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.

Ned Fletcher's 'Slippery' Treaty

 

 

I'm happy to say that Part One of my abridged review of Ned Fletcher's book became the second-most popular piece yesterday at the Newsroom site.

Check that out here: Ned's 'Slippery' Treaty. Some snippets:

**"Fletcher’s will quickly become the favoured mainstream interpretation of the Treaty. But this doesn’t mean it’s correct."

**" It was in Chapter 19 that I began making notations under the heading “Slippery.” 

**" Pumuka, chief of the Roroa Tribe, says: 'I wish to have two fathers – thou and Busby, and the missionaries.' From the latter two he and his colleagues have already learned 'Christianity and the Law'…It’s this that these smart fellows, eager for modern learning, are asking for more of. For the protection of law, not for a bag of sweets and a paternalistic pat on the head. 

**"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 525 pages to prove."

And now, on Waitangi Day, Newsroom has just posted Part Two of the abridged review: Ned's 'Puzzling' Treaty. Let's see if we can get this one to Number One! Some snippets from Part 2:

** "Ned argues the Treaty, the English version, promises eternal self-government to Maori... The entire scaffolding of Fletcher’s argument for separate Māori jurisdiction or law as a permanent thing falls to the ground however when one realises that Stephen, and the Colonial Office, did not intend such a state of affairs to be permanent. They expected continual progress towards their end goal of full equality."

** "In the Treaty’s only written references to protection, it never appears without the word 'rights.'... So what does the written word tell us then about the nature of the protection being offered in the Treaty?"

** "If the Treaty is about 'protection' of Māori, as Fletcher concludes, then as the Preamble makes very plain that was to manifest as 'Protect[ion of] their just Rights and Property.' Which seems vastly different to Fletcher’s conclusion that it must lead to inter-tribal self-government."

** That said, if there is a right to permanent self-government in the Treaty, then it is that of which John Locke spoke: which is the individual right to govern oneself free of let or hindrance by others – this self-governance being the source of all freedom. In libertarian terms, all one requires from a legal authority for this self-governance to function is to be protected in one’s genuine rights, for coercion to be outlawed and to be otherwise left alone by that authority. Thereafter, all human interaction becomes voluntary.
    "Would that this were the meaning one could draw from either Treaty, or Tiriti. Or from today’s lawmakers."

PS: If you'd like the full review of Ned Fletcher's book, The English Text of the Treaty of Waitangi, you can download it here.

'The English Text of the Treaty of Waitangi' - BOOK REVIEW [PDF]

 

Click to download the full PDF version

Welcome to readers of Newsroom, where a condensed version of this review has just appeared:

For the full book review of Ned Fletcher's 'English Text of the Treaty of Waitangi' — the complete "17,000 word opus" including footnotes and more history, along with an extended discussion of rights and rangitiratanga and more books to write — I invite you to download the full PDF version here.

Or to read it online, and comment, beginning here.

And of course, feel free to stay and look around. You could start over there on the right, with the 'Popular Posts' of the recent (and not-so-recent) past ...

POSTSCRIPT 2: Rangatiratanga as Ownership

Following on from my book review of Ned Fletcher's English Text of the Treaty of Waitangi, this is POSTSCRIPT 2: 

Article Two of the Māori text of Te Tiriti promises to preserve tino rangatiratanga [1]; courts have interpreted this in various ways to mean that chiefs (Rangatira) retain some kind of chiefly power.  Fletcher says the English text agrees with this, saying the concept of sovereignty ceded was “compatible with ongoing tribal self-government,” suggesting then that “tino rangatiratanga” means Māori self-government. His view is both an expansion and a clarification of the mainstream view of what “tino rangatiratanga” might mean.

Context is important. It is Article One that whose focus is on sovereignty, whereas Article Two has a focus on land and resources. There was a logical progression from one Article to another, with the first Article, logically and in law, taking precedence. (Sovereignty first; then clarifying what that sovereignty is for.)

So in this context then, what is chieftainship about? It is primarily about ownership. Even individual ownhership. In his book One Sun in the Sky, author Ewen McQueen argues however that Williams's translation reverts to the collective:

“It is true that in translation [he says] Henry Williams has taken an approach that better aligns with the more [collectivist] Māori world-view, rather than the more individualistic European outlook. As such the Māori version does not refer to individuals holding exclusive possession of property. Instead we find chiefs exercising “chieftainship over the lands, villages and all their treasures.” [2]

As I say above, this makes for a disastrous confusion. “In particular the reference to chieftainship is about collective tribal rights over land. As [former Chief Justive] William Martin wrote in 1860,

‘This tribal right is clearly a right of property… To themselves they retained what they understood full well, the ‘tino Rangatiratanga,’ ‘full Chiefship,’ in respect of all their lands…’” [3]

“Even the ‘tino’ of the Māori version is better understood in this context,” notes McQueen. “It does not mean that the chiefs’ authority is unqualified in a government sense. Rather it is Henry Williams’s translation of how the chiefs would retain possession of the lands, forests and fisheries. The English version emphasised such possession would continue ‘full exclusive and undisturbed.’ Williams has rendered this concept as ‘tino’ rangatiratanga. It is about Māori retaining full agency over their land and resources. It is not a statement about unqualified political sovereignty.”

