'The Myth of the Cession of Māori Sovereignty' [sic]

 

A piece from a Dr Luke Fitzmaurice-Brown is doing the rounds again. It's called 'The Myth of the Cession of Māori Sovereignty' -- and argues (unsurprisingly) that "to accept that Māori surrendered sovereignty when they signed Te Tiriti o Waitangi in 1840 requires 'a profound suspension of disbelief'."

So I figured I'd fisk the Fitzmaurice-Brown fiction.

Mr Fitzmaurice-Brown [whose opinion piece excerpts appear in blue] is a law lecturer at the university formerly known as Victoria University of Wellington. Unlike him, I'll begin by defining my terms -- or at least the most important one: "Sovereignty":

Sovereignty is the supreme authority of a state or governing body to rule itself without interference from outside powers. It typically includes a few core elements: 

• Political authority – the recognised right to make and enforce laws within a territory
• Independence – freedom from control or dictation by other states or entities
• Territorial integrity – authority over a defined geographic area
• Self-determination – the capacity of a people or government to decide their own political status and course

So this is what's contested. And the opinion piece by Fitzmaurice-Brown begins with some of those basic assumption, especially those last four:

Moana Jackson once said that to accept that Māori surrendered sovereignty when they signed Te Tiriti o Waitangi in 1840 required “a profound suspension of disbelief.” As he put it, no country anywhere in the world has ever guarded its independence for hundreds of years only to then relinquish it. He argued that “to assume that is what our people did flies in the face of human history, let alone Māori history, where the notion of giving away the authority to make independent decisions is not just culturally inconceivable, it is politically impossible.”

But there's an immediate problem. He talks about a "country" that "guarded its independence." A country? What country? There was no "country" here to claim independence, let alone to guard it. For hundreds of years -- those years that Jackson claims was spent "guarding" independence -- Māori was set against Māori as each tribe, iwi and hapu struggled, not for independence but for safety. For survival. If anything were guarded here it was tribal claims -- and, more accurately, they were not guarded but contested -- heavily contested. Tell the Te Rauparaha of 1820, for example, that he was guarding the independence of these islands and he would have laughed; he was not trying to guard the "country" as he warred his way from Kawhai to Kaiapoi, but to exterminate his enemies. 

In a series of islands with no visible outsiders, even the idea of a "country" would have been absurd -- you might even say it would require “a profound suspension of disbelief.”

There is no historical disgrace in societies contesting territory over each other-- but for the sake of peace and prosperity and everything that's wroth living for, they do need to get over it. For centuries, Europe endured that struggle. The idea of "sovereignty," which Mr Fitzmaurice-Brown leaps over so quickly, came from the Peace of Westphalia (1648) which ended the massively destructive Thirty Years' War in Europe. The idea came from it that religious authority behind a throne, which created these endless wars, must be replaced with something "better": an idea of nationhood in which each state held supreme authority within its own territory — with no higher power (pope, emperor, or otherwise) entitled to override it.

In this idea, sovereignty was not contested, it was recognised -- even in its breach. Inter-tribal or inter-religious battles were replaced with a recognition of some kind of right. And some kind of peace flowed therefrom.

If we drill down a level, that right to rule within a given territorial area came from the idea that the people within that territory were not subjects, but citizens, each of them holding some kind of rights. As this idea became better understood, it was realised that sovereignty is not a primary, freestanding right of "the state" or "the nation" as an entity in itself — it is a derivative right. It exists only because, and only to the extent that it does. protect the individual rights of the people living under that government. In other words: Sovereignty is downstream of individual rights, not the other way around.

This has a sharp corollary that we should spell out explicitly: sovereignty is conditional on being a rights-respecting government.

We are already several miles from Moana Jackson's historical assumptions. Territorial authority for him comes not from the consent of the ruled, but from the point of a taiha. 

But even if we've disproved the idea that there was one "country" here to cede authority, we're still left with his claim that those several tribal leaders who did control territory here -- not by right, but by military power -- would not have given away that gradually crumbling authority. Whay would they when they were (apparently) all-powerful within their fiefdoms. Fitzmaurice-Brown cites Margaret Mutu in support of this idea:

Professor Margaret Mutu [he says] has pointed out the huge amount of evidence that casts further doubt on the myth of the cession of sovereignty. She states, for example, that in 1840 the Māori population numbered about 80,000, while the settler population numbered about 2,000. That the former would give up their sovereignty to the latter seems overwhelmingly unlikely. In some parts of the country, there were single-figure numbers of settlers when Te Tiriti o Waitangi was signed.

And this is true, of course. And unanswerable ... unless you go back to that realisation that the territorial authority of each tribe and tribal leader was continually contested. Signing Te Tiriti was not simply handing over the sovereignty of 80,000 Māori to 2,00 settlers for unfathomable reasons. It was an exchange: giving up the notion of continuing and ongoing territorial struggle (highlighted by the horrific self-inflicted Butchers' Bill experienced under the Musket Wars) for this new idea promulgated mostly by missionaries (however imperfectly) of peace within a given territorial area.

The rangatira who signed Te Tiriti were the modernisers of their day. As Lyndsay Head explains, their signatures ceding sovereignty were entirely rational:

"In the 1830s northern Māori sought meaning in their post-contact experience through understanding how the foreigners ordered their world. This was a period of rational and intellectual response to European culture in which Christian teaching became a political primer for change. Consciously replaying the conversion of the barbarians, the missionaries taught that peace was the condition of political and social modernity — that is, of a European-style society.
    "This impacted heavily on culture, because tribal histories were almost exclusively histories of war. Fighting was central to the social identity of Māori. [It set] up peace as the condition of modernity ...
    "Their attention to the missionaries, and subsequent support for a treaty with the British, was not without history, but a response to lived change. By this reading, then, a possible basis of Māori citizenship was rational choice.
    "The rationality of the chiefs has been obscured by the rationality of the British side of the Treaty, which entirely dominates the literature."

