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.

Treaty Principles: Still much the same after all these years?

"New Zealanders are involved at the moment in a somewhat introspective examination of what their heritage means to them," said Geoffrey Palmer. "To outsiders the process must seem somewhat curious. Yet it is not inappropriate in the 150th year after the signing of the Treaty of Waitangi."

What's that? ... 150 years?  ...when did he say that?

He said it in 1989, thirty-five years ago, as Attorney-General -- explaining to an audience of legal academics what he reckoned to be the government's five Treaty Principles. 

Thirty-five years ago! And we're still engaged in that same introspective examination.

It's instructive to compare Geoffrey's five principles -- as well as his argument for them and why they were thought necessary -- which is worth reading -- with those contained in this week's leaked Treaty Principles Bill.

The 3 principles in what's said to be the proposed Treaty Principles Bill are:

1. A Governance principle: "the New Zealand Government has the right to govern all New Zealanders"
2. A Rangatiratanga principle: ""the New Zealand Government will honour all New Zealanders in the chieftainship of their land and all their property"
3. An Equality Principle: "all New Zealanders are equal under the law, with the same rights and duties"

Curiously, despite all the tedious scholarship since and the fumarole of huffing and puffing this week, those principles aren't a million miles from those espoused by Geoffrey Palmer's Government back in 1989, in response to recent decisions from the Court of Appeal and the Waitangi Tribunal:

In summary .... the Crown has identified five principles which will guide its activity in dealing with issues which arise out of the Treaty of Waitangi:

The Kawanatanga Principle [which] recognises the right of the Government to govern and to make laws.

The Rangatiratanga Principle[which]  recognises the right of iwi to organise as iwi and, under law, to control the resources they own.

The Principle of Equality [which] recognises that all New Zealanders are equal before the law.

The Principle of Reasonable Co-operation [which] recognises that both government and iwi are obliged to accord each other reasonable co-operation on major issues of common concern.

The Principle of Redress [which] acknowledges that the Government is responsible for providing effective processes for the resolution of grievances in the expectation that reconciliation can occur. This principle makes it clear to New Zealanders that the system of grievance resolution will be orderly, fair, and effective. We will take the steps necessary to ensure that justice is done and seen to be done.

I know that as the whole picture of this complex matter becomes clear to New Zealand the country will see that this is an issue that can be dealt with calmly and rationally. Moreover they will see that there are no hidden traps. That this is a process from which we can all emerge winners.

I make no judgement here on the value or otherwise of Palmer's Principles. 

I simply observe that while history doesn't always repeat, it does sometimes rhyme.

The Doctrine of Discovery: Not relevant to NZ

 

Many recent commentators have begun insisting that the Doctrine of Discovery is, as Paul Moon summarises, "an especially pernicious manifesto of colonisation that emerged originally from the bowels of the Vatican, and that subsequently propelled Britain’s involvement in New Zealand from the eighteenth century. And according to some of its proponents, the Doctrine has become a source of ongoing racism and an impediment to indigenous rights in New Zealand."

Among those claiming this are such luminaries as Mere Berryman, legal scholars Jacinta Ruru and Robert Miller, Margaret Mutu, and the Human Rights Commission —who express "anxiety" over the damage that the so-called Doctrine of Discovery has inflicted on the country, both culturally and constitutionally.

Moon mentions their arguments only to demolish them. The Doctrine, he explains, starts with the Pope, who was hardly an authority on which the British Colonial Office would rely:

The ‘doctrine’ itself derives from a sentence contained in a Papal Bull issued in 1493 by Pope Alexander VI. The Bull’s purpose was to support Spain’s wish to assert exclusive rights over certain territories discovered by Christopher Columbus the previous year. ... However, the 1493 Papal Bull did not influence intervention in the New World by Catholic nations so much as respond to incursions that were already well underway. It was descriptive of what was already taking place, rather prescriptive in terms of colonial policy and ideology. Recent scholarship on the Bull confirms that the Vatican exercised very little authority over the foreign policy of Catholic states at this time.

So even in Catholic states the Pope's Bull held little sway. 

