Thursday 11 January 2024

BOOK REVIEW: 'The English Text of the Treaty of Waitangi' - PART THREE: Getting slippery with it

This week I've been reviewing my summertime reading: Ned Fletcher's magisterial 2022 book on 'The English Text of the Treaty of Waitangi,' which is quickly becoming the favoured mainstream interpretation of the Treaty.

I crave your patience, because the review has ended up almost as long as the book! On Monday, I posted my Introduction. And yesterday I posted what I identified as several Errors and Omissions in the book.

Today, I'm discussing where in my view it starts to get slippery.

The book's conclusion, remember, is that “the Treaty was understood to leave intra-tribal government undisturbed.” “Perhaps the most compelling evidence” for this conclusion, says the author (asking that word “perhaps” to do a lot of work) “is found in the explanations given at the Treaty signings … discussed in Chapter 19.” But his adduced evidence there is far from compelling. It was in this chapter that I began making marginal notations under the heading “slippery” …

3. Slippery

It is not just the word “perhaps” that is asked to work hard: his final chapter ‘The Meaning of the Treaty,’ in which you would expect after 500 pages that his conclusions would be nailed home, is littered instead with phrases and words like “perhaps,” “may well be,” “indicates,” “not inconsistent with,” “it is quite possible to read,” and “suggests.” Hardly the firm conclusions one would hope for to support the startling argument that the framers intended Māori to enjoy self-government as a permanent institution, despite those framers never once saying that anywhere explicitly.

In other words, the case is not strong.

As I said above, the book is a joy to read. And it remained a joy right up until page 329 – right up until I read, right out of the blue, that “in the speeches at the Treaty signings” the “language of ‘protection’ and ‘guardianship’ was conspicuous.”


Since I’d just finished re-reading Colenso’s account of the first Treaty signing, this came as something of a surprise. (You can read it online yourself; it’s not very long.)

It’s true that in a September 1840 letter to “principal chiefs” Hobson “again speaks unto you” saying “’I the Governor will protect and direct you – Yes, I will indeed be to you a Guardian.” [1] And Fletcher certainly adduces this to help support his claim. But if we search Colenso’s account of the Treaty signings themselves, the most substantive extant account, we find the word “protection” used just twice (and it was only Hobson who used them), and “guardianship” (or even) “guardian” is not used at all. (I invite you to undertake the search yourself.)

What to make of this? I'll leave that up to you.

Now, I hasten to add that there are, of course, many words from the assembled chiefs about this new Governor being a father to them, to which Hobson unfortunately played up. [2] But in what sense was this meant? 

“As a mode of communication, whaikōrero [marae oratory] uses poetry, proverb, incantation, metaphor, imagery and symbolism to give gravity and formality to occasions of significance.” And a theme begun by one orator will often be taken up and embroidered by another. So commentators should beware of taking words too literally. I read the repeated use of the “father” figure less in the sense of someone to care over their every need, but more in the sense of either stern judge and a peacemaker, echoing the words of Tamati Waka Nene [3] (harking back perhaps to the need for a mediator after recent wars) and also in the sense of being a teacher or wise adult from the outer world to allow them to learn and grow. Pumuka, for example, chief of the Roroa Tribe, has this sense when he says: "I wish to have two fathers - thou and Busby, and the missionaries." [4] From the latter two he and his colleagues have already learned “Christianity and the Law,” he says (a major theme later at the Kohimarama conference [5]) and they've seen and embraced the cultural change therefrom. 

It’s this that these smart fellows, eager for modern learning, are asking for more of. Not for a bag of sweets and a pat on the head.

If there is anything “conspicuous” here it is that Fletcher includes this claim directly under the heading “The purpose of British intervention” – conspicuously intending us to take a meaning that doesn’t follow from the adduced evidence. (Not least because it's British intentions rather than Māori reactions that is supposed to be his focus.)

It was at this point that I added in my own copy an index entry for “Slippery.” It is not exhaustive, but at present it refers to similar sleight-of-hand appearing on pages 330-332, 470, 471, 474-5, 476, 479, 488, 490, 494, 500, 523, 524, 526, 527, and 529 (these last nine in the chapter ‘The Meaning of the Treaty,’ where conclusions are oft drawn together based on earlier slight-of hand.)

