"Contestation is the Treaty's only companion," says Supreme Court Justice Joe Williams. This week at NOT PC I've been reviewing the book on the Treaty that Williams says has "shifted the debate's centre of gravity." No surprise when its 1.5kg in weight!
A shame that it is so flawed.
In previous parts of this review, we've learned that one of three undisputed Treaty framers was Permanent Colonial Under-secretary James Stephen, who dominated Britain's Colonial Office for three decades, and who wrote Britain's epoch-making 1833 anti-slavery Act.
Fletcher argues, in part, that the English text of the Treaty as overseen by Stephen and his masters allows for Māori tribal government and custom to be be maintained, and that British sovereignty was not seen as inconsistent with this plurality in government and law. (Much as it is today in, say, Cook Islands and Niue under New Zealand sovereignty.)
The high-minded Stephen however was nothing if not a practical administrator. As we saw in Part 3, he could advocate for “different systems of law” for different folk, but not as a permanent measure. His advocacy was simply Stephen’s recognition of limitations for law of existing social and economic conditions -- especially so with the colonisation of a place previously unfamiliar with the rule of law. Cultural change, he understood, took time, and couldn't be forced from above.
His long-term aim remained however, what he saw as the God-given “equality before the law for all men” to which he had devoted his life.
As we'll see, Fletcher's misunderstanding of this point colours his own argument for the worse ...
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James Stephen (1789-1859), who was permanent counsel to and then Under-Secretary for the Colonial Office. It was said that for nearly three decades he "literally ruled the colonial empire." Bust of James Stephen, by Marochetti, now in the National Portrait Gallery, London |
IT SEEMS TO ME THAT where Stephen understood that it would take time for sovereignty to extend across the land post-Treaty, and for English law to be fully suited to Māori – he understood that this was a gradual process with full equality before the law being 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.” [1]
A point on which Stephen himself is both so far-seeing – and often so explicit (and frequently enough cited by Fletcher himself): “In our relations with [Māori],” writes Stephen in 1843 to correct New Zealand’s pedantic attorney-general Swainson, “it is necessary to be circumspect, & just, & to keep as close to the law as circumstances will [presently] allow – a complete observance is [as yet] out of the question.” [2] [Emphasis mine.]
Those circumstances at the time limiting “a complete observance” encompassed both Māori understanding and appreciation of English law, and the colonial governments’ abject inability to enforce it with the meagre forces at their disposal. So what did the circumstances in 1843 allow? What was the fullest possible extension of English law to Māori? Stephen gave Swainson a likely laundry list:
I know of no reason why in all matter purely inter se [between or amongst themselves] – their marriages, inheritances, contracts, & so on, & even in the definition and punishment of their crimes – [Māori] should not live under their own law or customs, such customs only excepted, as are abhorrent from the universal laws of God --, as for example infanticide and cannibalism. And even in questions between the State and the Natives, I know not why they should not be governed by their own laws & customs to the utmost possible extent; gradually of course superseding them by our own law, as the natives may learn to understand and appreciate it. [Emphasis mine.] [3]It is the greatest shame that Fletcher himself, who quotes this passage, fails to fully understand and appreciate it. Because the entire scaffolding of his argument for separate Māori jurisdiction or law as a permanent thing falls to the ground when one realises that Stephen, and the Colonial Office, never intended such a state of affairs to be permanent. They expected continual progress towards their end goal of equality.
This should be obvious. (Would we still expect Māori to only be able to sell their land to a government agent?) But it appears to have escaped the author's attention. Thus, on every page in which Fletcher cites a passage from Stephen or the Colonial Office apparently advocating this "separatism" as a permanent measure (esp. pages 466, 471, 472, 476, 478, 479), we must as a reader add the full context in which Stephen or the Colonial Secretary makes his point, i.e, the idea emphasised above: “gradually of course superseding them by our own law.” For example:
- Colonial Secretary Russell’s December 1840 instruction to Hobson that Māori were to “be the objects of your constant solicitude” was intended as an instruction to the then-current governor, not for the next two-hundred years. [p. 466]
- Russell’s instructions also told Hobson that there was a category of Māori customs “however pernicious in themselves” that were nonetheless to be “gradually overcome by the benignant influence of example, instruction, and encouragement.” [p. 471, emphasis mine]
- Russell’s instructions “envisaged any interference with Māori being undertaken through the Protector and his assistants (rather than by judges, justices of the peace or constables),” suggesting, claims Fletcher, “that the reach of colonial authority may have been seen to be limited in this way.” [p. 471-72] To which we might mentally add the words “for the present."