So what of Protestant Britain? 

And what of its claim over New Zealand? Isn't it true that both James Cook in 1769 and William Hobson in 1840 proclaim sovereignty here by virtue of the Doctrine of Discovery?

Well yes, but only to a point. Cook did have a set of secret instructions from the Admiralty encouraging him to claim portions of uninhabited lands he might encounter. True enough. And he did plant the flag here and salute it. But as Moon points out he was only permitted to claim territory by right of discovery "'if you find the country uninhabited'. And if inhabited, only to assert sovereignty "with the consent of the natives." Moreover, Moon continues, "Cook conceded in his confidential journal on 31 March 1770, as he was departing New Zealand, that it had never been British policy to establish New Zealand as a British settlement. Such evidence directly contradicts the suggestion that Britain was looking to seize land in New Zealand and subjugate its occupants."

Seems clear.

As to Hobson, his May 1840 Proclamation asserted sovereignty over the lower North Island and the whole of the South Island "on the grounds of Discovery." So, a fair cop?

No, says Moon. 

By May 1840, Hobson was still unaware how many chiefs had signed the Treaty, and was becoming increasingly apprehensive about the threat that the New Zealand Company posed to his rule and the colony’s stability. This Proclamation was issued as a pre-emptive measure against the Company, and not part of any attempt to ‘claim’ the South Island by relying on the Doctrine of Discovery. Contemporaneous correspondence makes this indisputable, but as further evidence, Hobson explicitly continued to seek consent from South Island chiefs to the Treaty (which would have been redundant if he was applying the Doctrine of Discovery), and by June 1840, a total of 56 chiefs from the South Island had signed the Treaty. Moreover, the Treaty did not give (and Hobson’s administration never claimed) control either over any Māori land in the South Island or over its indigenous inhabitants. So by every measure, the Doctrine of Discovery did not apply to Britain’s colonisation of New Zealand through this Proclamation.

Seems very clear.

Furthermore, 

There is no mention of the Doctrine of Discovery in any British Government document relating to New Zealand’s colonisation – neither directly nor implicitly – and neither did its precepts form part of British policy in this period.
    In the approximately two years leading up to New Zealand’s cession of sovereignty in 1840 via the Treaty, British policy on the territory was developed on principles that contravene the central tenets of the Doctrine of Discovery. This is especially important because it negates the argument that somehow, the general sentiment of the Doctrine embedded itself in British colonial policy in the nineteenth century as a precursor to New Zealand’s colonisation.

Moon calls the idea "a conspiracy theory" to which alleged academics have now become addicted, that "betrays among its advocates an extraordinarily uncritical and impoverished understanding of history." 

Ouch!

Fisking the Treaty Principles debate

Cartoon by Nick Kim

Remember "fisking"?

It's what you feel you have to do sometimes -- not so much to refute idiocies, as to reveal the bad thinking that causes them. Especially if that bad thinking is shared so widely.

Here below is some bad thinking that's shared widely, so I thought I'd do some fisking. Here's the context:

Last week Rawiri Waititi leaked a Ministry of Justice report said to prefigure the Coalition Government's proposed Treaty Principles Bill, which he, the report's author, and TV1 News all say "are at odds with what the Treaty of Waitangi" actually says."

Here's what the relevant bit of the leaked Treaty Principles Bill says:

And here then is a "lecturer in Te Tiriti o Waitangi" who agrees the principles in the leaked Bill have got it all wrong:

So let's follow his arguments and see if he's right.

But first, some history: why does so much law reference "Treaty Principles" rather than the Treaty/Te Tiriti? Simple answer: because from the time of the Fourth Labour Government, governments have been adding at the head of most important legislation words like "must have regard to the principles the Treaty of Waitangi." And because no government then or since have been buying a fight, and also because then Attorney-General Geoffrey Palmer thought that law needed to be vague so that it could be flexible, no bastard ever bothered to define in law what those principles are. So the courts tried to do the job instead, making a complete fustercluck of it, adding nonsense like "partnership," and "participation." (Long story here, if you're interested.) And so, ever since then, embedded at the head of most of the country's important legislation, are weasel words that remain essentially undefined. (Here it is for instance embedded as part of the Purposes and Principles of the RMA.)

