Hearings just started between Ngapuhi and the Waitangi Tribunal are threatening to shake New Zealand’s constitution, we are told.
In this latest collision between Maori tikanga, history and principles of law, Ngapuhi want a ruling that they did not relinquish sovereignty in 1840 when they signed the Treaty of Waitangi. That sovereignty, Ngapuhi argue, was defined by the Declaration of Independence – He Wakaputanga o te Rangatiratanga – which they signed in 1835. Hearings are expected to continue into October.
As a historian, I think these debates tell us more about how we see ourselves – about our immediate needs. They offer a view of the past driven by present purpose and values, the arguments framed by the needs of the modern justice system.
Yet if we step back for a minute and imagine ourselves in the shoes of 1830s officials such as James Busby and William Hobson – seeing the world as they did, knowing what they knew – we quickly realise how very different that world was from our own. They were products of their own past, framed by the ideals of their own age, and they had no way of knowing their future. They certainly never expected their actions and handful of recorded words to be pored over, 170 years later, for meanings to support the imperatives of a later age.
In any event, our history has been subject to a good deal of myth-making – especially when it comes to founding documents.
The hard historical fact – as Michael King, I and other historians have pointed out over the years – was that in 1835-40 the Declaration of Independence and Treaty of Waitangi were not grand historical testaments. They were expedients cooked up by local officials to meet immediate British needs, driven by the fact that New Zealand had no real value to the British Empire. But British folk were here, they were lawless – and cheap ways had to be found of reining them in.
The Declaration of Independence was particularly unusual because it was initiated not by the Colonial Office but by a powerless official on the ground. New Zealand’s main problem was place; it was on the periphery of Empire, distant from key trade routes. By the early 19th century, New Zealand was home to escaped convicts, traders and ne’er-do-wells from New South Wales. Most flouted British law with impunity.
The issue came to a head in 1830 when Captain John Stewart of the Elizabeth took a Ngati Toa war party (taua) to Akaroa. He and his crew were complicit in the massacre that followed – and then took the taua back to Kapiti, complete with baskets of butchered human flesh. The “appalling crime” sent shock waves as far as London, but nothing could be done to prosecute the errant captain.
In 1833, New South Wales Governor Richard Bourke sent James Busby to the Bay of Islands as British Resident. In theory the Resident was the authority outside British territory.
But a bill to give Busby legal standing failed to pass the New South Wales legislature, and Bourke refused to provide either troops or constables. Nor did he give Busby the powers of a magistrate. Rampant traders, whalers and ne’er-do-wells across New Zealand consequently thumbed their noses at him.
Busby’s first problem was that ships built in New Zealand were sailing to Sydney without proper registration papers or flags, attracting import duties. He decided to flag them locally – putting these vessels on some kind of legal basis, and in late March 1834 gathered 25 local chiefs, mostly Ngapuhi, to select a flag.
Flags meant a great deal to the British – but settlers in the Bay of Islands worried that they meant nothing to Maori. And at that moment, they didn’t. At first the assembled chiefs voted for all three – as King has pointed out, probably out of politeness.
Busby managed to get a modified George Cross selected by a margin of two votes over the next contender. It was duly hoisted over the Residency, and the British retired to an elegant lunch, leaving the Maori to eat cold porridge.
Times change. That symbol of British culture, foisted on Maori for whom it had no equivalent meaning in 1834, has since become a symbol of tino rangatiratanga.
Self-styled Baron Charles Philippe Hippolyte de Thierry then loomed into view, intending to establish a French enclave near Hokianga Harbour. Although officials in Paris were clear that New Zealand was Britain’s sphere of interest, Busby took de Thierry seriously and countered with the “Declaration of Independence”, creating a Maori state under British protection.
At the time this had less to do with creating a Maori sovereign nation than with letting Busby engage international law against de Thierry. In any event, Busby was actually imposing what were then foreign concepts upon Maori: notably, British ideas of sovereignty and nationhood.
Arbitrarily and rather hopefully, Busby lumped disparate hapu and iwi together as the “United Tribes of New Zealand”. This was the entity he considered “sovereign”; they were, as Busby’s Declaration repeatedly tells us, sovereign in “their collective capacity”.
Maori disagreed. There had been some talk of forming a unified Maori authority for years, but it clashed with the mana of chiefs. Even as the ink dried on the Declaration, some chiefs who had signed apparently told Busby they would not surrender their authority to his United Tribes.
All this was unsurprising. Nineteenth-century British officials often regarded disparate indigenous peoples as nations, classifying their true socio-political groupings as mere “factions”. And if a group of people were not a nation, then by dash and by damn, they should be!
The Colonial Office accepted the point – recognising Busby’s Declaration only to the extent that they felt it applied to “a people composed of numerous dispersed and petty tribes”, who, by 19th-century British standards, were “incompetent to act or even to deliberate in concert”.
