November 2014 Māori Law Review

He Whakaputanga me te Tiriti: the Declaration and the Treaty – sovereignty in February 1840 – comment

He Whakaputanga me te Tiriti: the Declaration and the Treaty

Waitangi Tribunal (Wai 1040, 2014)

Professor David V Williams looks at the Waitangi Tribunal's report about the meaning of the Treaty of Waitangi in February 1840 when it was first signed: He Whakaputanga me te Tiriti: the Declaration and the Treaty.

Download He Whakaputanga me te Tiriti: the Declaration and the Treaty here.

Overview and result

Te Paparahi o Te Raki inquiry district comprises all territories north of Auckland not yet the subject of a prior Waitangi Tribunal historical report (Te Roroa, Kaipara and Muriwhenua).

Hapū of Ngāpuhi predominate in this region and many dozens of Ngāpuhi claimants and groups or clusters of claimants, together with a number of other claimants, were represented in the first stage of the inquiry.

In a departure from previous practice, the Tribunal agreed to a stage 1 process comprising five weeks of hearings from 10 May 2010 to 24 February 2011 devoted exclusively to determining the meaning and effect of four documents:

  1. He Whakaputanga o te Rangatiratanga o Nu Tireni first agreed to by a number of Ngāpuhi rangatira on 28 October 1835;
  2. The English language text known as the Declaration of Independence of New Zealand drafted by the British Resident Busby prior to he Whakaputanga;
  3. Te Tiriti o Waitangi adhered to by a number of Ngāpuhi rangatira at Waitangi on 6 February 1840, at Waimate on 10 February and at Mangungu on 12 February; and
  4. The English language text known as the Treaty of Waitangi that came to be accepted as the official English text and now appears in the schedule to the Treaty of Waitangi Act 1975.

This report is the Tribunal’s response to the exhaustive consideration of those texts in oral testimony, historical analysis and legal submissions put to it during the stage 1 hearings.

There was a wide range of evidence, and many somewhat conflicting threads within the evidence given and the submissions made, yet the Tribunal came to a number of clear and unambiguous findings. Its most significant conclusion was stated in these words (at 10.4.4):

Our essential conclusion, therefore, is that the rangatira did not cede their   sovereignty in February 1840; that is, they did not cede their authority to make and enforce law over their people and within their territories. Rather, they agreed to share power and authority with the Governor. They and Hobson were to be equal, although of course they had different roles and different spheres of influence. The detail of how this relationship would work in practice, especially where the Māori and European populations intermingled, remained to be negotiated over time on a case-by-case basis. But the rangatira did not surrender to the British the sole right to make and enforce law over Māori. It was up to the British, as the party drafting and explaining the treaty, to make absolutely clear that this was their intention. Hobson’s silence on this crucial matter means that the Crown’s own self-imposed condition of obtaining full and free Māori consent was not met.

This conclusion may seem radical. It is not. A number of New Zealand’s leading scholars who have studied the treaty – Māori and Pākehā – have been expressing similar views for a generation. In that sense, our report represents continuity rather than change. Moreover, the conclusion that Māori did not cede sovereignty in February 1840 is nothing new to the claimants. Indeed, there is a long history of their tūpuna protesting about the Crown’s interpretation of the treaty. We will examine the history of that protest, and its significance for the treaty claims of northern Māori, in stage 2 of our inquiry.

And again (at 10.5):

Though Britain went into the treaty negotiation intending to acquire sovereignty, and therefore the power to make and enforce law over both Māori and Pākehā, it did not explain this to the rangatira. Rather, in the explanations of the texts and in the verbal assurances given by Hobson and his agents, it sought the power to control British subjects and thereby to protect Māori. That is the essence of what the rangatira agreed to.

Less publicised in news media reports of the Tribunal’s findings, but of crucial significance to most of the Ngāpuhi claimants, were the findings on he Whakaputanga (at 10.2):

In summary, then, he Whakaputanga was a declaration by rangatira in response to a perceived foreign threat to their authority, in which they:

  • emphatically declared the reality that rangatiratanga, kīngitanga, and mana in relation to their territories rested only with them on behalf of their hapū;
  • declared that no one else could come into their territories and make laws, and nor could anyone exercise any function of government unless appointed by them and acting under their authority;
  • agreed to meet annually at Waitangi and make their own decisions about matters such as justice, peace, good order and trade involving Europeans and Māori-European relationships in their territories;
  • acknowledged their friendship with Britain and the trading benefits it brought; and
  • renewed their request for British protection against threats to their authority, in return for their protection of British people and interests in their territories.

