Tuesday 9 January 2024

BOOK REVIEW: 'The English Text of the Treaty of Waitangi' - PART ONE: Introduction


WAY BACK IN THE LATE 1830s, these small islands down at the bottom of the South Pacific had eyes on them from the other side of the world. From that distance, it was looking to two parties in particular as “a part of the Australian frontier” that cried out for the conquering. “For it was at once the favourite of the systematic colonisers” (who wished to buy land and have occupied as much of it as they could sell) and at the same time it was also “the favourite of the missionary societies” – who wished to delay colonisation while they imparted to those living here the rudiments of “religious improvement and civilisation.”[1]

The officials at Britain’s Colonial Office eventually recognised that it might be their role to mediate between these two competing “conceptions of Imperialism.” Sympathising with the latter group, yet kicked abruptly into action by the deeds of the former, their solution was a Treaty between their Queen Victoria and the New Zealand natives to whom her uncle had granted his protection four years before. “[T]he real aim” of this Treaty says one historian “was to transfer from individuals and voluntary associations to the Imperial Government the responsibility for the colonisation of New Zealand,” making it their business to “mediate with authority between colonists and natives.”[2]

Until now, the Treaty has been studied primarily in its Māori version, Te Tiriti, with the English text considered to be either lost or “unknowable” or irrevocably irreconcilable with the Māori text. A 2022 book that has been making waves aims to overturn all that. That book, The English Text of the Treaty of Waitangi by Ned Fletcher, is a monumental but worthwhile read.

I made time over the summer break to read it, and I’m glad I did. Thoroughly researched and fully documented, Fletcher’s The English Text of the Treaty of Waitangi is quite simply the new interpretation of the Treaty with which we are all going to have to wrestle -- so it’s as well you get to grips with it as soon as you can.

It shouldn't be a chore. It's a joy to read – and like all books by Bridget Williams Books it is beautifully presented. Some of the author’s turns of phrase are delightful – about James Busby, for instance, we read that he was something of the Mr Micawbers, remaining optimistic throughout his time here as British Resident “that his latest dispatch would convince the Colonial Office to agree with his views, and that vindication would be received with the next mail.” And his eye for a juicy quote is well honed: on the Marquess of Normanby, whose instructions to Hobson formed the basis of the Treaty, Fletcher tells us it was said at his death that he was “one of the men who are clever boys and nothing more. There was, in his early life, a promise of excellence, both literary and political, but the promise has never been fulfilled.”[3] And on those instructions themselves, he says “Trevor Williams was hardly exaggerating when he wrote that Normanby contributed only his signature to Hobson’s instructions.”[4]

The story is worth telling and Fletcher makes it easy to follow. The book’s structure ably leads the reader through the tale of how and by whom (and why) the Treaty was written – Parts One and Two (respectively ‘The British Empire’ and ‘The Path to British Intervention in New Zealand’) give the full context that led to its production; Part Three (‘Making a Treaty’) takes us though its drafting and signing; and Part Four (Contesting the Treaty’) outlines developments since.

He has chapters on the history and developement of the British Empire and the Colonial Office, chapters on “British sovereignty and native government” in Canada, Australia, and other territories comparing threatment and Treaties there, and chapters on post-Treaty debates here and elsewhere that help illuminate what the English text means. All of which are thoroughly documented, well explained, and fascinating – especially important in that it places NZ’s colonisation and Treaty in context with those elsewhere in the Empire and beyond.

To my mind he could usefully have added one more chapter: a historically-based discussion on the development of and the mid-nineteenth century understanding of individual rights and property rights, both so important in understanding the Treaty context – and what exactly the framers would have meant by the word “rights.”

Two points in particular from such a chapter would, in my estimation, have changed his own concluding chapter which he so boldly titles ‘The Meaning of the Treaty’ [emphasis mine]. The first would be the deterioration in the understanding of individual rights, from their high point in the time of the Enlightenment, most especially as they were applied and articulated by John Locke and Thomas Jefferson (neither of whom merit a mention by Fletcher), down to the time of our Treaty when they were already under attack. The second is the consequent confusion (both in his text and the Treaty’s) over invidual and so-called “collective” rights, leaving unclear precisely what rights (and whose) are to be protected. In lieu of this “missing chapter” I’ve added a short section below expanding on those two points.