Fletcher has his work cut out for him in making words seem what they’re not. He admits himself on page 526, as he nears his work's end, that “[t]he English draft of the Treaty contains no explicit recognition of Maori self-government and custom.” Which is true, but it's the opposite of the conclusion he has been labouring for the previous 526 pages to prove.

Telling us then that we should look instead to what he calls “textual pointers within the Treaty” that turn this explicit meaning inside out, he cites passages in both the English and Māori texts that, he says, “may well be a reference to custom,” which “suggests an additional and special status for Māori,” which ”indicates that they would retain not only their identities and status but also their distinct property interests according to custom.” These weasel words -- all of them in just one paragraph [p. 527] indicate sufficiently, I think -- perhaps even suggest -- that even Mr Fletcher is not fully persuaded of this artifice. That he has, quite simply, misunderstood the nature of the protection being offered. (See below.)

And in misunderstanding the nature of the protection offered, he sees every indication of its presence as evidence for its permanence, rather than for the temporary gradualism of the framers, which is especially evident in Stephen. (On this, see section 5 below.)

4. Protection

Two particular words are doing an awful lot of work in his final argument, and these are “protection” and “guardianship.”

As we’ve already seen, the evidence of “guardianship” is slight enough. And the evidence for “protection” is confused by the different meanings of the two framers who use the word -- and by Fletcher's heroic misunderstanding of what it means.

Where Stephen is most influenced in his use by the more up-to-date humanitarian impulse of the evangelicals with whom he was linked, Busby’s use of the word is inspired more by what was still the “common-sense” view from earlier decades that the protection of law means the protection of right. These two conceptions clash and, being situated even further in time from those common-sensical views, it is to the former that Fletcher looks for his thesis.

Yet even as they clash, it is Busby’s view that is most evident in Fletcher’s re-created English text. The word appears twice: Hobson’s preamble confirms to signatories the Queen’s commitment to “Protect their just Rights and Property,” which sets the context, and the Third Article clarifies this is “Her Royal Protection," imparting "all the rights and privileges of British subjects.”[6] In the Treaty’s only written references to protection, this one, it never appears without the word “rights.” (In his verbal explanation at the first signing, Williams records that he translated the phrase from the preamble to the principal chiefs as “to protect them in their rights as chiefs, and rights of property” and the clarifying Third Article as “will protect the natives of New Zealand, and will impart to them all the rights and privileges of British subjects.”[7])

So what does the written word tell us about the nature of the protection being offered in the Treaty? 

In summary: the Treaty's promised Royal Protection of their "just Rights and Property" protects the "moral space" within which they may exercise those "just rights." In other words, it was a protection that afforded them liberty. This is not trivial. "It was not liberty exercised independently, or in defiance of sovereign authority" however, explains Ewen McQueen. [8] "It was liberty fostered in submission to, and under the protection of, governing authorities." In other words, the protection and definition of each individual's "moral space," framing it and guarding it in law, expanded each person's individual liberty. This is the understanding-- of "the Law as out protector [9] several chiefs expressed two decades later in the 1860 Kohimarama Conference.

This however was not made conspicuous enough.

Instead, we have Fletcher's claim before us that "protection" relates to guardianship. and suggests, we look to the records of the Treaty signings, where this language of "protection," he says, is "conspicuous."

Except it isn't. 

In the most thorough oral record of the signing, Colenso records the word as appearing only twice. And far from conspicuous, it appears only in Hobson's introduction, from his prepared notes. Notably, I would have said, not one chief takes up the refrain.

So what's the context? In his prepared introduction, Hobson notes to the chiefs “You yourselves have often asked the King of England to extend his protection to you." (This of course refers to He Whakaputanga, Busby's 1835 Declaration of Independence.) "Her Majesty, says Hobson, "now offers you that protection in this treaty.” And that's it. The only two times we know for sure the word was spoken.