To those rangatira who signed, none of this – including the agreement to meet annually – would have implied any loss of authority on the part of either themselves or their hapū, or any transfer of authority to a collective decision-making body. Rather, he Whakaputanga was an unambiguous declaration that hapū and rangatira authority continued in force – as, on the ground, it undoubtedly did – and that Britain had a role in making sure that state of affairs continued as Māori contact with foreigners increased.

Discussion

This report differs considerably from the tenor and content of most of the Tribunal’s historical claims reports. It is ‘a contextual report, not a report into claims’ (at 1.4.1).

Since 1975, s 5(2) of the empowering statute requires of the Tribunal in exercising its functions that it ‘shall have regard to the 2 texts of the Treaty set out in Schedule 1 to this Act and, … shall have exclusive authority to determine the meaning and effect of the Treaty as embodied in the 2 texts and to decide issues raised by differences between them.’ Earlier Tribunal reports (discussed at 8.3.1) have touched upon such issues but this report is vastly more comprehensive in its approach. The result is a massive document comprising some 534 pages of text and detailed footnotes plus further pages of appendices. The Tribunal’s findings in response to lengthy legal submissions from claimants and the Crown of course feature in the report. However significant and somewhat original features are its thorough analysis of the published writings of academic historians, and also in the amount of emphasis given to the oral traditions testimony of Ngāpuhi claimants concerning he Whakaputanga and te Tiriti.

After the brief introduction of chapter 1, chapter 2 ‘Two Peoples, Two Worlds’ canvasses Te Ao Māori traditions of the claimants’ forebears and then aspects of the British World from Cook’s voyaging instructions to being British in the mid-eighteenth century. On the latter topic, emphasis is given to a definition of ‘sovereignty’ in the British constitution as understood by William Blackstone whose influential Commentaries were first published in 1765: ‘a supreme, irresistible, absolute [and] uncontrolled authority’ lodged in Parliament (at 2.3.4). Chapter 3, a narrative entitled ‘From Encounter to Alliance’, traverses the history of Ngāpuhi encounters with European voyagers then traders from 1769, early Ngāpuhi visits to New South Wales, Norfolk Island and England, and then the arrival of Busby as British Resident and the selection of a national flag in the early 1830s. Considerable emphasis is given to the oral and written history of the visit by Hongi to London and Cambridge in 1820 - including his lengthy meeting with King George IV. The next chapter concerns he Whakaputanga and the Declaration of 1835. It departs dramatically from the usual emphasis on the role of Busby and his disappointment that an annual congress for national law-making never eventuated. Rather, he Whakaputanga is situated within a narrative of hapū autonomy and a history of inter-hapū hui over many years both before and after 1835. As the report put it (at 4.7.1):

Busby may have brought the ideas to the table, and indeed drafted the original text. But it was ultimately not his declaration. The English text can therefore provide evidence about the meaning of he Whakaputanga but, where the two texts diverge, the Māori text must be seen as authoritative. In this respect, it is unfortunate that the English text has shaped New Zealanders’ understandings of he Whakaputanga for so long.

Chapter 5 entitled ‘Contested Ground’ provides an account of the social, economic and political context of Te Paparahi o Te Raki in the 1830s including population decline, rangatira as entrepreneurs, Māori engagement with missionaries and Christianity and the pursuit of literacy. Then the Tribunal turns its attention to ‘The British Move towards Annexation’. This begins with the unsuccessful efforts of what became the New Zealand Company to win government endorsement for organised British settlements and anti-settlement lobbying by the missionary societies. It then describes the evolution of Colonial Office policy that concluded with the appointment of and instructions to Hobson as Consul and Lieutenant-Governor of a dependency to be annexed to New South Wales after the intelligent consent of Māori had been obtained to this annexation.

