Ned Fletcher's book: "unsatisfactory" and "badly flawed"

 

New Zealand/Australian historian Bain Attwood reviews Ned Fletcher's English Text of the Treaty of Waitangi in the Australian Book Review. His conclusion: "unsatisfactory" and "badly flawed."

Attwood was raised in New Zealand and is a professor of history at Melbourne's Monash University, thus giving him both local knowledge and a less myopic perspective on Treaty issues than most locally-based historians. His most recent books (A Bloody Difficult Subject: Ruth Ross, te Tiriti o Waitangi and the Making of History and Empire and the Making of Native Title) also demonstrate he has put that wider perspective to good use.

Fletcher, he says, writes more as lawyer than historian, handling his material like a legal brief, with all the flaws evident without an opposing counsel to point out omissions and elisions. Fletcher, for example (emphases mine), "adduces practically all the relevant historical sources and [citing] at great length those parts of them that seem to support it" — he "painstakingly rebuts each and every argument contrary to his own, or at least those he finds useful to acknowledge" – if that's not bad enough, Attwood also accuses him of omitting "any thorough consideration of important points that tend to undermine the cogency of his argument" – and he also "neglects to discuss in any thoroughgoing way those parts of the historical record that draw his claims into question." Ouch! 

"By using these tricks," says Attwood, "he might well convince unwitting readers." He has. Many of them, as an Ockham book award and a quick Google search will indicate. (But as other more perceptive reviews or comments indicate — Philip Temple's, Braunias's, Brian Easton's my own [ahem]— you can't fool all the people all of the time.) Part of the reason, perhaps, is the imprimatur of the publisher, Bridget Williams Books. Part his own familial imprimatur – his mother being the former Chief Justice. And perhaps the major part is the ease with which Fletcher's interpretation melds with fashionable political interests.

Nonetheless, as Attwood makes clear, "Fletcher’s argument is badly flawed. In large part this is because it rests on a series of dubious assertions or assumptions that he does not seek to test and which obscure several awkward historical facts." These include:

Soon after making the Treaty, the British Crown claimed possession of New Zealand (or parts of it) on grounds other than the Treaty, including the legal doctrine of discovery. The imperial government sought to assume sovereignty by making an agreement with many local chiefs, even though it regarded them as neither fully sovereign nor owners of all the land. It did so for reasons that were as much diplomatic and political as they were legal and moral, and so were inherently pragmatic rather than simply principled in nature. It instructed its agent to make a treaty that only had two conditions: the Māori were to cede sovereignty to the British Crown as well as the pre-emptive (that is, sole) right to purchase land. There is no evidence to suggest that it envisaged the agreement that was subsequently made with some of the chiefs as one that was meant to provide the basis for the colony’s legal and political arrangements at the time, let alone in the future.

Fletcher's argument also rests, says, Attwood,  "on three especially problematic claims":

1. that the meaning of any text such as the Treaty of Waitangi can be discovered merely by considering the purpose or intent of those who are said to be its authors, rather than contemplating how that text was received, not least by Māori; 
2. that the meaning that might have been bestowed on the Treaty at the time it was made, rather than the discussion and debate that has taken place about it since, best accounts for its historical significance in the sense of both meaning and importance; and 
3. that the original (1840) understanding of the Treaty is more important than any later understandings of it, historically speaking. 

Not one of these propositions, he concludes, can withstand critical scrutiny. "They reveal a loss of perspective about the making of the Treaty in 1840 that characterises much of the historical discussion and debate about it." A loss of perspective that it is probably easier to see from across the Tasman.

In my own review I suggested Fletcher was slippery. Attwood also suggests that Fletcher simply fails to "engage with and thus alert lay readers to the most important historical scholarship of the last twenty or so years." Especially so to scholarship   with views at odds with his own. This 

draws his argument into question and/or undermines his publisher’s claim that this book is a ground-breaking scholarly contribution to understanding of the Treaty of Waitangi.

Among that scholarship that Fletcher either 'overlooks' or fails to adequately engage (cited in Attwood's book on Ruth Ross's seminal 1972 article) is

•  J.G.A. Pocock's 'The treaty between histories' (2002), 
• Andrew Sharp's 'Recent Juridical and Constitutional Histories of Māori' (2001), 
• Alan Ward's 'Historical Method and Waitangi Tribunal Claims' (1996) [in Miles Fairburn, W. H. Oliver & Peter Munz (eds.), The Certainty of Doubt: Tributes to Peter Munz] 
• Paul McHugh's 'Law, History and the Treaty of Waitangi, (NZJH, 1997), 
• Lyndsay Head's 'The Pursuit of Modernity in Māori Society' (2001), 
• Michael Belgrave's Historical Frictions: Māori Claims and Invented Histories (2005), 
• Mark Hickford's Lords of the Land: Indigenous Property Rights and the Jurisprudence of Empire (2011), and 
• Stuart Banner's Possessing the Pacific: Land, Settlers, and Indigenous People from Australia to Alaska (2007).

 A lot of careful scholarship to ignore.

Attwood concludes:

This tome is undoubtedly a prodigious piece of research, but in seeking to account for the British government’s purpose in making the Treaty, its author is unwilling or unable to distinguish the wood from the trees. The result is a remarkably turgid work, the publication of which is somewhat puzzling, given its publisher has an enviable reputation for presenting a good deal of New Zealand’s finest historical scholarship to lay audiences.