So “rangatiratanga” relates to ownership. “Tino” gives force to this relationship, giving it the force of a property right.

---

[1] Hugh Kawharu back-translates te tino rangatiratanga as 'the unqualified exercise of their chieftainship' -- the Queen guaranteeing "to protect the Chiefs, the subtribes and all the people of New Zealand in the unqualified exercise of their chieftainship over their lands, villages and all their treasures ..."

 In Fletcher's reconstructed English text, the corresponding phrase is full exclusive and undisturbed possession of their Lands and Estates, Forests Fisheries and other properties ... "

[2] Ewen McQueen, One Sun in the Sky, Galatas Press (2020), p. 42-43. 

[3] William Martin, The Taranaki Question, The Melanesian Press(1860), p. 9. Quoted in McQueen, p. 43

POSTSCRIPT 3: The understanding of 'Protection' at the 1860 Kohi Conference

In his 2022 book 'The English Text of the Treaty of Waitangi,' author Ned Fletcher argues that at Treaty signings and subsequently "the language of 'protection' and 'guardianship' was conspicuous." I challenge that in Part 3 of my book review, and I post there in Footnotes relevant speech excerpts from Colenso's account of the Waitangi signing relating to both 'Protection' and Guardianship.

The month-long 1860 Kohimamarama conference, called as New Zealand was teetering on civil war, became (as Claudia Orange titled her 1979 journal article on the conference), a "Covenant" -- a "Ratification   of the Treaty of Waitangi." [1] It was in essence a reaffirmation by a wide range of Māori chiefs of their understanding of the document they signed. 

Here, in these excerpts from the full proceedings, is what they said and understood about about what the Treaty said on protection. It begins with relevant excerpts from the introduction to the Conference by Governor Gore-Browne and Native Secretary Donald McLean...

KEYWORDS/CONCEPTS HIGHTED: Protection

10 July, Tuesday

Gore-Browne, opening the conference

His Excellency Governor Browne opened the proceedings by reading the following address, a translation, of which was afterwards read by Donald McLean. Esq., (Native Secretary, and President of the Conference):—

My Friends,—Chiefs of New Zealand, …

3. On assuming the Sovereignty of New Zealand Her Majesty extended to her Maori subjects her Royal protection, engaging to defend New Zealand and the Maori people from all aggressions by any foreign power, and imparting to them all the rights and privileges of British subjects; and she confirmed and guaranteed to the Chiefs and Tribes of New Zealand, and to the respective families and individuals thereof, the full, exclusive and undisturbed possession of their lands and estates, forests, fisheries, and other properties which they may collectively or individually possess, so long as it is their wish to retain the same in their possession. …

6. Having renewed these assurances in the name of our Gracious Sovereign I now ask you to confer with me frankly and without reserve. If you have grievances, make them known to me, and if they are real, I will try to redress them. Her Majesty's wish is that all her subjects should be happy, prosperous, and contented. If, therefore, you can make any suggestions for the better protection of property, the punishment of offenders, the settlement of disputes or the preservation of peace, I shall gladly hear them and will give them the most favourable consideration…

8. There is also a subject to which I desire to invite your special attention, and in reference to which I wish to receive the expression of your views. For some time past certain persons belonging to the tribes dwelling to the south of Auckland have been endeavouring to mature a project, which, if carried into effect, could only bring evil upon the heads of all concerned in it. The framers of it are said to desire that the Maori tribes in New Zealand should combine together and throw off their allegiance to the sovereign whose protection they have enjoyed for more than twenty years, and that they should set up a Maori King and declare themselves to be an independent Nation. Such ideas could only be entertained by men completely ignorant of the evils they would bring upon the whole Native Race if carried into effect…. 11. It is unnecessary for me to remind you that Her Majesty's engagements to Her Native subjects in New Zealand have been faithfully observed. No foreign enemy has visited your shores, Your lands have remained in your possession, or have been bought by the Government at your own desire. Your people have availed themselves of their privileges as British subjects, seeking and obtaining in the Courts of Law that protection and redress which they afford to all Her Majesty's subjects. But it is right you should know and understand that in return for these advantages you must prove yourselves to be loyal and faithful subjects, and that the establishment of a Maori King would be an act of disobedience and defiance to Her Majesty which cannot be tolerated. It is necessary for the preservation of peace in every country that the inhabitants should acknowledge one Head. … 12. I may frankly tell you that New Zealand is the only Colony where the aborigines have been treated with unvarying kindness. It is the only Colony where they have been invited to unite with the Colonists and to become one people under one law. In other colonies the people of the land have remained separate and distinct, from which many evil consequences have ensued. Quarrels have arisen; blood has been shed; and finally the aboriginal people of the country have been driven away or destroyed. Wise and good men in England considered that such treatment of aborigines was unjust and contrary to the principles of Christianity. They brought the subject before the British Parliament, and the Queen's Ministers advised a change of policy towards the aborigines of all English Colonies. New Zealand is the first country colonised on this new and humane system. It will be the wisdom of the Maori people to avail themselves of this generous policy, and thus save their race from evils which have befallen others less favoured. It is your adoption by Her Majesty as her subjects which makes it impossible that the Maori people should be unjustly dispossessed of their lands or property. Every Maori is a member of the British Nation; he is protected by the same law as his English fellow subject; and it is because you are regarded by the Queen as a part of her own especial people that you have heard from the lips of each successive Governor the same words of peace and goodwill. It is therefore the height of folly for the New Zealand tribes to allow themselves to be seduced into the commission of any act which, by violating their allegiance to the Queen, would render them liable to forfeit the rights and privileges which their position as British subjects confers upon them, and which must necessarily entail upon them evils ending only in their ruin as a race. … 16. I will not now detain you by alluding to other matters of great importance, but will communicate with you from time to time and call your attention to them before you separate. Let me, however, remind you that though the Queen is able without any assistance from you to protect the Maories from all foreign enemies, she cannot without their help protect the Maories from themselves. It is therefore the duty of all who would regret to see their Race relapse into barbarism, and who desire to live in peace and prosperity, to take heed that the counsels of the foolish do not prevail, and that the whole country be not thrown into anarchy and confusion by the folly of a few misguided men. …  Finally,—I must congratulate you on the vast progress in civilization which your people have made under the protection of the Queen. Cannibalism has been exchanged for Christianity; Slavery has been abolished; War has become more rare; Prisoners taken in war are not slain; European habits are gradually replacing those of your ancestors of which all Christians are necessarily ashamed. The old have reason to be thankful that their sunset is brighter than their dawn, and the young may be grateful that their life did not begin until the darkness of the heathen night had been dispelled by that light which is the glory of all civilized Nations …