Now, as any good lawyer should understand, embedding undefined weasel words into the head of legislation goes against the principle of good objective law. To remind you, good objective law is clear, precise, predictable, contextual, and rights-based. This is none of the above.

So the Coalition Government's proposed Treaty Bill -- alright, let's be honest, David Seymour's bill -- seeks to change all that, change it at least by adding precision to principles that, at the moment, have none. NOTE: the Bill does not seek to change The Treaty/Te Tiriti; it aims instead to change these undefined principles written into so much of New Zealand's law.

That's what Section 8, above, is referring to. It says that the aim of this Treaty Principles Bill is to give to existing legislation both certainty and clarity, so that the written law means what it is intended to mean, not what it could be taken to mean.

Got that? Alright then.

So let's see what our Tiriti lecturer has to say about this, and answer his claims one by one. (His claims in purple; my responses in italics.)

He says that the leaked document "confirms that the government's intention here is not to define the principles of the Treaty of Waitangi but to erase them."

If you've followed what I said above, you'll already see that's not the case. As long as those "principles of Te Tiriti o Waitangi" remain embedded in so much law, they need to be properly and objectively defined. Which is Seymour's aim.

He says "the intention is to replace the existing principles with three new ones, which are supposedly based on the three articles of the Treaty."

See. Even he doesn't think they're going to be "erased." That was just him jacking up his argument for effect.

"The problem," he says, "is that the 'new' principles don't remotely resemble what Te Tiriti (or even the Treaty) actually says."

Two claims there: that neither English Treaty nor Māori Tiriti "remotely resemble" what the principles in the proposed Bill say. Do you get the sense already he's jacking up the argument again ... ?

See, the Treaty/Te Tiriti has three Articles. They've very short -- which doesn't make them clear -- and they're in two different languages -- but there is at least general agreement on the subject of each clause.

Subject of the First Article is governance, or sovereignty. Subject of the Second is land and resources. Subject of the Third is rights. (As with all good law, the earlier Articles take precedence.)

So let's see what his argument is for the Bill's principles not "remotely" resembling the Treaty's/Tiriti's ...

First off, he says, "the paper uses the term kāwanatanga to say that the govt have the right to govern all New Zealanders. This is a complete fabrication - as scholars like Margaret Mutu have repeatedly said the term kāwanatanga in Te Tiriti gave the Crown a limited power to govern its own people."

He agrees at least that kāwanatanga means governance. And so does Margaret Mutu. Mutu says however, "That kāwanatanga was for Pākehā," She says, "It was never intended for us." And she does say it repeatedly. But saying it does not argue for it.

The Treaty (English text) say that chiefs "give absolutely ... the complete government over their land." Tiriti says "tuku rawa atu" (literally: relinquish; very; away) "ake tonu atu" (from below upwards; permanent; away) "kāwanatanga katoa o o ratou wenua" (governorship; completely, without exception; they/them; land). 

That's fairly clear. The only thing undefined there really is that word "kāwanatanga," a missionary neologism (governorship) which Māori would have understood from the power of Roman governors displayed in 'Te Kawenata Hou' ('The New Testament') and from having visited New South Wales and seeing the power there that governor exercised. That this was well understood is evidenced from the discussions at the Treaty signing, where rangatira showed they understood that agreement would mean the Kāwana having police power over them, for example -- "If thou stayest as Governor, then," said Te Kemara, then, "perhaps, [I] will be judged and condemned. Yes, indeed, and more than that--even hung by the neck." This would be puzzling if signatories understood things the way Mutu says they did. 

Because kāwanatanga exercised only over Pākeha would not give the kāwana this power. So Margaret Mutu and others will need to explain how governorship that clearly gives coercive power over everyone, including rangatira if necessary -- which is what signatories understood kāwanatanga to mean -- means instead that it gives limited power and only over Pākeha. She doesn't, and can't.