It would be nice if that rationality were respected rather than brushed over by the likes of Mutu and Fitzmaurice-Brown.

He continues however:

Nevertheless, the idea that Māori ceded sovereignty in 1840 has been unquestioned by many New Zealanders for much of our country’s history. In large part this has been because of the appearance of the term in the English text of the Treaty of Waitangi. Article 1 of the Treaty states that Māori signatories ceded “all the rights and powers of sovereignty” to the ‘Queen of England’. Case closed, right?

Well, no. The English text of the Treaty of Waitangi was never actually signed on February 6 at Waitangi, with every signatory on that day signing their name to Te Tiriti o Waitangi, the text in te reo Māori. Subsequently around the country, about 500 Māori leaders added their name to Te Tiriti, but about 92 percent of those leaders signed the Māori text. ...

So, what does the text in te reo actually say?

Instead of mentioning ‘sovereignty’ (as the English text does), article 1 of the Māori text gives the Queen of England the power of “kāwanatanga”, a transliteration of the English term ‘government’ or ‘governance’. Kāwanatanga was likely intended as a far more limited form of authority, primarily aimed at enabling the Crown to control and discipline its own settlers (who were largely beyond the control of the English legal system in Aotearoa).

Mr FB is right, of course. Rangatira signed the te reo text, after they heard an explanation of it by the translator Henry Williams. Several of those rangatira were readers, but even those wholly reliant on Williams would have heard him say, in describing the Treaty's Article 1, that "the chiefs shall surrender to the Queen for ever the Government of the country, for the preservation of order and peace." That was from the description of his translated speech which Henry Williams wrote about to Bishop Selwyn, 12 July 1847 [reproduced in Hugh Carleton's The Life of Henry Williams]. 

Of course, they would have heard it in te reo, in which Williams translated the word "Government" as "kawanatanga katoa."  That little word katoa is rarely mentioned by today's revisionists. And with good reason. Because, as Ewen McQueen observes, "it means complete, all-encompassing, totally, without exception." 

It’s no wonder [that in 1840] it focussed the minds of the chiefs on the issue of Crown authority. ...   

    Nowhere in the historical records do we find any indication that either the chiefs or the Pākehā protagonists understood anything other than that Kāwanatanga katoa meant the Crown was being established as the pre-eminent governing authority in the land. ...

    Te Kawenata Hou' (the 'Māori New Testament') ... would have had significant influence on how the chiefs understood the Treaty. ... In 'Te Kawenata Hou' the term rangatira is a general term for leadership. In contrast kawana is a very specific term used to denote governors who represent the authority of kings.   To use [the] example of Pilate – as the kawana (governor) he represented the sovereignty of the Roman empire in Jerusalem. He had the authority to tax and to execute judgement. The local Jewish leaders who wanted Jesus crucified had to get his permission. Those leaders are described in Te Kawenata Hou as rangatira. From this the chiefs at Waitangi would have quickly understood what was being proposed in the Treaty. And it certainly did not involve them retaining 'absolute sovereignty'."

But, as everyone from Hugh Kawaharu to Matthew Hooton to Margarat Mutu to Mr Fitzmaurice-Brown would counter, what about "Article 2 of the te reo text [which] guaranteed that Māori would continue to be able to exercise 'tino rangatiratanga' over their whenua, kainga, and taonga katoa – translated by Sir Hugh Kawharu as their lands, their villages, and all their treasures. 

This is the closest the te reo text gets to mentioning sovereignty [says Mr Fitzmaurice-Brown], but in the te reo text it is a power reserved for Māori, not for the Crown.

Mr Fitzmaurice-Brown lectures in law, but appears ignorant of even the first principles of the subject. In law, an earlier Article (which often sets the fuller context) generally takes precedence over later articles. And if Mr Fitzmaurice-Brown were to read that earlier Article, he would see those words "kawanatanga katoa," i.e., complete Government, which the te reo text (as translated by Te Tiriti's first translator) says "the chiefs shall surrender to the Queen for ever." 

Why would they do that? As answer, the Article continues: "For the preservation of order and peace."

If you don't have Hugh Carleton's Life of Henry Williams (and why would you, it's poor reading even for historians) you can read Williams's transliteration of the te reo text on page 481 of Ned Fletcher's tome. Perhaps Mr Fitzmaurice-Brown could read (or re-read) it? Because it contains in only a few words the counter to the first two of his opinion piece's main points.

He continues however. 

The evidence against the cession myth is further bolstered by another document, signed in 1835 – He Whakaputanga o te Rangatiratanga o Nu Tirene: the Declaration of Independence of the United Tribes of New Zealand. Generally referred to just as He Whakaputanga, it is an assertion of Māori mana, sovereignty, and independence, addressed primarily to an international audience ...

This is a pathetic claim, evidence only of the ability to grasp at straws. The Declaration was the idea of James Busby, the British Resident here desperate for something to do. Written by him, signed by thirty-four northern chiefs, it was formally acknowledged by the Crown in May 1836.  

What did it say? 

It asserted that sovereign power and authority in the land (‘Ko te Kingitanga ko te mana i te w[h]enua’) resided with Te Whakaminenga, the Confederation of United Tribes, and that no foreigners could make laws. Te Whakaminenga was to meet at Waitangi each autumn to frame laws ....