Paora Tuhaere

… These are my words. I entertained the Pakeha a long time ago, and I found him good. Hence, I say, I shall always rememeber the Pakeha, and I shall always remember too, with affection, the Governor who was sent here to protect us.The benefits which we received from him are—Christianity and the Laws. Now, listen! My affections at the present time lie between these two blessings. Listen, again! My heart is satisfied. All that the Laws keeps from us is—Guns, Powder, and Brandy. Another subject comes under my attention. It is the misunderstanding between the Pakeha and the Maori about land. The Pakeha has his mode of selling land, and the Maori has his mode. O people, hearken! The Pakeha came to New Zealand to protect the Maori.; As to the talk about Waitangi (treaty), that is Ngapuhi's affair.

Tamati Waka Nene:

 O people, listen! These are my words in your hearing. I shall speak about the Governor,, and about the Pakehas. I am not accepting the Pakeha for myself alone, but for the whole of us. My desire when Governor Hobson arrived here was to take him as our Governor, in order that we might have his protection. Who knows the mind of the Americans, or that of the French? Therefore, I say, let us have the English to protect us. Therefore, my friends, do I say, let this Governor be our Governor, and this Queen our Queen. Let; us accept this Governor, as a Governor for the whole of us. Let me tell you, ye assembled tribes, I have but one Governor. Let this Governor be a King to us. Listen again, ye people! When the Governor came here, he brought with him the Word of God by which we live; and it is. through the teaching of that Word that we are able to meet together this day, under one roof. Therefore, I say, I know no Sovereign but the Queen, and I never shall know any other. I am walking by the side of the Pakeha. Mr. McLean, this is all I have to say. People of the Runanga, 1 have finished. …

11 July, Wednesday

Hemi Metene Te Awaitaia: 

I shall make the Governor's address the subject of my speech. I shall speak first of the 4th clause, namely,—"In return for these advantages the chiefs who signed the Treaty of Waitangi ceded for themselves and their people to Her Majesty the Queen of England, absolutely and Without reservation, all the rights and powers of sovereignty which they collectively or individually possessed or might be supposed to exercise or possess." That was the union of races at Waitangi. I was there at the time, and I listened to the love Of the Queen. I then heard about the advantages of the treaty. I shall speak in the second place on the 16th clause of the Governor's address, namely,—" I will not now detain you by alluding to other matters of great importance, but will communicate with You from time to time and call your attention to them before you separate. Let me, however, remind you that though the Queen is able without any assistance from you to protect the Maories from all foreign enemies, she cannot without their help protect the Maories from themselves. It is therefore the duty of all who would regret to see their race relapse into barbarism, and who desire to live in peace and prosperity, to take heed that the counsels of the foolish do not prevail, and that the whole country be not thrown into anarchy and confusion by the folly of a few misguided men." Listen, Mr. McLean, that I may tell you my thoughts. 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. 

Hira Kingi: 

Friends, hearken! I did not join the Queen's party for a long; time. When the Pakeha Maori came here I did not join, but when the Missionaries came, then I came under the wing (or protection) of the Queen. (A song.) That song is my reply to the Governor's address….

Eruera Kahawai: 

Listen, ye people! There is no one to find fault with the Governor's words. His words are altogether good. (Song.) It was the introduction of the Gospel that put an end to our evil ways. Yes, my friends, it was Christianity alone that did it. It put an end to thieving and many other sins. I have already entered the Queen's party. We have now a new parent, the Queen. We have now the protection of the Queen. We have abandoned our old ways. The rule now is kindness to the orphan (charity), peace, and agricultural pursuits. I shall not turn to the Maori side I have now come under the wings (protection) of the Queen. The father on that side is the Governor. (Song). My words then are, "As it was in the beginning, is now, and ever shall be."