- Giving guidance to acting governor Willoughby Shortland after a raid by a Ngāti Whakaue taua on Ngāi Te Rangi at Mayor Island, Russell’s successor Lord Stanley opined “there is no apparent reason why the aborigines should not be exempted from any responsibility to English law or to English courts of justice, as far as respects their relations and their dealings with each other.” To which we should again append the implicit words “at the present time.” [p. 472]
- Stanley all-but makes this explicit, answering a similar query from the next governor, Fitzroy, that he “would have to exercise discretion” [4] as to how much law he could (or should) enforce. [p. 473]. (How little could be enforced became quickly apparent after the Wairau massacre, to which this was a partial if belated response.)
- Stephen underpinned this opinion writing in a guide-note that “[i]n our relations with Māori it is necessary to … keep as close to [English] law as circumstances will allow – a complete observance is out of the question.” Again, append if you please the words “at present.” [p. 474]
- Stephen later corrected as “unfounded” the idea that “subjection to British sovereignty, & subjection to English law are convertible terms.” “At this moment” this notion he said was “nothing better” than “legal pedantry.” [p. 474, my emphasis]
- Indeed “at this moment,” as both Stephen and Stanley pointed out, the examples of India, Ceylon, the Cape Colony and Canada all showed that it wasn’t necessary to impress upon “local authorities the difficulty of extending the law of England to persons wholly ignorant of our language, manners, and religion.” Not, at least, until those persons weren’t. [p. 475]
- An 1846 recommendation was made by NZ’s Protector of Aborigines that “Native Customs … should be ‘legalized” (which Stephen did not endorse) and “enjoy much more self-government,” while having their number of Protectors “multiplied.” (An amusing example of minor bureaucratic empire-building.). Stephen came to the “practical conclusion” that “it was a great error … to attempt to govern these people, in their relations with each other, excepting only so far as necessary for the prevention of War and inhuman practices.” To enforce upon them the full panoply of English law would (and here we should again mentally add “at present”) would represent “that spirit of legal pedantry from which no English Society is ever emancipated.” To apply that spirit here, however, would reveal that this limitation of the law’s application is only a “practical conclusion,” for the circumstances at that time, not a legalistic one. [p. 476-477]
- A later Colonial Secretary Earl Grey clarified that it is only circumstances, not law, that would limit the fullest extent of English law. In allowing for Native Districts in his proposed (and rejected) 1846 Constitution Act, his accompanying instructions made clear that where Māori customs were not either “repugnant” to English law or “at variance with general principles of humanity,” then they may be retained “for the present.” [p. 478, my emphasis]
- Even by 1861, the then Secretary of State for the Colonies, the Duke of Newcastle, was still citing practical reasons rather than legalistic pedantry for recommending to then Governor Grey why he might “consider whether ‘a distinct legislation and administration’ in native districts, ‘in which the natives themselves should take a part,’ ‘would not better promote the present harmony and future union of the two races, then the fictitious uniformity of law which now prevails’.” [p. 479, emphasis mine]
DOWNLOAD THE COMPLETE REVIEW HERE [PDF], or READ ON BELOW ...
=> PART ONE, the Introduction to the series
=> PART TWO: Errors and Omissions
=> PART THREE: Getting Slippery With It
=> PART FOUR: Cultural Change Takes Time
=> PART FIVE: Getting Rights Right
=> CONCLUSION: Rangatiratanga as Liberty
[1] Donald McLean, ‘Proceedings Of The Kohimarama Conference, Comprising Nos. 13 To 18 Of The "Maori Messenger,’ Friday July 13, 1860, https://nzetc.victoria.ac.nz/tm/scholarly/tei-BIM504Kohi-t1-g1-t1-body1-d5.html
[2] Stephen to Hope, 28 December, 1843, CO 209/22, 247a-b. Quoted in Fletcher, p. 474
[3] Ibid 252b-254a. Also in Fletcher, p. 474.
[4] Fletcher’s summary of Stanley’s response.
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