Perspectives+on+the+Treaty+of+Waitangi

=** http://maorilawreview.co.nz/2015/04/are-we-there-yet-the-future-of-the-treaty-of-waitangi-a-review/ **= The Victorians https://www.youtube.com/watch?v=jBNFdP2xr7c

code Title: The Treaty of Waitangi or how New Zealand became a British Colony, by T Lindsay Buik

code http://www.gutenberg.org/files/41800/41800-h/41800-h.htm Written in 1914 by T Lindsay Buik.

The Waitangi Tribunal site's Chapter 7 tells us all about the negotiations and the signing in HUGE detail
http://www.justice.govt.nz/tribunals/waitangi-tribunal/Reports/he-whakaputanga-me-te-tiriti-the-declaration-and-the-treaty-the-report-on-stage-1-of-the-te-paparahi-o-te-raki-inquiry/chapter-7-the-negotiation-and-signing-of-te-tiriti Source of this information below: http://www.justice.govt.nz/tribunals/waitangi-tribunal/Reports/he-whakaputanga-me-te-tiriti-the-declaration-and-the-treaty-the-report-on-stage-1-of-the-te-paparahi-o-te-raki-inquiry/chapter-8-past-perspectives-on-te-tiriti-and-the-treaty

CHAPTER 8 = Past Perspectives on Te Tiriti and the Treaty =

8.1 Introducti on
The re have always been different perspectives about what was agreed at Waitangi in February 1840. From almost the moment of te Tiriti’s signing, the event, too, has been retold differently by Māori and Pākehā – at first by those who witnessed it and so on enough by countless o the rs. In 1846, the former Governor, Robert FitzRoy, noted the markedly varying ways in which the treaty had been interpreted: > Some pers on s still affect to deride it; some say it was a decepti on ; and some would unhesitatingly set it aside; while o the rs esteem it highly as a well c on sidered and judicious work, of the utmost importance to both the coloured and the white man in New Zealand. That the natives did not view all its provisi on s in exactly the same light as our authorities is undoubted … [|1] The Māori perspective – to the extent that we can speak in such general terms – has laid heavy emphasis on the Māori text and stressed the retenti on of rangatiratanga. At times, Māori protest at perceived injustices has appeared to accept that the re was a full cessi on of sovereignty, but we suspect this will of ten have stemmed from the power imbalances ofthe day and the need for Māori to appeal to the Crown for redress. In fact, a general denial that the Crown gained sovereignty or supreme authority on the basis of the treaty appears to have characterised a number of Māori perspectives during the nineteenth century, especially when Māori retained substantive c on trol, and over the past three or more decades, during which Māori protest over the denial of rights guaranteed by the treaty has become more assertive. For the ir part, Pākehā and the Crown have until relatively recently generally seen the treaty in terms of the English text al on e – as a cessi on of supreme authority in article 1, the guarantee of Māori rights to the ir property in article 2, and as a statement of some kind of ‘equality’ in article 3 (expressed by some as a requirement for Māori c on formity to Pākehā norms). It must be c on sidered, too, that the Crown gave little attenti on to the treaty for l on g periods – exemplified by thetreaty sheets the mselves being kept in such miserable storage facilities for several decades in the late nineteenth and early twentieth centuries. For all that, the very fact of the treaty has of ten been regarded by Pākehā commentators (at least until recently) as a particularly enlightened and well-meaning act on the part of the British Crown – on e from which Māori have benefited, and on e which sets New Zealand apart from o the r settler col on ies, particularly those in Australia. Since the greater Māori assertiveness about treaty rights from the early 1970s, and particularly after the passing of legislati on in 1975 to establish this Tribunal, the extent of writing about the treaty in New Zealand has grown exp on entially. Dr (later Pr of essor) James Belich observed in 1996 that so many historians had written about the events at Waitangi that ‘it has become a central tableau in the collective memory, like Christ’s Nativity or the landing of the Pilgrim Fa the rs’. [|2] In this chapter, we first outline the main developments in the recent scholarship about the treaty, and the n c on sider the key court and Tribunal statements about it. It is relevant for us to c on centrate on this most recent period of thinking and writing about the treaty, as the greater distance from the events of 1840 has allowed for a more rounded assessment of the m and the motivati on s of the participants, based on more careful attenti on to the full range of evidence. It also provides essential c on text for the evidence and submissi on s put forward at our own inquiry, which we go on to discuss in the next chapter. Some of it has also been influential on the c on clusi on s we reach in this report.

8.2 Scholarship about the Treaty
Reflecting on the greater engagement of historians with the treaty, in 1989 Dr John Owens c on cluded that the re were essentially ‘ on ly two significant phases’ in the scholarship: ‘before about 1970 and after’. As he put it: > The re are of course differences of opini on over aspects and different writers have different emphases. On e can occasi on ally group writers toge the r into a kind of school of thought. But the basic fact is that before the 1970s our histories were written by Pakeha for Pakeha, after the 1970s the re was a Maori presence in historical writing. It tells us something of the history of our race relati on s that the same kind of interpretati on, the same terminology, appears in the 19th century and carries through to the 1960s. [|3] This is not to say, of course, that pre-1970s historians were incapable of c on sidering the Māori perspective. In 1947, Pr of essor James Ru the rford, for example, wrote that the British understanding that, through article 1, Māori would become subject to the authority of the Governor was not c on veyed by those explaining the treaty ; that the ‘restraints and restricti on s and resp on sibilities’ of being British citizens received no emphasis al on gside the ‘rights and privileges’ menti on ed in article 3; and that kāwanatanga would have seemed a weak authority to the chiefs, especially compared to rangatiratanga, which would have left the m thinking the y retained ‘all the ir power authority and “mana” as rangatira over the ir own people’. [|4] Ru the rford’s insights, however, were atypical. The general pre-1970s c on sensus that Owens referred to was essentially founded on the work of William Pember Reeves, who wrote in 1898 that the chiefs ‘were fully aware that under it [ the treaty ] the supreme authority passed to the Queen’, [|5] and T Lindsay Buick, who claimed in 1914 that: > The natives … understood clearly enough that for the advantages the y hoped to reap from the treaty the y were yielding much of the ir existing power to the //Pakeha// Governor, and whe the r it was much or little the y were the more willing to surrender it because the y realised that the advent of the European had so altered the ir social c on diti on s that rule by the old method was no l on ger possible. > … > The sovereignty was the shadow, and the land was the substance; and since the shadow was already passing from the m by force of circumstances over which the y were powerless to exercise c on trol, the y c on sented to its surrender with all the less regret. … TheTreaty of Waitangi the refore became what it pr of essed to be, a yielding of the supreme political power in the country to the British Crown, and when the last signature had been put to it, Britain’s right to col on ise and govern in New Zealand was inc on testable before all the world. [|6] The Māori refusal to c on tinue quietly to accept this on e-sided interpretati on helped force changes in the scholarship, as did the internati on al trend towards decol on isati on. But so, too, did on e particular article in the New Zealand Journal of History in 1972, by Ruth Ross. [|7] This article, entitled ‘Te Tiriti o Waitangi : Texts and Translati on s’, stands as probably the single most important interpretive advance on the subject in modern times. Ross argued that, far from the solemn and far-reaching blueprint for the nati on ’s development it was of ten portrayed to have been, the treaty transacti on was characterised by c on fusi on and undue haste. She made the important observati on that sovereignty was translated by Henry Williams in a different way from his translati on of ‘all sovereign power and authority’ in the declarati on on ly a few years previously. She c on cluded that the Māori text was the true treaty and that what mattered was how it had been understood here, not what the Col on ial Of fice had made of the English text(s) in L on d on. Her rigorous empirical examinati on of the original documents exposed the unquesti on ing acceptance of myths about the treaty by an earlier generati on of scholars. And she left her c on temporaries with the uncomfortable realisati on that a reliance on what was said in the English text al on e was no l on ger intellectually h on est. As well as her influence on a range of o the r scholars in the decades to come, Ross’s article had perhaps an even more important impact. It was a catalyst for the inclusi on of the Māori text in the schedule to the Treaty of Waitangi Act 1975, as well as the authority given to the Tribunal in secti on 5(2) of the Act to ‘determine the meaning and effect of the Treaty as embodied in the 2 texts and to decide issues raised by the differences between the m’. Indeed, the third Labour Government’s Caucus Committee on Māori Affairs referred to Ross’s article in its reports of 1973 and 1974 on implementing the Labour Party’s manifesto promise to legally recognise ‘ the principles set out in the Treaty of Waitangi ’. The se reports were c on sidered by Cabinet and were the basis for its decisi on to introduce the Bill that became the 1975 Act. [|8] Dr (later Pr of essor) Michael Belgrave thought that, aside from influencing o the r scholars and members of Parliament, Ross also ‘provided the historical ammuniti on ’ for the new generati on of Māori Tiriti activists. [|9] An historian who was particularly influenced by Ruth Ross is Dame Claudia Orange, who on ce described Ross as having ‘handed the bat on over to me’. [|10] Orange’s book, // The Treaty of Waitangi //, was first published in 1987 and has now sold over 40,000 copies [|11] – a rare achievement for a work of New Zealand history. With a gentler t on e than Ross’s challenging work, Orange articulated many of the same messages as her mentor, although she stressed less the c on fusi on that surrounded the treaty than the ‘spirit’ that underlay it. Her text has become the essential reference point for most historical works about the treaty since. Indeed, nearly three decades after its publicati on, // The Treaty of Waitangi //retains its reputati on as the authoritative work on the subject. Writing in 1989, Owens thought it came ‘near to the ideal’ in the way it was > c on cerned with what actually happened in 1840, c on cerned with the c on tinuing dialogue, c on cerned to balance Maori with Pakeha. Not many who have written about the Treaty have achieved this balance. [|12] The same year, Pr of essor Keith Sorrens on remarked that Orange had ‘d on e more than any o the r historian to recover that submerged Māori history of the Treaty which has hi the rto existed largely in oral traditi on ’. [|13] Several voices have, however, pushed back against the new orthodoxy of an underlying treaty ‘spirit’ or relati on ship described by Orange and applied, to a very large extent, by this Tribunal. Perhaps the best-known criticism of this approach came from Pr of essor William H Oliver in 2001, in his essay entitled ‘ The Future Behind Us: The Waitangi Tribunal’s Retrospective Utopia’. [|14] Scholars such as Oliver have criticised the Tribunal, as well as o the r historians, for the applicati on of c on temporary or ‘presentist’ c on cerns to the analysis of distant events. [|15] Pr of essor Andrew Sharp and Dr (later Pr of essor) Paul McHugh summarised this argument as follows: ‘ The more powerfully the passi on to change or preserve the world informs particular histories, the more the y bear testim on y to the ir authors’ present c on cerns.’ [|16] Notable examples of ‘anti-presentism’ applied to the signing of te Tiriti include a brief c on textual secti on in Pr of essor Alan Ward’s 1999 book //An Unsettled History: Treaty Claims in New Zealand Today//; Lyndsay Head’s chapter ‘ The Pursuit of Modernity in Maori Society’ published in the same 2001 volume as Oliver’s critique; and Belgrave’s 2005 book//Historical Fricti on s: Maori Claims and Reinvented Histories//. [|17] The se scholars have not so much returned to the arguments in vogue before the Māori text was c on sidered, but ra the r employed the Māori text in the ir argument for sovereignty having been ceded. In sum, the refore, the scholarship about the meaning and effect of the treaty shifted markedly from the early 1970s, when historians took more account of the fact that the treaty existed in two languages and was made by peoples with entirely different cultural assumpti on s. Ross led this major shift, and Orange’s book – which carried on much of the same reas on ing – has now been the leading reference text on the treaty for almost 30 years. More recently, however, several scholars have objected to what the y see as the applicati on of c on temporary judgements to nineteenth-century acti on s. Historians have c on tinued to differ more specifically over the wording of the treaty texts and the nature of the oral debate at the various treaty signings. We set out an overview of this scholarship below, dividing the coverage into the written texts and the oral debate (as we did in narrating the events the mselves in chapter 7) and the treaty ’s meaning and effect. We exclude reference to any past works by members of this Tribunal.

(1) The English text
The re has been some disagreement am on g historians as to the exact authorship of the English text (see secti on 7.4). Ross, for example, dismissed Busby’s claims to have been the principal author of the text as ‘a c on siderable exaggerati on ’, and Dr D on ald Loveridge in 2006 called the m ‘more or less a complete fabricati on ’. [|18] Orange, on the o the r hand, thought his claim ‘not altoge the r an exaggerati on ’. [|19] Regardless of who is correct, it is clear that the Treaty ’s language fell into a standard imperial pattern. McHugh noted that Britain entered more than 100 treaties or similar agreements with African peoples between 1788 and 1845, ano the r 40 with Middle Eastern polities, and over two dozen with Malaysian rulers over roughly the same period. [|20] Tom Benni on likewise traversed British treaty -making in the Pacific in the nineteenth century following the apparently oral cessi on of sovereignty by the Hawaiian m on arch to the British Crown in 1794. He also noted that some of the more direct precedents for the language used in the English text of the Waitangi treaty came from West Africa, [|21] a point picked up by law pr of essor and later Justice Sir Kenneth Keith of the New Zealand Supreme Court and Internati on al Court of Justice, as well as by Sorrens on. [|22] The se treaties included the Sherbro agreement of 1825, which used near identical phrases to those in the Waitangi text. Ano the r African treaty in 1840, with King Combo of the Gambia, also bore a close resemblance. As noted in secti on 7.4, Sorrens on perceived > what on e might call a treaty language that was in fairly widespread use, ready to be applied wherever a crisis on on e of the fr on tiers of empire needed to be resolved by the last resort of a treaty of cessi on. [|23] Like the similar African treaties, the English text of the Waitangi treaty provided for a complete cessi on of sovereignty to the Crown, in exchange for various guarantees and protecti on s, but did not provide for any on going authority for the indigenous people. With specific respect to pre-empti on, Ross was adamant that the English text misrepresented British intenti on s. Hobs on ’s instructi on s had been to induce the chiefs to agree that ‘henceforward no lands shall be ceded, ei the r gratuitously or o the rwise, except to the Crown of Great Britain’. Instead, the chiefs were asked to cede ‘ the exclusive right of pre-empti on ’. Ross c on trasted this wording of article 2 with that of Gipps’s abortive treaty with South Island rangatira who were visiting Sydney (see secti on 7.11), which was much more specific about an exclusive right of purchase (which the chiefs rejected). [|24] Writing in 1979, T on y Simps on followed Ross’s lead. [|25] Two decades later, Belgrave gave particular attenti on to the applicati on of pre-empti on in the 1840s but did not discuss the appropriateness of the term itself, noting merely that > Historians have had on ly a weak understanding of the legal role of pre-empti on in the Treaty, regarding it as a policy of c on venience, understood by Maori as no more than a right of first refusal. [|26] Legal scholars have given close attenti on to the technical meaning of pre-empti on. In 1991, McHugh noted the c on cern expressed by Ross and o the rs that ‘ the Crown’s representatives deliberately misused a word normally defined by lawyers as a “right of first refusal” to mean an exclusive right’. McHugh agreed the re was evidence that the ordinary meaning may well have been the way the term was understood by the Māori signatories. But he was satisfied that, used in ‘ the c on text of Crown relati on s with aboriginal societies’, the re was ample precedent to show the term meant the exclusive right of purchase that Hobs on intended. [|27] More recently, Dr Mark Hickford has noted that such use of ‘pre-empti on ’ had been employed previously on ly in United States judgments, and that it is likely that Hobs on had been influenced to use it by Governor Gipps, who was familiar with the American cases. [|28] It is obvious that, if Hobs on used an appropriate word, it would never the less have been incumbent up on him to explain its meaning properly to those entrusted in turn to explain his treaty for him. Of course, this raises the questi on as to why Gipps did not use pre-empti on himself in his own attempted treaty. Dr (later Pr of essor Dame) Judith Binney, like Ross, regarded Gipps’s less ambiguous wording as on e factor in the refusal of the Sydney-based rangatira to sign. [|29]

(2) The translati on of article 1
In c on trast to the detail of the English text, historians have had much more to say about Henry Williams’s translati on of it into Māori. Belich described it as having ‘a closer relati on ship with reality’ than the English text. [|30] But a number of scholars have queried why Williams could not have used ‘mana’ or ano the r term to c on vey the idea of sovereignty. In 1972, Ross was perhaps the first historian to stress that ‘mana’ had been used to translate the noti on of sovereignty in he Whakaputanga in 1835. As she put it, > when this same sovereign power and authority was to be ceded to the Queen by, am on g o the rs, the very chiefs who had supposedly declared the mselves possessed of it in 1835, on ly //te// //kawanatanga katoa// of the ir lands was specified. [|31] Clearly influenced by Ross, whom he cited, Ward wrote in //A Show of Justice// (published shortly after) that using ‘ the term “//mana//” … would have given the chiefs a clearer indicati on of what the y were ceding’. [|32] Dr Peter Adams wrote in 1977 that this clarity was ‘no doubt’ why mana was not used. [|33] In 1979, Simps on referred to the ‘puzzle’ of why Williams used kāwanatanga ‘instead of the much simpler and more basic c on cept of mana’. [|34] In 1985, Pr of essor D on ald McKenzie wrote that, > By choosing not to use ei the r //mana// or //rangatiratanga// to indicate what the Maori would exchange for ‘all the Rights and Privileges of British subjects’, Williams muted the sense, plain in English, of the treaty as a document of political appropriati on. [|35] In 2002, Dr (later Pr of essor) Paul Mo on wrote that ‘[t]he more appropriate word to use would have been “mana”’. [|36] And, in his 2003 doctoral the sis, Manuka Henare referred to ‘mana’ having been ‘used in the declarati on of independence but mysteriously not in the Māori text of Te Tiriti o Waitangi ’. [|37] O the r historians, however, have argued that using ‘mana’ would have been quite incorrect. Orange, for example, thought that mana would not have worked, since ‘rangatiratanga and kawanantanga each had its own mana’. [|38] Binney, writing in 1989, added: > It would have been utterly inc on ceivable – insane – to have asked the chiefs to sign away the ir mana, spiritual or political (mana wairua, mana tangata) – or the ir mana indissolubly associated with the land itself (mana whenua). It would have been a most inappropriate phrase, ei the r al on e or more properly defined. [|39] Lawyer Moana Jacks on has regularly expressed the same view and, in doing so, has equated sovereignty with mana. As he put it in 1992: > It was … impossible for any iwi to give away its sovereignty to ano the r. The sovereign mana or rangatiratanga of an iwi was handed down from the ancestors to be nurtured by the living for the generati on s yet to be. It could not be granted to the descendants of a different ancestor, nor subordinated to the will of ano the r. [|40] Ward later switched his emphasis from the positi on that he adopted in his early writings. In a 1988 article, he wrote that it was ‘sometimes alleged nowadays that the Maori people were deliberately deceived at the signing of the Treaty ’ by Henry Williams and the o the r missi on aries, in that ‘ the Maori versi on of the Treaty should have used the word “mana” to indicate what the Maori people were signing away’. Ward did ‘not think any of this is true’. In his view, the missi on aries were ‘genuine, not deceitful’ men who felt that the treaty would protect Māori c on trol over the ir land. [|41] Head added weight to this positi on in 2001, rejecting what she described as ‘an implausible c on spiracy to deceive’ and noting that no speaker at Waitangi ‘phrased his fears as “loss of mana”’ (although we might ask how she could know, as we have on ly partial records in English of what was said). Head argued that ‘mana’ was the wr on g authority for a local kāwana: > For Williams, the localisati on of authority separated the effective and dignified functi on s of government; the on e was present in New Zealand, the … o the r retreated to England – to the pers on, and mana, of the Queen. In this situati on, nei the r mana nor kingitanga were plausible choices for a sovereign authority that Williams wished to c on vey to Maori as local, delegated power to govern. [|42] Belgrave also argued that the noti on of Williams acting deceitfully was ‘not c on sistent with his character’. Ra the r, he thought that ‘mana’ and ‘kingitanga’ were appropriate words for a Māori declarati on of the ir own authority, but not for ‘translating a sovereignty that was transferable’. ‘Kingitanga’, too, might not have been right for a Queen. [|43] The weight of opini on suggests, the refore, that ‘mana’ would not have been viable – ei the r because it was the correct word for what the British sought, and Māori would not have signed up to this; or because it was the incorrect word. What, the n, of Williams’s actual choice, kāwanatanga? Belgrave thought it quite appropriate, because the rangatira referred time and again to the prospect of having a kāwana. As he put it: > Maori repeatedly debated whe the r the y wanted a governor and, if the y did, what powers the governor would have and what the c on sequences would be. The se were down-to-earth, realistic discussi on s, the kind of discussi on s that Henry Williams would have c on sidered a practical debate about sovereignty. [|44] Head also thought kāwanatanga apt, reas on ing that Māori would have understood it in terms of the Kāwana who > the y saw in the flesh at Waitangi : a man of higher status than the existing role model, the self-styled kaiwhakarite (functi on ary) James Busby, but lower than the Queen. [|45] Binney regarded kāwanatanga as a ‘careful’ and ‘deliberately pragmatic’ choice, because it was > the name for known individuals, known Governors, who had exercised power in New South Wales for half a century. … It was a term for a positi on of authority, associated with the idea of rule by mediati on and by force. [|46] Ward argued that kāwanatanga was coined ‘to describe a c on cept new to New Zealand – that of nati on al, central power’, which Māori had not been able to exercise through the C on federati on. [|47] Orange, however, thought that the selecti on of kāwanatanga was ‘not such a happy on e’. As she put it: > The c on cept of sovereignty is sophisticated, involving the right to exercise a jurisdicti on at internati on al level as well as within nati on al boundaries. The single word ‘kawanatanga’ covered significant differences of meaning, and was not likely to c on vey to Maori a precise definiti on of sovereignty. [|48] Similarly, linguist Pr of essor Bruce Biggs argued that Williams must have ‘assumed, unc on sciously or o the rwise, that as the English word “government” implied “sovereignty” its Māorified equivalent would do the same’. However, > as the re had never been any supra-tribal authority in New Zealand, the re is no way that any Māori, who had not at least visited Australia or England, could have understood much of what Williams meant. [|49] Owens also c on sidered it ‘doubtful’ whe the r sovereignty and kāwanatanga were ‘understood in the same sense’. [|50] While he presumably meant by this that each side understood article 1 differently, we might add that the rangatira were essentially m on olingual and were in no positi on to make any comparis on between the two texts.