Kihirini: 

I am a Maori. Let me tell of the first things. There was no evil in them. In the first place came the Missionaries. Formerly it was death, but I have been saved by Christianity. Now we have become united in the name of the Queen. I am like the bird called Pipiwarauroa. The (foster) parent of that bird is the Piripiri. She (the Pipiwarauroa) lays her egg in the nest of that bird, leaving to her (the Piripiri) the hatching and rearing of it. And when the young comes forth it cries "Witiora-witiora." The Piripiri is not its real parent. So also with me. It is through the Queen that I have been permitted to stand here, and to enjoy life. The protection of the Queen is right This (protection) shall be as a house to me. The rain may beat on the outside of the house, but I am inside, that is, I am with the Queen.

12 July, Thursday

Hamuera: 

Let me make use of an illustration from the Scriptures. Jesus Christ said he was above Satan. So the Governor says he is above both Pakeha and Maori—that he alone is Chief. Now, when Satan said, I am the greatest, Christ trampled him under foot. So the Queen says, I that she will be chief for all men. Therefore, I say, let her be the protector of all the people.

13 July, Friday

Donald McLean

Mr. McLean opened the Meeting with the following speech … “The Governor has read you his address, and you have been invited to take it under consideration, and to give free expression to your opinions, whether for or against it.

It has been in your hands for several days to afford you full time for its consideration. If you have examined the address, and understand all that it contains, then let each tribe in this Conference proceed to prepare a reply to the same … I shall now read the address to you, and shall make remarks as I proceed.

3rd Clause:—This treats of Her Majesty's protection, whereby New Zealand and the Maori people are defended from all aggressions by any foreign power. Has not this pledge been carried out? Has any foreign power disturbed this country? People of other nations have certainly come here, but their mission has always been a friendly one. They have come to settle or to trade. They have never assumed any authority in this Colony…

7th Clause: This has direct reference to the Maori King movement. You should freely express your opinions on this subject…. The protection of England has been solicited and accepted by this country, and it is therefore wrong to talk about any other sovereignty…

16th Clause: The Governor tells you that the Queen will afford you protection against dangers from without, but she cannot without your co-operation save you from internal feuds. It is therefore the duty of every man to help, that peace and good order may prevail…

You must carefully examine the Address yourselves, and then let each hapu consider a reply to it, that the Governor may become acquainted with your opinions. His object and earnest aim is to induce you to adopt European customs. Let each tribe give utterance to its opinions, whether for or against, and let this be done soon, in order that you may proceed to the consideration of other important subjects.

16 July, Monday

Matene Te Whiwhi, (Ngatiraukawa) Otaki:

“…Let this plan [the assembling of Native chiefs] be made permanent by the Governor and yourself; my reason for urging this is, that it may be to us a means of realizing the advantages of our position as subjects of the Queen, and as a means of cementing our attachment and making firm our loyalty to the Queen, that we may truly dwell under the shadow of the Queen; that we may recognize the Governor as our father, and that we may feel the warmth emanating from the Law as our protector. We hear the Queen's name mentioned, but we desire also to feel her warmth. By this plan only will the union of the two races be confirmed; by this will they grow together. I will not assume the possession of much knowledge at the present time; in future years, perhaps I may attain to some knowledge of the civilized institutions of the Pakeha, but let this plan be continued and made permanent.”

Horomona Toremi, (Ngati Raukawa,) Otaki:

“I have one word to say:—The Lord commanded John (the Apostle), saying:—"This is my commandment, that ye love one another." I am reminded that it is through the Law that we love one another. Another thought of mine is, that our language has become yours. It will be for you, for the Pakeha, to interpret it. Here is another matter, Mr. McLean. It is my desire that we should participate in, and be protected by your power (mana). I am not in any doubt about the matter, for it was the first Governor who appointed, and Governor Grey who confirmed Matene, as our Magistrate. All I have to do is to support him.”

July 17, Tuesday

Hira Kingi

“…The Queen's shall be our only flag. We will hold our lands under the protection of the Queen…”

Te Makarini, (Ngatiawa;) Te Awa-o-te-Atua: 

“Tamihana! What you and Matene have said is correct. I lay the blame upon our parent the Governor. You, Tamihana, find fault with the [Māori] King. I find fault with our parent. Inactivity! inactivity! was the fault. lt was because they were left to themselves that Waikato was led to seek some means of protection for their lands and property. This is where we find fault with our parent….”

Te Karamu Kahukoti, (Ngatipaoa,) Hauraki: 

“…It was not my proposal to have a [Māori] King for this land; for I had become incorporated with the Pakeha. The cry for this King came from the South. Te Heuheu took it up and brought it to Maungatautari. It then obtained footing in the centre (of the Island). Had it proceeded from us here in in the North, it would be our concern. 1 mean, had it been true that I was favorable to the King Movement. It was you people from a distance who set it afoot. I am sitting under the Queen's wings (protection). We have one style of dress (i.e. identity of customs)….

Ngapomate, (Ngatiwhakaue,) Rotorua:

“Listen you of the Conference, the new comers, and you others! I will hold up to you my grievance that the Conference may consider it. … By placing ourselves under the Queen's protection we shall get this grievance redressed. If the Queen administers a remedy it will be effectual….”