Te Whakaminenga, the Confederation of United Tribes, in which sovereignty was supposed to reside, never met to "frame laws" -- in fact it never met again. As the NZ History site acknowledges, For many,  the Declaration was primarily a matter for Ngāpuhi, who were ninety percent of the signatories. For any other rangatira to travel to Ngāpuhi territory for any reason in 1835 was still to take your life in your hands, so it's not surprising no more came of it. Historian Paul Moon sees it as a ‘regional goodwill agreement rather than a national document of truly constitutional significance.'" 

It's only significance, having been recognised by the British Crown, was to ensure that any lingering claim to sovereignty derived from the Declaration was firmly expunged by Te Tiriti -- which is precisely the opposite of Mr Fitzmaurice-Brown's argument.

Persistent as ever, however, he continues:

More recent scholarship suggests the cession of sovereignty (in the sense of all-encompassing power, including over Māori) may not have even been intended in the English text. That is a debate for another day ...

Indeed, that alleged "recent scholarship" by Ned Fletcher is when I entered that debate in two opinion pieces at Newsroom not so long ago.

... but in the meantime, the myth of the cession of sovereignty persists. ... To return to Moana Jackson’s words about the suspension of disbelief, I would add that believing Māori ceded sovereignty in 1840 also requires a suspension of humanity. Put yourself in the shoes of the actual rangatira who signed Te Tiriti. If you assume the humanity of those leaders, if you assume they were intelligent, competent, and humane, you can’t possibly reach the conclusion that they just gave away everything that mattered to them and their people. It’s hard to think otherwise unless you believe Māori were unintelligent, incompetent, and inhumane.

Mr Fitzmaurice-Brown began his opinion piece essentially suggesting that to see Māori ceding sovereignty made you dumb. To that he now adds that it makes you racist. What a vile person he must be.

If you assume the humanity of those leaders, if you assume they were intelligent, competent, and humane [he says, to repeat], you can’t possibly reach the conclusion that they just gave away everything that mattered to them and their people.

And of you think otherwise, he implies, you're a racist. Is this the lowest of the low? Of course an honest person can reach that conclusion. To cite just Lyndsay Head above, she argues it was precisely the intelligence, competence, and humanity of these modernising rangatira that recognised Māori citizenship within a British legal paradigm was, in 1840, a completely rational choice. 

Does Mr Fitzmaurice-Brown answer that? Of course not.

Lyndsay Head's argument is only reinforced by what the signatories themselves were reported to have said in that first signing (as we can read in Colenso's account), and what they said about their signing two decades later in Kohimarama -- what Claudia Orange once called the renewal of a Covenant.

The Kohimarama Conference began with then Governor Gore Browne recalling to those assembled (including more than 100 rangatira from Ngāpuhi in the north to Ngai Tahu in the south, who by then were mostly competent in English, and who could also enjoy translations into to reo):

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.
    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.

The astute reader will notice that these are almost exactly the words to which Mr Fitzmurice-Brown objects -- that is to say, almost a recapitulation of the Treaty terms. No one rose to object.

The Conference itself concluded on 10 August 1860 with rangatira gathered there giving unanimous agreement that:

the several Chiefs, members thereof, are pledged to each other to do nothing inconsistent with their declared recognition of the Queen's sovereignty and of the union of the two races ... [16] 

It was Apirana Ngata six decades later who reminded Māori that 

The Government placed in the hands of the Queen of England, the sovereignty [mana] and the authority to make laws. ... it made the one law for the Maori and the Pakeha. If you think these things are wrong and bad then blame our ancestors who gave away their rights in the days when they were powerful.
    Those ancestors were not stupid. They knew what they were about, and and had a pretty fair idea of what they were promised.

But perhaps they knew less about what they were agreeing to and signing than geniuses like Mr Fitzmaurice-Brown, and the intellectual giants who are sharing his work on social media.

"AOTEAROA, IT IS WIDELY ASSUMED, is the original ‘indigenous name’ for New Zealand...."

 

"Some of the major King Movement meetings were held at a

village called Aotearoa, some eight kilometres east of Te Kuiti.

It was still known by that name at the end of the century."

"AOTEAROA, IT IS WIDELY ASSUMED, is the original ‘indigenous name’ for New Zealand. It is certainly the ‘modern’ name favoured by many Māori and others. But our current common use and understanding of the name was probably not in existence before Western contact....
    "Māori appear not to have had a name for what is now called New Zealand. The North Island was Te Ika a Maui – the fish of Maui – and the South Island Tewaipounamu, or the rivers of greenstone. The latter also had other names in legend ...
    "The origins of Aotearoa are obscure. George Grey’s 'Polynesian Mythology' (1855) is sometimes credited with the first written use of the term when he recounted the legends of Maui, saying that the 'greater part of his descendants remained in Hawaiki, but a few of them came here to Aotearoa… (or in these islands).'
    "But there are now long recognised problems with accepting at face value early European interpolations of tribal ‘traditions’. ... [T]here are some traditional generic notions common through much of eastern Polynesia, such as the idea that islands were hauled up from the dark depths into the light, which is where the term Aotea, or dialectical equivalent, as light may have some relevance – perhaps not so much as a specific island name, but as a place that become light. So it is possible the words Aotea, or Aotearoa, were sometimes used, but not in the sense they are commonly used today.
    "For example, it is revealing that the Māori Declaration of Independence of 1835 which asserted the authority of the ‘Independent Tribes of New Zealand’ has both Māori and English versions. The Māori version of New Zealand is ‘Nu Tereni,’ a Māori pronunciation of the English name. Aotearoa is not used.
    "The English version of the 1840 Treaty of Waitangi has several references to the ‘Tribes of New Zealand’, ‘Chiefs of New Zealand’, ‘Natives of New Zealand’. The Māori version, it might be expected, would use the word Aotearoa, if it was in common usage. Instead it translates ‘New Zealand’ as ‘nu tirani’.
    "William Williams’ Māori dictionary, first published in 1844, has no entry for Aotearoa.