That said, with 528 pages of text (plus notes and Appendices) his argument seems well buttressed. And for the most part (at least until page 329, see below) it is well made. Since it overturns much previous thinking, it needs to be. In short, what Fletcher argues is that the Māori and English texts do reconcile; and that what was promised to Rangatira in both languages was continuing self-government. The first argument – and it is meticulously litigated -- overturns the scholarship and teaching of more than fifty years; the second emerges more as opinion, and will be much debated in coming years.

FLETCHER IS A SCION OF THE Fletcher family, son of Hugh and former Chief Justice Sian Elias, so his book – the product of a well-earned doctoral thesis -- would undoubtedly have made an impact even if it weren’t the well-researched tome that it is. The story he tells is through the eyes of both the lawyer he trained as, and the historian he became as he wrote it – with “the forensic exactitude I would expect of a Crown prosecutor who is at heart a historian” says Justice Joe Williams - the legal insights allowing him to challenge other historians on ground of which most had either made too little use, or were too unaware. 

What he gives us is a much fuller history of the ideas and people behind the words that were so widely debated around these islands in 1840.

And blinking into the limelight steps the true author of Normanby’s instructions to Hobson, the Colonial Office lynchpin James Stephen – shy, high-minded, highly intelligent, married into the Christian Missionary Society who were already active here, and already accomplished (it is said that it was he who wrote, in just 48 hours, the 1933 Bill outlawing slavery in the British Empire). Fletcher makes plain that it is Stephen, along with Hobson and the aforementioned Busby, who must be recognised as the Treaty’s three undisputed framers. It was the Stephen the intellectual, through his written instructions to Hobson, (over the signature of the then Colonial Secretary the Marquess of Normanby), who was most responsible for

  • the Treaty’s Preamble (recognising and offering protection to the just Rights and Property of Māori, and laws alike to the Native Population and to Her Subjects); 
  • for its First Article (asking that they cede sovereignty so that this might happen); and 
  • for the second half of Article Two (setting out the new government’s monopoly right in purchasing such lands of which Māori chieftains “may be disposed to alienate at such prices as may be agreed upon”).
These were the ideas that the Colonial Office most wished embraced by the signatories, that would allow Consul Hobson to become Lieutenant-Governor Hobson "of such territory that might be ceded" and to ensure Imperial control of colonisation.

It was Busby who took Hobson’s notes based on Stephen’s instructions – declaring them “not calculated to achieve the desired object” – and added what to Stephen's exalted mind might have been implicit but was important to make explicit: the fuller property rights protection in the Preamble and in Article Two (confirming “the full, exclusive and undisturbed possession of their Lands and Estates, Forests, Fisheries and other properties, which they may collectively or individually possess”), and the commitment to Māori in Article Three that they might enjoy “all the rights and privileges of British subjects.”[5]

It was Hobson, Fletcher documents, who brought the full text together again before passing it to missionary Henry Williams and his son Edward (said to have been the ace translator of the Ngapuhi dialect) to translate into Māori for signing.

If New Zealand does have founding fathers on the British side, then these five -- along with “abductor and mystagogue” Edward Gibbon Wakefield, the driving force behind the New Zealand Company – would be leading figures in that Hall of Fame.

Fletcher ably brings out their contributions to what is said to be New Zealand’s founding document. This is among the book’s most valuable aspects, especially so for the as-yet little-acknowledged Stephen.

Important too is both Fletcher’s re-creation on pages 324-25 of ‘THE FINAL ENGLISH TEXT’ and his highlighting, on pages 480-81, of what translator Henry Williams “explained to the Natives” about the Treaty “and how they understood it.”[6] These should become the standard presentations of the English text, usurping more modern, ideologically-influenced translations.