July 18, Wednesday

The Native Secretary announced the receipt of a message from His Excellency the Governor and proceeded to read: Message No 2 from 

Thomas Gore Browne, Governor.—

“…The Governor earnestly desires to see the chiefs and people of New Zealand in secure, possession of land, which they can transmit to their children, and about which there could be no dispute. Some land might be held in common for tribal purposes; but he would like to see every chief and every member of  his tribe in possession of a Crown Grant, for as much land as they could possibly desire or use. When a dispute arises about a Crown Grant, the proprieter need neither go to War nor appeal to the Government: he can go at once to the proper Court, and, if he is right, the Judge will give him possession, and the Law will protect him in it…”

Tohi Te Ururangi (Ngatiwhakaue,) Rotorua: 

“…I have nothing else to speak of but the law. The law will protect me. I have nothing else to speak of but my allegiance to the Queen…”

July 24, Tuesday

Tamati Waka Nene, (Ngapuhi,) Bay of Islands:

“…My reason for accepting Governor Hobson was to have a protector for this Island. I thought of other nations—of the French. Now if we consent to the Maori King, our Island will be taken from us. …Therefore I say again, Put an end to this clamour for a [Māori] King—put an end to it. That I urge is this. Do not let the name, for protection of the Queen be withdrawn from this country; inasmuch as the land, and the inhabitants also, have become the Queen's. If you persist in crying for a [Māori] King, we shall be lost. We owe the protection of our lands to the Queen. We owe our protection to the Governor. … My object in accepting the Governor was, that I might have a protector. [Tukihaurr ene interposed: Lest what befall you?] We don't know the mind of other nations. When the fame of New Zealand became known, the French arrived, and the Americans arrived. Look, for instance, at the conduct of the French towards Pomare (the Queen of Tahiti). The French have taken all her land. … This is the close of the Conference (as far as I am concerned); I am returning home….”

July 25, Wednesday

Mohi Te Ahi-a-te-Ngu, (Waikato,) Pukaki:

“…The Queen sent the Governor here to protect the Natives of this Island. The Queen said that there should be one law for the Maori and the Pakeha. I sold my lands; but you keep the laws, and do not allow me to share in them. There is another of your faults. I desired to rent my land at the Wharau. You said "No." You only enjoy the law….”

July 26, Thursday

“Home Ropiha Tamaha, (Ngatikinohaku,) Auckland:

“… I have  a Word to say respecting the Treaty of Waitangi. When Governor Hobson first arrived at the Bay of Islands, Ngapuhi assembled at Waitangi. The proposals were talked over and consented to by the tribes to the North. It was at that time that this Island was taken under the shadow of the Queen. After that it was brought to this place. There was a meeting (of Chiefs) and they consented (to the treatv). It was then taken to all the places in this Island as far as Port Nicholson. All gave their assent. War occurred at the Bay of Islands. The Queen's protection was not removed from the Island. War broke out at Port Nicholson and Whanganui, but the shadow of the Queen Still remained on this Island, Perhaps it will now be withdrawn on account of this King (Movement). … It is 20 years since strife among us has disappeared—it is perhaps forgotten.

“Truly it is as you say, Hone (John Hobbs), our old chiefs did agree to the Treaty of Waitangi and to the Sovereignty of the Queen. Te Rauparaha did not take exception to it; he signed his name and he took the blanket. I desire that we should ratify this Treaty, that we should hold it fast lest the Queen's protection should be withdrawn from us….” 

Donald McLean, in conclusion…

Mr. McLean concluded the proceedings with the following speech:—

“…With regard to the Treaty: I think Tamati Waka and the other Ngapuhi chiefs shewed themselves to be wise men in asking for protection Hongi Hika was a sagacious chief, and although he destroyed many lives in war, yet he was a man of great mind. He loved his country, foresaw danger, and provided against it. He and others perceived the necessity of having protection. They applied to the King of England for it and the result was this Treaty of Waitangi. Whatever you may now say respecting it, it has been a great boon to you. It is folly to accuse your chiefs of the past generation of ignorance. Do not imagine that you are intellectually superior to them, or that they were less competent than yourselves to form a judgment as to what would benefit their people. Had they not the same faculties as you? and were they not quite as capable of using them? You should not impugn the wisdom of those chiefs who signed this Treaty, Let not the children now talk of repudiating the wise acts of their fathers. They knew in their day what they were about as well as, or better than, you of the present generation. This Treaty should be regarded by you [unclear: as] a valuable property, the benefit of which will be experienced by you, in your day, and hereafter by your children.

It is quite true that what is done here may be considered as a fuller ratification of that Treaty on your part. I therefore agree with you, Paul, in your view as to the importance of a conference like the present one. For, as you observe, the various Native tribes of New Zealand are well represented here.

Your words also, Thompson, are correct. Attempts have been made in England to set aside this Treaty, but the Queen maintained it. She would not take advantage of your ignorance to set it aside. And let me tell you, Chiefs of the Conference, that that Treaty is your safeguard. If it were set aside, you would be the sufferers.