"THE EARLIEST REFERENCE I have found in New Zealand’s newspapers is in the Māori language [government newspaper] 'Māori Messenger,' 1855, which mentions Aotearoa which it equated to ‘Nui Tireni.'
    "So it is likely that the word Aotearoa may have had some currency, though it seems not to have been in widespread or specific use. And maybe Grey’s poetic hand [for he was Governor again at the time] is there somewhere? ...
    "But the increasing usage of Aotearoa from about mid-century does have traceable origins in Māori tribal locations and politics in the colonial period, and particularly with the emergence of the Māori King Movement in the Waikato in the late 1850s, early 1860s. Some of the major King Movement meetings were held at a village called Aotearoa, some eight kilometres east of Te Kuiti – but not in more recent times? The village was also then, and is now still called Rangitoto.  

    "Also in the 1860s there are examples of the use of the phrase ‘the island of Aotearoa’ meaning the North Island. This usage continued throughout the century. The setting up of King Tawhio’s Great Council, or Kauhanganui, in 1892 comprised, it claimed, ‘the Kingdom of Aotearoa and the Waiponamu,’ meaning both the North and South Islands. 
    "It is likely that King Movement political aspirations may lie behind the claimed increasing geographic size of the region purported to be Aotearoa. But it was mostly wishful thinking in practical terms. While many Maori throughout New Zealand may have been in support of the King Movement’s general aims, most were far too independent to kowtow to its mana. At least one acerbic commentator noted Tawhiao’s nation-wide ‘constitution’ for ‘the Maori Kingdom of Aotearoa’ amounted only to ‘practically what is termed the King country.’

"THOMAS BRACKEN'S NEW ZEALAND [1870s] anthem was translated into Māori [in 1878] by T.H. Smith. New Zealand he called Aotearoa. This meaning was further entrenched with W.P. Reeves’ 1898 history of New Zealand with the title 'The Long White Cloud: Ao Tea Roa.' James Cowan’s 1907 version is entitled 'New Zealand, or Ao-te-roa (The Long Bright World).' Johannes Andersen, in the same year, published 'Māori Life in Aot-ea.'
    "The now common specific ‘translation’ of Aotearoa as ‘the land of the long white cloud’ probably became more established from the 1920s or 30s.
    "Both Bracken and Reeves are commonly credited with first inventing the word Aotearoa. They did not, but they helped embed the modern view among both Māori and Pākehā that Aotearoa means and is the ‘indigenous’ term for all of New Zealand. ..."

~ Professor Kerry Howe, from his 2020 post 'Aotearoa: What’s in a name?' (Kerry Howe is an internationally regarded academic for his 11 books on aspects of the prehistory, history and cultures of New Zealand and the Pacific Islands)

Sovereignty

Cretin on a rope

MĀORI RANGATIRA NEVER CEDED SOVEREIGNTY say various parties including the Waitangi Tribunal, law professors at the University of Auckland and VUW, and the protestors who dangled in front of Te Papa's Treaty display yesterday and began defacing it.

Because of the difference between the Treaty and Tiriti, said protestors yesterday, Māori at the various Tiriti signings never agreed to what the English translation claimed. Protestors' spokesperson Haimana Hirini said "the English Treaty of Waitangi text was not a translation because it incorrectly stated that Māori ceded sovereignty."

Mr Hirini thinks he knows better than the many Māori who spoke at the various signings around the country in 1840, who were --apparently -- confused. As were the many who, at Kohimarama twenty years later, reaffirmed their decision to sign. Confused, all of them.

Including the rangatira Maihai who, at the Mangungu hui in the Hokianga, said (in opposing the signing) that he would be agreeing to "Kwini Wikitoria" being "the great chief here." [1] (Which was true.)

And the rangatira Raumati, who supported the signing, who told Hobson, "I say come, come now it is for you to direct us and keep us in order."[2]

Or at the Kaitaia signing, where Chief Nopera Panakareao said the new Kawana would be "a helmsman for our canoe." [3]

Or at Waitangi itself, the first signing, when the day began with opposition from several rangatira, including Tareha, of the Ngatirehia tribe, who objected: "We only are the chiefs, rulers. We will not be ruled over. ... Thou high, and I, Tareha, the great chief of the Ngapuhi tribes, low!" [4] He clearly understood the position proposed. And he signed.

And Kawiti, rangatira of the Ngatihine tribe, who objected initially on the understanding that the Kawana would have the power to regulate, saying in horror, "What! ... even I, Kawiti, must no paddle this way, nor paddle that way, because the Governor said 'No' ..." [5] (He signed.)

Or Te Kemara, a rangatira of the Ngatikawa, who clearly understood that agreement would mean the Kawana having police power: "If thou stayest as Governor, then, perhaps, Te Kemara will be judged and condemned. Yes, indeed, and more than that--even hung by the neck. No, no, no. ... Were all to be on an equality, then, perhaps, Te Kemara would say 'Yes'; but for the Governor to be up and Te Kemara down--Governor high up, up, up, and Te Kemara down low, small, a worm, a crawler--No, no, no." [6]  He too understood that, like Roman governor Pontius Pilate in the New Testament (which had been recently translated into te reo and was enormously popular -- with the word governor transliterated therein as "kawana") the kawanatanga to be exercise, and thus ceded by signatories in Te Tiriti, could mean the power of life and death. (He too signed, but not before confessing that Bishop Pompallier had told him "not to write upon the paper, for if he did he would be made a slave." [7])

But not one of the speakers in any of the meetings recorded, even speaking in opposition, used the term "partnership." And no assurance was given anywhere that chiefs would be "up high" with governor in authority, somehow sharing power. The positions were clear to all. Like Pilate's governorship, Hobson's kawanatanga would mean only the Kawana would be "up."

