMILATION

…

IN CONTRAST, OTHER 19TH CENTURY PĀKEHĀ SOUGHT TO ALIENATE LAND AND RESOURCES FROM MĀORI WHEREVER, WHENEVER, AND HOWEVER THEY COULD, REGARDLESS OF THE ECONOMIC CONSEQUENCES FOR MĀORI.

But I think the book’s most valuable aspect is the light it sheds on the origins of Pākehā New Zealand’s oldest and most enduring political debate or schism. In my opinion, this is not Left vs Right, Protestant vs Catholic, capital vs labour, secular vs religious, male vs female, or North Island vs South Island – even as those sorts of tensions and their respective movements are very real.

Pākehā New Zealand instead has been – and remains – split over the nature and extent of its obligations to hapū and iwi. This is a foundational divide. There are 19th century Pākehā who sought to only acquire lands and resources that Māori did not directly depend on. These people could accommodate a degree of ongoing Māori authority and culture. They likewise thought Māori should only be “amalgamated” into colonial society with Māori consent, and over a long period of time.

Indeed, many of these Pākehā saw the Treaty as offering Māori some protection from full assimilation. These ideas flowed from the Colonial Office and humanitarian movement. And they persist still among present-day Pākehā who are in favour of, or at least not opposed to, bilingualism, iwi corporations, Treaty settlements and environmental co-management.

In contrast, other 19th century Pākehā sought to alienate land and resources from Māori wherever, whenever, and however they could, regardless of the economic consequences for Māori. These Pākehā could not stomach, and thus actively undermined, Māori authority and culture. They thought Māori should be coercively amalgamated into colonial society, and quickly.

Indeed, if these Pākehā saw any value in the Treaty whatsoever, it was as provision for full Māori assimilation. These ideas flowed from the New Zealand Land Company, which drew heavily on North American logic and practice. And they persist still among present-day Pākehā who are uncomfortable with, or even strongly opposed to, bilingualism and what Tā Tipene O’Regan once termed Māori “collective capitalism”. Ned does not explicitly make this point but, with Louis Hartz’s “fragment thesis” in mind, I found myself reaching these conclusions. That alone made this book a most edifying read.

My only regret is that this book, which has so much to say about our collective past, and perhaps our future, will not be read by more New Zealanders because of its large size. I hope that Bridget Williams Books might be able and willing to rework some of Ned’s research into smaller, more accessible formats. I also agree with Joe Williams that a parallel story, in principle, remains to be told centred on contemporaneous Māori views of Te Tiriti.

The Treaty of Waitangi is clearly a source
of contestation and frustration for many New Zealanders. We should therefore be grateful for books like this, which attempt to replace emotive explanations and ahistorical assertions, with dispassionate descriptions and contextual facts. We should rejoice that when the tītī harvest wrapped up for 2023, The English Text of the Treaty of Waitangi won the General Non-Fiction Award at the Ockham
New Zealand Book Awards.

Dr Michael J. Stevens is the Alternate Representative to Te Rūnanga o Ngāi Tahu for Te Rūnaka o Awarua. He is a self-employed historian working on a number of tribal kaupapa including Te Pae Korako, the Ngāi Tahu Archive.

Opinions expressed in REVIEWS are those of the writers and are not necessarily endorsed by Te Rūnanga o Ngāi Tahu.