I shall now read to you the Treaty of Waitangi:—

"Her Majesty Victoria, Queen of the United Kingdom of Great Britain and Ireland, regarding with Her Royal Favor the Native Chiefs and Tribes of New Zealand, and anxious to protect their just Rights and Property,  and to secure to them the enjoyment of Peace and Good Order, has deemed it necessary in consequence of the great number of Her Majesty's Subjects who have already settled in New Zealand, and the rapid extension of. Emigration both from Europe and Australia, which is still in progress, to constitute and appoint a functionary properly authorised to treat with the Aborigines of New Zealand for the recognition of Her Majesty's Sovereign authority over the whole or any part of those islands. Her Majesty, therefore, being desirous to establish a settled form of Civil Government with a view to avert the evil consequences which must result from the absence of the necessary Laws and Institutions alike to the native population and to Her subjects, has been graciously pleased to empower and authorise me, William Hobson, a Captain in Her Majesty's Royal Navy, Consul, and Lieutenant-Governor of such parts of New Zealand as may be, or hereafter shall be, ceded to Her Majesty, to invite the confederated and independent Chiefs of New Zealand to concur in the following Articles and Conditions.

"Article the First.

"The Chiefs of the Confederation of the United Tribes of New Zealand, and the separate and independent Chiefs who have not become members of the Confederation, cede to Her Majesty the Queen of England, absolutely and without reservation, all the rights and powers of Sovereignty which the said Confederation or Individual Chiefs respectively exercise or possess, or may be supposed to exercise or to possess over their respective Territories as the sole Sovereigns thereof.

"Article the Second.

"Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand, and to the respective families and individuals thereof, the full, exclusive, and undisturbed possession of their Lands and Estates, Forests, Fisheries, and other properties which they may collectively or individually possess, so long as it is their wish and desire to retain the same in their possession; but the Chiefs of the United Tribes and the Individual Chiefs yield to Her Majesty the exclusive right of Pre-emption over such lands as the proprietors thereof may be disposed to alienate, at such prices as may be agreed upon between the respective Proprietors and persons appointed by Her Majesty to treat with them in that behalf.

"Article the Third."

"In consideration thereof, Her Majesty the Queen of England extends to the Natives of New Zealand Her Royal Protection, and imparts to them all the Rights and Privileges of British subjects.

"W. HOBSON, Lieutenant-Governor.

"Now, therefore, We, the Chiefs of the Confederation of the United Tribes of New Zealand, being assembled in Congress at Victoria, in Waitangi, and We, the Separate and Independent Chiefs of New Zealand, claiming authority over the Tribes and Territories which are specified after our respective names, having been made fully to understand the Provisions of the foregoing Treaty, accept and enter into the same in the full spirit and meaning thereof: in witness of which, we have attached our signatures or marks at the places and the dates respectively specified.

"Done at Waitangi. this sixth day of February, in the year of Our Lord one thousand eight handred and forty."

Hemi Parai, (Ngatiawa,) Wellington:

“…As to that which is called the Treaty of Waitangi, I have heard nothing about it. The only thing I have heard of is the law of God. As to these laws which have been spoken about. they have been out of sight with the Europeans. I did not hear of them. … Governor Grey laid out roads, established schools, and built hospitals. It was he also who appointed the Chiefs as Assessors to assist the European Magistrates. Among us Porutu and Te Puni were appointed; Manihera was another. This it was which brought me: into close connection with the Europeans, and here I take my stand under the protection of the Pakeha.”

Tamihana te Rauparaha, (Ngatitoa,) Otaki:

“… I say the Treaty of Waitangi was good. Some approve of that Treaty; others object to it. In my opinion there is nothing wrong in it. That Treaty is right; it is clear. Those Natives who do not understand it, are confused  about it, and that is why they object to it. 

“Paora has said that it is not clear, that the blankets were the bait and the Maories the fish. The Europeans saw with regret the many evils which existed among the Maories at that time, and that was the reason why Governor Hobson made things smooth, so that they should sign their names as soon as possible. I say, therefore, that that Treaty is clear. 

“That Treaty is like a new road which has just been opened, and which has not been carefully measured off, the brushwood having only just been cut away; and though strife between the Maories and Europeans has been frequent, still the kindly provisions of that Treaty have not been erased. 

“So also in the first purchases, the land was not paid for in money, but with blankets, with scissors, with jews harps, and other goods of inferior value. It was a road of which that was but the beginning. Afterwards the Queen agreed to purchase the land of the Maories. Then first did the Maori see the yellow gold to his hand. Now the purchase of land is clear, as it is paid for in gold. The buying of land with blankets is like the Treaty of Waitangi. This second Treaty, the Kohimarama Treaty, is like the buying of the land with gold. 

“As the rule of paying for land with money is now fixed, so in like manner the provisions of this Treaty are now clear, like the road which has been properly made. In my opinion this is going on towards maturity. The foot has attained one step; when the second is reached then it will be quite clear. 

“I think we had better cease to speak about the disputes of those days gone by, as both the Europeans and the Natives know how wrong those proceedings were. Let us begin afresh now and have new thoughts from this time; let our aim be to hold fast the protection of the Queen, and let us strive to follow the customs [i.e., laws] of the European. 