Colenso records no further clarification. The unreliable Felton Mathew’s less precise one-paragraph summary of the presentation however differs somewhat, and naturally it is on this that Fletcher most relies. Hobson, says Mathew in his book written after the event, “set forth briefly but emphatically, and with strong feeling, the object and intention of the Queen of England in sending him hither to assume the government of these Islands, provided the native chiefs and tribes gave their consent thereto.” [10] That object, Mathew wrote in his diary, was “the necessity which existed for the Government to interfere for their protection on account of the number of white people who had already taken up their abode in this country. He then caused to be read to them [by Williams] a treaty which had been prepared, by which the native chiefs agreed to cede the sovereignty of their country to the Queen of England, throwing themselves on her protection but retaining full power over their own people – remaining perfectly independent, but only resigning to the Queen such portion of their country as they might think proper on receiving a fair and suitable consideration for the same.” [11]

You should note that it is not just Colenso’s account that differs from Mathew's. The account above by Williams (who translated and read the Treaty) also differs from what Mathew says he said.

Nevertheless, since the impetus for this idea of protection comes from Normanby’s instructions to Hobson, as written by James Stephen, it is to Stephen that we should look for his meaning. And we only have to slip back twelve years from Waitangi and look over to Africa's Cape Colony to discover what Stephen might have thought this meant.

As you’ll see, it’s worth spending a bit of time there.

James Stephen’s biographer, Paul Knaplund from the University of Wisconsin, writes that “The famous Cape Fiftieth Ordinance 1828, which gave to Hottentots [i.e., Khoikoi people] and mixed bloods in the colony the protection of English law, [had] won high praise from James Stephen … as a very important and beneficial measure.” [12] The Ordinance has been described as both a “Magna Carta for the Coloured People” and a “precursor” to Britain’s own anti-slavery legislation just a few years later.

What did “the protection of English law” do that would attract such praise? In short, “this law gave ‘[Khoikhoi] and other free persons of colour’ the same rights as whites in the Cape Colony.”
It stated that henceforward, ‘[Khoikoi] and other free persons of colour’ were to be subject to no laws to which whites were not also subject, including the 'vagrancy' practices and pass requirements. Freedom to move and freedom to own land were explicitly decreed. It therefore forbade any racially discriminatory legislation and decreed equality before the law. When slavery was abolished in the Empire in the 1830s, the ex-slaves were also brought under this umbrella. This law, which could not be repealed without permission of the imperial government in London, became the foundation of the Cape 'liberal' or nonracial tradition. Laws were framed without reference to race and when a parliament was established in 1852, the franchise was a nonracial one based upon property and income, not on race. As annexations brought large numbers of Xhosa and other Africans into the Cape Colony, they too acquired these political and legal rights.[13]
This was magnificent. But it was still not absolute equality with settlers, however: as W.H. McMillan points out, the “detailed regulations” remained paternalistic for a time, prescribing conditions of service and “apprenticeship” for some years, for their own temporary protection, that would have had any other group thus constrained throwing up their hands in horror. [14]

The missionary whose activism had done so much to effect the Ordinance, Dr John Philip, objected to these continuing constraints, and also to the barring of natives moving to the Cape Colony from enjoying “the rights and privileges of naturalised British subjects.” To which Stephen replied that “it would be improper to bestow this boon on ‘barbarous tribes resorting for temporary purposes to the Colony.” [15]

The high-minded but practical Stephen still maintained that “separate laws must be made for different classes in society” as long as their “wants and conditions in life are essentially dissimilar.”
It is not because the two races differ in complexion or in descent [he wrote], but because their wants and occupations are [at present] entirely different, that they must be placed, to a certain extent, under different systems of Law. [Emphasis mine.]
“Different systems of law,” we note, but not as a permanent measure. Only for a few years; only as long as their "wants and occupations" remained so different.

This was simply Stephen’s appreciation “of the need for recognising existing social and economic conditions.” [My emphasis.] His long-term aim remained however, the God-given “equality before the law for all men” to which he had devoted his life....