 Next, our Tiriti lecturer says, "The paper then uses 'tino rangatiratanga' to say that all NZers can exercise chieftainship of their land and property. This is just incoherent. That's not what the term means in tikanga or in state law. Tino rangatiratanga is a power of collective self-determination for Māori."

Two claims there: First, that "tino rangatiratanga" is only for Māori. And on that, in 1840, he's exactly right. (Should it stay that way? Read on.)

Second, that both "tikanga" and "state law" say that "tino rangatiratanga" means "collective self-determination." Well, not quite. "State law" and practice does sometimes suggest it as "a framework from which Māori have continued to challenge governments for recognition of our individual and collective self-determination," so it's certainly an aspirational meaning. And that's sometimes how the courts have decided to interpret this. But that doesn't mean that it did say that at the time, or that it has to say it now. (State law is nothing if not mutable.) 

Translating it however even back in 1989, Hugh Kawharu rendered it simply as "unqualified chieftainship." Far from being incoherent, the Bill retains that idea.

But in what way should that chieftainship be directed? For a start, Article Two is about land and resources. (It comes in a natural order from Article One, explaining what sovereignty is for; in this case, to protect land and resources). This is most clear in Article Two (Part Two), which is about how land and resources will be sold, if owners want to. (This part was most important to the colonising government.) And Article Two (Part One) says that government will protect that land and those resources if they don't desire to sell. 

Importantly, it also promises this not just to chiefs, but also to "families and individuals [original English text]/"the subtribes and all the people of New Zealand" [Kawharu translation]. This was pretty neat, at the time. (And, yes, at the time "all the people of New Zealand" only referenced tangata māori. And that's because that's who was being asked to sign.)

So that sets the context for what "chieftainship" means in Article Two. Because it can mean many things, based on the agency and power chiefs then had: power, ownership, independence, autonomy, liberty even. But in this Article, Article Two, the context is clearly land and resources. So in this context "unqualified chieftainship" means, as per the English text, that possession of lands and resources would continue "full exclusive and undisturbed," with all the independence and autonomy therefrom, just as long as owners (chiefs, families, individual NZers) didn't want to sell them to the government.

And that's what the Bill attempts to specify as the principle behind this Article Two: that it is about government promising to protect the property rights of all signatories. (And now, by extension, all New Zealanders.) And since no-one now would to enforce a law allowing land to only be sold to the government, it wisely ignores Article Two (Part Two). (As does our lecturer.) And it takes the liberty of extending this protection to all NZers (since, as a principle, it's a good one.)

Mind you, it doesn't specify it as an individual right, which is a pity. But neither does it specify it to be a collective right, since it can't be. Why? Well we're all aware by now (or should be) that both Treaty/Tiriti and contemporary activists confuse and fudge the difference between individual rights (which governments are properly set up to protect) and so-called "collective rights," which only make sense as individual rights voluntarily delegated. (Q: Why do they fudge? A: Because it grants tribal leaders semi-feudal privileges.)

But we do know that the Treaty's framers were unfortunately equally confused. Translator Henry Williams told signatories at Waitangi that Article Two (Part One) "confirms and guarantees to the chiefs and the tribes, and to each individual native, their full rights as chiefs, their rights of possession of their lands, and all their other property of very kind or degree." You can see the confusion right away. The actual drafting is just as confused. But that doesn't make it right.

Williams's explanation however is helpful, because it makes clear that despite the confusion, an individual property right is still being offered. And that's essentially what the leaked Bill is offering to make clear now.

Our Tiriti lecturer continues: "The 'new' article 3 then says all NZers are equal under the law with the same rights and duties. A nice idea (it'd be cool if my Māori whānau had the same life expectancy as my non-Māori whānau but heoi ano), but that's not what Te Tiriti says. Article 3 is a right of equity."

Several confusions here.  

First, this is not at all a "new" Article Three. As above, it's intended to clarify law in places in which "the principles of the Treaty/Tiriti" has been inserted. 