“With respect to cases of murder, let them be dealt with according to the law of England; if a European should kill a Maori, let the case be dealt with by that law. Whether European or Maori let the offender be dealt with by the same law. If a Maori should be killed by a man when drunk, let the case be tried, and if it be seen to be wrong (that the slayer should be put to death,) enough, let him go; whether European or Maori let the rule be the same; or, if he be a deranged person, let the same law be observed. ….

“There is another thing: it would be well to define the boundaries of our lands, that each family may have its own portion marked off; these should also be surveyed, the Governor appointing surveyors for the purpose, that we may have Crown Grants given to us, so that everything may be clear for us, and that we may be like the Europeans. For this reason I say that this Conference should be made permanent And another thought of mine is, that we should place full confidence in the laws of England, and that there should be no thought to hold back the land; each man should do as he pleases with his own piece….

“What the Ngapuhis have said about cleaving to the Europeans is right; their setting up the flagstaff cut down by Hone Heke at Kororareka was to show the Europeans that they do not consent to the Waikato project. They still hold fast their loyalty to the Queen. Let us hold to this good thing: let us be determined to cleave to this, that is, let us uphold what is good.”

Tukihaumene, (Ngatiwhakaue,) Maketu:

“… One thing, however, let us make haste and finish the talk. Let the Queen's Sovereignty spread and extend to every place. From the Reinga (in the north) to where the sun rises, and on to Port Nicholson. The acknowledgment of the Queen has been agreed to by us all. Therefore, I say, let us finish this. Influenza and what not will be our death. Let us go to town where it is warm. It was said we should be one week, but you have now made the time long.”

August 1^st, Wednesday

Wiremu Tipene, (Te Uriohau,) Kaipara:

“… I will speak about the Maori mana. The Ngapuhis have their mana, the Ngatimaru have their mana, the Ngatiwhatua, and the Ngatiwhakaue, have their mana, as their protection; but the mana to protect me is broken. The day of my salvation was the preaching of the Gospel. I will cleave to the Word of God as a parent for me. When the law of the Queen came as a protector for my body then all were warmly clad. The laws of God and of the Queen guard the gates of death. I beheld and thought this is a sign of salvation for all men threatened with death in this Island. I said, Christianity will guard the soul and the law of the Queen will improve our temporal condition: there will I take refuge. I will have nothing to do with the Maori mana. I will abide in the laws of God and of the Queen for ever and ever. These are the best laws I recognise; you, the Europeans, shall be parents to us the Maori people. I will not acknowledge the Maori mana. The people of the Ngatiwhatua tribe intend to embrace and rest upon the law.

Arama Karaka, (Te Uriohau,) Kaipara:

“…Afterwards came Governor Hobson. Then they told me of the laws of the Queen, and of the laws of England. Then I consented that you should be a parent for me, and that the Queen's mana should be my mana. I am under the mana of all men You, O Governor, must be my protector. My laws must be given up; they are bad laws, cruel and dark. Your laws shall be my laws; let us be bound up that we may hold close together. This is what I have said down to this day. That which binds the Ngatiwhatua is the law of God and of the Queen. The laws of God are for the enlightenment of my heart, and those of the Queen are clothing for my body. The old men pass away, but I shall continue to speak the same language. You have hard what binds us; I refuse to acknowledge the Maori mana, or Maori government(chieftainship). I have seen its evils. It was the law of the Queen which showed me what is good for men—love and kindness.”

Hone Waiti, (Te Uriohau,) Kaipara:

“… We took no part in the talk about the Treaty of Waitangi. In former times all men were as orphans, (friendless,) and every tribe sought for some means by which they might return and live. When the Gospel was made known to us, we sought it as the means of saving men's lives. We were told that it was a good thing and would save the soul. We accepted it. We submitted to the law of God. It was that which caused us to draw nigh to God. It was a good thing which would put down all evil amongst the people. We thought if the side only in which the spirit is concerned be warn, what is to be done for the body? At that time when some of the tribes had embraced Christianity, and others were still evil, the Government came, and it was said that the law of the Queen would protect the Island, and that by these two laws men would live. If evils grow, men die; but these two laws will protect man and he will live.”

August 3, Friday

Paora Tuhaere, (Ngatiwhatua,) Orakei:

“… This Conference is a proper means by which we may come under the protection of the Queen. All the people have been enclosed in the Queen's net. Although a man may wander about, he will do so to little purpose outside of the net. …”

Arama Karaka, (Te Uriohau,) Kaipara:

“All ye of the runanga, hearken! In the days that are past we were in doubt and uncertainty, and knew not whether we should live or die; but in this day the Governor has made a declaration. … My thoughts are with the laws of God and the Laws of the Queen. These are the sentiments of the people of Kaipara, for the meeting which took place yesterday (evening) was composed of Kaipara chiefs. I approve of the words of Te Waiatua (Taiapo). Let us all consent to a pakeha (magistrate) being stationed at Rotorua, as a protection for that place, so that the people may not be disturbed.”

August 6, Monday

Governor Gore-Browne, closing speech

“…Farewell, my Friends! and may God protect you and guide you in the ways of wisdom and in the paths of peace !"

WRITTEN REPONSES

To follow ...