(3) The translati on of article 2
The re is more agreement am on g historians about the accuracy of Williams’s translati on of article 2. Ross noted that rangatiratanga had been used in the Bible to mean ‘kingdom’, and that Hobs on had, so on after the treaty signing, referred to ‘te rangatiratanga o te Kuini’ – that is, ‘ the Queen’s sovereignty’. ‘Was it any w on der’, Ross wrote, ‘that the New Zealanders at first supposed the Queen had guaranteed the m something more than possessi on of the ir own lands?’ [|51] Orange also thought the use of ‘te tino rangatiratanga’ would have created c on fusi on , > for Maori understood the word to mean far more than ‘possessi on ’, as in the English text. In fact, it was a better approximati on to sovereignty than kawanatanga. [|52] Indeed, it was the translati on of article 2 in particular that has c on vinced some historians that Williams was simply making the text more agreeable to the rangatira. Belich, for example, thought it likely that the use of ‘rangatiratanga’ was ‘a deliberate or semi-deliberate act of deceit’ by Williams and his s on Edward to encourage the rangatira to sign, since the y believed ‘that the treaty was now the on ly way that the Maori could be saved from physical or spiritual extincti on at the hands of the agents of vice’. [|53] More generally, Owens suggested that: > In comparing the English with the Maori text it becomes apparent that Henry Williams was not simply trying to translate, but ra the r to re-write the Treaty into a form that would be acceptable to the Maoris. [|54] Sorrens on likewise c on sidered that ‘Williams did not do a straight translati on of the English text, but creatively reworked it into a Maori versi on that he believed Maori chiefs would accept’. [|55] Perhaps Williams’s str on gest critic in this regard is Mo on, who (with Dr Sabine Fent on ) referred to Williams’s ‘mistranslati on ’, his ‘strategic omissi on s’, and his careful ‘mutating’ of the Māori text ‘to make it palatable to the Maori chiefs’. [|56] Orange, too, was open to the possibility that Williams ‘chose an obscure and ambiguous wording in order to secure Maori agreement’, but she also c on sidered that he might have been purposefully ‘reinforcing the authority of the chiefs by building into the treaty a right to exercise some c on trol’. Regardless, she thought it was clear ‘that the treaty text, in using kawanatanga and rangatiratanga, did not spell out the implicati on s of British annexati on ’. [|57] The re have, however, been voices raised in support of the accuracy of Williams’s translati on. Head, for example, argued that rangatiratanga was a coined word that did not have the meaning of political power given to it by many modern commentators. She wrote that ‘ the Maori language of the Treaty is now routinely referenced to a world in which it did not exist’. As she put it: > It strains belief that, having transferred sovereignty to the Crown in the first article, Williams would posit a principle of omni-applicable Maori authority in the sec on d, yet recent analysis is dependent on this being the case. The British did, of course, care about securing the col on y’s land base. This is logically why c on firmati on of tino rangatiratanga is paired with advice on how to go about selling the land. The logic, and the crudeness of the pairing, point to tino rangatiratanga’s referring not to culture in the sense of //Maoriness// itself, but specifically to land and resource ownership. [|58] In o the r words, in Head’s eyes, rangatiratanga largely equated to the guarantee of possessi on in the English text. Belgrave also wrote in favour of Williams’s fidelity to the English text in using ‘rangatiratanga’. In on e sense, he agreed that Williams was attempting to win the chiefs over. As he c on ceded, ‘ The re is no doubt that both Williams and Busby believed that the treaty needed to provide str on g guarantees of Maori rights if Maori were to agree to a British governor.’ But he had no doubts about Williams’s h on esty, nor about the practicality of his translati on. As he argued, > Williams clearly believed that he had provided a proper translati on, and had no sense that he had radically transformed the text. While Williams’s translati on of Busby’s legalistic English draft was certainly free, it recognised the kinds of principles and practicalities that, as a straightforward and down-to-earth artisan, he c on sidered important in defending a tribal the ocracy. [|59] For Belgrave, Williams’s protecti on of rangatiratanga was simply an acknowledgement of the realities of Māori society in 1840 and ‘doing nothing o the r than the obvious’. In an echo of Head, he added that it is ‘to modern ears’ that ‘rangatiratanga’ c on veys ‘a str on g sense of a retained and exclusive sovereignty for rangatira’. [|60] In his 1999 book, Ward also denied that the re was any decepti on or sloppiness about the translati on. Ra the r, he thought that > the of ficials and the ir missi on ary advisers seem to have made c on siderable efforts to incorporate the ir understanding of Maori society and its values into the basic terms of the agreement, in both the English and Maori texts Ward to some extent foreshadowed Head’s argument that the land guarantee was crucial in gaining Māori agreement. As he put it, with land ‘all was possible; without it, everything else was the oretical. Land was what made chieftainship – and much else besides – c on crete’. [|61] As for Williams’s translati on of article 2’s pre-empti on text, Orange observed that he ‘did not stress the absolute and exclusive right granted to the Crown’. [|62] McKenzie reflected that the English pre-empti on text has > been taken to bestow legality on the acti on s of successive Governments, while the Maori versi on seems morally to justify the deep sense of grievance still widely suffered over Maori land issues. [|63] Belgrave did not engage specifically with the accuracy of Williams’s translati on, merely noting that ‘Williams’s use of “te tino rangatiratanga” was not a statement of absolute sovereignty because the term was qualified by the principle of Crown pre-empti on ’. [|64] It is not clear whe the r Belgrave was referring here to Hobs on ’s definiti on of pre-empti on or to the meaning which Williams’s Māori text was more likely to c on vey. Indeed, the re is no record of Hobs on explaining his definiti on of the pre-empti on text to Williams, and the word ‘exclusive’ is absent from every back-translati on we have seen, except those of Busby and Dr Phil Parkins on.

(//4//) Was Williams deceitful or at least a poor linguist?
Let us look fur the r at the suggesti on that Williams acted deceitfully. What grounds are the re for this accusati on ? Mo on and Fent on argued that the Church’s instructi on to him to do all in his power to induce the chiefs to cede sovereignty (see chapter 7) created a clear c on flict of interest. The y also suggested that his significant land holdings motivated him to serve the Crown well, in anticipati on of favourable treatment when his own purchases were investigated. [|65] Moreover, the y argued that he held an essentially dismissive attitude towards Māori and the ir culture: > Williams’s general attitude toward Maori was governed by the extent to which the y c on formed to his c on structi on of Christianity. He showed no wish to integrate into Maori society, and such involvement in interacti on he did have with Maori c on sistently appeared to be based on his overriding urge to find c on verts. [|66] As we have seen, historians like Ward and Belgrave have defended Williams’s h on esty. Moreover, some notable critics of Williams’s translati on have hesitated to describe him as dish on est and have acknowledged the inherent difficulties that he faced. McKenzie, for example, said he did ‘not impute to Williams any will to deceive the Maori by his choice of terms’, although ‘Williams certainly shows himself, at that critical time, to have been less sensitive than Colenso to Maori modes of understanding’. [|67] Orange also accepted that Williams may have ‘decided to recast the English draft, as translators of ten do’, and she noted that he had a general tendency to simplify the text. [|68] Biggs c on cluded that Williams used an inappropriate word for at least on e crucially important word in te Tiriti and that te Tiriti was not ‘in any reas on able sense equivalent to the Treaty ’. But he c on cluded that Williams’s translati on > could on ly have been well d on e if definiti on s of the Māori terms chosen to translate such c on cepts as sovereignty, rights and powers, pre-empti on, etc, had been included, as is d on e, for example with our statutes. On ly the n would the meanings chosen by the British Humpty-Dumpty have been made even reas on ably clear to the Māori Alice. [|69] What, though, of Williams’s skills as a linguist? Historians have been divided on this matter too. Again, it was Ross who began the critique. Williams, she said, was an inexperienced translator, and those with experience – William Williams, Robert Maunsell, and William Puckey of the Anglicans, and the Wesleyan John Hobbs – were unavailable at the time. Williams’s s on Edward, she added, was certainly fluent in the local dialect but was a ‘green’ young man of 21, and nei the r fa the r nor s on knew much of c on stituti on al law. Te Tiriti, she said somewhat dismissively, was ‘not indigenous Maori; it is missi on ary Maori, specifically Protestant missi on ary Maori’. [|70] Orange largely c on curred with Ross’s analysis, noting also the failure to make any use of the young missi on printer William Colenso. [|71] Mo on and Fent on took the c on trary view, albeit not in Williams’s defence. In seeking to dem on strate his deceitfulness, the y argued that his ‘mistranslati on s’ were no mere accident. Williams had an ‘intimate knowledge of what might be termed “c on stituti on al Maori”’, for example, through his translati on of the Declarati on of Independence. Mo on and Fent on thought that Williams’s stated need to ‘avoid all expressi on s of the English’ for which ‘ the re was no expressive term in Maori’ was not the result of ignorance, but ra the r a means of avoiding direct translati on of key words like sovereignty (that is, by using mana). Mo on and Fent on also cited Williams’s singular dedicati on, from the time he arrived in New Zealand in 1823, to acquiring a mastery of te reo Māori in order to evangelise. [|72] Head similarly dismissed Williams’s ‘linguistic incompetence’ as an implausible and ‘loosely speculative’ the ory. [|73] The questi on of Williams’s h on esty is relevant not on ly to his written translati on but also to his verbal explanati on s to the chiefs at Waitangi on 5 February. We return to this in secti on 8.2.2(2). We note here, however, the cauti on ary note sounded by Owens. In his biography of Richard Taylor, Owens argued that those who have advanced the ‘c on spiracy the ory’ – that Williams and his s on sought to ‘hoodwink’ Māori in order to secure British annexati on and an increase in value of his land purchases – ‘have made no attempt to prove that this would be c on sistent with what is known of Williams’ character’. This, wrote Owens, was all the more notable given that a ‘case can be made’ that Williams even tried to ‘preserve and enhance chiefly power’. [|74] In an earlier piece of work, Owens similarly c on cluded that ‘ The blunders of Hobs on and his band of do-it-yourself diplomats can more properly be attributed to haste and inexperience than to deliberate decepti on .’ [|75]

(1) The oral nature of Māori society
Given what she regarded as the deficiencies in Williams’s translati on, Orange felt that ‘explanati on of the articles would be crucial’. [|76] What, the n, have historians and o the r scholars argued about the discussi on s at Waitangi and Mangungu and the ir importance relative to the written words of the treaty texts the mselves? As we menti on ed in chapter 5, McKenzie noted the Māori embrace of letter writing, which miraculously allowed the writer ‘to be in two places at on ce, his body in on e, his thoughts in ano the r’. But he rejected the ‘absurd … European myth’ that, in the quarter-century since Marsden’s first written land transacti on at Rangihoua in 1814, Māori had accepted > a signature as a sign of full comprehensi on and legal commitment, to surrender the relativities of time, place and pers on in an oral culture to the presumed fixities of the written or printed word. As he put it with respect to the hui at Waitangi on 5 February 1840: > For the Maori present, the very form of public discourse and decisi on -making was //oral// and c on firmed in the c on sensus not in the document. It is inc on ceivable that Williams’s explanati on s to the m in Maori were wholly on e way, that the re was no resp on se and no demand for reverse mediati on. In signing the treaty, many chiefs would have made complementary oral c on diti on s which were more important than (and certainly in the ir own way modified) the words on the page. [|77] Orange also argued that > The oral nature of the Waitangi deliberati on s was thus of paramount importance, particularly in a Maori traditi on in which relati on ships were customarily sustained and modified through lengthy discussi on. [|78] Belich put the point even more str on gly. He went so far as to call the oral transacti on s, ra the r than the written texts, ‘ the historical treaty ’. He described the m as > a series of oral agreements //am on g// chiefs, as well as between the m and those speaking for the Governor, which must have varied from treaty meeting to treaty meeting. [Emphasis in original.] [|79] N on e the less, we should not forget that some rangatira were acutely c on scious of the importance of the written word. As we have seen, Makoare Ta on ui began at Mangungu by asking for Hobs on ’s speech to be written down. Hobs on ’s reply that te Tiriti was written down and copies would be made available was not an answer to Makoare’s specific request, because, as we know, the Tiriti text and the oral statements were two different matters. We should remember Mohi Tāwhai’s comment too, also at Mangungu, that ‘Our sayings will sink to the bottom like a st on e, but your sayings will float light, like the wood of the w[h]au tree and always remain to be seen.’ [|80] McKenzie interpreted this as an acknowledgement of the differences between the written and spoken word; as he put it, ‘Manuscript and print, the tools of the Pakeha, persist, but words which are spoken fade as the y fall.’ [|81]

(2) The Crown’s assurances
What has been c on tended about the tenor of the assurances made by the Crown’s agents to the rangatira? In 1973, Ward, following Ross, was highly critical of the Crown’s communicati on at Waitangi about what changes the treaty would bring. He argued that: Ward c on cluded: > Bent on the ir missi on, Hobs on and his staff were basically careless of the opini on s of the people the y had come to save, and cared little that the exercise of the ir power, unless accompanied by ample measures to engage and compensate the Maori, would appear oppressive and evoke resistance. [|82] As we have seen, Ward has altered his positi on over time, coming to regard Hobs on and the missi on aries as having had much more h on ourable intenti on s. But, writing in 1999, he was prepared to accept that, even if the rangatira knew the Crown would exercise authority, the Crown’s communicati on had been less than frank: > It can be argued that British of ficials should have explained much more clearly just how the Crown’s sovereignty (kawanatanga) would impinge up on Maori rangatiratanga. The reas on the y did not do so, and instead put the most positive and encouraging c on structi on onthe Treaty, is that securing the authority necessary to c on trol the land trade was extremely urgent. [|83] It is of ten argued that the interpretati on invited by Hobs on ’s and the missi on aries’ messages was that kāwanatanga was sought mostly to c on trol ‘lawless’ Europeans, and the Queen’s sovereignty would henceforth apply on ly to Pākehā. Ward c on cluded as much in //A Show of Justice//, writing, ‘In general the chiefs c on sidered that the authority of the Governor was to apply to matters involving Pakeha, not internal Maori disputes.’ [|84] Belich suspected that the chiefs may have looked forward to help from the Governor in c on trolling Europeans, a task which was becoming burdensome, and he allowed for the possibility that > the c on cept of partial sovereignty, over Europeans on ly, was menti on ed in the treaty debates. Right up to January 1840, partial sovereignty over European existing settlements was the opti on most discussed by the British, and this might have percolated through to New Zealand. [|85] Mo on was emphatic that Hobs on ’s expressed intent was protective and benign. As he wrote in 2002, > Hobs on explicitly and unambiguously presented the Treaty to Maori as an instrument of protecti on – a means of allowing the Crown to rule over the settler populati on in order to regulate European behaviour. He was certainly never open about this rule enveloping Maori as well. [|86] An important c on tributi on to the scholarship has come from scholars who have translated into English the first-hand comments of c on temporary French observers. The y include Philip Turner’s the sis of 1986 and published work by Dr Peter Low. [|87] Both, for example, translated a notable observati on of Bishop Pompallier’s assistant, Fa the r Louis-Ca the rin Servant. Turner’s versi on was as follows: > The governor proposes to the tribal chiefs that the y recognise his authority: he gives the m to understand that this authority is to maintain good order, and protect the ir respective interests; that all the chiefs will preserve the ir powers and the ir possessi on s. A great number of the latter speak, and display in turn all the ir Maori eloquence. Most of the orators do not want the governor to extend his authority over the natives, but on ly over the Europeans. [|88] Belich described Hobs on ’s agents as quite capable of ‘shifting’ the emphasis in the ir explanati on s to obtain Māori c on sent. To make this point, he quoted Turner’s translati on of Servant. [|89] Orange, who also used Turner, [|90] gave this summati on of the discussi on s at Waitangi : > Couched in terms designed to c on vince chiefs to sign, explanati on s skirted the problem of sovereignty cognisable at internati on al law and presented an ideal picture of the workings of sovereignty within New Zealand. Maori authority might have to be shared, but Hobs on would merely be more effective than Busby, and British jurisdicti on would apply mainly to c on trolling troublesome Pakeha; Maori authority might even be enhanced. [|91] In his 2003 //Penguin History of New Zealand//, which did not dwell on the disputed events at Waitangi, Dr Michael King observed that > missi on ary explanati on s of the terms and c on cepts, particularly those given by Henry Williams, fudged precise meanings and potential c on tradicti on s and emphasised instead the protective and benevolent intenti on s of the document as it would affect Maori. [|92] Owens, who as we have seen rejected the noti on of deceit behind the text of te Tiriti, wrote in 2004 that Hobs on laid emphasis on the need for sovereignty to restrain British subjects and avoided menti on ing that, ‘if sovereignty was ceded, Maori would also be restrained’. [|93] Orange noted that Hobs on ’s emphasis at Mangungu was similar: the re he made ‘repeated assurances’, according to Hobbs, that > the Queen did not want the land, but merely the sovereignty, [so] that … her of ficers … might be able more effectually to govern her subjects … and punish those of the m who might be guilty of crime. [|94] Ward took a different view in his 1999 book, notwithstanding his remark about the failure to explain the workings of sovereignty in detail. His overall c on clusi on about the way the Crown’s message was c on veyed was that > Records of Treaty discussi on s between of ficials and chiefs … show the Crown’s determinati on to prohibit warfare and o the r violent practices within Maori society. The chiefs would have been remarkably obtuse if the y had not recognised that the Queen’s authority was to extend over the m in some way. Indeed, some declined to sign the Treaty for precisely that reas on. [|95] In perhaps a similar manner to Belgrave’s reference to ‘modern ears’ (see secti on 8.2.1(3)), Ward accused some commentators on this matter of presentism. As he put it: > Many of the modern attempts to attribute more precise meanings to those discussi on s – ei the r enlarging the meaning of rangatiratanga and reducing that of kawanatanga, or vice versa – are largely a projecti on on to the past of present-day goals or intenti on s. [|96] Despite differences over the intenti on s held by Hobs on and his missi on ary agents, the re is general agreement that the y put a positive gloss on the meaning and effect of the treaty to encourage the rangatira to sign. Did this amount to deceit? We have seen that missi on ary influence was crucial in obtaining the chiefs’ c on sent at both Waitangi and Mangungu and that Colenso made his famous interventi on on the morning of 6 February partly out of c on cern that the chiefs would blame the missi on aries if the y later felt cheated. Mo on and Fent on, for the ir part, argued that Williams > seems to have complemented his mistranslati on of the text with a more elaborate but equally effective litany of verbal misrepresentati on s – carefully bypassing, at all stages, any suggesti on that in signing the Treaty Maori would be surrendering the ir sovereignty. [|97] Historians who have defended Williams’s h on esty appear to have focused on his actual translati on of the text ra the r than his verbal explanati on s at Waitangi. In Ward’s case, however, we have his recent views on Williams’s spoken communicati on s with the rangatira, as presented to our inquiry (see secti on 9.3.3(1)). The re has been relative unity am on g historians about the failure to explain the pre-empti on clause properly, although views have differed as to whe the r this was Williams’s fault. Ross noted that, immediately after the Waitangi hui, Colenso wrote to the CMS that he ‘did not “for a moment” suppose that the chiefs were “aware that by signing the Treaty the y had restrained the mselves from selling the ir land to whomsoever the y will”’. The chief Hara, for example, resp on ded when told he could not sell his land privately, ‘What! Do you think I w on ’t do what I like with my own?’ The clamours of protest from Māori and settlers alike led to Governor FitzRoy’s pre-empti on waiver in 1844, and the matter festered on for years. Ross related how, in 1858, Busby entered the fray and maintained that the right of the Crown al on e to purchase Māori land was put very clearly to the chiefs. [|98] But Williams eventually made a statement, which was reported by the press in 1861 and which Ross also quoted. This ra the r exploded any noti on that the pre-empti on clause had indeed been explained to mean what Normanby’s instructi on s intended: > when it touched up on the land, the pre-empti on clause had to be explained to the m over and over again, and the following is the explanati on that was given: // The Queen is to have the first of fer of the land you may wish to sell, and in the event of its being refused by the Crown, the land is yours to sell it to whom you please//. This explanati on, I most c on scientiously assert was given to the m, and thus the y understood it; and, … had any o the r explanati on been given to the m, the treaty never would have been signed by a chief in the Bay of Islands. I am bound, in h on or, to make this statement, however at variance it may be with that made by the editor of the //Aucklander// [Busby]. > I should have c on sidered the whole body of missi on aries guilty of trickery – if not treachery – to the New Zealanders, had the y not fully and clearly explained to the natives the meaning of the pre-empti on clause. [Emphasis in original.] [|99] Ross thought that Williams’s recollecti on of having explained the clause ‘over and over again’ was possibly ‘ the exaggerati on of hindsight, because it hardly squared with comments made by Colenso at the time that the chiefs thought that the re was no restraint on the m ‘selling the ir land to whomsoever the y will’. [|100] Indeed, Orange c on cluded that, far from the clear (and c on tradictory) statements that Busby and Williams claimed in hindsight, the ‘explanati on ’ of pre-empti on is likely to have been ra the r muddled: > The treaty negotiati on s suggest … that the exclusive nature of pre-empti on was not always clearly understood. Nor did Maori grasp the financial c on straints that pre-empti on might bring; it was presented, it seems, ei the r as a benefit to be gained or as a minor c on cessi on in return for the guarantee of complete Maori ownership. [|101] Ross also argued that the guarantee of the rights and privileges of British subjects was fundamentally c on tradicted – indeed nullified – by pre-empti on, ei the r as the right of first refusal or the sole right of purchase. [|102] In 1981, Owens added that article 3 ‘ignored the fact that British subjects were not normally subject to a pre-empti on clause’. [|103] So was Williams deliberately misleading on this specific matter? McKenzie implied as much. He suggested that, while ‘nei the r Hobs on nor Williams could have communicated the full import of “pre-empti on ” to those who were asked to assent to the treaty ’, Williams’s simplificati on of the issue in his translati on > showed less readiness than did Colenso to penetrate ‘ the Native mind’ and ‘explain the thing in all its bearings … so that it should be the ir very own act and deed’. On e might be accused of arguing from hindsight were it not for Colenso’s c on temporary insight. [|104] Orange, however, thought Williams could be excused. While she granted that he would have probably been aware of Hobs on ’s desire for an exclusive right of purchase, given the latter’s 30 January proclamati on, she accepted that Williams and the o the r treaty negotiators – who were mainly missi on aries – would not have been able to explain pre-empti on properly, and would naturally have emphasised its protective functi on s: > It is quite likely that [ the ] negotiators did not realise the full significance of pre-empti on ; Hobs on may not have widely publicised the financial provisi on s for the col on y and the part that pre-empti on would play [in funding the col on y]. [|105] Ross noted in this regard that Hobs on ’s instructi on s were c on fidential. [|106]
 * the chiefs ‘had little understanding of the legal c on cept of nati on al sovereignty as understood by the of ficials’;
 * ‘[t]he gulf between Maori and British purposes in 1840 was very great’; and
 * Hobs on disregarded Māori objecti on s and reservati on s and regarded signature-ga the ring as more of ‘an exercise in public relati on s’ than a ‘weighty missi on ’.