Also notable is his lawyers-eye view of how poorly used and understood American case law was in colonial New Zealand and since. In fairness, the timeliness and accuracy of legal reporting at a time of slow and unreliable communication was not all it could be. But this failure is particularly important it the case of Johnson v M’Intosh ­­ -- oft then and since used to deny underlying Māori rights in land. Fletcher shows convincingly how this case especially was “misapplied to New Zealand circumstances and that their misuse was compounded by selective reading and misunderstandings of their effect.”[7] The ultimate result of this was, perhaps, the infamous 1877 case of Wi Parata v Bishop of Wellington (in which the Treaty was declared a “simple nullity”) and the gradual erosion of understanding of what the Treaty’s property rights protection meant for all New Zealanders.

A related and equally helpful point is his mature discussion (and general demolition) of the relevance to New Zealand law of the doctrine of discovery made famous by Emmerich de Vattel, unaccountably argued for today too often as the basis on which New Zealand was settled. Fletcher gives James Stephen himself the job of demolishing the idea of its influence at this time, Stephen reacting to news of the Treaty’s signing saying it gave proof, “if proof were wanting, how much wiser was the course taken negotiating for a Cession of the Sovereignty, than would have been the course of relying on the proceedings of Captain Cook [i.e., his claims of possession by discovery], or the language of Vattel, in opposition to our own Statute Book.”[8]

So there is much to like. Fletcher’s is a new view, one that needs to be wrestled with. For decades now, the understanding of the Treaty/Tiriti has been framed by Ruth Ross’s argument that the two versions are irreconcilable, Claudia Orange’s position that Te Tiriti sets up an ongoing relationship between government and Rangatira, and the Court of Appeal’s declaration that this relationship is “akin to a partnership.”

Fletcher both builds on and challenges this paternalistic framing. (And he ignores the recent controversy over “sovereignty” as being too soon to comment). The principal conclusions of his thesis are, in his words:
  1. that rather than being at odds, the English and the Māori texts of the Treaty reconcile;
  2. that British intervention in New Zealand in 1840 was to establish government over British settlers, for the protection of Māori;
  3. further, that British settlement was to be promoted only to the extent that Māori protection was not compromised;
  4. that Māori tribal government and custom were to be maintained, and British sovereignty was not seen as inconsistent with this plurality in government and law;
  5. And that Māori were recognised as full owners of their lands, whether or not occupied by them, according to custom.[9]
These propositions, he claims, are what was offered and agreed to.

Propositions 1 and 5 can be agreed to and readily affirmed. It is Propositions 2 to 4 where Fletcher's radicalism quietly hits the road. Ever since Labour’s He Puapua document we’ve been debating co-governance – and then along comes Fletcher to tell us that the Treaty, the English version, insists upon a plurality of government, with colonial government only ever to be over settlers – with that government's primary aim being the continuing and ongoing protection of Māori. This is wild stuff indeed.

Bugger "partnership" -- this races past that and heads straight for the heady uplands of paternalism without end!

One senses however that, with an Introduction by Supreme Court Justice Joe Williams and endorsements already by the likes of senior historian Tony Ballantyne and former Waitangi Tribunal chair Eddie Durie, that Fletcher’s will quickly become the favoured mainstream interpretation of the Treaty.

But this doesn’t mean it’s correct....


=> PART FIVEGetting Rights Right

[1] W.P. Morrell, British Colonial Policy in the Age of Peel and Russell, Frank Cass & Co., London, (1930), 1966, p. 103

[2] Morrell, pp 130-131

[3] Ned Fletcher, The English Text of the Treaty of Waitangi, Bridget Williams Books, Wellington, (2022), p. 102, quoting (unattrib.) ‘Our Weekly Gossip,’ The Athenaum, No. 1866, (Aug 1, 1863), p. 150

[4] Fletcher, p. 103, quoting Trevor Williams, ‘James Stephens and British Intervention in New Zealand,’ Journal of Modern History, 13, 1 (1941), p. 25