These rangatira were very far from confused, and several had already seen something of the world beyond these shores. Rewa, chief of the Ngaitawake tribe for example, who also initially object to signing saying that "we," the rangatira, "are the Governor--we, the chiefs in our fathers' land. ... What! this land to become like Port Jackson and all other lands seen [or found] by the English. No, no." [8] (He too signed, after saying that Bishop Pompallier "had striven hard with him not to sign" as well. [9])

It was Tamati Waka Nene who turned the day at that first signing on the morning of February 6th: he "rushed into the tent attended by chiefs and other followers" to give "an address to his countrymen in a strain of fervid and impassioned eloquence..." [10] After damning many of the misbehaving "strangers," "foreigners" and "grog-sellers" who covered the land around Korareka -- "even as the grass and herbage" -- Nene turned to Hobson and concluded: "Do not thou go away from us; remain for us--a father, a judge, a peacemaker. ... Stay though, our friend, our father, our Governor. ... Do not listen to what 'the chiefs of ] Ngapuhi say. Stay thou, our friend, our father, our Governor. "[11]

A friend. A father. A judge. A peacemaker. A Governor with elevated authority above the rangatira, with the power to rule, to regulate, to exercise police power -- with the very power of life and death if necessary.

Many of the speakers, it's true -- too many -- picked up on the idea of the Kawana being a "father." Which was certainly unfortunate, and was not corrected. But a judge. And a peacemaker. That was valuable.

But perhaps it was intended, even so, that the Governor/Kawana only have sovereignty over settlers? Not so, Hobson corrected a rangatira at the Hokianga meeting, who had expressed that view, explaining calmly that "English laws could only be exercised on English soil."[12]

IT MIGHT STILL BE THOUGHT that, perhaps, rangatira remained confused, and were only signing because they thought the "strangers" and "foreigners" would remain in low numbers, and could be ignored. Yet, two decades later, at Kohimarama, while the Kingitanga in the Waikato were expressing violent opposition to the government, and after "tangata Tiriti" now outnumbered tangata whenua in these islands (this point was officially passed in 1858[13]), several of these same signatories were invited to reaffirm their support for Te Tiriti. Which they did, Tamati Waka Nene telling listeners why he had supported the signing so vehemently:

0 people listen: These are my words for ourselves to 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 King but the Queen [i.e., he rejected the Māori king] 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 I have finished.[14]

The putative host for the hui, Paora Tuhaere of Ngati Whatua o Orakei agreed, saying:

Hearken, all ye people to my words! These were my words to the first Governor, to the second Governor and to the third Governor: I want the Laws of England. Hearken, ye people, two things commend themselves to my mind - the Governor and the Queen. For thereby do we, both Pakeha and Maori, reap good. This is my speech. The best riches for us are the Laws of England. [15]

"The Kohimarama Conference had begun with then Governor Gore Browne recalling to those assembled (including more than 100 rangatira from Nga Puhi in the north to Ngai Tahu in the south):

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.
    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.

The astute reader will notice that these are almost exactly the words to which yesterday's protestors expressed such violent objection -- that is  to say, almost a recapitulation of the Treaty terms.

The Conference itself concluded on 10 August 1860 with rangatira gathered there giving unanimous agreement that:

the several Chiefs, members thereof, are pledged to each other to do nothing inconsistent with their declared recognition of the Queen's sovereignty and of the union of the two races ... [16]

It was Apirana Ngata six decades later who reminded Māori that 

The Government placed in the hands of the Queen of England, the sovereignty [mana] and the authority to make laws. ... it made the one law for the Maori and the Pakeha. If you think these things are wrong and bad then blame our ancestors who gave away their rights in the days when they were powerful.

Those ancestors were not stupid. They knew what they were about, and and had a pretty fair idea of what they were promised.

But perhaps they knew less about what they were agreeing to and signing than the geniuses who took power tools yesterday to Te Papa to make their argument.

NOTES:
1. Waitangi Tribunal 2014, p. 380
2. Waitangi Tribunal 2014, p. 383
3. Lindsay Buick, The Treaty of Waitangi, 1914, p. 150
4. W. Colenso, The Authentic and Genuine History of the Signing of the Treaty of Waitangi, 1890 facs., Government Printer, (reprint, 1971, by Caxton Press) p. 24
5. Colenso, p. 22
6. Colenso p. 17
7. Colenso, p. 34
8. Colenso, p. 19
9. Colenso, p. 34

10. Felton Mathew, The Founding of New Zealand: The Journals of Felton Mathew, ed. Rutherford, 1940, (AH & AW Reed for Auckland University College) p. 37
11. Colenso, p. 27
12. Waitangi Tribunal 2014, p. 380

13. "In 1858 [Māori] were estimated at 56,049, of whom 31,667 were males and 24,303 were females." History of New Zealand, Rusden, Vol II. ch. 12. Population of non-Maori was now 59,328. [Stats NZ]

14. Te Karere Maori, July 13th, 1860, p. 15

15. ibid

16. Claudia Orange, in her discussion of the Kohimarama Conference ("possibly the most important gathering of chiefs since Waitangi," p. 77), notes that "sovereignty" was translated in the proceedings as "mana." Ref: 'The Covenant of Kohimarama,' NZ Journal of History, July, 1980, pp74-75

17. Proceedings of the Kohimarama Conference, comprising Nos. 13 to 18 of The Maori Messenger. 

Again, why did chiefs sign?