=> PART ONE, the Introduction to the series
=> PART TWOErrors and Omissions
=> PART THREEGetting Slippery With It
=> PART FIVEGetting Rights Right
=> CONCLUSIONRangatiratanga as Liberty

[1] Letter from Hobson to the chiefs of New Zealand, 8 September 1840, Great Britain Parliamentary Papers, 1841 (311) XVII.493, pp.115-116

[2] These are all the relevant references, from Colenso’s account (pp. 21-27): 

  • Tamati Pukututu, chief of Te Uri-o-te-hawato Tribe: “Remain here, a father for us, &c….” 
  • Matiu, a chief of the Uri-o-ngongo Tribe: “Do not go back, but sit here, a Governor, a father for us, that good may increase …” 
  • Pumuka, chief of the Roroa Tribe: " Hear, all of you. I will have this man a foster-father for me. Stay, sit, Governor. Listen to my words, 0 Governor! Do not go away; remain. Sit, Governor, sit. I wish to have two fathers -thou and Busby, and the missionaries." 
  • Hakiro (son of Tareha, but who on this occasion appeared and spoke on behalf of Titore, deceased, principal chief of the Ngatinanenane Tribe): “We will not have a Governor. Return, return; leave us. The missionaries and Busby are our fathers. We do not want thee…” 
  • Hoani Heke, a chief of the Matarahurahu Tribe: "Remain, Governor, a father for us. … Remain, remain; sit, sit here; you with the missionaries, all as one. But we Natives are children -yes, mere children. Yes; it is not for us, but for you, our fathers -you missionaries -it is for you to say, to decide, what it shall be. It is for you to choose. For we are only Natives. Who and what are we? Children -yes, children solely. We do not know: do you then choose for us. You, our fathers -you missionaries. Sit, I say, Governor, sit! a father, a Governor for us." 
  • Tamati Waka Nene, chief of the Ngatihao Tribe: "O Governor! sit. I, Tamati Waka, say to thee, sit. Do not thou go away from us; remain for us -- a father, a judge, a peacemaker. Yes, it is good, it is straight. …” 
  • Eruera Maehe Patuone (the elder brother of Tamati Waka Nene): “Remain here with us, to be a father for us, that the French have us not …” 

[3] Colenso, p. 27

[4] Colenso, p. 23

[5] See for example

  • Pāora Tūahere: “The Governor … was sent here to protect us. The benefits which we received from him are—Christianity and the Laws.” 
  • Hemi Metene Te Awaitaia: “In my opinion the greatest blessings are, Christianity and the Laws. While God spares my life I will give these my first concern. When I commit a wrong, then let me be brought before the Magistrate and punished according to law. Those are the good things.” 
  • Hemi Parae: “The two things on which I lean, are the Laws and the Queen.” 
  • Wiremu Hopihana: “Here is life for us. The Laws of England are not given to me, nevertheless, let the parent exercise affection towards his son. Here is Hauraki, Waitemata, Kaipara, and Waikato. We are all under one father. The Governor shall be my father. Let us at once become parties to the union (of the two races).” 
  • Wi Waaka: “We have long since received the Laws of Christianity. I am striving now to understand the Laws of the Queen. See! I stretch forth my hand for them.”

[6] Fletcher, p. 324-325

[7] Fletcher, p. 481

[8] Ewen McQueen, One Sun in the SkyGalatas Press NZ Ltd., (2020) p. 53

[9] Matene Te Whiwhi, Ngati Raukawa, Otaki, Maori Messenger, ‘Proceedings Of The Kohimarama Conference, Comprising Nos. 13 To 18 Of The "Maori Messenger,’ Monday July 16, 1860

[10] Felton Mathew, The Founding of New Zealand: The Journals of Felton Mathew, First Surveyor-General of New Zealand, and his Wife, 1840-1847, iTunes Books (hereafter Mathew, Journals)

[11] Mathew, Journals

[12] Paul Knaplund, James Stephen and the British Colonial System 1813-1847, University of Wisconsin Press (1953), p.22

[13] ‘Fiftieth Ordinance,’ Historical Dictionary of the British Empire, online at[accessed 3 Jan 2023]

[14] .W.M. Macmillan, The Cape Colour Question, A Historical Survey (Cape Town, 1968), 212-13. 

[15] James Stephen, C.O. 323: folio 272. Quoted in Knaplund, p. 23. n. 40


Phil s said...

A magisterial review indeed Sir. I look forward to more.

Peter Cresswell said...

Thank you sir. No one else seemed to be doing a critical review so, you know, someone had to ...