‘The Negotiation and Signing of te Tiriti’ is an exhaustive account of the events at Waitangi, Waimate and Mangungu from 4 to 14 February 1840. The Tribunal is at pains to emphasise the difficulty of reconstructing those events when the record that survives is comprised largely of English language written documents from partisan observers of the kōrero that took place. The Tribunal also discusses the text of a failed attempt of Governor Gipps in Sydney on 12 February to obtain agreement of some southern Māori to a cession of sovereignty. The chapter concludes with a useful analysis (at 7.12) of the many back-translations of te Tiriti into English in 1840, later in the nineteenth century and in the twentieth century.

In chapter 8 the Tribunal provides an excellent summary of ‘Past Perspectives on te Tiriti and the Treaty’. This covers the engagement of scholars with the meaning and effect of the treaty texts and the findings of courts and previous Tribunal reports. It notes the significant influence of Ruth Ross’s article ‘Te Tiriti o Waitangi: Texts and Translations’ which challenged the mid-twentieth century perspectives of most historians and was eventually published in 1972:

[This one particular article] stands as probably the single most important interpretive advance on the subject in modern times. Ross argued that, far from the solemn and far-reaching blueprint for the nation’s development it was often portrayed to have been, the treaty transaction was characterised by confusion and undue haste. She made the important observation that sovereignty was translated by Henry Williams in a different way from his translation of ‘all sovereign power and authority’ in the declaration only a few years previously. She concluded that the Māori text was the true treaty and that what mattered was how it had been understood here, not what the Colonial Office had made of the English text(s) in London. Her rigorous empirical examination of the original documents exposed the unquestioning acceptance of myths about the treaty by an earlier generation of scholars. And she left her contemporaries with the uncomfortable realisation that a reliance on what was said in the English text alone was no longer intellectually honest.

As well as her influence on a range of other scholars in the decades to come, Ross’s article had perhaps an even more important impact. It was a catalyst for the inclusion of the Māori text in the schedule to the Treaty of Waitangi Act 1975, as well as the authority given to the Tribunal in section 5(2) of the Act …  Indeed, the third Labour Government’s Caucus Committee on Māori Affairs referred to Ross’s article in its reports of 1973 and 1974 on implementing the Labour Party’s manifesto promise to legally recognise ‘the principles set out in the Treaty of Waitangi’.

Chapter 9 moves to claimant and Crown evidence and submissions made during Te Paparahi o Te Raki hearings. As indicated above, this chapter and chapter 10 (‘Conclusions’) include a rigorous inquiry into Māori understandings of te Tiriti and the oral debates as presented from an oral history perspective by a number of eminent Ngāpuhi elders. The Tribunal noted (at 9.4.2) Crown counsel submissions that ‘there was no reliable documented evidence to support’ some of this oral history. It concluded (at 9.5):

In this chapter, we have related the claimants’ evidence, which included some understandings of the meaning of te Tiriti and the circumstances of its signing not previously known outside tribal communities. We are grateful to the claimants for sharing their traditions with us. We were impressed by the retention of this kōrero tuku iho, and the commitment by the claimants to the take handed down to them by their tūpuna. We noted the variation of emphasis in the evidence from hapū to hapū, as one might expect, but were made well aware of the common understandings across all claimant groups. Principal among these was, of course, that Māori did not cede their sovereignty or their mana through te Tiriti in February 1840.

In its concluding chapter the Tribunal made it clear that in its view British intentions concerning a cession of sovereignty and a monopoly right of the Crown to purchase any land Māori wished to sell had not been explained by Hobson and the missionaries to Ngāpuhi who signed te Tiriti. The report states (at 10.4.2):

We think that few if any rangatira would have envisaged the Governor having authority to intervene in internal Māori affairs – though many would have realised that where the populations intermingled questions of relative authority would need to be negotiated on a case-by-case basis, as was typical for   rangatira-to-rangatira relationships. It is significant that, while the British intended to acquire sovereignty, meaning the power to make and enforce laws over all, this was not what Hobson explicitly had sought. The debate was characterised by his emphasis on protection and a Māori concern that the Governor would not have authority over them. …

Our view is that, on the basis of what they were told, the signatories were led to believe that Hobson would be a rangatira for the Pākehā and they would retain   authority within their own autonomous hapū.