(3) Oratory
On e noted aspect of the oral transacti on is the way that rangatira who were dramatically opposed in the ir speeches of 5 February turned around the next day (at Waitangi ) or later the same day (at Mangungu) and signed the document. Colenso described the ‘excited manner’ of Te Kēmara’s two speeches at Waitangi, but footnoted a comment that the first was ‘all mere show – not really intended’. [|107] Before his emissaries ‘hawked’ copies of the treaty around the country (as Ward put it in //A Show of Justice//), Hobs on warned the m somewhat cynically of what the y would face at hui: > The Koraroes (//Korero// – debates) as the y are called will be a great tax on your patience, for probably every on e present will address you in a l on g speech full of angry oppositi on, but very little to the purpose; but to secure a favourable terminati on to the debate you have on ly to obtain the friendship of on e or two of the most influential chiefs, who will probably give a favourable turn to the meeting, and all present will very so on yield to your proposal. [|108] In 1914, Buick agreed with Colenso that Te Kēmara’s speech was merely ‘ the atrical display’ and an exercise in ‘Maori vanity’. [|109] A similar understanding of the nature of the speeches persists. Parkins on, for instance, wrote several years ago that the debate at Waitangi ‘was really not much of a debate – more a series of harangues, delivered in a ra the r the atrical traditi on ’. [|110] O the rs have stressed the practice of Māori oratory. Dr (later Pr of essor Dame) Anne Salm on d, for example, described the nature of whaikōrero in her 1975 book //Hui//, noting that hui attendees ‘best appreciate a speech full of drama and fire – an impassi on ed denouncement, a series of sly digs or an inspired piece of clowning’. [|111] We can see that those elements were present in some of the speeches at Waitangi on 5 February 1840. Oral debate was also the occasi on to test propositi on s and the ories. As King explained, with respect to Waitangi, ‘It was a c on venti on of whaikorero (Maori discussi on ) that all arguments, positive and negative, should be put.’ [|112] Binney c on cluded that the speech-makers at Waitangi and Mangungu used the discourse to ‘emphatically [open] up’ the ‘essential issue’ of the chiefs’ and the Governor’s respective authority. As she put it: > On the three occasi on s for which we have some record of the speeches made, at Waitangi, Kaitaia, and Te Horeke, this pattern of hostility, suspici on , questi on ing of the translati on s, discourse, and final acceptance occurred. [|113] A Ngāpuhi perspective was provided by Sir James Henare in his affidavit on the treaty to the Court of Appeal in the //Lands// case in 1987 (see secti on 8.3.2) and was quoted by Dr (later Pr of essor) Jane Kelsey in her 1990 book //A Questi onof H on our?// Sir James wrote as the last surviving member of Te Rūnanga o Te Tiriti o Waitangi, a committee of descendants of Ngāpuhi treaty signatories first established in the 1880s. The traditi on he recounted was that, after Hobs on presented the treaty on 5 February, the rangatira retired to Te Tii, where the y resolved am on g the mselves at l on g last to sign it. But the y decided that the y would n on e the less ‘ of fer token oppositi on to the Treaty ’ the next day, and the y arrived at Waitangi saying that the y would not sign. Kelsey noted that ‘[t]his resistance had been referred to in almost all records and histories related to the signing’, but she implied that it had been misunderstood by Pākehā commentators. She quoted Sir James as follows: > The historians say that all the Chiefs violently opposed the signing of the Treaty of Waitangi. But this was on ly token oppositi on. A token because it should have been obvious to all the historians and lawyers and every on e else who had been dealing with the Treaty … Why did the y get up and oppose the signing of the Treaty and the n immediately get up and sign it and append the ir moko? And the n shook the Governor by the hand and Captain Hobs on said ‘He iwi kotahi tatou’. [|114] Elements of the chr on ology here differ from the narrative that we have set out in chapter 7, reflecting the way that oral traditi on can shift details of events over time. However, the essence of the traditi on – the of fering of token resistance, the importance of the discussi on s am on g the rangatira on the evening of 5 February, and the final decisi on to sign te Tiriti – fits with the written history. The central point, however, as Sir James relayed it, was that the rangatira ‘never believed and never intended’ to give away the ir sovereignty and mana. [|115]

(4) The evening of 5 February
The possibility remains that a key reas on why chiefs so avowedly opposed to the treaty on 5 February willingly signed it on the 6th is that the y were talked into it that evening by Williams and his colleagues. While we do not know exactly how matters were explained, we know, at least, that Heke said on 5 February, ‘ The Native mind could not comprehend the se things: the y must trust to the advice of the ir missi on aries’. [|116] Orange c on sidered that in the evening Williams had kept up his > persuasive line of argument adopted during that day’s meeting, emphasising the beneficial aspects of the treaty and distracting Maori attenti on from matters to which the y might take excepti on. [|117] Orange c on cluded, the refore, that the decisi on to sign te Tiriti involved ‘a remarkable degree of trust’ on the part of the chiefs: ‘ The y were encouraged by the advice of the English missi on aries that Maori interests would be best served by agreeing to the treaty .’ [|118] This was the case not on ly at Waitangi but also at Mangungu, where Hobbs thought missi on ary interventi on had been vital to securing the chiefs’ signatures. Little coverage about what the missi on aries may have said on the evening of 5 February exists in the modern scholarship. Indeed, the se discussi on s have been seldom menti on ed bey on d snippets – such as Owens noting that Richard Taylor was probably not present [|119] – or have d on e little more than repeat Williams’s own asserti on that thetreaty was explained ‘clause by clause’ to the rangatira, as was maintained by the Reverend Lawrence Rogers in his 1973 biography of Williams. [|120]

(5) The signing
The signing of te Tiriti itself on 6 February c on tained on e more or less final oral assurance in the form of Hobs on ’s statement to each signing rangatira: ‘He iwi tahi tatou’. The meaning and significance of the se words have been subjects of debate in the ir own right. What might be called the traditi on al view is that Hobs on c on firmed the reby that Māori and Pākehā were now equal members of the state, with the same rights and obligati on s. This interpretati on has lately been favoured by those who object to alleged Māori advocacy of ‘special rights’ under the treaty, or ‘separatism’. McHugh remarked in this regard in 1991 that > Many white New Zealanders have a knee-jerk reacti on against special laws favouring the Māori populati on. Some recall Captain Hobs on ’s words at Waitangi after the chiefs had signed the Treaty : ‘Now we are on e people’. [|121] In 1998, Sorrens on suggested that Hobs on ’s words had served the agenda of assimilating Māori but that such a use was no l on ger tenable. As he put it: > That injuncti on has been uttered many times since and by successive governors at Waitangi anniversary cerem on ies who could still get away with it in the middle years of this century. But not any more. [|122] Nati on al Party leader Dr D on Brash invoked Hobs on ’s words in his 2004 Ōrewa speech, attacking what he saw as ‘two sets of laws, and two standards of citizenship’. He argued that the Treaty of Waitangi ‘should not be used as the basis for giving greater civil, political or democratic rights to any particular ethnic group’ and that ‘we must build a modern, prosperous, democratic nati on based on on e rule for all’. [|123] A few days later, the Governor-General, Dame Silvia Cartwright, took the step of signalling that Hobs on ’s message would not have been understood that way by the chiefs: > Just a few days ago, I listened to the sec on d Rua Rau Tau lecture given by Dame Joan Metge. As o the rs have d on e before her, she likened the relati on ship am on g all the people who make up modern New Zealand to a rope – many strands which when woven or working toge the r create a str on g nati on. She recalled the words of Lieutenant Governor Hobs on at Waitangi on 6 February 1840 to each rangatira who signed the Treaty that day: ‘He iwi tahi tatou’ which Governor Hobs on, incorrectly it seems, understood to mean: ‘We are now on e people’. Dame Joan, a distinguished scholar and member of the Waitangi Nati on al Trust Board that administers the land on which the first signatures were put to the Treaty, views the phrase as having two possible meanings: In 1840 correctly translated it would have meant: ‘We two peoples toge the r make a nati on .’ [|124] This implicit endorsement of Metge’s positi on by on e of Hobs on ’s successors has not quelled the debate. Some popular misc on cepti on s about Hobs on ’s words include the noti on that the y formed part of the treaty itself [|125] – a ra the r selective Pākehā emphasis on the oral nature of the transacti on, perhaps. A variati on on this idea is that Hobs on ‘proclaim[ed]’ [|126] the words – in both languages [|127] – and that the refore the y had the same effect as the written terms. Ano the r view is that Hobs on ’s statement was ‘probably more important than the document itself’, and that it was uttered by Governor Grey. [|128] O the rs have even claimed, ra the r fancifully, that the words were spoken by each chief as the y signed. [|129] Some noted historians have not delved into the symbolism of Hobs on ’s statement: Belich in //Making Peoples// and even Mo on in his biography of Hobs on made no menti on of it. Ross, however, thought that ‘If Waitangi in 1840 held any real promise for the future’, it was perhaps to be found in ‘He iwi tahi tatou’ (which she, like Colenso, translated as ‘We are now on e people’). By this, she may have meant what Ward suggested in 1999: that Hobs on was referring to ‘two races embarking on the comm on enterprise of nati on -building’ [|130] – a somewhat similar positi on to that of Metge. In this, the se scholars all had something in comm on with Justice Casey in the 1987 //Lands// case. He thought Hobs on was referring to the partnership between Māori and Pākehā, ‘ra the r than to the noti on that with a stroke of the pen both races had become assimilated’. [|131] Orange, for her part, thought Hobs on was appealing to rangatira who had embraced Christianity by emphasising the link between Māori and British ‘as on e people with the same law, spiritual and temporal’. [|132] In 2010, six years after giving her lecture that the Governor-General quoted, Metge published an amended versi on. As on e of the more comprehensive assessments of Hobs on ’s sentence, we set out Metge’s c on siderati on of it in full: > At Waitangi on 6 February 1840, William Colenso tells us, Lieutenant-Governor Hobs on said to each rangatira who signed the Treaty : ‘He iwi tahi tātou’. Presumably he was coached by somebody, probably Henry Williams. Colenso translated this into English as ‘We are now on e people’. In doing so, he missed three subtle points. First, the word iwi means nati on as well as people. Sec on dly, if Hobs on meant on e (unified) people he should have said ‘he iwi kotahi’; tahi without the prefix ko means toge the r. Thirdly, the last word, tātou, certainly means the first pers on plural we / us, but it is a special form, on e without an equivalent in English. Use of tātou signals the fact that the we in questi on comprises two or more groups, which are and remain distinct within the unity. > This succinct Māori sentence is incredibly difficult to translate into English in a way that does it justice. The problem is that for many years Colenso’s translati on has been used to emphasise the idea that ‘we are all New Zealanders’, a model I have rejected as unduly reducti on ist. Some years ago I suggested the translati on ‘We many peoples toge the r make a nati on ’ [|133] but that was too easily interpreted as advocacy of multiculturalism, a model that also has flaws. Perhaps it would be good strategy to leave the saying in Māori, untranslated, while all of us – old New Zealanders, young New Zealanders and new New Zealanders – c on tinue to debate and work out how to relate to each o the r, with the Treaty as our guide. [|134] In 1985, McKenzie rejected the fact that some rangatira had signed the ir names as indicating the ir full understanding of and assent to the written terms of the treaty. He c on cluded that, of the more than 500 signatures to te Tiriti, > the highest possible number of pers on al signatures, as distinct from crosses, //moko//-patterns or apparently quite meaningless marks, is seventy-two. In almost every case the signatures are so painfully and crudely written as to show clearly that the y have not been penned by signatories practised in writing and the refore fluent in the art. We are forced to c on clude … that [ the typical signatory at Waitangi ] … is unlikely to have been able to read what he was signing in even the most literal way. Even if he could do that, the odds are loaded against his knowing how to write his own name. Even if he could do that, the evidence suggests that he wrote painfully and with on ly the most elementary competence. The presumed wide-spread, high-level literacy of the Maori in the 1830s is a chimera, a fantasy creati on of the European mind. Even at Waitangi the settlement was premised on the assumpti on that it was, for the Maori, an oral-aural occasi on. [|135] Drawing on McKenzie, Belich likewise stressed that very few signatories were able to read what the y signed. He doubted the signatures and marks were evidence of rangatira aband on ing the ir ‘traditi on al practice of making solemn and binding verbal agreements on the basis of formal discussi on at major meetings called for the purpose’. Ra the r, the y were ‘c on cessi on s to Pakeha ritual, snapshots of the great event’. [|136] Head, however, was critical of what she called McKenzie’s depicti on of the signatures as ‘mere squiggles on the paper – a squiggle of signature length maybe, but on ly a simulacrum of the real thing, because the chiefs could not write’. In Head’s view, McKenzie’s analysis made the marks ‘look sad and duped’. This was the ‘wr on g frame’, she suggested. Instead, and in c on trast to Belich, she argued that the fact that the rangatira had signed the ir names or marks symbolised the ir ‘step into the future’. As she put it, > By being expressed in the foreign medium of writing, the signatures were an acknowledgement of modes of power in the new world. The chiefs of fered the British the //power of the ir names//, which was the effective form of the ir authority. [Emphasis in original.] [|137]