  

p. 62, Michael Belgrave's Historical Frictions

"[Historian Michael] Belgrave argued* that a study of the debates that took place at the Treaty meetings revealed that they were mostly about land and religion, rather than sovereignty, indeed that these matters overshadowed everything else. ...
     "[O]ne of the most important messages the chiefs would have taken away from what the British or Pākehā advocates of the Treaty had declared was that Māori would be protected in their lands, and that this was a vital consideration for those who agreed to sign ...
    "Belgrave argued that while the Treaty was made in a world in which Māori remained dominant, the chiefs were acutely aware that times were changing and they felt vulnerable, and that in these circumstances they believed it made sense to sign the Treaty and hoped that the British Crown would uphold the promises it had given ...
    "He held that a properly historical account revealed ... [that] by the time the Treaty was made, Māori had adopted, adapted and adjusted [to] the European ideas they had encountered ...
    "[T]he ‘modern’ interpretation of the Treaty [however] — which he attributed to those he called ‘non-historians’, thereby obscuring the role that academic historians, most of all Claudia Orange, had played in its creation — ... had become so preoccupied with the texts that it had become blind to matters of context. ... 
    "[T]he worldview that informed [chiefs'] understanding of it in 1840 had become opaque to contemporary readers because of an undue focus on the written texts. In and of themselves, he held, the texts were extremely limited sources on which to base any historical interpretation ... [and so] the story the Tribunal had been telling was more or less a fiction or an invented history ..."

~ Bain Attwood, from his 2023 book A Bloody Difficult Subject

* In his 2005 book Historical Frictions: Maori Claims & Reinvented Histories, esp. pp. 46-66

"Why, when they were so strong, did Maori invite the British in?"

 

Sources here.

"The view that the Treaty has become the straitjacket of Maori history is the starting point for the present study. ... 
    "When Europeans stepped into the southern dawn, the people who had thought of themselves as constituting the whole human world found that they were one of its fringes. ... Assertive and risk-taking in cultural personality, Māori fought to eradicate their fringe status by pursuing modernisation, including the political modernisation that would create a path to the Treaty ground. .... The question then becomes why, when they were so strong, did Māori invite the British in? ...
    "Because Māori society [had been] organised around the chance of war, the initial effect of the introduction of muskets was indeed the expansion of tradition. Serial wars followed from the idea of their possibilities. Soon enough, however, war became an agent for its own collapse. Nga Puhi’s raids were predatory larks, fought for neither territory nor strategic advantage. ... 
    "[T]he terror of the gun [had] caused social disruption analogous in principle to that of current world ethnic strife. From Auckland to Whangarei was empty. The Hauraki tribes fled inland, and Ngati Kahungunu to the tiny edge of their vast territory. Modern Taranaki was deserted, and some of its displaced people virtually exterminated the Chatham Island Moriori. Ngati Toa, forced into pre-emptive migration, ravaged the south — the list is representative but not exhaustive. Similar things had occurred in the history of most tribes, but there is no previous evidence of near-total war. A detached modern historiography lists battles, but makes the musket wars events without real effects. Yet the wars were a modern catastrophe for Māori, not a traditional one. ...
    "In the 1830s northern Māori sought meaning in their post-contact experience through understanding how the foreigners ordered their world. This was a period of rational and intellectual response to European culture in which Christian teaching became a political primer for change. Consciously replaying the conversion of the barbarians, the missionaries taught that peace was the condition of political and social modernity — that is, of a European-style society.
    "This impacted heavily on culture, because tribal histories were almost exclusively histories of war. Fighting was central to the social identity of Māori. [It set] up peace as the condition of modernity ...
    "Their attention to the missionaries, and subsequent support for a treaty with the British, was not without history, but a response to lived change. By this reading, then, a possible basis of Māori citizenship was rational choice.
    "The rationality of the chiefs has been obscured by the rationality of the British side of the Treaty, which entirely dominates the literature."

~ Lyndsay Head, from her article 'The Pursuit of Modernity in Māori Society'

"New Zealand lacks a national unifying myth"

 

"New Zealand lacks a national unifying myth that embodies the shared views of the country’s history and future. The loss of a common national story is central to many of News Zealand’s problems. Myths explain our history, chart a path to the future and help bind the country together.
    "Richard Slotkin, who has written extensively about the various mythologies underpinning the United States experience, suggests that ‘myths are the stories – true, untrue, half-true – that ... provide an otherwise loosely affiliated people with models of patriotic action.’ A more formal dictionary definition suggests that myths may be popular traditions embodying core social values* ...
    "There have been a number of what may be described as archetypal experiences in New Zealand history that could approach a 'mythological' status that reflect the embodiment of some of the values that underpin the national identity. ANZAC immediately comes to mind. Wartime activity and service brings a people together often because national survival is at stake.
    "Then there is the 'man alone' myth that underpins much of Jock Phillips writing, along with the Kiwi do-it-yourself 'number 8 wire' approach to problem solving. Sport tends to be a unifier but primarily a hysterical support for the All Blacks which rapidly diminishes if the team does anything but win. Sport is meant to demonstrate resilience in the fact of adversity but not, it would seem, on the part of the fans.
    "Historians are well positioned to invent and develop new national stories. ... But historians have not taken on the task of devising a coherent national mythology that can bring unity to a fractured nation. Instead, students are being taught radically different versions of the nation’s past. All this reflects not simply divergent opinions on specific issues, but disagreements about the fundamental character of our institutions and the purposes of our nation.
    "One myth which did possess a unifying feature but which has been badly eroded is the position of the Treaty of Waitangi. The treaty established a foundation for equal citizenship, one people with equal recognition under the law.
    "Hobson at the signing of the Treaty is reputed to have said 'He iwi tahi tatou – 'we are now one people.' ... The problem is that in many respects myths [like this one] contain a great deal of invention and not a lot of evidence. But Hobson’s Pledge, whether it was said or not, provides a solid background for a national identity and the foundation for a common purpose. We should be one people. We should acknowledge our differences but our shared objective should be a unity of purpose. And with that unity of purpose we can become ... a country with well-educated people, who enjoy the lifestyle their unique setting offers and the good health that goes with that ..." 