[5] See below for the relevance of this. This is consistent with Ayn Rand’s view that, by the mid-nineteenth century, when the Treaty was being written, property rights in the sense of those written about by John Locke were at best assumed but rarely if ever fully defended. And they were also increasingly under attack, no less so than from Jeremy Bentham who declared property rights to be “nonsense on stilts.” Little wonder then that Stephen, who “must be classed among [Bentham’s] utilitarians” (Knaplund, p. 15), overlooked in his drafted instructions to Hobson any reference to rights beyond an “admission” of the rights of sovereignty already acknowledged in the 1835 Declaration of Independence

[6] Fletcher, p. 480

[7] Fletcher, p. 359

[8] Colonial Office minutes, 9 & 10 July 1840, CO 209/6, 33b. Quoted by Fletcher, p. 340. And yes, there is a distinction to be drawn between those areas of these islands in which discovery was claimed as the basis of sovereignty, most especially the South Island, but these are fully discussed in the text. And no, as Fletcher makes clear these claims didn’t rely on Vattel.

[9] Fletcher, p. 17


MarkT said...

After returning from a week in Akaroa and spending a decent amount of time in their very good museum, I was interested to read how the original French settlement there likely sped up the instigation of the treaty, with Akaroa apparently being the first place it was signed by the various parties. It's interesting to contemplate how French colonialism would have differed from British colonialism had the French gained a stronger foothold.

Peter Cresswell said...

The tale of how Hobson averted the French from planting their flag there reveals him to be a much wilier fellow than he's often given credit for.

MarkT said...

@PC - Indeed. In saying that I read in the museum one opinion, which read true that the 'planting of the flag' didn't have a lot of historical significance and was largely symbolic, just sending home the message to the French of the reality they faced - that NZ was now part of the British empire. Given the dubious 'purchase' claimed by the French from Māori of all land on Banks Peninsula, the signing of the treaty, and ensuring the Maori on Banks Peninsula signed it first made the British sovereignty a fait compli.

MarkT said...

If we give the benefit of the doubt and assume that Fletcher's 5 essential points on what the treaty intended are correct, are points 3 & 4 still relevant in terms of where things are now at? History has moved on and the context has changed. With a few possible exceptions, Māori are no longer a distinct population unit living in separate territory apart from British settlers, as they largely were around 1840. Isn't reverting to that now as ridiculous as saying we should revert to provincial government (Canterbury, Otago, etc as separate political units), or a part of New South Wales (as also used to exist)?

Peter Cresswell said...

Aye, good question.
I've got two answers: It's relevant now, I think, both because activists will want to make it relevant, and because (in general) if a solemn promise is made it should be kept.
That said, I argue in later parts of this review that the framers themselves understood things to b a gradual process:

"IT SEEMS TO ME THAT where Stephen understood that it would take time for sovereignty to extend across the land, and for English law to be fully suited to Māori – he understood that this was a gradual process with full equality before the law as the endpoint to be aimed for -- that Fletcher unfortunately has wholly misunderstood this point. That it would take time.

"In his own blunt fashion, Native Secretary Donald McLean makes this point to assembled chiefs at the 1860 Kohimarama meeting, saying: 'Some of you have said that the laws for the Maori are not the same as the laws for the Pakeha. This is in some measure true. Children cannot have what belongs to persons of mature age; and a child does not grow to be a man in a day'.”

MarkT said...

@PC - I’ll look forward to the rest of the review. I think what you’re saying (or going to say) adds more weight to, and broadly consistent with how I’m seeing it. Equal rights was the endgame Māori presumably wanted, a degree of Maori self governance was a transition towards that superior ideal. But the context later changed to the point they had equal rights. Why then go back to something inferior? And even if something more than that was intended and promised, how can that promise made by dudes in the 19th century be properly realised now when the promisers and recipients of the promise are all dead? What would determine who are the recipients today? Anyone with Maori DNA in them, which would include my wife and children?

I see your point. If this is where the argument’s headed, we need to be ready to answer it.