8.2.3 The meaning and effect of the treaty
What, the n, have historians c on cluded about the treaty ’s overall meaning and effect? Was sovereignty ceded, on the basis of the full and informed c on sent Hobs on was expected to obtain in his instructi on s from Normanby? We begin with Ross, whose memorable c on clusi on was that, far from being a ‘sacred compact’ (as described by Lord Bledisloe, the Governor-General who bequea the d the treaty grounds to the nati on ), ‘ the Treaty of Waitangi was hastily and inexpertly drawn up, ambiguous and c on tradictory in c on tent, chaotic in its executi on ’. Who could say what the intenti on s behind the treaty were, she asked, when even the signatories were so ‘uncertain and divided in the ir understanding’ of the meaning of te Tiriti? [|138] O the r 1970s historians followed Ross in rejecting the l on gstanding view of the treaty as a willing cessi on by Māori to the Crown in exchange for protecti on. As Ward put it in 1973: > The chiefs’ signing was taken by the British as a meaningful recogniti on of the supremacy of the Queen and her agent the Governor. In fact it had almost n on e of that quality. The Maori leaders had little understanding of the legal c on cept of nati on al sovereignty as understood by the of ficials. The y had instead a very lively c on cepti on of the //mana// of the land and the //mana// of the people embodied in the senior-ranking chiefs of the various lineages. This the y had no intenti on whatever of surrendering; ra the r the y wished to take steps to preserve it. Nene’s purpose was essentially to secure the aid of a useful ally to keep in check the settlers and the French. [|139] Writing in 1977, Adams thought that ‘some’ rangatira had agreed to ‘some’ elements of Crown c on trol, but that it is likely n on e understood the full implicati on s of what the British had in mind: > The political realities of an anarchic fr on tier situati on were no doubt sufficiently apparent for some of the leading chiefs to realize that the cessi on meant the acceptance of some degree of c on trol and authority over Maori–pakeha relati on s and over Maori activities which affected the m; this some of the m welcomed. Yet it is unlikely that the chiefs understood ei the r the extent of the c on trol and authority envisaged by the new British administrati on, or the l on g-term implicati on s of the transfer of sovereignty; nor, of course, were any real attempts made to explain the m. Without that understanding the signing of the Treaty of Waitangi was an act of trust. [|140] Adams’s implicati on was that it was a trust that would be betrayed. Writing in 1979, Simps on took a different tack, still rejecting the noti on of a sacred compact but suggesting that at least some rangatira signed as a means of self-preservati on. In his view, the speeches of the rangatira showed that many ‘saw the ir own authority declining under the force of Christianity and European technology’. Hobs on was thus ‘a prop to the ir authority’, and the rangatira ‘saw the Treaty as an opportunity to reintroduce stability in a world changing to the ir disadvantage’. [|141] Thus, while Hobs on would have regarded the treaty as a ‘charade’ imposed on him by the Col on ial Of fice, and the Col on ial Of fice would have seen it as ‘a sop to the powerful Church Missi on ary Society’, the rangatira were > gulled into acceptance of British rule by the act of signing it. This is not to say that some were not aware of what was going on. By and large, those who were did not sign, or signed because the y saw little alternative. It is important to note on ly that in the se proceedings the re is no sign of the vaunted covenant between Maori and //pakeha//. [|142] Into the 1980s, Orange c on cluded that, from the oral debate, ‘Maori might well have assumed … that the ir sovereign rights were actually being c on firmed in return for a limited c on cessi on of power in kawanatanga.’ [|143] As she put it: > When Hobs on reported the se proceedings to the Col on ial Of fice, he asserted that efforts had been made to explain to the chiefs ‘in the fullest manner’ the effect that might result from the treaty. It is difficult to see how he could h on estly claim this. As presented, the treaty seemed to be c on firming the chiefs’ authority and directing its efforts mainly at Pakeha, aiming specifically at better c on trol of British subjects. Such c on trol might be to the advantage of the Maori people, even though it would mean accepting an increased British authority and sharing the ruling power of the land. Apart from this, however, o the r predictable changes that would affect Maori life do not appear to have been touched on. Most importantly, the re is an absence of any explanati on that Maori agreement to kawanatanga (‘sovereignty’ in the English text) would mean British annexati on, a substantial transfer of power that would bring internati on al recogniti on of New Zealand as a British col on y. On the c on trary, from the emphasis on protecti on , Maori might have expected that the y were being of fered an arrangement akin to a protectorate. [|144] In o the r words, according to Orange, the Māori text failed to c on vey the meaning of the English text, and Hobs on ’s agents – be the y Busby or the missi on aries – failed to ‘clarify the difference’; the treaty was presented ‘in a most benevolent light’; and the evident Māori c on cern that the y would lose the ir mana or authority was assuaged by the guarantee of rangatiratanga. ‘It looked’, Orange c on cluded, ‘as if the treaty was asking little of the m but of fering much.’ But the chiefs still had to place ‘a remarkable degree of trust’ in the ir advisers. Ultimately, ‘Maori expectati on s of benefits from the agreement must in the end have outweighed fears, enabling reluctant chiefs to put aside reservati on s’. [|145] Ano the r important 1980s c on tributor to debate about the treaty ’s meaning was Binney, who touched on it to a greater or lesser extent in several essays. Taken as a whole, she described the treaty thus: for the rangatira, it ‘seemed to of fer what the y had asked for: a British protectorate, which preserved the ir chieftainship’, while the y ceded governorship of the land to the Queen. ‘In accepting the authority of the chiefs’, Binney argued, ‘ the treaty had, in Māori understanding, acknowledged a dual sovereignty.’ [|146] Notwithstanding this dual authority, Binney thought the retenti on of rangatiratanga would have c on vinced the chiefs that ‘ the y were retaining the substance of power’. This was because ‘those who had been to Poihakena [Port Jacks on, Sydney] had seen mostly the benevolent face of “Kawanatanga”, governorship’. [|147] For Binney, the oral debate was where ‘ the Maori understanding is revealed’. [|148] She had no doubt that Hobs on ’s representatives at the treaty meetings ‘s of t-pedalled the full implicati on s of the transfer of sovereignty. The y played up the role of the Crown as a protector, and the equal rights that were to be given to Māori.’ [|149] Some rangatira were hesitant, but the kind of assurances of chiefly independence and the Governor’s c on trol of the settlers recorded by Servant eventually ‘overcame Maori hostility’. [|150] The effect of the treaty was that ‘rangatiratanga (chieftainship) coexisted with kawanatanga (governorship)’, albeit with the former being ‘for a while, the greater practical authority’. [|151] Binney invites us to c on sider the transacti on at face value, in terms of the way the Māori signatories saw it. Kāwanatanga was the right word for what Māori were prepared to c on vey. The deal was struck through the exchanges at the hui, not through the mere affixing of signatures to parchment. This suggesti on of an agreement having indeed been forged at Waitangi, but just not on e intended by the British, is similar to the view of Ross and Low. Ross noted James Edward Fitzgerald’s remarks in the House in 1865 that > Governor Hobs on might have wished the Maoris to sign on e thing, and the y might have signed something totally different. Were the y bound by what the y signed or what Captain Hobs on meant the m to sign? Ross turned this on its head and asked, ‘Was the Crown bound by what Hobs on signed, or by what he assumed its meaning to be?’ [|152] Likewise, Low took Pompallier’s observati on in a letter of 14 May 1840 that ‘few understood well what the y did in signing. The y were w on over by presents and by the ir ignorance’, and similarly turned it upside down. He suggested that the Māori understanding of the treaty as what he saw as an equal authority was at least as valid as the European understanding of the treaty as a cessi on of full sovereignty: > Perhaps, after all, chief Patu on e’s gesture with his two index fingers was not altoge the r wr on g. Could it have shown a quite tenable interpretati on of the word kawanatanga as denoting some kind of protectorate system (such as later occurred in T on ga, where full rangatiratanga is retained to this day)? And could we the refore say that the text of the Treaty does not truly mean what the British intended it to mean? If so, the n perhaps Bishop Pompallier’s letter to his superiors should have said: ‘Captain Hobs on failed to understand well what he did in signing.’ [|153] Belich initially entered the fray in his 1986 book, // The New Zealand Wars//. He argued that while the British thought the y were to acquire ‘full and real sovereignty’, Māori may have understood the Crown’s sovereignty as nominal on ly – like that of ‘a m on arch who “reigns but does not govern”’. He noted Māori resentment of ‘British interference in local matters, except where the y the mselves invited it for a particular purpose’. [|154] In 1990, however, Belich had clearly been influenced by Binney’s 1989 reference (quoted above) to the chiefs’ familiarity with New South Wales kāwana as authoritative figures willing to intervene through the use of force. He w on dered if his earlier view – that Māori ‘would have seen kawanatanga as no more than “a loose and vague suzerainty”’ – remained correct. As he put it, ‘Positing a Maori understanding of kawana as a mere figurehead no l on ger seems tenable.’ This no doubt led him in //Making Peoples// in 1996 to c on clude that familiarity with the Australian governors meant that Northland Māori probably ‘realised that signing the treaty implied agreement to a big increase in settlement and in the power of the British state in New Zealand’, and that on ly some of the rangatira would have regarded Busby as a precedent for the kāwana. [|155] But nei the r Binney nor Belich appeared to mean by this that the rangatira accepted that the increase in British power would affect the operati on of rangatiratanga or the ir substantive sovereignty. Binney’s suggesti on that the rangatira believed the y were retaining ‘ the substance of power’ was made in 1987. We do not believe she had changed her mind in her later treatment of the subject in 1989. Ra the r, she wrote the n that Hobs on and the missi on aries had c on vinced the rangatira ‘ of the need for an intervening authority to protect Maori interests, and to mediate between the m and the traders and settlers’. [|156] In o the r words, Māori understood that the Governor’s interventi on s would essentially c on trol Pākehā or help resolve Māori–Pākehā disputes, and not undermine the ir own authority. It is a moot point whe the r she might have c on sidered this role impinged on rangatiratanga or helped enforce it, but we suspect she meant the latter. In any case, Binney’s view appears to have been that Māori welcomed an intervening authority because that very kind of authority was needed to c on trol settler behaviour. Belich too had the impressi on in 1996 ‘that Maori saw the new governor’s authority as substantial and significant, but restricted to Pakeha’. Indeed, he thought (as noted above) that the rangatira may well have felt that a governor would ‘free [ the m] from the burden of ruling the large new Pakeha communities, //and assist the m in policing// the Pakeha–Maori interface’ (emphasis added). [|157] O the r writers have rejected the noti on of Māori agreeing, through te Tiriti, to the Crown holding a higher authority, although again the re are differences of opini on about whe the r Māori were to be partly subject to the kāwana’s authority. In 1991, Tribunal chairpers on Chief Judge Edward Durie wrote that > From the Maori text, … read in light of the culture and people’s subsequent c on duct, it is doubtful whe the r Maori saw the mselves as ceding sovereignty, or understood what that culture-laden c on cept meant. It seems more likely that Maori saw the mselves as entering into an alliance with the Queen in which the Queen would govern for the maintenance of peace and the c on trol of unruly settlers, while Maori would c on tinue, as before, to govern the mselves. [|158] It is not entirely clear whe the r Durie believed the Queen’s role in maintaining the peace included stopping intertribal fighting, for example. In 1998 Sorrens on was more dismissive of the Crown’s authority, c on trasting the chiefs’ retenti onof the ir rangatiratanga with ‘whatever vague powers the y might have c on ceded to the kawana or governor’. [|159] In 2002, Mo on rejected out of hand the idea that the rangatira ceded sovereignty, arguing that ‘tino rangatiratanga necessarily took precedence over any attempt by an outside body at governing tribes’. He c on cluded that Hobs on was seen as weak and ineffectual, and that ‘For many chiefs … the issue of governance, in whatever manifestati on, was palatable on ly when it applied to Europeans’. Such was the failure to give any impressi on to the c on trary, he wrote, that ‘any serious historian would shudder at claims that the Maori knew exactly that the y were ceding the right to govern the country, in perpetuity, to the Crown’. [|160] In 2003, Manuka Henare described the Māori understanding of the treaty as a ‘protectorate relati on ship in which Britain was to c on tinue its assistance in Māori nati on building’. The Queen was of fering help in Māori establishing a ‘civil society’, with ‘laws that would govern the behaviour am on gst Māori, and between Māori and Pākehā’. In return for this help, ‘Māori would allow British people to live here in peace’. In Henare’s view, the rangatira regarded Hobs on as a ‘hired hand’ who would help sail the ship, ra the r than as the ship’s owner. [|161] What, though, of what we might call the neo-traditi on alists who have maintained that Māori agreed to cede full and ultimate c on trol to the Crown? Ward, in 1999, laid some emphasis on the Māori text of the treaty for this positi on. Its preamble made it clear the Crown’s kāwanatanga applied to all people and territory, he said. As we have noted, he also claimed that some chiefs refused to sign because the y did not want that authority over the m. Ultimately, Ward c on cluded, the argument made by those such as Tāmati Waka Nene that the clock could not be turned back carried the day: > The re was clearly a widespread appreciati on that the problems of modernity required more c on certed government than was possible at tribal level, and that the Crown should be at the head of it. To that extent, the chiefs and the of ficials shared a comm on purpose. [|162] Ward acknowledged that the urgency to bring the land trade under c on trol left it unclear how rangatiratanga and kāwanatanga would relate to each o the r in practice. But he added that many British of ficials would have regarded the entire matter as ra the r academic, because the y saw Māori decline as inevitable. [|163] Head, in 2001, thought that much of the scholarship about the treaty was based on the noti on that Māori had been ‘duped’. This, she argued, overlooked Māori agency. In her view, the rangatira were not innocent and ‘enclosed in traditi on al thinking’, but ra the r were very interested in pursuing ‘westernisati on ’. She identified the principal cause of this as musket warfare, which she described as having created massive social disrupti on and strife. The rangatira thus sought ‘a value system that would delegitimise inter-group fighting – on e that would create the c on diti on s for the development of a civil society which repressed warfare’. The y made a rati on al choice, she argued, to adopt the means by which ‘ the foreigners ordered the ir world’. In this regard, Head saw a link between c on versi on and the treaty : ‘Christianity of fered a model of governance where peace was protected by law, and where revenge was the resp on sibility of the state.’ The nor the rn chiefs’ support for the treaty was thus ‘a resp on se to lived change’. For Head: > Signatures to the Treaty … expressed an impulse for an integrated world. Most of all, it was a vote for the new. Modernity was the critical idea in the Treaty as far as Maori were c on cerned. [|164] Belgrave, in 2005, also depicted the impact of settlement and the attracti on of modernity as the reas on s rangatira signed te Tiriti: > Ra the r than being dominant and able to reject the European world, those Maori communities who already depended on trade with outsiders were little able to turn back the imperial clock. The signing of the treaty was not a single event, but the culminati on of a process of debate that had taken place over a number of years, made almost inevitable by the land rush that accompanied the prospect of a British takeover. On ly isolated and powerful tribes were able to stand aside. [|165] He thought the idea of being part of, or allied with, the British Empire was ano the r incentive for the rangatira to sign, as were the rights that flowed from British subjecthood, such as //habeas corpus// and equality before the law. He added that tribes also assented to the treaty as a form of protecti on from each o the r. While Belgrave accepted that the treaty was a ‘seizure of power’, he c on cluded n on e the less that ‘it was not d on e without a degree of c on sent’. [|166] We c on clude this summary by menti on ing the accounts of three prominent legal experts. We begin with McHugh, who in 1989 invoked the Victorian jurist A V Dicey’s distincti on between ‘legal sovereignty’ ( the right to govern and make laws) and ‘political sovereignty’ (effectively, the will of the people). McHugh argued that the latter legitimated the exercise ofthe former. He suggested that Māori had ceded the ir legal sovereignty to the Crown through the treaty, but had retained the ir political sovereignty, or the ir rangatiratanga, and thus exercised a check on the Crown’s authority. His account ofthe treaty ’s significance, according to English law, was in the se terms: > it is clear that the Crown’s government over the Māori tribes originates from the ir formal c on sent in the Treaty of Waitangi. This c on sent was c on sidered a legal prerequisite to the Crown’s erecti on of an imperium (government) over the Tribes. The associati on of sovereign authority with the c on sent of the governed is but a particular and local example of a principle of British c on stituti on al the ory dating at least from the beginning of the seventeenth century. [|167] In this work, McHugh did not examine the quality of that c on sent. However, he expanded on such matters in his 1991 book, // The Māori Magna Carta//. In particular, he questi on ed whe the r the rangatira who signed te Tiriti intended to cede the ir legal sovereignty. Commenting that it ‘would be foolish to expect the re to have been an exact meeting of minds’ between the parties in 1840, he noted that ‘ the indicati on s’ from careful historical and anthropological reviews were that the rangatira believed the y were retaining the ir own authority over the ir people according to the ir customary law. Despite this, McHugh argued, the Crown’s acquisiti on of sovereignty was legal according to English law because the Crown had complied with the rules developed during its earlier imperial activities, namely, that it could establish a government over an organised society on ly with prior c on sent. [|168] His summary descripti on of the treaty ’s effect accepted that the Crown was given power over intertribal affairs as well as over the settlers: > The Treaty of Waitangi … created a dynamic, on going relati on ship between the Crown and tribe. The chiefs entered into a ‘partnership’ with the Crown, giving the latter overriding power on intertribal matters and recognizing its authority over the settler populati on. [|169] In 1999, Pr of essor Jock Brookfield pointed to some agreement by Māori scholars, such as Pr of essor (later Sir) Hugh Kawharu in 1984, that kāwanatanga applied to aspects of Māori life, such as the right to make war. He asked whe the r and how, in light of that, kāwanatanga could be a merely subordinate and delegated power. He noted, on the o the r hand, that Moana Jacks on and o the rs had argued that it was not possible for a chief to relinquish part of his mana, and that te Tiriti itself guaranteed ‘tino’ (unqualified) rangatiratanga. All things c on sidered, he thought it possible that some signatories did have the ‘revoluti on ary intenti on ’ of transferring some part of the ir mana to the Crown, nothwithstanding Jacks on ’s view that this would have been invalid, and that o the r chiefs did not have that intenti on. He ventured that the differences in viewpoint of the Māori scholars he named > may in fact mirror the differing expectati on s of the various chiefs. It is surely likely that, for whatever reas on, the y did not all understand the effect of the Treaty in the same way or intend the same thing. [|170] However, Brookfield doubted that any rangatira could ‘have intended to cede to the Crown the full power which it claimed and ultimately enforced throughout the country’ – a power which, he noted, had ‘been exercised over the Treaty itself’. As he put it: > If it is difficult to rec on cile the first two articles of the Treaty with each o the r, it is far more difficult – indeed impossible – to rec on cile with those two articles what the Crown in fact did. To the extent that the power asserted and seized by the Crown exceeded what was ceded, the seizure was a revoluti on ary act in relati on to the customary legal systems of the hapu of the signatory chiefs. [|171] The third legal perspective we note here is that of Dr Mat the w Palmer, who examined what may have been agreed in February 1840 in his 2008 book // The Treaty of Waitangi in New Zealand’s Law and C on stituti on //. Like Brookfield, Palmer noted the likely divergence of opini on am on g treaty signatories: > Each Māori hapū, led by the ir rangatira, would have made judgements about whe the r to agree to the Treaty based on a combinati on of factors. The se would have varied depending on the geographic circumstances of the hapū, the nature and extent of the ir experience of Europeans, and the ir strategic positi on in relati on to o the r hapū. [|172] Bearing this in mind, and noting the absence of an authoritative hapū-by-hapū analysis of the se influences, Palmer set out the c on siderati on s that he believed would have led a ‘realist rangatira’ to sign te Tiriti at the time: > If some relati on ship was to be entered with a foreign power, Britain was the obvious choice – both because of its global and local power and because of its history of interacti on s in New Zealand. The British might be able to do some good in c on trolling the ir own people in relati on to criminal behaviour and dubious land deals and may help to facilitate trade. Also, the terms of Article II of the Treaty proposed explicitly to preserve, if not streng the n, a rangatira’s authority to lead his hapū. Most rangatira probably did not have the same understanding of the land pre-empti on provisi on in Article II as the British did. Nor do I think it likely that many, if any, rangatira would have shared the British c on cepti on of sovereignty in Article I. The proposed relati on ship with a more powerful ally would have res on ated with the customary dynamics of shifting alliances with larger aggregati on s of hapū. Queen Victoria was a reassuringly distant sort of ariki to have to deal with in this regard. The missi on aries seemed generally benign and sometimes useful and the y thought it was a good idea. The British clearly put some value on signing the Treaty, given the cerem on y at Waitangi and the Hokianga Harbour. Importantly, you would not want to let the neighbouring hapū get any more leverage over the use of British warships than you had. And, for some who anticipated that the British might not h on our all its terms in future, it would be better to have the British the mselves signed up to some sort of statement of commitment to your interests. [|173] Palmer the n set out several statements from 1840s New Zealand to support his interpretati on, and went on to quote from a series of modern scholars to show the degree of ‘comm on ground’ about the meaning and effect of the treaty from the British and Māori perspectives in 1840. Palmer c on cluded that it was clear that > the Crown and Māori were choosing to establish a formal relati on ship with the o the r that related to the exercise of power in New Zealand – particularly that Britain was taking on resp on sibilities in relati on to foreign relati on s and British subjects. However, ‘ the re was no comm on understanding of the extent to which the British power to govern, and the c on tinued authority of rangatira, were to interact’. [|174] In a more strictly legal interpretati on of the positi on at internati on al law, Palmer also c on cluded that, > On the basis of the English text, Britain likely c on sidered that the Treaty enabled and legitimised, at internati on al law, the British asserti on of sovereignty in New Zealand. On the basis of the Māori text, those rangatira who signed the Treaty may reas on ably have c on sidered that while it allowed Britain to regulate the behaviour of Pākehā and deal with foreign powers, the Treaty provided assurance of the c on tinued authority of rangatira in leading the ir hapū independently of British decisi on -making. … On the basis of what we know today, an interpretati on of the Treaty of Waitangi that accorded to most rangatira an intenti on to cede sovereignty is, in my opini on, untenable. The implicati on of this view is that the Treaty is not a treaty of cessi on, as assumed by internati on al lawyers such as Crawford and Brownlie who focus on the questi on of capacity ra the r than the terms of the Treaty. Ra the r, it may have been more analagous to a ‘ treaty of protecti on ’. [|175] We return to internati on al law when setting out the submissi on s of claimant and Crown counsel in chapter 9.

8.2.4 What if the rangatira had not signed?
A final matter to note is the issue of what might have happened if the rangatira had refused to sign te Tiriti. Ward, who c on sidered the matter in 1999, very much doubted that Hobs on would have been deterred. He observed that Col on ial Of fice of ficials had debated whe the r obtaining a cessi on of sovereignty from Māori was even necessary, given the amount of land that Māori had already ‘sold’, but had c on cluded it would be better to pursue a cessi on by treaty. Moreover, Ward noted that Hobs on had been granted authority to proclaim sovereignty over the South Island by right of discovery, and provisi on had been made for any territory annexed in New Zealand to form part of New South Wales. As he put it: > The British had thus taken for the mselves the necessary authority to annex New Zealand, according to European law. It is almost certain the y would have carried through the ir intenti on, even if the chiefs had not signed the Treaty at Waitangi. In fact Hobs on did so in respect of the South Island, on 21 May 1840, before more than a few of the South Island chiefs had signed the Treaty. Ward added that, with Gipps’s 14 January proclamati on s, ‘ the British were acting as if the y had governmental authority in New Zealand before the Treaty was even drafted’. [|176] Similarly, Mo on wrote in 2002 that Hobs on ’s 30 January 1840 proclamati on s ‘referred, significantly, to the existing and prospective settlement of British subjects in New Zealand, as though to provide some c on stituti on al safety-net should the plans for the Treaty not eventuate’. [|177] O the r historians have no doubt but that the British were the re to stay, come what may – Ian Wards, for example, who in 1968 stressed the British readiness to use military force if necessary. [|178] Legal scholars, however, have expressed c on siderable doubt that the Crown would have asserted sovereignty over New Zealand, or parts of it, without signatures on the treaty. As McHugh put it in his 1991 book, // The Māori Magna Carta//, > The re is overwhelming evidence of the Crown’s belief that it was legally restrained from exercising any c on stituent power in New Zealand without Māori c on sent. The formal Instituti on s and Commissi on to Hobs on as well as supplementary documentati on of 1839 bear this out. [|179] Palmer added in 2008 that > I believe it is clear that in 1840 British government practice, British government interpretati on of internati on al law and o the r sources of internati on al law were all c on sistent with the stated British recogniti on of sovereignty residing with Māori rangatira on behalf of the ir hapū. This recogniti on of New Zealand sovereignty was a reas on, in terms of government policy, and internati on al law at the time, for Britain to treat with Māori for cessi on of sovereignty. [|180] We return to the work of historians and o the r scholars when we set out how those who appeared at our inquiry advanced or disputed the se recent interpretati on s. We turn now to ano the r set of perspectives on the treaty : those of the courts and previous Tribunal panels.