NOTES

1. Claudia Orange, ‘The Covenant of Kohimarama: A Ratification of the Treaty of Waitangi’, New Zealand Journal of History (NZJH), 14, 1 (1980), pp.61-82. ‘The Covenant of Kohimarama: A Ratification of the Treaty of Waitangi’, New Zealand Journal of History (NZJH), 14, 1 (1980), pp.61-82

POSTSCRIPT 4: 'Protection,' Duties and 'Rights' in Normanby's Instructions

Following on from my book review of Ned Fletcher's English Text of the Treaty of Waitangi, this is POSTSCRIPT 3: Excerpts from Normanby's Instructions to Hobson, as drafted by James Stephen, dated 14 August, 1839

KEY WORDS/CONCEPTS HIGHLIGHTED: Protection, Rights, Duties/Object of Your Mission, Gradualism

"The acquaintance which your service in Her Majesty's Navy has enabled you to obtain with the state of society in New Zealand relieves me from the necessity of entering on any explanations on that subject. It is sufficient that I should generally notice the fact, that a very considerable body of Her Majesty's subjects have already established their residence and effected settlements there, and that many persons in this kingdom have formed themselves into a society, having for its object the acquisition of land, and the removal of emigrants to those Islands. ...

The necessity for the interposition of the Government has, however, become too evident to admit of any further inaction. ... The spirit of adventure having thus been effectually roused, it can no longer be doubted that an extensive settlement of British subjects will be rapidly established in New Zealand; and that, unless protected and restrained by necessary laws and institutions, they will repeat, unchecked, in that quarter of the globe, the same process of war and spoliation under which uncivilized tribes have almost invariably disappeared as often as they have been brought into the immediate vicinity of emigrants from the nations of Christendom. To mitigate and, if possible, to avert these disasters, and to rescue the emigrants themselves from the evils of a lawless state of society, it has been resolved to adopt the most effective measures for establishing amongst them a settled form of civil government. To accomplish this design is the principal object of your mission.

I have already stated that we acknowledge New Zealand as a sovereign and independent state, so far at least as it is possible to make that acknowledgment in favour of a people composed of numerous, dispersed, and petty tribes, who possess few political relations to each other, and are incompetent to act, or even to deliberate, in concert. But the admission of their rights, though inevitably qualified by this consideration, is binding on the faith of the British Crown. ...

Believing, however, that their own welfare would, under the circumstances I have mentioned, be best promoted by the surrender to Her Majesty of a right now so precarious, and little more than nominal, and persuaded that the benefits of British protection, and of laws administered by British judges, would far more than compensate for the sacrifice by the Natives of a national independence which they are no longer able to maintain, Her Majesty's Government have resolved to authorize you to treat with the aborigines of New Zealand for the recognition of Her Majesty's sovereign authority over the whole or any parts of those Islands which they may be willing to place under Her Majesty's dominion. ...

Especially you will point out to them the dangers to which they may be exposed by the residence amongst them of settlers amenable to no laws or tribunals of their own, and the impossibility of Her Majesty's extending to them any effectual protection unless the Queen be acknowledged as the sovereign of their country, or at least of those districts within or adjacent to which Her Majesty's subjects may acquire lands or habitations ...

It is further necessary that the chiefs should be induced, if possible, to contract with you, as representing Her Majesty, that henceforward no lands shall be ceded, either gratuitously or otherwise, except to the Crown of Great Britain. ... Extensive acquisitions of such lands have undoubtedly been already obtained, and it is probable that, before your arrival, a great addition will have been made to them. The embarrassments occasioned by such claims will demand your earliest and most careful attention. ... 

[I]it will be your duty to obtain, by fair and equal contracts with the Natives, the cession to the Crown of such waste lands as may be progressively required for the occupation of settlers resorting to New Zealand. All such contracts should be made by yourself, through the intervention of an officer expressly appointed to watch over the interests of the aborigines as their protector. The re-sales of the first purchases that may be made will provide the funds necessary for future acquisitions ... the price to be paid to the Natives by the local Government will bear an exceedingly small proportion to the price for which the same lands will be re-sold by the Government to the settlers....

The acquisition of land by the Crown for the future settlement of British subjects must be confined to such districts as the Natives can alienate without distress or serious inconvenience to themselves. To secure the observance of this, will be one of the first duties of their official protector....

There are yet other duties owing to the aborigines of New Zealand, which may be all comprised in the comprehensive expression of promoting their civilization,—understanding by that term whatever relates to the religious, intellectual, and social advancement of mankind. For their religious instruction, liberal provision has already been made by the zeal of the missionaries and of the missionary societies in this kingdom; and it will be at once the most important and the most grateful of your duties to this ignorant race of men to afford the utmost encouragement, protection, and support, to their Christian teachers. ... The establishment of schools for the education of the aborigines in the elements of literature will be another object of your solicitude; and until they can be brought within the pale of civilized life, and trained to the adoption of its habits, they must be carefully defended in the observance of their own customs, so far as these are compatible with the universal maxims of humanity and morals. But the savage practices of human sacrifice, and of cannibalism, must be promptly and decisively interdicted. Such atrocities, under whatever plea of religion they may take place, are not to be tolerated within any part of the dominions of the British Crown.

BOOK REVIEW: 'The English Text of the Treaty of Waitangi' by Ned Fletcher

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....

DOWNLOAD THE FULL REVIEW HERE [pdf], or READ ON BELOW ...

=> 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

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[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