~ Thomas Cranmer from his post 'A Common Purpose and a National Mythology'

* Myths are not a lie, explains mythologist Joseph Campbell, and to call them that is a misunderstanding — 

"a very strong and narrow opinion of what a myth 'is.' Someone who, perhaps, has only been exposed to the negative use of the term as a phrase for something that is seen as a 'mistruth.' Something told with the intent to deceive, or from the vantage point of a naive or uneducated mind. For many, calling something a 'myth' is to associate it with a profound deception: a feeble or unsophisticated attempt to explain material reality before the advent of the scientific age. Some see the term as an equivalent to the more modern 'fake news.' 

    "The contemporary conception of myth as falsehood has led people to think of myths as fairytales (another complex story structure that is often dismissed as containing much less essential truth than they actually do).
    "But for Campbell, myth presents a version of the truth that is far more essential than that which can be gleaned from almanacs, censuses, and encyclopaedias, whose 'facts' are dependent on the experience of the field of time and are often outdated as soon as they are published."

Writer Robert A. Johnson sums it up, saying "Myths are a special kind of literature not written or created by a single individual, but produced by the imagination and experience of an entire age and culture, and can be seen as the distillation of the dreams and experiences of a whole culture." 

So neither unimportant nor trivial. And certainly not a lie.

Kawanatanga katoa > tino rangatiratanga

 

"'There’s no doubt that both Māori and Pākehā in 1840 understood tino rangatiratanga to be a bigger deal than kāwanatanga” [says an idiot called Hooton]. However whilst this is undoubtedly the modernist position on how we should interpret the Treaty, the historical evidence suggests something very different.
    "Article One of the Treaty states that the chiefs agreed to 'give absolutely to the Queen of England forever, the complete Government (Kāwanatanga katoa) over their land' ... 
    "[T]hat little word katoa ... is rarely mentioned. But it means complete, all-encompassing, totally, without exception. It’s no wonder [that in 1840] it focussed the minds of the chiefs on the issue of Crown authority. ...
    "Nowhere in the historical records do we find any indication that either the chiefs or the Pākehā protagonists understood anything other than that Kāwanatanga katoa meant the Crown was being established as the pre-eminent governing authority in the land. ...
    "'Te Kawenata Hou' (the 'Māori New Testament') ... would have had significant influence on how the chiefs understood the Treaty. ... In 'Te Kawenata Hou' the term rangatira is a general term for leadership. In contrast kawana is a very specific term used to denote governors who represent the authority of kings. To use [the] example of Pilate – as the kawana (governor) he represented the sovereignty of the Roman empire in Jerusalem. He had the authority to tax and to execute judgement. The local Jewish leaders who wanted Jesus crucified had to get his permission. Those leaders are described in Te Kawenata Hou as rangatira. From this the chiefs at Waitangi would have quickly understood what was being proposed in the Treaty. And it certainly did not involve them retaining 'absolute sovereignty'."

~ Ewen McQueen from his post 'Kāwanatanga katoa was the fundamental question at Waitangi'

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.

When was sovereignty properly established here?

  

So here's a quiz question for you: When did Britain legally acquire sovereignty over the New Zealand isles? (Supplementary questions: What IS sovereignty? And was it EVER ceded by the locals?)

• Was it when Cook first planted his flag in 1760 and 1770?
• Or in 1787, when Captain Phillips was installed as governor of NSW "and adjacent isles"?
• Perhaps in 1813, when NSW Governor Macquarie issued his General Order "purporting to bring the natives of certain Pacific islands, including New Zealand, under the protection of His Majesty" — followed by the appointment here of magistrates in 1814 and 1819?
• Maybe in 1823, when the jurisdiction of Australian courts was extended here to deal with miscreant British subjects?

All this activity reveals there was already a great deal of legalistic British engagement with the place loooong before Hobson landed here for the first time in 1837. (No, not a typo.) But none really convey sovereignty as we understand it, i..e, the exercise of legitimate power by a recognised state. 

In that respect, some argue that 14 January 1840 is the important date, marking the day when NSW Governor Gipps proclaimed the extension of NSW's boundaries to NZ,  English laws applying here for the first time. Or 30 January of that year when Hobson landed and proclaimed himself Lieutenant-Governor.

Even after Hobson re-landed here in January 1840, he and his ship's captain reckoned on the one hand that sovereignty was acquired peacemeal -- the northern parts after the northern signings (Hobson issued a proclamation on 17 Feb 1840 on that basis), and thence from Auckland north after a signing there on 4 March, 1840 ("thus confirming to Her Majesty the Sovereignty of this Island to this Parallel," wrote his ship's captain.)

On the other hand, Hobson also reckoned that "the Treaty which forms the base of all my proceedings was signed at Waitangi on the 6th February 1840 ... This instrument I consider to be de facto the Treaty, and all  the signatures that are subsequently obtained are merely testimonials of adherence to the terms of the original document." 

This looks contradictory. Yet the two views can be easily reconciled: in Hobson's mind, it was not the Treaty that confirmed sovereignty, but his proclamations largely on the basis of those signatures-- the most important being on 21 May 1840 when he proclaimed sovereignty over the whole place (and clumsily claimed the Treaty's signing date to be 5 February).