8.3.1 Waitangi Tribunal reports
Any c on siderati on of what previous Tribunals have said about the relati on ship entered into under the treaty at Waitangi in 1840 must first take into account the nature and extent of the Waitangi Tribunal’s jurisdicti on. First, the Treaty ofWaitangi Act 1975 is premised on the re being on e treaty, embodied in two texts. Secti on 5 provides that the Tribunal: > shall have regard to the 2 texts of the Treaty set out in the First Schedule to this Act and, for the purposes of this Act, shall have exclusive jurisdicti on to determine the meaning and effect of the Treaty as embodied in the 2 texts and to decide issues raised by the differences between the m. Sec on dly, as is stated in the preamble to the 1975 Act, the Tribunal’s task is > to make recommendati on s on claims relating to the practical applicati on of the Treaty and to determine whe the r certain matters are inc on sistent with the principles of the Treaty. The ‘certain matters’ that can be examined by the Tribunal for the ir c on sistency with treaty principles are set out in secti on 6 of the Act. It provides that any Māori or group of Māori can claim to have suffered prejudice as a result of : any legislati on passed in New Zealand on or after 6 February 1840; any delegated legislati on made under the authority of such legislati on ; any policy or practice adopted by, or proposed to be adopted by, or on behalf of the Crown; and any act d on e or omitted on or after 6 February 1840 or proposed to be d on e or omitted, by or on behalf of the Crown. [|181] Toge the r, secti on s 5 and 6 of the Waitangi Tribunal’s c on stituent Act set certain boundaries to our jurisdicti on which, inevitably, are reflected in previous Tribunals’ approaches to and statements about the matters that have been before the m. First, the Tribunal has no authority to c on tradict the Act’s premise that the re is on e treaty with two texts, and earlier Tribunals have had no cause to questi on that premise. Ra the r, both texts have been c on sidered during the nearly 40 years in which the Tribunal has been articulating and applying treaty principles. Sec on dly, the fact that the Tribunal’s jurisdicti on is over claims about matters ‘ on or after 6 February 1840’ has meant that previous Tribunals have largely c on fined the ir inquiries to events after that date. Certainly, no earlier Tribunal has received the in-depth evidence and argument that this Tribunal received about the broader historical c on text for, and the significant events, including he Whakaputanga, leading up to 6 February 1840. Thus, the informati on up on which earlier Tribunals have based the ir views about pre- treaty matters, and about the influence of those matters on the meaning and effect of the treaty, has been far more limited than the informati on produced and tested in this inquiry. Thirdly, most o the r Tribunals have c on sidered o the r parts of the country, where the circumstances were very different. That said, we think that it is appropriate to take careful note of what prior Tribunals have said about the making of thetreaty, where the y have in fact c on sidered the same kinds of evidence as we have. Tribunals inquiring into claims in the nor the rn part of New Zealand have tended to fall into this category because of the unique importance of te Tiriti to claimants the re. The first substantive Tribunal inquiries of the early-to-mid-1980s also made a point of examining what was promised and agreed at Waitangi in February 1840. We accordingly restrict our discussi on of past Tribunal statements to the se kinds of inquiries. In sum, the Tribunal reports we c on sider have reached different views about the agreement at Waitangi. Some have implied that Māori in 1840 did not cede to the Crown what the English text describes as ‘all the rights and powers of Sovereignty’, while o the rs have regarded a cessi on of sovereignty as being very clear to both parties. To illustrate the c on trast, the Motunui–Waitara Tribunal wrote in 1983 that ‘te tino rangatiratanga’, the retenti on of which was guaranteed to Māori, ‘could be taken to mean “ the highest chieftainship” or indeed, “ the sovereignty of the ir lands”’. [|182] C on sistent with that view, the Manukau Tribunal wrote in 1985 that the kāwanatanga ceded to the Crown was a lesser authority than sovereignty, whereas rangatiratanga was ‘not c on diti on ed’, and ‘tino rangatiratanga’ meant ‘full authority status and prestige with regard to the ir possessi on s and interests’. [|183] In June 1988, however, the Muriwhenua Fishing Tribunal wrote that the supremacy of the Queen’s authority was clear, because the Crown was to have an overriding c on trol; the chiefs’ speeches at Waitangi dem on strated that the y understood this; and ‘tino rangatiratanga’ equated more to ‘tribal self-management’. [|184] Shortly after, in August 1988, the Mang on ui Sewerage Tribunal also referred to the ‘rights of tribal self-management that flow from the Treaty ’. It stressed, as the Court of Appeal had d on e in the Lands [|185] case the previous year (see below), that the Crown’s role was, as Tāmati Waka Nene had put it at Waitangi : ‘fa the r, judge and peacemaker’. [|186] In 1989, legal scholar Ani Mikaere c on sidered that Tribunal reports could essentially be put into pre- and post-Lands case categories. She pointed out that the Orakei Tribunal, in its report of November 1987, had noted that it would be guided by the Court of Appeal judgments in the Lands case, and she detected a shift in Tribunal reports at this time towards a greater emphasis on the English text and the Crown’s acquisiti on of sovereignty. She noted that Justice Somers had held that the Tribunal would henceforth be bound by the Court of Appeal’s interpretati on of treaty principles. Altoge the r, Mikaere thought, this represented ‘a significant shift on the vital questi on whe the r the Treaty c on stituted a treaty of cessi on ’ on the Tribunal’s part. [|187] We have no doubt that the Court of Appeal’s findings have been an important influence on the Tribunal. But we also c on sider that the Tribunal has made some significant observati on s since the Lands case that do not merely repeat the Court of Appeal’s reas on ing. For us, two Tribunal reports stand out for the ir c on siderati on of the circumstances surrounding the signing of te Tiriti and the ir influence on our understanding of the treaty ’s meaning and effect. The first of the se is indeed the Report on the Orakei Claim of 1987, which is regarded as a landmark Tribunal report on treaty interpretati on, setting the t on e for many subsequent reports. [|188] On a key issue for this inquiry, it commented as follows: > The Maori text … c on veyed an intenti on that the Maori would retain full authority over the ir lands, homes and things important to the m, or in a phrase, that the y would retain the ir mana Maori. That of course is wider than the English text which guaranteed ‘ the full, exclusive and undisturbed possessi on of lands, estates, forests, fisheries and o the r properties’ so l on g as the Maori wished to retain the m. The Maori text gave that and more. > To the Crown was given ‘Kawanatanga’ in the Maori text, not ‘mana’[,] for … the missi on aries knew well enough no Maori would cede that. ‘Kawanatanga’ was ano the r missi on ary coined word and … likely meant[,] to the Maori, the right to make laws for peace and good order and to protect the mana Maori. That, on its face, is less than the supreme sovereignty of the English text and does not carry the English cultural assumpti on s that go with it, the unfettered authority of Parliament or the principles of comm on law administered by the Queen’s Judges in the Queen’s name. But nor does the Maori text invalidate the proclamati on of sovereignty that followed the Treaty. C on temporary statements show well enough Maori accepted the Crown’s higher authority and saw the mselves as subjects[,] be it with the substantial rights reserved to the m under the Treaty. [|189] In o the r words, the Orakei Tribunal seems to have thought that a cessi on of sovereignty is by no means apparent in the words of the Māori text, which almost all chiefs signed. However, it did think such a cessi on was c on firmed by Māori statements made during the oral transacti on, such as the c on cern expressed by various rangatira that the Governor would have a higher status. As its c on clusi on states, ‘ The cessi on of sovereignty … is implicit from surrounding circumstances.’ N on e the less, as we have noted, the Tribunal still c on sidered that the chiefs retained the ir ‘full authority’ or mana over the ir lands and ‘things prized’. [|190] It did not grapple with the apparent c on tradicti on between ‘full authority’ for Māori and sovereignty for the Crown. The Orakei Tribunal also discussed the pre-empti on clause of the treaty at some length. It c on cluded that, had the Crown’s plans to fund on going col on isati on through the cheap purchase of Māori land been communicated to the chiefs, > the likelihood of the chiefs agreeing to such a proposal would have been remote. Given the c on stant reiterati on by Captain Hobs on and his agents of the Crown’s commitment to the protecti on of the ir lands and the ir rights the chiefs understandably failed to appreciate the risk the y ran in agreeing to this provisi on. [|191] However, that Tribunal would not agree with Adams that pr of itable resale of Māori land ‘was precisely the reas on for pre-empti on ’. Instead, it c on sidered that the protective c on cerns in Normanby’s instructi on s – that Māori would not sell more land than the y could afford to for the ir comfort and support, and that the ir remaining land would increase in value as the settler populati on grew – were equally important. [|192] The Orakei Tribunal also found that, in the case of any ambiguity between the English and Māori versi on s, ‘c on siderable weight’ had to be placed on the Māori text of the treaty. As it explained: > Few, if any, of the Maori signatories could read English nor could all of the m read Maori. But the Maori versi on was for the m the on ly relevant text. It seems clear that it was written and subsequently explained by Williams in terms that were most likely to be acceptable to the Maori chiefs. [|193] The sec on d report we refer to is the //Muriwhenua Land Report// of 1997. It is fair to say that, prior to our own inquiry, no o the r Tribunal report has engaged as thoroughly with the kōrero and promises at Waitangi and elsewhere in the north as did Muriwhenua Land. While that Tribunal’s investigati on of the se matters was not as extensive as our own, it never the less made use of sec on dary texts such as Orange’s 1987 book (which was not available to the Orakei Tribunal), primary works such as Colenso’s published 1890 account, and a research report on the three main nor the rn Tiriti signings (at Waitangi, Mangungu, and Kaitaia) by Salm on d, which at our request was presented by Salm on d in very similar form at our own inquiry. [|194] For the se reas on s, the Muriwhenua Land Tribunal’s findings are worth noting. That Tribunal’s focus was on pre-1865 (including pre- treaty ) land transacti on s. It the refore made c on clusi on s on the maintenance of Māori customary practices. For example, it noted that Hobs on promised to preserve Māori custom in the ‘fourth article’: > From the Treaty guarantee of rangatiratanga (or traditi on al authority), from oral undertakings to respect the custom and the law, and from the guarantee that Maori could keep the ir land, Maori had cause to believe that the Europeans already in possessi on of land held it on ly on customary terms. The Treaty debate could not have disabused the m of the customary noti on but, ra the r, could on ly have reinforced it. [|195] On the broader issue of whe the r Māori willingly ceded the ir sovereignty, the Muriwhenua Land Tribunal made several significant points, including the fact that critical aspects of British sovereignty were simply not discussed: > When c on sidering the Treaty of Waitangi and British expectati on s, the Treaty debate is more significant for what was not said than for what was. It was not said, for example, that, for the British, sovereignty meant that the Queen’s authority was absolute. Nor was it said that with sovereignty came British law, with hardly any modificati on, or that Maori law and authority would prevail on ly until the y could be replaced. Similarly, while Maori assumed that the y had kept the underlying right to the land on which Pakeha were living, in accordance with ancestral norms, the British assumed, but did not say, that the underlying (or radical) title would be held by the Crown, in accordance with English beliefs. Although no decepti on was intended, the assumpti on was n on e the less that, in brief, the British would rule on all matters, and the fair share for Maori would be what the British deemed appropriate. [|196] As can be seen, the Tribunal was quick to stress that the Queen’s representatives were not acting deceptively. In fact, it emphasised what it believed were the Crown’s benevolent intenti on s. But, while the Tribunal perceived goodwill, it ultimately saw little mutuality, and implicit in this was, we think, the c on clusi on that Māori did not cede sovereignty as understood by the British: > We imply no subterfuge in describing the enormous gap between what was said and agreed and what was left unspoken. Like Maori, the British were locked into the ir own world-view and spoke of things which carried a raft of implicati on s that the y could take for granted and yet on ly the y could know. Matters had to be put simply, and British c on stituti on al norms were as incomprehensible to Maori as Maori societal norms were a mystery to the British. What needs to be stressed, the refore, is that each side approached the Treaty with genuine good feelings for the o the r – Maori seeking advantages from Pakeha trade and residence, the British expecting benefits from this expansi on of the ir empire. The y also proposed protecti on for the indigenous people. As a wealth of historical material reveals, the re was in England at this time a str on g evangelical and humanitarian traditi on c on sistent with this objective. As Maori knew, the terms were not as important as the hearts of those making the m. > The result, however, is that, despite the goodwill, the parties were talking past each o the r. Maori expected the relati on ship to be defined by the ir rules. It was natural to think so and, far from disabusing the m of that view, the Treaty and the debate reinforced it. By the same token, the British, true to what was natural to the m, assumed that sovereignty had been obtained by the Treaty and the refore matters would be determined by British legal precepts. It is thus important to see the Treaty not in terms of its specific details but for what it mainly was: a statement of good intent and of basic and necessary principles. [|197] In essence, the refore, the Muriwhenua Land Tribunal excused the lack of mutual understanding by viewing the treaty as born of h on ourable intenti on s which gave it its underlying meaning: > Whatever the mismatches of Maori and Pakeha aspirati on s, n on e gainsay the Treaty ’s h on est intenti on that Maori and Pakeha relati on ships would be based on mutual respect and the protecti on of each o the r. For Maori, the se principles were essential to any alliance. For the British, the y were part of the art of statesmanship and of humanitarian objectives. [|198] We note finally that the Muriwhenua Land Tribunal also c on sidered the art of Māori oratory, as practised at Waitangi and elsewhere. It noted the European stereotype of ‘violent argument quieted through the timely appearance of a principal rangatira’, but thought that matters were not usually so finely balanced. A lively debate, from a Māori perspective, ‘does justice to the cause, sharpens the issues, augments the occasi on, and leaves stories to memorialise the event’. While the comm on view was that Hobs on had been ‘harangued with allegati on s’, the Tribunal pointed out that ‘impassi on ed declamati on is also a standard oratorical tool’. Thus, the chiefs repeated the claims from ‘mischievous’ Pākehā that the y would be enslaved or lose all the ir land in order to ‘clear the air’ and ‘compel a forthright denial’. [|199]

8.3.2 Court rulings
New Zealand’s courts have a different status from the Waitangi Tribunal, for what a court says about treaty principles (in a case in which the principles are material) becomes part of New Zealand’s law. Judicial statements about the nature ofthe treaty relati on ship are the refore important, especially if made by the judges of our Court of Appeal or Supreme Court. We note, as we have of earlier Waitangi Tribunal inquiries, that the courts’ c on clusi on s about the understandings of thetreaty parties in February 1840 are not based on extensive evidence of historical events. The reas on, however, stems from the courts’ inability to challenge the fundamental legal rule that sovereignty lawfully declared cannot be lawfully questi on ed. Under New Zealand law, the treaty cannot be the basis of litigati on in the courts unless it has been given effect by statute. Before the 1980s, the re were on ly isolated statutory references to the treaty. On e example was secti on 8 of the Fish Protecti on Act 1877, which provided that nothing in the Act was to affect any of the provisi on s of the treaty or to take away or limit any Māori rights secured by the treaty to any fishery. [|200] The Tribunal in the Report on the Muriwhenua Fishing Claim commented on that provisi on : > It recognized the Treaty of Waitangi but the manner in which it did so illustrates a recurring the me, apparent also in Maori land laws ( the Native Land Act 1862 for example) that Maori c on cerns for the recogniti on of Treaty interests could be met by menti on ing the Treaty in the Act, in a general way, and although nearly everything else in the Act might be c on trary to Treaty principles. [|201] The general absence of statutory recogniti on of the treaty until relatively recently explains the paucity of litigati on about its meaning. ( The Tribunal in its 1983 Report on the Motunui–Waitara Claim, listed 14 court cases between 1847 and 1977 in which the treaty had been pleaded, all without success. [|202] ) It also explains why treaty -based objecti on s by Māori to particular New Zealand laws have most of ten been expressed in petiti on s to Parliament or, since 1975, in claims to this Tribunal. A significant change was heralded with the electi on of the fourth Labour Government in 1984 and its enactment of several statutes that required the Crown, variously, to act c on sistently with, give effect to, take into account, or have regard to the principles of the treaty. Thus, as Palmer has argued, the ‘first serious interpretati on of the meaning of theTreaty of Waitangi by New Zealand appellate judges’ was in the so-called //Lands// case of June 1987. This resulted from the New Zealand Māori Council’s challenge, under secti on 9 of the State-Owned Enterprises Act 1986, to the Government’s transfer of assets to State-owned enterprises. [|203] The //Lands// case necessarily focused on the principles arising from the treaty (as secti on 9 required), and the judges did not traverse the 1840 proceedings at Waitangi in any particular detail. As President of the Court Cooke put it: > The differences between the texts and the shades of meaning do not matter for the purposes of this case. What matters is the spirit. … In brief the basic terms of the bargain were that the Queen was to govern and the Maoris were to be her subjects; in return the ir chieftainships and possessi on s were to be protected, but sales of land to the Crown could be negotiated. [|204] Justice Somers also felt it unnecessary > to discuss the differences between the two texts and the possible different understandings of the Crown and the Maori in 1840 as to the meaning of the Treaty. The y are issues best determined by the Waitangi Tribunal to whom the y have been committed by Parliament. [|205] However, as Mikaere noted, Justice Somers also stated that a finding of the court would > of course be binding and to the extent that it is material in any case should be followed by the Waitangi Tribunal as a declarati on of the highest judicial tribunal in New Zealand. [|206] The //Lands// case judges were unanimous in c on cluding that the Crown had acquired sovereignty in 1840. Justice Somers explained it this way: > We were referred to a number of valuable commentaries on this part of the Treaty and to the several determinati on s of the Waitangi Tribunal. The y provide grounds for thinking that the re were important differences between the understanding of the signatories as to true intent and meaning of article I of the Treaty. But notwithstanding that feature I am of opini on that the questi on of sovereignty in New Zealand is not in doubt. On 21 May 1840 Captain Hobs on proclaimed the ‘full sovereignty of the Queen over the whole of the North Island’ by virtue of the rights and powers ceded to the Crown by the Treaty of Waitangi, and over the South Island and Stewart Island on the grounds of discovery. The se proclamati on s were approved in L on d on and published in the L on d on Gazette of 2 October 1840. The sovereignty of the Crown was the n bey on d dispute and the subsequent legislative history of New Zealand clearly evidences that. Sovereignty in New Zealand resides in Parliament. [|207] This was, we suspect, both an acknowledgement that the situati on at Waitangi on 6 February 1840 was far from clear cut and a reminder that our law will not countenance any criticism of sovereignty that has been proclaimed in accordance with law. The re were o the r reminders that it was the subsequent asserti on of sovereignty by Britain that mattered legally, ra the r than whe the r Māori intended to cede it in te Tiriti. For example, Justice Richards on observed that: > It now seems widely accepted as a matter of col on ial law and internati on al law that those [May] proclamati on s [by Hobs on ] approved by the Crown and the gazetting of the acquisiti on of New Zealand by the Crown in the L on d on Gazette on 2 October 1840 authoritatively established Crown sovereignty over New Zealand. > The matter is much more complex than that bare narrative indicates. Scholars differ both as to the precise legal basis for British sovereignty and as to the legal status of the Treaty under New Zealand law. [|208] Of the five Court of Appeal judges, Justice Biss on c on sidered the exchanges at Waitangi in the most (although still partial) detail. He c on cluded that ‘ the re would have been a problem in the Maori Chiefs who signed the Treaty being able to have a full understanding of what was meant in the English versi on ’. He thought the Māori viewpoint was perhaps best encapsulated in the words of Tāmati Waka Nene on 5 February. He quoted here from Colenso’s account, with its request for Hobs on to be ‘a fa the r, a judge, a peace-maker’, [|209] ra the r than from Hobs on ’s own account, with Nere’s demand being ‘You must be our fa the r! You must not allow us to become slaves! You must preserve our customs, and never permit our lands to be wrested from us!’ [|210] Justice Biss on also quoted Colenso’s account of Patu on e’s speech and reached this c on clusi on about the agreement entered into: > Just as Captain Hobs on assured the Chiefs that the y might rely implicitly on the good faith of Her Majesty’s Government the Chiefs entered into the Treaty, ‘in the full spirit and meaning the re of ’. > The passages I have quoted from the speeches of two Maori Chiefs and from the letter of Governor Hobs on enable the principles ofthe Treaty to be distilled from an analysis of the text of the Treaty. The Maori Chiefs looked to the Crown for protecti on from o the r foreign powers, for peace and for law and order. The y reposed the ir trust for the se things in the Crown believing that the y retained the ir own rangatiratanga and ta on ga. The Crown assured the m of the utmost good faith in the manner in which the ir existing rights would be guaranteed and in particular guaranteed down to each individual Maori the full exclusive and undisturbed possessi on of the ir lands which is the basic and most important principle of the Treaty in the c on text of the case before this Court. [|211] In 1989, the Tainui Māori Trust Board sought to protect tribal interests in c on fiscated Waikato land and the coal resources under that land in the face of the Crown’s plans to sell its State-owned enterprise Coalcorp. Again, the case was resolved in the Court of Appeal, and again the judges did not analyse the events at Waitangi on 5 and 6 February 1840. President Cooke stated that n on -Māori had to accept the need for reparati on for past and c on tinuing breaches ofthe treaty. On the o the r hand, he said, Māori had to understand that > the Treaty gave the Queen government, Kawanatanga, and foresaw c on tinuing immigrati on. The development of New Zealand as a nati on has been largely due to that immigrati on. No o the r discussi on on the arrangement was entered into: the word ‘sovereignty’, for example, was not menti on ed in any of the judgments. [|212] That same year, in the //Fisheries// case the Court of Appeal c on sidered the fishing rights of the five iwi of Muriwhenua under secti on 88(2) of the Fisheries Act 1983. [|213] And, in 1992, the challenge by various iwi to the 1992 fisheries settlement between Māori representatives and the Crown was heard again by the Court of Appeal in the //Sealord//case. [|214] Palmer regarded the se two cases – al on g with //Lands// and //Broadcasting Assets// (see below) – as four cases which ‘turn out to be particularly important in making general statements about the meaning of the Treaty ’. [|215] Yet, in nei the r //Fisheries// nor //Sealord// did the judges discuss the exchange of sovereignty or kāwanatanga for the guarantee of tino rangatiratanga. Again, it seems, the courts preferred to leave such analysis to the Tribunal. In 1991, the New Zealand Māori Council challenged the Crown over its transfer of the former assets of the New Zealand Broadcasting Corporati on to Radio New Zealand and Televisi on New Zealand. This l on g-running litigati on, known as the //Broadcasting Assets// case, came before the Court of Appeal later in 1991 and the Privy Council in 1993. Again, the judges did not c on sider the original treaty discussi on s. For our purposes, the on ly matters of note are that Justice McKay, who delivered the majority judgment of the Court of Appeal, deferred to President Cooke and Justice Richards on in the //Lands// case on the nature of the treaty relati on ship; and, in the Privy Council, the law lords stated that the Crown had duties of protecting Māori property ‘in return for being recognised as the legitimate government of the whole nati on by Maori’. [|216] We menti on on e final Court of Appeal decisi on. In the //Whales// case of 1995, in which the Ngāi Tahu Māori Trust Board challenged the Director-General of C on servati on over the allocati on of an additi on al whale-watching licence at Kaikoura (secti on 4 of the C on servati on Act 1987 requiring the Crown to ‘give effect’ to the principles of the treaty ) – and in which the court found that Ngāi Tahu were entitled to a ‘reas on able degree of preference’ over o the r permit applicants – President Cooke summed up the Crown’s authority under the treaty as follows: > By the first article of the Treaty of Waitangi the re was ceded to the Queen absolutely what the English text set out in the first schedule to the Treaty of Waitangi Act 1975 describes as sovereignty and what the Maori versi on the re also set out describes as kawanatanga. Alternative English renderings sometimes given of the latter word are ‘complete government’ (see Sir Hugh Kawharu’s versi on reproduced in //New Zealand Maori Council v// //Attorney-General// [1987] 1 NZLR 641, 662–663) or ‘governance’. Clearly, whatever versi on or rendering is preferred, the first article must cover power in the Queen in Parliament to enact comprehensive legislati on for the protecti on and c on servati on of the envir on ment and natural resources. The rights and interests of every on e in New Zealand, Maori and Pakeha and all o the rs alike, must be subject to that overriding authority. [|217] Again, the re was no discussi on of the February 1840 foundati on for the Crown’s ‘overriding authority’ in article 1.