Although such remarks carry a fair cringe factor today, they underscore the fact that at the time neither Maori nor the British Government took Busby’s Declaration too seriously. However, some 35 chiefs, mostly Ngapuhi, put their marks on Busby’s handwritten parchment in late October 1835.
Busby’s Grand Confederation does not seem to have met again, and in 1836 the UK’s Aborigines Committee concluded that he “has no power, no authority”. De Thierry proved chimerical. Busby continued to peddle his Declaration, gathering a handful of other signatures, but this symbol of Maori sovereignty – a British construct imposed on Maori for British purposes – lasted only five years.
By 1840 a reluctant Colonial Office had been dragged into accepting a Crown colony – and for both financial and philosophical reasons instructed naval commander William Hobson to do it with the free and open agreement of Maori.
What followed was coloured with all the problems of “talking past each other”, identified by anthropologist Joan Metge in multicultural early childhood centres but equally applicable to historical culture-collision.
This was certainly the case at Waitangi in February 1840. That there was a treaty at all flowed largely from the British going through their first brief spasm of guilt at past colonial behaviours. The Church Missionary Society was in the ascendant, dominating the Colonial Office and arguing that indigenous peoples were by nature doomed at the hands of superior British society.
Such thinking was of its time, founded in pseudo-Darwinian market theory and the conceits of British progressivism. But in the 1830s – by contrast with the machine-gun race relations of a generation or two later – that meant they had to be saved from the predations of lawless trade. Preferably by the Anglican Church, which envisaged creating Christian civilisations of “natives” to jump-start them into the world of the British.
When Maori appeared, the Colonial Office was explicit about what it called Britain’s “duties to this ignorant race of men”. And by the late 1830s, it seemed, Maori were threatened not only by growing white lawlessness around New Zealand but also by the New Zealand Company’s ambitious plans to engineer a new society there, run on pure market principles.
Hence the Treaty, an expedient for dealing with a multithreaded problem at the edges of Empire. The point is given further poignancy when we remember that the British entrusted the task not to senior diplomats but to a naval commander and a former viticulturist.
Hobson needed Maori to “fully yield and cede up the sovereignty” of nominated territories. But neither Busby nor local missionaries were sure Maori appreciated the difference between that and land ownership. Nor were they sure whether the Treaty needed to apply to the whole country – Busby’s first draft of the Treaty did not envisage it extending further south than Manukau Harbour.
Efforts to bridge the conceptual gulf were further muddied by the hatchet-job translation by missionary Henry Williams and his son Edward. They had only a few hours to do the work, and there is some evidence they were given an out-dated draft. Williams also had his doubts that Maori could be persuaded to sign, and appears to have been trying to soften the Treaty to suit. The result was so bad that some observers thought Williams was being consciously deceitful.
His greatest sin, perhaps, was his use of kawanatanga – “governorship” – to mean “sovereignty”. In the Declaration of Independence, sovereignty was translated as “mana”. A better match was “rangatiratanga”, but Williams used that to mean “possession”.
Maori were reluctant to sign – and to put that in context, we must remember that at the time chiefs were concerned about lawless Europeans. Nobody imagined the British would turn up on such scale as to overturn the whole of Maori life and society – or that they might do that within a decade or two. The issues under decision were more immediate. Even so, it was a significant step, and a long korero on February 5 ended without agreement.
Next day, some chiefs turned up ready to sign. Hobson scurried to meet them, and at the penultimate moment, the Anglican mission’s young printer William Colenso interrupted. “I have spoken to some chiefs,” he insisted, “who had no idea whatever to the purport of the Treaty.” Hobson retorted, “If the natives don’t know the contents of the Treaty, it is no fault of mine. I wish them fully to understand it.” And he threw the onus back onto the Church Missionary Society.
Hobson declared sovereignty by proclamation shortly after. Busby’s Declaration was finished; Maori were a sovereign people. The Treaty was peddled around the country, but the only marks deliberately sought were from those who had signed Busby’s Declaration of Independence. Hobson got 26 on February 6 and shortly sent Major Thomas Bunbury off on HMS Herald to get the rest.
However, whether Maori understood sovereignty in the British sense is moot. Colenso certainly thought they had not at Waitangi. So-called “Pakeha Maori” Frederick Maning recalled how Hokianga chiefs given the Treaty to sign did so, but politely remarked that the meanings seemed closely hidden.
The point was again made clear a few months later when Bunbury tracked down Ngai Te Whatuiapiti chief Te Hapuku, who had signed the Declaration in 1839. The chief resisted signing the Treaty because it would make them slaves, even drawing a diagram “placing the Queen by herself over the chiefs”. Bunbury explained that the arrangement “was literally as he described it … not for an evil purpose … but to enable her to enforce her execution of justice and good government equally amongst her subjects”. Te Hapuku signed.
So where does that leave us? Colonial-era attitudes produced many injustices for Maori, at times even by period standards. But to fairly judge events as history – rather than for present purposes – we have to see them in their own terms. In any event, in dislodging old myths, we must be careful not to create new ones – along with the potential for fresh injustices.