It's all a bit of a mess.

Many years ago, Auckland University's senior history professor James Rutherford had a crack at answering that question: When exactly did Britain acquire sovereignty over the New Zealand isles?

Turns out there's not exactly a straightforward answer.

Rutherford dismisses all those early dates with ease.

• Cook's flag-planting was never ratified by the British Parliament, and not followed up by occupation.
• Both Phillip and Macquarie probably overstepped themselves here, and once again their declarations were not followed up by immediate occupation.
• The 1823 ordnances only applied to British subjects (and only if caught)
• Gipps himself said his 1840 Proclamation was "only intended to give warning" that Hobson and pens and parchment were on their way to New Zealand, not to suggest he was already ruling here. It was "anticipatory" of sovereignty; it did not establish it.

So when Hobson arrived here in January 1840 to "treat with the Aborigines of New Zealand for the recognition of Her Majesty's Sovereign authority" he arrived only as Consul, no matter what he read out when he landed. 

He would only legally become Lieutenant-Governor when or if sovereignty could be properly established.

And when was that?

Well, it's complicated because of the confused legal status of the Treaty/Tiriti. As of 1949, when Rutherford was giving his opinion, even the date of 6 February 1840 could not be admitted:

Thus we come to Hobson's proclamations of 21 May 1840. He issued two:

Rutherford:

The first proclamation (a) recites that Hobson was authorised to proclaim sovereignty over the South Island on the grounds of Discovery [although Hobson did not know, on 21 May, that a number of South Island chiefs had signed the Treaty. Their signatures imply that the Treaty applies to the South Island as well as the North Island], and that the North Island had been ceded in sovereignty to Her Majesty. The second (b) recites more fully that by the Treaty of Waitangi the chiefs have ceded all rights and powers of sovereignty to the Queen absolutely and without reservation. 
    Hobson's action in issuing these proclamations is clearly one of the important definitive acts of State for which we are looking. For the first time during the period of transactions under review, an accredited government agent, acting, it may be said, reasonably in accordance with instructions received, proclaims British sovereignty over the whole of New Zealand. 
    His action is still subject to the approval of the Crown. 
    In event of such approval being given, it will be reasonable and, I think, correct to date back the acquisition of British sovereignty over the whole of New Zealand to this date. ...
    Whereas the first proclamation clearly implies that sovereignty is asserted over the South Island on and as from 21 May 1840, sovereignty over the North Island is specifically asserted 'from and after the Date of the above-mentioned Treaty.' ... 

Hobson regarded the treaty proper as that which was signed at Waitangi on 6 February, the later signatures being merely supplementary. It is doubtful how far such a view can be taken as correct. If accepted, however, it has the effect of dating back the assertion of British sovereignty over the North Island to 6 February 1840.

Alternatively, it is possibly correct to consider that, as the chiefs signed the Treaty, they were recognising the sovereignty of the Queen over their tribal lands and were thereby fulfilling that political condition which H.M. Government had laid down to their consul, Hobson, as a prerequisite to his assertion of British sovereignty, which he could then proclaim at his convenience. 

Which he did.

However, we're still not there yet. (Did I say it was complicated?)

By 21 May around 400 chiefly signatures had been acquired on Hobson's various sheets of parchment, although not all had signed, and not all those signatures were yet in his kitbag. (The mail was awfully slow back then.) He acted quickly, before he was truly ready, because Wakefield's settlers at Port Nicholson were starting to make noises about republicanism.

So two things must at once be admitted, says Rutherford, about Hobson's assertion of sovereignty over the North Island in May 1840: 

(1) that it was premature, in the sense that the process of treaty-making was still incomplete; and (2) that in extending sovereignty over the whole of the North Island, as well as the South, Hobson was probably exceeding both what the strict letter of his instructions authorised, and what the Treaty, even in its finished state in October, warranted.

And then on June 5, in the South Island, having acquired several chiefly signatures, but spying many foreign vessels sunning themselves in Port Underwood, claimed the South Island on the basis of cession, and Stewart Island (being empty) on the basis of discovery. (Adding nothing to what Hobson had already claimed on 21 May but at least bolstering it.)

But as Rutherford points out, "Sovereignty could, in the last resort, be established only by the sanction of the Crown, and the form that Crown sanction took was approval of the terms of Hobson's May proclamations. ... The essential political condition of the assertion of British sovereignty was the 'free and intelligent' consent thereto of the Maori chiefs of the North Island. This was obtained in a considerable measure by means of the Treaty of Waitangi (February-October 1840)."

And thus by October 1840 the British Government could be sufficiently satisfied that its instructions to Hobson had been successfully carried out, and was able to give official approval. And so, Rutherford concludes, 

Not until they were satisfied that there was a general measure of native consent to British sovereignty did the British Government take any definitive legal step to assert or confirm sovereignty. Prior to the formal approval of 2 October of Hobson's May proclamations, all their actions were of a  preparatory sort. 
    The decision to assert sovereignty was based (i) upon the political facts that Hobson had secured a considerable measure of native consent by the Treaty; (il) in respect of the South Island and Stewart Island, partly upon native consent, partly upon rights of discovery, and partly on the fact of settlement; and (iii) in the North Island, in so far as native consent was withheld, upon rights of settlement or occupation. 
.   The Treaty of Waitangi is not recognisable as a treaty in international law, and is not part of municipal law; therefore the legal position is that New Zealand was acquired by an act of State, and falls in the category of colonies acquired by occupation. The definitive acts of State are Hobson's proclamations of 21 May 1840, and H.M. Government's approval of 2 October 1840.

Maybe we should make 2 October the National Day?

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.