8.4 C on clusi on
Prior to the 1970s, discussi on of the treaty was a standard feature of writing about New Zealand history. Generally absent from this, however, was the degree of scrutiny of the treaty ’s meaning that characterises more recent scholarship. The treaty was simply the re, in the background, as the nati on ’s founding document, and most Pākehā believed that the agreement made was accurately reflected in the English text. The n, from the 1970s, partly prompted by Māori assertiveness over the ir rights and the global trend towards decol on isati on, historians acknowledged that the rangatira signed and understood the Māori text of the treaty , and not the English on e. This c on sciousness radically shifted the scholarship. Māori perspectives on the treaty ’s meaning – based on the Māori text and particularly the c on cept of tino rangatiratanga – could no l on ger be overlooked. The result has been an on going nati on al debate about the nature of the agreement c on cluded at Waitangi, and particularly the extent to which Māori treaty rights c on tinue to oblige and c on strain the Crown. A number of years after this new phase of interpretati on began to develop, the Waitangi Tribunal started to c on sider thetreaty ’s meaning and effect. In due course, so also did the courts, after references to treaty principles were inserted into statutes in the 1980s. As we can see, however, no previous Tribunal or judicial inquiry has c on sidered the nature of the agreement between the Queen’s representatives and Ngāpuhi chiefs at Waitangi (and, for that matter, at Mangungu) in February 1840 to anything near the extent of this inquiry. Inevitably, those earlier inquiries have tended to generalise and begin from the starting point of certain assumpti on s. That is not a criticism of those judges or panels, for the very nature of the ir respective jurisdicti on s has fashi on ed the evidence and submissi on s before the m and, inevitably, has been reflected in the ir decisi on s. Regardless of the se limitati on s, the focus on the treaty in history-writing and litigati on over the previous four decades created an impressive back-drop to the commencement of our own inquiry in 2010. Yet, our inquiry promised on ly to sharpen this focus. In the next chapter we set out the range of evidence and submissi on s presented to us over our five weeks of hearings in 2010 and 2011. The se both echoed the previous discourse and took the treaty debate in new directi on s, as we shall see. **1.** Ian Wards, The Shadow of the Land: A Study of British Policy and Racial C on flict in New Zealand 1832–1852(Wellingt on : Department of Internal Affairs, Historical Publicati on s Branch, 1968), p 42 **2.** James Belich, Making Peoples: A History of the New Zealanders – from Polynesian Settlement to the end of the Nineteenth Century (Auckland: Allen Lane, 1996), p 193. Belich was referring to historians writing throughout New Zealand’s past, ra the r than on ly since the 1970s. In a similar vein, T on y Simps on wrote in 1979 (Te Riri Pakeha: The White Man’s Anger (Waiura: Alister Taylor, 1979), p 31) that: ‘ The re can be few people who have grown up in this country who do not have in the ir mind’s eye the of ficial visi on of the Treaty of Waitangi. It is a scene that leaps from a hundred school projects, and which is evoked at interminable length in of ficial speeches on innumerable occasi on s. It has even – the ultimate respectability – appeared on a postage stamp.’ **3.** J M R Owens, ‘Historians and the Treaty of Waitangi ’, Archifacts (April 1990), p 6 **4.** James Ru the rford, ‘H on e Heke’s Rebelli on 1844–1846: An Episode in the Establishment of British Rule in New Zealand’, Auckland University College Bulletin, no 34 (1947), p 8 **5.** William Pember Reeves, The L on g White Cloud: Ao Tea Roa (1898; repr Auckland: Golden Press, 1973), p 145 **6.** Thomas Lindsay Buick, The Treaty of Waitangi : How New Zealand Became a British Col on y (Wellingt on S and W MacKay, 1914), pp 227–228 **7.** Ruth M Ross, ‘Te Tiriti o Waitangi : Texts and Translati on s’, NZJH, vol 6, no 2 (1972) **8.** Mat the w Palmer, The Treaty of Waitangi in New Zealand’s Law and C on stituti on (Wellingt on : Victoria University Press, 2008), pp 134, 184–187 **9.** Michael Belgrave, Historical Fricti on s: Maori Claims and Reinvented Histories (Auckland: Auckland University Press, 2005), p 51 **10.** Lauren Bartlett, ‘ The Expert’s Expert: The Treaty Makes us Unique as a Country’, New Zealand Herald, 8 January 2007 **11.** ‘ The Treaty of Waitangi ’, Bridget Williams Books, http://www.bwb.co.nz/books/ the - treaty - of - waitangi, accessed 12 June 2014 **12.** Owens, ‘Historians and the Treaty of Waitangi ’, p 6 **13.** M P K Sorrens on, ‘Towards a Radical Reinterpretati on of New Zealand History: The Role of the Waitangi Tribunal’, in Waitangi : Māori and Pākehā Perspectives of the Treaty of Waitangi , ed Ian H Kawharu (Auckland: Oxford University Press, 1989), p 159 **14.** William H Oliver, ‘ The Future Behind Us: The Waitangi Tribunal’s Retrospective Utopia’, in Histories, Power and Loss: Uses of the Past – a New Zealand Commentary, ed Andrew Sharp and Paul McHugh (Wellingt on : Bridget Williams Books, 2001), pp 9–29 **15.** Ano the r example of this is Dr (later Pr of essor) Giselle Byrnes’ book The Waitangi Tribunal and New Zealand History(Melbourne: Oxford University Press, 2004). **16.** Andrew Sharp and P G McHugh, ‘Introducti on ’, in Histories, Power and Loss, p 2 **17.** Alan Ward, Unsettled History: Treaty Claims in New Zealand Today (Wellingt on : Bridget Williams Books, 1999); Lyndsay Head, ‘ The Pursuit of Modernity in Maori Society: The C on ceptual Bases of Citizenship in the Early Col on ial Period’, in Histories, Power and Loss, pp 97–121; Belgrave, Historical Fricti on s **18.** Ross, ‘Te Tiriti o Waitangi ’, p 135; D on ald Loveridge, ‘ The “Littlewood Treaty ”: An Appraisal of Texts and Interpretati on s’ (commissi on ed research report, Wellingt on : Treaty of Waitangi Research Unit, 2006), p 14 n 58. T on y Simps on followed Ross and wrote that Busby’s claims to having drafted the treaty were ‘almost certainly a falsificati on, for the Treaty seems, from surviving drafts, to be the joint work of Hobs on and his secretary, Freeman, with Busby’s c on tributi on limited to changing a few words here and the re’: Simps on , Te Riri Pakeha, p 50. **19.** Claudia Orange, The Treaty of Waitangi (1987; repr Wellingt on : Bridget Williams Books, 2003), p 37 **20.** Paul McHugh, Aboriginal Societies and the Comm on Law (Oxford: Oxford University Press, 2004), p 111 **21.** Tom Benni on, ‘ Treaty -Making in the Pacific in the Nineteenth Century and the Treaty of Waitangi ’, Victoria University of Wellingt on Law Review, vol 35, no 1 (2004), pp 173, 201. Benni on ’s article was originally written as a student paper in 1987, and expanded and published later in resp on se to on going interest in its c on tents. **22.** Sir Kenneth Keith, ‘Handling and Settling Disputes Arising From The Treaty of Waitangi ’, 9th Comm on wealth Law C on ference Papers, 1990, p 244; M P K Sorrens on, ‘Treaties in British Col on ial Policy: Precedents for Waitangi ’, inSovereignty and Indigenous Rights: The Treaty of Waitangi in Internati on al C on texts, ed William Leslie Renwick (Wellingt on : Victoria University Press, 1991), p 17 **23.** Sorrens on, ‘Treaties in British Col on ial Policy: Precedents for Waitangi ’, p 17 **24.** Ross, ‘Te Tiriti o Waitangi ’, pp 143–145 **25.** Simps on, Te Riri Pakeha, pp 51 **26.** Michael Belgrave, ‘Pre-empti on, the Treaty of Waitangi and the Politics of Crown Purchase’, NZJH, vol 31, no 1 (April 1997), p 26 **27.** Paul McHugh, The Maori Magna Carta: New Zealand Law and the Treaty of Waitangi (Auckland: Oxford University Press, 1991), p 103 **28.** Hickford explained that ‘Gipps was an extensive collector of tomes c on cerning European histories and ius gentium, and he deployed the se sources in defending the entitlement of imperial administrati on s to manage angloph on e settlers and territories in alien locati on s’. Hickford wrote of a ‘nor the rn American literary cargo of pre-empti on ’. Hickford also suggested that the inclusi on of ‘pre-empti on ’ arose from less on s learned from the problematic beginnings of European settlement in the Port Phillip District of New South Wales in 1835, where John Batman and o the rs claimed to have signed treaties with local Aboriginals, separate from the British Crown: Mark Hickford, Lords of the Land: Indigenous Property Rights and the Jurisprudence of Empire (Oxford: Oxford University Press, 2011), pp 101–102, 108, 119. **29.** Judith Binney, ‘Tuki’s Universe’, in Tasman Relati on s: New Zealand and Australia, 1788–1988, ed Keith Sinclair (Auckland: Auckland University Press, 1987), pp 29–30 **30.** Belich, Making Peoples, p 194 **31.** Ross, ‘Te Tiriti o Waitangi ’, p 141 **32.** Alan Ward, A Show of Justice: Racial Amalgamati on in Nineteenth Century New Zealand (Auckland: Auckland University Press, 1973), p 44 **33.** Peter Adams, Fatal Necessity: British Interventi on in New Zealand, 1830–1845 (Auckland: Auckland University Press, 1977), p 164 **34.** Simps on, Te Riri Pakeha, p 50 **35.** D F McKenzie, Oral Culture, Literacy and Print in Early New Zealand: The Treaty of Waitangi (Wellingt on : Victoria University Press, 1985), p 41 **36.** Paul Mo on, Te Ara kī te Tiriti: The Path to the Treaty of Waitangi (Auckland: David Ling Publishing, 2002), p 146. The same year, Mo on and Sabine Fent on wrote an article critical of Williams for bypassing the use of ‘this obvious choice’, mana: Paul Mo on and Sabine Fent on, ‘Bound to a Fateful Uni on : Henry Williams’ Translati on of the Treaty of Waitangi into Māori in February 1840’, Journal of the Polynesian Society, vol 111, no 1 (2002), pp 51–64. **37.** Document A16, p 20 **38.** Orange, The Treaty of Waitangi, p 42 **39.** Judith Binney, ‘ The Maori and the Signing of the Treaty of Waitangi ’, in Towards 1990: Seven Leading Historians Examine Significant Aspects of New Zealand History, ed David Green (Wellingt on : GP Books, 1989), p 27 **40.** Moana Jacks on, ‘ The Treaty and the World: The Col on izati on of Maori Philosophy’, in Justice, Ethics and New Zealand Society, ed Graham Oddie and Roy Perrett (Auckland: Oxford University Press, 1992), pp 6–7; Ani Mikaere, ‘ The Treaty of Waitangi and Recogniti on of Tikanga Māori’, in Waitangi Revisited: Perspectives on the Treaty ofWaitangi , ed Michael Belgrave, Merata Kawharu and David Williams, 2nd ed (Auckland: Oxford University Press, 2005), p 341 **41.** Alan Ward, ‘ The Treaty and the Purchase of Maori Land’, NZJH, vol 22, no 2 (1988), pp 170, 172 **42.** Head, ‘ The Pursuit of Modernity’, pp 105–106 **43.** Belgrave, Historical Fricti on s, p 59 **44.** Ibid, p 60 **45.** Head, ‘ The Pursuit of Modernity’, p 106 **46.** Binney, ‘ The Maori and the Signing’, pp 26–27 **47.** Ward, Unsettled History, p 15 **48.** Orange, The Treaty of Waitangi, p 40 **49.** Bruce Biggs, ‘Humpty-Dumpty and the Treaty of Waitangi ’, in Waitangi : Māori and Pākehā Perspectives of the Treatyof Waitangi, p 305 **50.** J M R Owens, ‘New Zealand before Annexati on ’, in The Oxford History of New Zealand, ed William H Oliver (Wellingt on : Oxford University Press, 1981), p 52 **51.** Ross, ‘Te Tiriti o Waitangi ’, p 143 **52.** Orange, The Treaty of Waitangi, p 41 **53.** Belich, Making Peoples, p 194 **54.** Owens, ‘New Zealand before Annexati on ’, p 52 **55.** M P K Sorrens on, ‘ Waitangi : Ka Whawhai T on u Matou’, in Am on gst Friends: Australian and New Zealand Voices from America, ed Patty O’Brien and Bruce Vaughn (Dunedin: University of Otago Press, 2005), p 178 **56.** Mo on and Fent on, ‘Bound to a Fateful Uni on ’, pp 57–59 **57.** Orange, The Treaty of Waitangi, pp 41–42 **58.** Head, ‘ The Pursuit of Modernity’, p 107 **59.** Belgrave, Historical Fricti on s, p 61 **60.** Ibid, pp 60–61 **61.** Ward, An Unsettled History, pp 13–14, 17 **62.** Orange, The Treaty of Waitangi, p 42 **63.** McKenzie, Oral Culture, p 43 **64.** Belgrave, Historical Fricti on s, p 60 **65.** Simps on (Te Riri Pakeha, p 51) also cited Williams’s land holdings as a factor motivating him about the treaty : ‘ The so on er English law was established, the so on er he would be assured of possessing his land.’ **66.** Mo on and Fent on, ‘Bound to a Fateful Uni on ’, pp 52–54 **67.** McKenzie, Oral Culture, pp 41–42 n 81 **68.** Orange, The Treaty of Waitangi, pp 40–41 **69.** Biggs, ‘Humpty Dumpty and the Treaty of Waitangi ’, pp 306, 310–311 **70.** Ross, ‘Te Tiriti o Waitangi ’, pp 136–138 **71.** Orange, The Treaty of Waitangi, p 39 **72.** Mo on and Fent on, ‘Bound to a Fateful Uni on ’, pp 54–57 **73.** Head, ‘ The Pursuit of Modernity’, p 105 **74.** J M R Owens, The Mediator: A Life of Richard Taylor, 1805–1873 (Wellingt on : Victoria University Press, 2004), p 44 **75.** Owens, ‘New Zealand before Annexati on ’, p 52 **76.** Orange, The Treaty of Waitangi, p 43 **77.** McKenzie, Oral Culture, pp 10, 19, 40 **78.** Orange, The Treaty of Waitangi, p 56 **79.** Belich, Making Peoples, p 195 **80.** Richard Taylor to William Jowett, 20 October 1840, MS papers 0254–01 (or MS 197, reel 1), ATL, Wellingt on **81.** McKenzie, Oral Culture, pp 44–45. Binney too invoked Tāwhai’s remark in her 1987 New Zealand Journal of Historyessay on Māori oral narratives and Pākehā written texts. She did so again in 2009 in the title of her chapter in The New Oxford History of New Zealand: see Judith Binney, ‘Maori Oral Narratives, Pakeha Written Texts: Two Forms of Telling History’, NZJH, vol 21, no 1 (1987), p 16; Judith Binney, ‘History and Memory: The Wood of the Whau Tree, 1766–2005’, in The New Oxford History of New Zealand, ed Giselle Byrnes (Melbourne: Oxford University Press, 2009), pp 73–98. **82.** Ward, A Show of Justice, pp 42–43, 45 **83.** Ward, An Unsettled History, p 17 **84.** Ward, A Show of Justice, p 43 **85.** Belich, Making Peoples, p 200 **86.** Mo on, Te Ara kī te Tiriti, p 131 **87.** See Philip Turner, ‘ The Politics of Neutrality: The Catholic Missi on and the Maori, 1838–1870’ (MA the sis, University of Auckland, 1986); Peter Low, ‘Pompallier and the Treaty : A New Discussi on ’, NZJH, vol 24, no 2 (1990); Peter Low, ‘French Bishop, Maori Chiefs, British Treaty ’, in The French and the Maori, ed John Dunmore (Waikanae: The Heritage Press Ltd, 1992); Peter Low, ‘Bishop Pompallier and Te Tiriti’, in The French Place in the Bay of Islands: Essays from Pompallier’s Printery, ed Kate Martin and Brad Mercer (Russell: Mātou Matauwhi, 2011). Also of note is Peter Tremewan, who in 1990 published a history of the French attempt to settle and obtain sovereignty over sou the rn districts of New Zealand in 1840. See Peter Tremewan, French Akaroa: An Attempt to Col on ise Sou the rn New Zealand(Christchurch: Canterbury University Press, 2010 (first published 1990)). **88.** Louis Ca the rin Servant as translated by Turner, ‘ The Politics of Neutrality’, p 88 **89.** Belich, Making Peoples, pp 195–196. Turner’s translati on differs little from Low’s. **90.** Turner’s 1986 the sis was included in Orange’s bibliography. **91.** Orange, The Treaty of Waitangi, p 56 **92.** Michael King, The Penguin History of New Zealand (Auckland: Penguin, 2003), p 161 **93.** Owens, The Mediator, p 47 **94.** Orange, The Treaty of Waitangi, pp 64–65 **95.** Ward, An Unsettled History, p 14 **96.** Ibid, p 17 **97.** Mo on and Fent on, ‘Bound to a Fateful Uni on ’, p 60 **98.** Ross, ‘Te Tiriti o Waitangi ’, pp 145, 150 **99.** Ibid, pp 151–152 **100.** Ibid, pp 145, 152 **101.** Orange, The Treaty of Waitangi, p 100 **102.** Ross, ‘Te Tiriti o Waitangi ’, p 152 **103.** Owens, ‘New Zealand before Annexati on ’, p 52 **104.** McKenzie, Oral Culture, p 44 n 84 **105.** Orange, The Treaty of Waitangi, pp 42, 101 **106.** Ross, ‘Te Tiriti o Waitangi ’, p 144 **107.** William Colenso, The Au the ntic and Genuine History of the Signing of the Treaty of Waitangi, New Zealand, February 5 and 6, 1840 (1890; repr Christchurch: Capper Press, 1971), p 18 **108.** Ward, A Show of Justice, pp 43–44 **109.** Buick, The Treaty of Waitangi, p 104 **110.** Phil Parkins on, “Preserved in the Archives of the Col on y”: The English Drafts of the Treaty of Waitangi (Wellingt on : New Zealand Associati on for Comparative Law, 2004), p 53 **111.** Anne Salm on d, Hui: A Study of Maori Cerem on ial Ga the rings (Auckland: Reed, 2004), p 165 **112.** King, The Penguin History of New Zealand, pp 161–162 **113.** Binney, ‘ The Maori and the Signing’, p 28 **114.** Jane Kelsey, A Questi on of H on our? Labour and the Treaty, 1984–1989 (Wellingt on : Allen and Unwin, 1990), pp 8–9 **115.** Ibid, p 11 **116.** Colenso, The Au the ntic and Genuine History of the Signing of the Treaty of Waitangi, p 33. Here Colenso was quoting Busby’s recollecti on on 6 February of what Heke had said the previous day. **117.** Orange, The Treaty of Waitangi, p 51 **118.** Ibid, p 58 **119.** Owens, The Mediator, p 47 **120.** Lawrence Rogers, Te Wiremu: A Biography of Henry Williams (Christchurch: Pegasus, 1973), p 167. While published in 1973, Rogers’ text probably entirely predated the publicati on of Ross’s 1972 article. His foreword was dated October 1972, the same m on th Ross’s article appeared. **121.** McHugh, The Māori Magna Carta, p 224 **122.** Sorrens on, ‘ Waitangi : Ka Whawhai T on u Matou’, p 178 **123.** D on Brash, Nati on hood (speech to Orewa Rotary Club, 27 January 2004), http://www.scoop.co.nz/stories/PA0401/S00220.htm, accessed 20 February 2012 **124.** Dame Silvia Cartwright, Waitangi Day Address 2004, http://www.scoop.co.nz/stories/PA0402/S00093.htm, accessed 28 November 2012 **125.** See, for example, ‘C on stituti on al Reform’, New Zealand Listener, vol 236, no 3786 (1 December 2012), p 6, where a corresp on dent to the Listener wrote in late 2012 that, ‘When c on sidering the role of the Treaty of Waitangi in any proposal for a c on stituti on, the re is on ly on e clause that needs to be taken forward. It’s the on e that sums up the purpose and essence of the Treaty : “We are now on e people.”’. In ‘Apar the id Risk’, Taranaki Daily News, 30 January 2002, p 8, a letter writer to the New Plymouth newspaper wrote in 2002 that ‘ The treaty says: He iwi tahi tatou – We are now on e people.’ **126.** See, for example, ‘New Zealanders’, Christchurch Press, 18 February 1998, p 43 **127.** See, for example, ‘Bad Move’, Domini on, 23 April 2002, p 6 **128.** See, for example, ‘Maori Seats’, Hawke’s Bay Today, 19 March 2014, p 13 **129.** See the following letters to the editor: ‘ Treaty Principles Stretched’, Nels on Mail, 11 May 2012, p 11; ‘Call to be Heard’, Nels on Mail, 17 May 2012, p 9; ‘ Waitangi Day Unrest’, Southland Times, 12 March 2012, p 4. See also the opini on piece ‘Apar the id Looming in NZ with “White” Underdog Voice’, Nels on Mail, 31 December 2011, p 17. We note that this versi on of events dates back some decades. In 1932, the Auckland Star claimed that ‘“He iwi tahi tatou” … said each tattooed chief as he signed’. The same article also stated that the treaty was signed on 5 February: ‘Cradle of History’, Auckland Star, 11 May 1932, p 10. **130.** Ross, ‘Te Tiriti o Waitangi ’, p 154; Ward, An Unsettled History, p 15 **131.** New Zealand Maori Council v Attorney General [1987] 1 NZLR 641 at 702 **132.** Orange, The Treaty of Waitangi, pp 56–57 **133.** It is likely that this is a reference to Metge’s Rua Rautau lecture (audio available at http://www.radi on z.co.nz/nati on al/programmes/ waitangi ruarautaulectures/audio/2508843/2004-dr-dame-joan-metge), which Dame Silvia Cartwright correctly quoted. **134.** Joan Metge, Tuamaka: The Challenge of Difference in Aotearoa New Zealand (Auckland: Auckland University press, 2010), p 27 **135.** McKenzie, Oral Culture, pp 34–35 **136.** Belich, Making Peoples, p 195 **137.** Head, ‘ The Pursuit of Modernity’, pp 109–110 **138.** Ross, ‘Te Tiriti o Waitangi ’, p 154 **139.** Ward, A Show of Justice, p 42 **140.** Adams, Fatal Necessity, p 164 **141.** Simps on, Te Riri Pakeha, p 50 **142.** Ibid, p 52 **143.** Orange, The Treaty of Waitangi, p 41 **144.** Ibid, p 46 **145.** Ibid, pp 1, 4, 58 **146.** Judith Binney, ‘Kawanatanga and Rangatiratanga, 1840–1860’, in The People and the Land: Te Tangata me te Whenua – An Illustrated History of New Zealand, 1820–1920, ed Judith Binney, Judith Bassett and Erik Olssen (Wellingt on : Bridget Williams Books, 1995), p 77 **147.** Binney, ‘Tuki’s Universe’, p 30 **148.** Binney, ‘ The Maori and the Signing’, p 28 **149.** Binney, ‘Kawanatanga and Rangatiratanga, 1840–1860’, p 77 **150.** Binney, ‘ The Maori and the Signing’, p 28 **151.** Binney, ‘Kawanatanga and Rangatiratanga, 1840–1860’, p 78 **152.** Ross, ‘Te Tiriti o Waitangi ’, pp 129–130 **153.** Low, ‘Pompallier and the Treaty ’, pp 190, 199 **154.** James Belich, The New Zealand Wars and the Victorian Interpretati on of Racial C on flict (Auckland: Auckland University Press, 1986), pp 20–21 **155.** James Belich, ‘Hobs on ’s Choice’, NZJH, vol 24, no 2 (1990), p 202; Belich, Making Peoples, pp 194–195 **156.** Binney, ‘ The Maori and the Signing’, p 28 **157.** Belich, Making Peoples, p 200 **158.** E T J Durie, ‘ The Treaty in Maori History’, in Sovereignty and Indigenous Rights, p 157 **159.** Sorrens on, ‘ Waitangi : Ka Whawhai T on u Matou’, p 179 **160.** Mo on, Te Ara kī te Tiriti, pp 153, 155, 159 **161.** Document A16, pp 196, 219, 225–226 **162.** Ward, An Unsettled History, p 16 **163.** Ibid, pp 14, 16, 17 **164.** Head, ‘ The Pursuit of Modernity’, pp 100–103, 109 **165.** Belgrave, Historical Fricti on s, p 62 **166.** Ibid, pp 62, 65 **167.** Paul McHugh, ‘C on stituti on al The ory and Māori Claims’, in Waitangi : Māori and Pākehā Perspectives of the Treatyof Waitangi, pp 33–34, 37–42, 47 **168.** McHugh, The Māori Magna Carta, pp 1, 25–30, 46 **169.** Ibid, p 6 **170.** F M Brookfield, Waitangi and Indigenous Rights: Revoluti on, Law and Legitimati on (Auckland: Auckland University Press, 2006), pp 100–104 **171.** Ibid, pp 104–105 **172.** Palmer, The Treaty of Waitangi, p 68 **173.** Ibid, pp 68–69 **174.** Ibid, p 73 **175.** Ibid, pp 163–164 **176.** Ward, An Unsettled History, p 13 **177.** Mo on, Te Ara kī te Tiriti, p 117 **178.** Ian Wards, in his first chapter, made this point to counter what he called ‘ the myth of moral suasi on ’ in New Zealand historiography. Wards, The Shadow of the Land, pp 2–37 **179.** McHugh, The Māori Magna Carta, p 30 **180.** Palmer, The Treaty of Waitangi, p 74 **181.** Secti on 6(1)(c) does not expressly state that a Crown policy or practice that is claimed to have caused prejudice must date from 6 February 1840. We note that, unlike the o the r matters dealt with by secti on 6 (written laws, acts, and omissi on s), a policy or practice cannot always be dated precisely. Since the Treaty of Waitangi is dated 6 February 1840, a claim that a Crown policy or practice is inc on sistent with Treaty principles could not be based on a policy or practice that entirely predated the Treaty. **182.** Waitangi Tribunal, Report of the Waitangi Tribunal on the Motunui–Waitara Claim, 2nd ed (Wellingt on : Government Printing Of fice, 1989), p 51 **183.** Waitangi Tribunal, Report of the Waitangi Tribunal on the Manukau Claim (Wellingt on : Government Printer, 1985), pp 66–67 **184.** Waitangi Tribunal, Report of the Waitangi Tribunal on the Muriwhenua Fishing Claim, 2nd ed (Wellingt on : Government Printing Of fice, 1989), pp 186–187 **185.** We note that, in 2012, in New Zealand Maori Council v Attorney-General [2013] NZSC 6, the Supreme Court said, at [15] n 25, ‘This case is frequently called the Lands case; we shall refer to it in this judgment as the SOE case, because, as we shall explain, what was in issue in that case was not on ly land but also water.’ We do not take from this that the Supreme Court believes that all references to the Lands case should be so amended. **186.** Waitangi Tribunal, Report of the Waitangi Tribunal on the Mang on ui Sewerage Claim (Wellingt on : Waitangi Tribunal, 1988), p 60 **187.** A L Mikaere, ‘Maori Issues I’ [1989] NZ Recent Law Review 173–174 **188.** Waitangi Tribunal, Report of the Waitangi Tribunal on the Orakei Claim, 2nd ed (Wellingt on : Brooker and Friend, 1991). Paul Hamer (‘A Quarter-Century of the Waitangi Tribunal: Resp on ding to the Challenge’, in The Waitangi Tribunal: Te Roopu Whakamana i te Tiriti o Waitangi, ed Janine Hayward and Nicola Wheen (Wellingt on : Bridget Williams Books, 2004), p 6) wrote of the report: ‘It represented the Tribunal’s first extensive and thorough articulati on of Treaty principles, breaking new ground and setting effective precedents for future inquiries. The report reflected the careful hand not on ly of Judge Durie but of a full panel of six, including legal expert Gord on Orr, who c on tributed significantly to the Treaty principles secti on ’. **189.** Waitangi Tribunal, Report on the Orakei Claim, pp 188–189 **190.** Ibid, p 208 **191.** Ibid, p 201 **192.** Ibid, pp 201, 203 **193.** Ibid, p 181 **194.** See doc A22, p 1 **195.** Waitangi Tribunal, Muriwhenua Land Report (Wellingt on : GP Publicati on s, 1997), p 114 **196.** Ibid, p 115 **197.** Ibid, p 116 **198.** Ibid, p 117 **199.** Ibid, p 111 **200.** This provisi on, so far as it related to sea fisheries, was repealed by the Sea-fisheries Act 1894 but the Fisheries Acts of 1908 and 1983 protected ‘Maori fishing rights’, providing the basis for the litigati on that successfully challenged the Crown’s quota management regime and led to the 1992 Sealord Deed of Settlement. **201.** Waitangi Tribunal, Report on the Muriwhenua Fishing Claim, p 85 **202.** Waitangi Tribunal, Report on the Motunui–Waitara Claim, pp 45–46 **203.** Palmer, The Treaty of Waitangi, p 123 **204.** New Zealand Maori Council v Attorney General [1987] 1 NZLR 641 at 663 **205.** Ibid, at 691 **206.** Ibid, at 689; Mikaere, ‘Maori Issues I’ [1989] NZ Recent Law Review 174 **207.** New Zealand Maori Council v Attorney General [1987] 1 NZLR 641 at 690 **208.** Ibid, at 671 **209.** Ibid, at 714 **210.** Hobs on to Gipps, 5 February 1840, BPP, 1840, vol 33 [560], p 10 (IUP, vol 3, p 46) **211.** New Zealand Maori Council v Attorney General [1987] 1 NZLR 641 at 715 **212.** Tainui Maori Trust Board v Attorney-General [1989] 2 NZLR 513 at 530 **213.** Te Runanga o Muriwhenua v Attorney-General [1990] 2 NZLR 641 (CA) **214.** Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301 (CA) **215.** Palmer, The Treaty of Waitangi, p 125 **216.** New Zealand Maori Council v Attorney-General [1992] 2 NZLR 576 (CA) at 590–591; New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513 (PC) at 517 **217.** Ngai Tahu Maori Trust Board v Director-General of C on servati on [1995] 3 NZLR 553 at 558, 562 [|Return to top]
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Copyright © New Zealand Ministry of Justice, Tāhū o te Ture The source for this information is: http://www.nzjh.auckland.ac.nz/docs/2009/NZJH_43_1_03.pdf