Second, ensuring to all individuals "the same rights and duties" is not at all the same as ensuring to them all the same outcomes. Much could and has been written on the difference between equality before the law, and equality of outcome, and this isn't the place to replicate it.

But it is the place to make clear that what Article Three offers in the English text is equality before the law ("all the rights and privileges of British subjects"), in the Williams explanation it is also equality before the law ("all the rights and privileges of British subjects") and in the Kawharu translation it is still and remains equality before the law ("the same rights and duties of citizenship as the people of England"). 

It's true that Kawharu argues that the discussion at the Treaty signing about Hobson being a "father" to signatories suggests a focus on outcomes, or on "equity." But I argue that the repeated use of the “father” figure there is used less in the sense of someone to care over their every need, but more in the sense of either stern judge and a peacemaker, echoing the words of Tamati Waka Nene (harking back perhaps to the need for a mediator after recent wars) and also in the sense of being a teacher or wise adult from the outer world to allow them to learn and grow. Pumuka, for example, chief of the Roroa Tribe, has this sense when he says: "I wish to have two fathers - thou and Busby, and the missionaries." From the latter two he and his colleagues have already learned “Christianity and the Law,” he says (a major theme later at the Kohimarama conference) and they've seen and embraced the cultural change therefrom. 

The astute reader will also notice there is a difference between "duties" (per Kawharu) and "privileges" (per Williams and the English text), and it's the former that the Bill plumps for. Which is a shame, since "duties" suggests that government can make us behave in ways of its own choosing. It's a particular shame the word used wasn't "responsibilities," which would make clear who's responsible for outcomes over one's own life. In the formulation of one Ian Fraser several years ago,

"individuals are the rightful owners of their own lives and therefore have inherent rights and responsibilities; and ... the proper purpose of government is to protect such rights and not to assume such responsibilities."

That would make things plainer, perhaps. But that's not what Te Tiriti says. More's the pity.

Our Tiriti lecturer continues: "As this [TV One] article says, the govt's own officials have said the Bill is in breach of both the spirit and the text of the Treaty. That's a fairly direct statement but it's completely warranted. In my opinion this is the most direct attack on Māori by the govt in a generation." 

Government officials say all sorts of things. And these government officials are leaking, so clearly they don't agree with it. But, frankly, we're all entitled to form our own personal view of whether or not the Bill is in breach of either or both the spirit and text or, if indeed, it affirms them. After all, we all have agency, right?

Is it an attack on Māori? I can see that some individuals in Māoridom would see it that way -- especially those who have been granted legal privileges under the court's present principles. (To paraphrase Thomas Sowell, those granted extra-legal privileges are apt to howl when they're taken away.) 

But if it is an attack, I would characterise it instead as an attack on bad law-making, and an attempt to correct it before extra-legal privileges become cemented in -- if they haven't already. 

Continuing... "The great shame is that rangatiratanga can be good for everyone. The exercise of rangatiranga in the lockdowns kept people safe. Kaupapa Māori orgs led the vaccination effort. Our rivers and lakes are always healthier when Māori share decisions. There are so many examples."

I agree, rangatiratanga can be good for everyone, if and only if the meaning of  rangatiratanga can be agreed upon. Rangatiranga as liberty is very agreeable, and good for all. Rangatiranga as rights of ownership is also good for all. Folk exercising agency individually and voluntarily did help reduce the spread of COVID. Organisations everywhere, from iwi agencies to pharmacies, vaccinated thousands -- and were paid to do so -- and good on them. Our rivers and lakes are healthier when property rights are protected -- as this proposed clarification of the principles of Article Two might help to do. And more affordable homes can be built when rights to one's own land are recognised in law ... As he says, there are so many examples.

He concludes by saying "Te Tiriti" can be good for us all. 

That is possible. But it might first take some clarification.

Here's the Swell Maps:

NB: I've taken both the English text of The Treaty and Williams's explanation of Te Tiriti from Ned Fletcher's book The English Text of the Treaty of Waitangi (reviewed here). Hugh Kawharu's semi-official translation of Te Tiriti appears at the Waitangi Tribunal site.

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

---

[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