Comment

The Tribunal’s essential conclusion quoted at the outset was met, as might be expected, with a flurry of indignant contributions to news media and blogs along the lines that New Zealand needs to move into the 21st century and stop always looking backwards (and being so backwards). Government ministers indicated that as of now there is no question that the Crown does indeed have sovereignty in New Zealand and that the Tribunal report does not change that fact.

Yet the report may not settle even the matters of history that it had attempted to cover concerning the meaning and effect of te Tiriti and the Treaty.

The problem with any Tribunal report is that it must respond to the issues as put before it. The Crown was most concerned to argue that ‘sovereignty’ of the Blackstonian variety had indeed been ceded to the Crown by Māori in 1840. Claimants were totally determined to argue that no such cession had taken place and that the Crown and its representatives deliberately failed to explain the full implications of a Blackstonian version of sovereignty being imposed on New Zealand and deliberately misled Māori in the text of te Tiriti.

But there are other historical possibilities and they were adverted to in the Tribunal hearings. At least two sets of legal submissions did offer the perspective that all the British sought was the ‘power merely to impose a jurisdiction on British subjects’. This would be entirely in keeping with the contemporary British acquisition of ‘quasi-sovereignty’ in places such as India and West Africa (Afeaki and Sharrock at 9.4.1) or might be a ‘dual or shared sovereignty’ (Tauwhare at 9.4.2).

Moreover the Blackstonian definition of parliamentary sovereignty offers us no explanation at all for the fact of divisible British sovereignty and plurality of laws found in numbers of British colonies in the decades immediately prior to 1840.

As it happens, in the very week the Tribunal report was released a PhD thesis was completed at the University of Auckland: A praiseworthy device for amusing and pacifying savages? What the framers meant by the English text of the Treaty of Waitangi. Ned Fletcher’s thesis comprises 1109 densely argued pages based on extensive archival research. His conclusions radically challenge the Ross orthodoxy followed by the Tribunal. The thesis abstract reads:

The thesis addresses the meaning of the English text of the Treaty of Waitangi to those who had a hand in framing it. By “English text” is meant the English draft from which the Treaty in Maori was translated. Despite all the scholarship concerned with the Treaty, the English text has been comparatively neglected. Its meaning has variously been treated as self-evident or irredeemably ambiguous, and therefore unrewarding as an object of study in itself. Most recent writing has taken the view that the Maori and English texts differ significantly. That has led to some focus on whether the differences were the result of deliberate mistranslation to make the Treaty acceptable to Maori.

This thesis is concerned with the anterior question of the meaning of the English text to its framers. It therefore begins by identifying the framers and reconstructing the English text, which has been treated by some historians as lost and unknowable. The meaning of the English text requires consideration of the text itself (itself a neglected topic) but also of the context in which it was drawn up. That context includes the backgrounds and motivations of the framers and the wider experience of Empire and the currents of thought of the time.

The thesis concludes that the English and Maori texts of the Treaty appear to reconcile. It takes the position that the principal framers, William Hobson, James   Busby, and James Stephen, understood the Treaty in much the same way and that such understanding was one generally shared by contemporaries. That shared understanding was in part because the Treaty followed British imperial practice elsewhere, and in part because the Instructions given to Hobson in the name of the Secretary of State for the Colonies, but almost entirely the work of Stephen, were clear and were faithfully carried out in the English text. The principal conclusions of the thesis are that British intervention in New Zealand in 1840 was to establish government over British settlers, for the protection of Maori. British settlement was to be promoted only to the extent that Maori protection was not compromised. Maori tribal government and custom were to be maintained. British sovereignty was not seen as inconsistent with plurality in government and law. Maori were recognised as full owners of their lands, whether or not occupied by them, according to custom.

The Tribunal report is a truly comprehensive report of Ngāpuhi perceptions and perspectives concerning he Whakaputanga and te Tiriti. There is probably more to be written yet, however, as to the meaning and effect of te Tiriti and its relationship to the English language treaty drafts.

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Author: David V Williams