 * New Zealand Journal of History, 43, 1 (2009) 39** **‘Texts and Translations’ RUTH ROSS AND THE TREATY OF WAITANGI**

IN 1972 Ruth Ross presented an analysis of the Treaty of Waitangi that was to underpin debates over its meaning for the next 30 years. Her purpose was threefold: to untangle the various instructions and translations that shaped the drafting of the Treaty in 1840; to determine the intentions and understandings of the Treaty partners, Maori and Pakeha; and to historicize the signing of the Treaty, thus returning an element of objectivity and distance to an event whose symbolism, she believed, had come to outstrip both scholarly understanding and documentary evidence. Interpretations of the Treaty were coloured by attitudes running the gamut from ‘Pakeha self-righteousness’ to ‘Maori disillusionment’. The Treaty of Waitangi, she concluded, had come to say ‘whatever we want it to say’.1 Her paper made a considerable impact. First presented in February 1972 at Victoria University in Wellington as part of a Department for University Extension seminar, it attracted significant interest, including radio discussion.2 Later that year the New Zealand Journal of History published an expanded version, ‘Te Tiriti o Waitangi: Texts and Translations’.3 Professor Keith Sinclair told Ross it was one of the ‘most important’ articles submitted to the journal. Its fine-grained analysis won the respect of the scholarly community, and it soon became required reading in university courses.4 Politicians, constitutional lawyers, Maori leaders and the general public also read it, and Ross’s arguments have gone on to inform a number of subsequent influential works, including those of Ranginui Walker and Claudia Orange.5 More than three decades after its first publication Ross’s contribution was still regarded by Walker as the ‘most penetrating critique in recent times of the events surrounding the drafting and signing of the Treaty’.6 Ross’s article was both a turning point in Treaty scholarship and a reflection of ideological and methodological developments in New Zealand historiography during the post-war period. By insisting that the text in Maori was the Treaty of Waitangi, it moved scholarly focus from the Colonial Office, which had dominated earlier studies, and asked instead what the Treaty had meant here, in New Zealand. In its criticism of the documentary sources, emphasis on a New Zealand perspective and scepticism about previous interpretations of the Treaty, the article was also a fine example of the scholarship of those ‘second generation’ New Zealand empiricists, students of J.C. Beaglehole, Frederick Wood, James Rutherford, James Hight and others, who, in the 1950s, 1960s and 1970s, used their academic training and methodological awareness to challenge the orthodoxies of New Zealand history. This article traces Ross’s methodology and examines the ways in which her historicization of the Treaty challenged established views about its role as a linchpin of New Zealand 40 society. It depicts the post-war decades, from the late 1940s through to the early 1970s, as a period of ‘high empiricism’ in New Zealand historiography. In this period scholars like Ross challenged the amateur/journalistic histories of the preceding years but were not yet engaged with the more complex interpretations of post-colonialism and post-modernism that appeared in the latter decades of the twentieth century. In an era that retained a certain confidence in the attainability of historical ‘truth’, historical empiricism was perceived to be a social science at the service of the community. At its best it included engagement with, and if necessary correction of, the patterns of historical understanding which wove themselves, subconsciously or otherwise, into the fabric of national life.7 Ross’s scholarship provides a micro-study of some of the tensions in the relationship between empiricism, tradition and national identity, tensions that still exist today, although the modes of historical examination may differ. Ross studied at Victoria University from 1939 to 1941 under F.L.W. Wood and J.C. Beaglehole. Leaving to join Beaglehole’s ‘kindergarten’ at the Department of Internal Affairs Centennial Branch, she honed her research skills on Old Land Claims for the Historical Atlas before leaving paid work for marriage and childrearing. Although she remained outside the academy for most of her career and balanced her research interests with the demands of parenthood, in many ways she fitted Beaglehole’s model of the ‘New Zealand Scholar’. She was passionate in her commitment to New Zealand, its identity, traditions and unique historical landscape. Methodical, analytical, relentless in her pursuit of detail and accuracy, Sinclair called Ross the ‘sternest perfectionist in New Zealand’.8 While researching from home had its disadvantages, placing her at times ‘five hundred odd miles and twenty four damned uncomfortable hours’ from her primary sources, for example, it also freed her from many academic pressures and enabled her to pursue her interests at will and over an extended period of time.9 Ross began serious research into the Treaty in 1954 when, at Beaglehole’s suggestion, she worked on an introduction to a publication of facsimiles planned by the Government Printer. During the 1950s Ross was living at Motukiore, a predominantly Maori community on the Hokianga Harbour; there she was well placed to discuss her perspectives and test her ideas.10 Although frustration at the lack of sources and what she perceived as the stonewalling of her ideas by established academics caused her to abandon the project in 1957, the research from this period formed almost the entirety of her argument in 1972.11 By this time contention surrounding the Treaty and protests by activists such as Nga Tamatoa had begun to challenge its place within the broader Pakeha consciousness. ‘Texts and Translations’ was, first and foremost, an exercise in empiricism, based on close analysis of the Treaty text and the documentary record surrounding its signings. Although she had not completed her BA degree, Ross sat in on Beaglehole’s honours paper on empirical method and thesis preparation. There research method and technique were taught, inspired first by the work of Beatrice and Sidney Webb, second by books Beaglehole judged relevant at the time, and third by textbooks and manuals of empiricism such as those listed in the University calendar for 1944, the point at which the course RACHAEL BELL 41 was formalized: Introduction to the Study of History, by Charles Langlois and Charles Seignobos; The Nature of History by Sir Henry Lambert; and The Modern Historians by C.H. Williams.12 In her early research, and especially in 1972 when other historians had begun experimenting with techniques such as oral or community history to link history to social issues of the day, Ross deliberately used the standards and methods of the mid-twentieth century empiricism of her university years. She believed that in their haste to interpret the Treaty, many New Zealanders, including many academics, had failed to engage with the history of the Treaty critically or rigorously. In doing so she provided an excellent example of the healthy pedantry advocated by Beaglehole as a prerequisite to good history, a pedantry which, as Keith Sinclair noted, had by the early 1970s left many cherished myths of New Zealand’s history ‘sadly battered by fact’.13 Empirical method aspired to raise history from a literary art to an objective science. It was based on the study of documents, which it privileged above other forms of historical evidence. By providing a series of analytical operations it intended to separate historians from their own preconceptions and prejudices, and those of the documents’ authors. The aim was to reduce historical evidence contained in the documents to a series of well-made observations ready for analysis in the manner of other more direct sciences.14 The first, heuristic (from the Greek word ‘to find’) step entailed the location, restoration, dating, collation and verification of historical records. This procedure was intended to dispose of forgeries, corrupted copies, selectively edited versions and so on. The second, hermeneutic, step analysed the verified documents to determine what facts about past events could be derived from them, including those of intention and motive. As none could be taken directly off the document, these facts had to be inferred from close and critical reading. Such inferences had to conform to rigorous rules of logic and were the product of trained thought.15 This critical analysis of documents was a defining characteristic of the post-war generation of academically trained New Zealand historians. While enthusiastic amateur historians had continued to collect and write up historical material, their unquestioning acceptance of historical ‘fact’ and belief that history could, and would, speak for itself had tended towards a lack of analysis and the perpetuation of myths and stereotypes. Empiricists, such as Ross, operated from a position of perpetual mistrust and methodical scepticism, systemically criticizing each document and eliminating points of error or opinion to deduce historical truth or fact. Ross’s textual approach to the Treaty was, however, a difficult one; ‘the hardest possible road’, she thought, to its understanding. Her work emphasized the Maori text — which, as the document signed by those who ceded under the agreement, she believed to be the actual Treaty of Waitangi — and amounted to a radical reworking of both the documentary evidence regarding the Treaty and the assumptions that had been drawn from it.16 Owing to its popular attribution as New Zealand’s founding document, a considerable number of histories on the Treaty had been written prior to the 1950s. The published works of interest to Ross were those of H.H. Turton (1877), T. Lindsay Buick (1914, with subsequent editions in 1932 and 1936), Sir Apirana Ngata (1922), and James ‘TEXT AND TRANSLATIONS’ 42 Rutherford (1948). Ross thought Turton, as the editor of the original facsimile edition, had done a ‘useful and competent job’.17 Along with the Treaty documents and their drafts, he had provided typescripts of the English version of the Treaty, the Maori text, copies of the reports and letters of LieutenantGovernor Hobson and of those Hobson sent out to gather Treaty signatures. All extracts were retained in their primary form. No translation of the Maori text was provided, nor any major attempt made at analysis (apart from the act of selection itself) of the supporting documents. Other than his guarded comment that ‘without some such agreement between the two races as was determined by “the Treaty of Waitangi”, the Queen’s authority and government would never have been so peaceably admitted and established in this country’, Turton was prepared to ‘leave these sheets to the scrutiny of all interested inquirers’.18 By contrast, T. Lindsay Buick’s The Treaty of Waitangi, or How New Zealand Became a British Colony was intended as a popular historical narrative.19 It was an authoritative yet accessible account, relating the story of the Treaty with what Chris Hilliard has described as an air of ‘literary statesmanship’.20 Through its selection, or omission, of material it confirmed the notion of the Treaty as a symbol of ‘Maori acceptance of British ways’ and the ‘wholesome mythology of “he iwi tahi tatou”’.21 Although it was uncritical in its use of sources, several of which Ross was later to refute, it was the most comprehensive synthesis of historical evidence regarding the Treaty of its time, and continued to be used as a reference text well into the 1970s.22 Buick’s work both reflected and sustained the popular conceptions of the Treaty. It was of interest to Ross as a starting point and as the source of some possible leads. Buick’s theme was the successful and peaceable acquisition of sovereignty. He was largely uncritical of the Maori text. In his original 1914 edition he had praised Williams’s translation into Maori as ‘a perfect native reflex of the European mind, conveying in all probability a clearer view to the Maori of what the treaty meant than the English version has done to the average Pakeha’.23 By the 1933 edition, which had been substantially reworked, he had moderated his view: ‘… although its phrase taonga katoa fails clearly to specify the reservation of “forests and fisheries” which it includes under the general term of “other properties”, it has stood the crucial test of time fairly well, and gives to the Maori as clear a view of what the treaty means as the English version has given to the average Pakeha’.24 He continued to assert, however, as he had in 1914, that sovereignty had clearly been ceded through the Treaty, and that although the ‘forms by which our sovereignty was exercised were doubtless new and strange to them’, Maori ‘understood clearly enough that for the advantages they hoped to reap from the treaty they were yielding much of their existing power’.25 To Ross, these were errors of judgement arising from poor scholarship. Despite his extensive use of primary material, often quoted in bulk, it was not until his third edition, following the assistance of Sir Apirana Ngata, that Ross thought Buick had really begun to look at the Treaty documents.26 Ngata’s involvement had accounted for Buick’s more critical assessment of the Maori text. However, the alterations did not appear to be of particular significance to Buick himself; they were RACHAEL BELL 43 not mentioned in the preface and his narrative account of the acquisition of sovereignty remained essentially unchanged. Ngata’s own booklet on the Treaty was first published, in Maori, in 1922 specifically to explain the Treaty to the Maori people. In 1950 it was translated into English by M.R. Jones and republished as a dual text, The Treaty of Waitangi, an Explanation/Te Tiriti o Waitangi, he Whakamarama, by the Maori Purposes Fund Board.27 Ross was interested in it for a number of reasons. Firstly, Ngata was the only historian to have dealt primarily with the Maori text. He aimed to clarify it for his Maori readership and in doing so was openly, if only mildly, critical of its translation: ‘The English expressions in the Treaty were not adequately rendered into Maori. There were minor parts left out.’ Aside from this, Ngata maintained that the Maori text ‘clearly explained the main provisions of the Treaty’.28 Somewhat paradoxically, however, he continued to structure his argument around the English terms, and their intended meanings, as the conditions the Maori signatories had agreed to. Ngata explained the issue of kawanantanga and ‘governance’ in Article One of the Maori text in terms of British sovereignty: ‘What is a “Government?” The English word is “Sovereignty”. The English word for such a personage as a King or a Queen is “Sovereign”. This is the same as the Maori words “Ariki Tapairu” and is referred to as the absolute authority.’29 Similarly, with regard to rangatiratanga in Article Two, although Ngata provided his own, and what he considered to be more accurate, translation, using mana in conjunction with rangitiratanga, he continued to confine it to the concept of independent ownership, as intended in the English text: ‘It is quite clear, the right of a Maori to his land, to his property, to his individual right to such possessions whereby he could declare, “This is my land…”.’30 The inclusion of the term ‘sovereignty’ in the explanation in English following Ngata’s new translation appears to be an interpolation by Jones. Ngata further interpreted the pre-emption clause in Article Two as the ‘giving of the right to the Queen to acquire Maori land’.31 While Ngata was critical of government land purchasing, he maintained that it was the policy of individual governments that was at fault and that ‘the blame cannot be placed on the Treaty of Waitangi which laid down this basis’.32 His adherence to the English text was in line with thinking in his day and with his own general policy of ‘co-operation within the parameters defined by the state’.33 He emphasized Maori agency and expected Maori to take responsibility for their part in signing the Treaty. He went so far as to instruct his Maori readers, ‘If you think these things are wrong and bad then blame our ancestors who gave away their rights in the days when they were powerful’.34 Professor James Rutherford also recognized discrepancies in understandings of the Treaty. His two published lectures, Hone Heke’s Rebellion, 1844–1846: An Episode in the Establishment of British Rule in New Zealand, and The Treaty of Waitangi and the Acquisition of British Sovereignty in New Zealand, 1840, were intended as part of a larger study of Maori political ideas that remained unpublished.35 Of the two, Hone Heke’s Rebellion dealt more directly with Maori interpretation of the Treaty. Rutherford noted that there was ambiguity surrounding the notions of sovereignty in Articles One and Two in the Maori text. He believed the concept had been poorly explained to Maori at the Waitangi ‘TEXT AND TRANSLATIONS’ 44 signing, with insufficient emphasis given to the ‘restraints and restrictions and responsibilities’ it implied.36 The term ‘Kawana-tanga’ had been a poor translation of British expectations of sovereignty. Furthermore, James Busby with his limited powers as British Resident since 1833 had provided but a ‘feeble and inadequate illustration of “sovereignty” indeed’.37 On the other hand, ‘Rangatira-tanga’ seemed to Rutherford to be a ‘far stronger term used… to describe the authority they retained…which taken literally seemed to imply that, on their own lands, the Maori chiefs would retain all their power, authority and “mana” as rangatira over their own people’.38 Despite these observations, however, Rutherford, like Ngata, continued to couch his discussion in terms of the ‘official English version’ of the Treaty. He recognized that there had been among the Maori signatories an ‘undercurrent of real apprehension’ and among the missionaries a ‘certain amount of soft-pedalling on the subject of British sovereignty’. He stopped short, however, of suggesting ‘deliberate double dealing’.39 Ross thought Rutherford’s lectures were well done and well documented. Her principal concern with Rutherford was the way in which his rough translation of the Maori text, created to the best of her knowledge by ‘looking up nouns and verbs in a dictionary’, had come to dominate, and mislead, academic interpretations of the Treaty.40 Indeed, for want of any other, it was to continue as the accepted orthodoxy in university teaching in New Zealand until the 1970s.41 While Ross thought it important to use these earlier historians as starting points, none appeared adequately to address the discrepancies she saw in the Treaty. Through a lack of critical groundwork, or in pursuit of their individual arguments, she thought all had missed a fundamental point. While each acknowledged to a greater or lesser extent that there were gaps between the English and the Maori texts, all unquestioningly gave primacy to the English text. The Treaty was a document drawn up by the British Crown. What the Crown had intended, they therefore assumed, was what the Treaty had meant. Early in the course of her research Ross became convinced that the reverse was true; that it was the Treaty document as signed and understood by Maori that constituted the Treaty of Waitangi, irrespective of Crown intentions. Any consideration of the Treaty, Ross was emphatic, had to begin with the Maori text. The emphasis Ross gave to the Maori text marked a significant departure in Treaty historiography. It became a signature of her scholarship and was, eventually, to become a broadly accepted academic view. In 1954, however, it required considerable working through. She was aware of an alternative Maori view of the Treaty from her time at the Centennial Branch where her research into Old Land Claims had exposed her to a counter perspective on early settler land transactions. Once she began research for the introduction to the facsimiles, she also developed a network of Maori advisors. This gave her the confidence to pursue her alternative approach. ‘Of course I could not have taken this course unaided’, she wrote to Beaglehole of her decision to concentrate on the Maori text, ‘and have had wonderful help from Mat Te Hau [sic] and Pei Jones particularly, and can tap Bruce Biggs and Maha Winiata’.42 These people helped Ross with translations, read drafts and discussed ideas. In the Hokianga also she recruited the help of local Maori whose life away RACHAEL BELL 45 from the academy, in a ‘historical vacuum’ as she described it, encouraged an independent approach.43 Increasingly for Ross studying the Treaty from the Maori text was not just one of a number of possible approaches, but the only ethical and logical one. If, as Mohi Tawhai had predicted, the Maori view of the Treaty was to sink ‘like a stone’, and from her search for documents it appeared to Ross that it had, her network of advisors made it at least possible to work toward re-establishing this perspective of the Treaty text within academic scholarship. She found historical precedent for asserting the Maori text also. While researching in early New Zealand parliamentary papers she was drawn to the ‘pamphlet wars’ of the 1860s as ‘the first occasion when the actual treaty, i.e. the text and its meaning, was taken out and aired’.44 The observations of Henry Martin, William Sewell and others, she thought significant, even if they were examples of settlers favouring the Treaty for their own purposes. At the heart of Ross’s analysis, then, were these two central points: her insistence on the primacy of the Treaty text and her assertion that the ‘actual’ Treaty of Waitangi was te Tiriti o Waitangi, the Treaty in Maori. In addition she differentiated between the Waitangi text and Robert Maunsell’s sheet signed at Waikato and Manukau in March and April 1840, which she referred to as the ‘Treaty of Waikato’. She felt that the Maori text was pivotal to any consideration of the Treaty, and believed that so long as people or institutions ignored this aspect, the allegations and speculations surrounding the Treaty, its obligations, its promise and its spirit, would continue. This was particularly so in the turmoil of the late 1960s and early 1970s, when the civil unrest and racial strife evident in other Western countries made many New Zealanders concerned with the direction such developments could take.45 When in 1972 the University Extension Programme at Victoria University organized a seminar in response to these concerns and asked Ross to speak, she took the opportunity to air her views of the Maori text and the meaning of the Treaty in translation.46 Where once, in the 1950s, she had been disappointed to find her approach regarded as pedantic and ‘historically worthless’, it was now snapped up by an academy and general public anxious to understand an issue that seemed to strike at the core of New Zealand identity.47 While her conclusions on the Treaty may not have been a source of comfort to New Zealanders, it was information she felt they needed, and information without which a degree of objectivity regarding the Treaty could not be achieved. Ross’s conclusions were the result of a strict empirical methodology. The following section traces the steps she covered in coming to conclusions which were so at odds with the accepted view of the Treaty. Empiricism posited history as a process of inference and reasoning. Without the capacity for direct observation, a scientific understanding of historical events could be gained only by analysis of their documentary remains. As the documents themselves were regarded as nothing more than the material traces of a series of psychological operations on the part of their authors, their subjection to a process of critical scrutiny became the defining operation of an historian’s scholarship.48 The steps in this process of hermeneutic analysis were of two types. The first, ‘external criticism’, concerned examination of the documents themselves, for authenticity, authorship, sources and so forth. The second, ‘internal criticism’, ‘TEXT AND TRANSLATIONS’ 46 referred to assessment of the mental states through which a document’s author passed: his or her meaning, belief in the accuracy of what he or she wrote, and his or her justification for that belief. Applied to the Treaty, this required Ross to not only assess and define the Treaty documents, but also to examine the motives and understandings of their participating authors. She took this process one step further in attempting to ascertain what Maori signatories to the Treaty documents may have understood them to mean. External criticism had three aims: to accurately define the document in question; to ensure that the historian was working as close to the original source as possible; to clear the mind of previous assumptions and suppositions surrounding the document. Step one, textual criticism, used close study and comparison to differentiate original documents from their copies. The examination of ‘traditional variations’, the errors or alterations that tended to accumulate between copies of texts, could be used to determine the order in which copies had been made and in particular to construct a ‘genealogical tree’ to map the sequence of events surrounding the creation of a document or group of documents.49 This was very much the analysis that Ross applied to the Treaty documents and which served to uncover a number of discrepancies unnoticed by previous scholars.50 After defining her aims and making specific mention of the nature of missionary input into the Treaty, Ross began her analysis with a critical assessment of the Treaty texts. As she was working with documents involving translation, she had to closely compare all documents and copies in English with each other, and then compare these with the Maori text. Starting from her assumption that ‘the Treaty of Waitangi’ was the text in Maori, she worked backward to try to define the original or ‘official’ English version. From a detailed collation of the various English texts she uncovered five separate English versions, each slightly different, and each with some claim toward official status.51 She related these copies to each other as to their origins, in a genealogical manner. As none were in exact accordance with the translated Maori text, Ross concluded that all were copies of an earlier draft. As the basis for the Maori translation, only that draft could, she felt, logically claim to be the official Treaty of Waitangi in English. To the best of her knowledge, however, it was lost. The English text most commonly referred to as ‘the Treaty of Waitangi’ was Maunsell’s copy signed at Waikato and Manukau. She identified this as being at odds with the inferred original. The absence of ‘Forests’ and ‘Fisheries’ from the original translation into Maori and an early version in English returned by Hobson to the Colonial Office led Ross to conclude that the terms stated in the second article of the Waikato copy were interpolations, or later additions.52 Although she was unsure of the status of the Waikato text, she was forced to conclude that forests and fisheries were not intended among the original guarantees of the Treaty articles. In the light of subsequent Treaty scholarship it may be difficult to appreciate the extent to which this analysis was at odds with contemporary understandings of the Treaty. As noted above, prior to 1972 no other scholar had catalogued the variations of the English texts, nor had anyone come to the conclusion that the original version of the Treaty in English was missing. To assert this point, therefore, was to give primacy to the Maori text — with no comparable RACHAEL BELL 47 English text available, it became the ‘only’ Treaty of Waitangi. Simultaneously, it undermined the validity of the Waikato text, which until then had been so broadly accepted as ‘the Treaty’ as to be incorporated in the schedule of the 1960 Waitangi Day Act. To invalidate the Waikato text was also to discredit the translation of one of the country’s foremost Maori leaders, Sir Apirana Ngata, and to undercut the argument of contemporary Maori regarding access to traditional fishing grounds. This analysis also cast doubt on the solemnity attributed to the Treaty-making process. While the annual repetition of Lord Bledisloe’s prayer at Waitangi celebrations promoted the notion of a ‘sacred compact’, the repeated and unacknowledged variations in Hobson’s English texts suggested to Ross not only that he was still adjusting the terms of the Treaty after its initial signing, but that there had also been an unhealthy degree of chance, ‘carelessness, or cynicism’ attached to the whole proceedings.53 Within the first step of analytical operations, therefore, Ross had opened the validity of the Treaty to doubt. Textual criticism was followed by the investigation of authorship. Here again Ross dislodged some accepted theories, particularly with regard to the former British Resident James Busby’s open claim to authorship.54 Indeed, it was the widespread acceptance of Busby’s exaggerated claims, she believed, that had ‘in a large part been responsible for today’s chaotic misunderstanding about the Treaty of Waitangi’.55 To proceed with internal analysis, that is to determine the intended meanings of the Treaty, it was necessary to untangle its drafts and authors. To determine authorship, or the relative contributions of multiple authors, Ross compared the draft notes of Hobson, James Stuart Freeman (his secretary) and Busby, all of which were still available.56 With the preamble and a significant proportion of the Treaty articles coming from Freeman and Hobson, Ross was able, with considerable satisfaction perhaps, to dispel Busby’s claim of having been the principal author of the Treaty, although she did acknowledge that in the English version of the articles ‘there appears to be more Busby than anyone else’.57 Seeing ‘the Treaty of Waitangi’ as the Maori text, however, meant Busby’s input had been minimal, merely the exchange of the term whakaminenga for huihuinga. 58 From Ross’s perspective, whatever the intended meaning of Busby, Hobson or his officers, the onus of authorship lay with the Treaty translators, the missionary Henry Williams and his son Edward. Henry Williams was neither an experienced translator nor a scholar. Edward, ‘a green young man of twenty one’, seemed little better equipped. While his ‘spoken Maori was very probably more fluent than his father’s, his ignorance of English constitutional law and convention’ was, she thought, ‘almost certainly greater’.59 Understanding their choice of terms in conveying the complex concepts of British sovereignty and governance was central to an analysis of the Treaty. This, therefore, became her next step. The interpretive analysis of the Treaty documents was one of the strengths of Ross’s seminar and article. Her observations regarding the use of the words kawanatanga and rangatiratanga have sustained a wealth of subsequent scholarship. Having defined the Treaty documents and their authors, investigation of the language of the Maori text was one of the first tasks Ross had set for herself in 1954. She had worked on it systematically, adding to her ‘TEXT AND TRANSLATIONS’ 48 understanding as opportunities arose, for nearly two decades. She began by identifying the language of the Treaty text. It was, she noted, non-indigenous Maori: ‘missionary-Maori, specifically Protestant missionary-Maori’.60 Thus it was likely to differ from both the contemporary Maori of native speakers and from Maori as spoken in her own day. Protestant missionary (Mihinare) Maori constituted, for the purpose of analysis, a ‘dialect’ of its own. Making this delineation helped Ross to better determine the terms of the Treaty in Maori and the meanings they sought to convey. Close readings of early Church Missionary Society (CMS) translations, the 1837 New Testament in Maori and Williams’s Maori dictionary familiarized her with Mihinare Maori as an idiom, and with the pattern of ‘missionary translation of English thought into Maori’.61 Missionaries, Ross noted, had a near monopoly on translating and explaining the terms of the Treaty. In both the choice of language and its explanation, this had resulted in a blurring of religious and political terminology. Henry Williams had stated in defence of his translation that it had been necessary to ‘avoid all expressions of the English for which there was no expressive term in the Maori, preserving entire the spirit and tenor of the treaty’.62 On close comparison of the Treaty with mission texts, however, Ross found significant discrepancies of meaning, particularly regarding the choice of the words kawanatanga and tino rangatiratanga in the preamble and articles as expressions of sovereignty. While the cession of sovereignty was clearly the ‘chief purpose’ of the Crown’s treating with Maori, Ross felt that the choice of the term kawanatanga without the accompanying term mana in the Treaty translation had failed to convey the extent to which sovereignty, as an imported concept, would affect the traditional authority of Maori chiefs. There were scriptural precedents, she noted, for the use of kawanatanga to denote the act of ruling, or oversight, and mana to denote ultimate authority. This usage also had a political precedent in Busby’s ‘Declaration of Independence’, He W[h]akaputanga o te Rangatiratanga o Nu Tireni, in which Kingitanga and mana had been used to denote sovereign power and authority respectively. Failure to continue this association in the Treaty had weakened the explanation, clouding the finer distinctions and underplaying the balance of power. This misrepresentation appeared to have been exacerbated by the use of the term tino rangatiratanga in Article Two. Here Ross found precedents in Mihinare Maori that indicated that, until its use in the Treaty, the term tino rangatiratanga had been more closely aligned to the concept of sovereignty than had kawanatanga chosen in Article One. In CMS scriptures rangatiratanga had been used as a translation for ‘kingdom’, and in Busby’s Declaration of Independence for a state of political independence.63 These interpretations had been borne out by Henry Williams who, when subsequently asked to translate the Treaty back into English, equated the term with ‘full rights as chiefs, (and) their right to possession of their lands and all their property of every kind and degree’.64 Rangatiratanga had also been used by Hobson himself shortly after the initial signing of the Treaty to convey the concept of sovereignty. In a proclamation from April 1840 ‘te rangatiratanga o te Kuini’ was used to denoted the sovereignty of Queen Victoria.65 RACHAEL BELL 49 The textual basis of Ross’s argument problematized the Treaty to an unprecedented degree. As long as Crown policy had remained the principal focus of historical analysis, issues surrounding its representation to Maori had been eclipsed. Where discrepancies in translation had been touched on in previous scholarship, they were either not pursued, as by Rutherford for example, or dismissed, as by Ngata, who contended that the real meaning lay in the English text.66 Although the concept of a ‘free and intelligent consent’ by Maori chiefs was central to both general and academic understandings of the Treaty, Ross was the first historian to consider carefully the language through which this intelligent consent had been obtained. The outcome was, in her opinion, an artless pastiche which relied on a handful of neologisms to convey complex and incommensurate political practices. Even the manner in which assent was demonstrated defied clear cultural definition. What, in the circumstances of the Treaty, she wondered, constituted a signature? Could an individual sign on behalf of his tipuna? Could the consent of one signatory be overridden by a higher chiefly authority?67 The margin for error within all aspects of the Treaty seemed to Ross to be immense, yet its consequences were profound. For interpretation Maori had trusted in missionary guidance. The final stage of hermeneutic analysis is to assess a document’s validity in terms of its author’s intentions and motivations, a test which Ross applied to the Treaty’s principal author, Henry Williams. Ross, characteristically perhaps, was sceptical of the universal beneficence of early missionaries. In a lecture to the Auckland Historical Society in 1971 she had stated, ‘No one would question that most of the early missionaries, Protestant and Catholic, were sincere men, doing their best for the New Zealanders, often under very trying conditions. But what we must recognise is that their best was not always very good; their actions were not always wise; their teaching was not always in the best interests of those they taught.’68 In her consideration of the Treaty’s language, Ross had suggested that terms vital to the full meaning of the English text had been held back from Maori. The conditions of Williams’s life had placed him at the service of the northern Maori community. They had turned to him for interpretation and advice on the Treaty, and it was, Ross noted, a role in which he appeared both confident and comfortable. It was also a responsibility, she thought, that he assumed too lightly. Both he and Busby were by her estimation given to self-importance and were assured of their position ‘on the side of the angels’.69 In establishing motive, it needed to be noted that any well-integrated member of a community must be at one and the same time a member of many, and sometimes conflicting, groups.70 Ross identified Williams as being at once British, Protestant, an ex-naval officer, a New Zealand landholder, a missionary, and a friend and advisor to Maori. The terms in which he chose to present the Treaty would depend on the extent to which he perceived these roles as being in conflict with one another, and which he let come to the fore. In contrast to those historians who had praised Williams, such as Buick, Ross found his attitude toward Maori to have been at best paternalistic and at worst condescending.71 It was well known that Williams had supported formal British intervention in New Zealand. In his determination to see this goal achieved she believed he had consciously restricted the terms in which sovereignty had ‘TEXT AND TRANSLATIONS’ 50 been presented to Maori. This Ross perceived to be a breach of trust.72 In her seminar she stated: If Henry Williams and young Edward had translated sovereignty as te kawanatanga katoa te mana katoa me te kaha, no Maori would have been in any doubt about what was being given to the Queen. But if mana had been seen as a part of the European concept of sovereignty, would any New Zealander have signed the treaty?…. So was the Williams translation of sovereignty political rather than meaningful? Did they, knowing the chiefs would never sign away their mana to the Queen deliberately eschew the use of this word and this concept in their translation? Well, your guess is as good as mine.73 In ‘Texts and Translations’ she was more outspoken and assured: In the Maori text of Busby’s declaration of independence ‘all sovereign power and authority within the territories of the United Tribes’ was translated as ko te Kingitanga ko te mana o te w[h]enua o te w[h]akaminega. Yet when this same sovereign power and authority was to be ceded to the Queen by, among others, the very chiefs who had supposedly declared themselves possessed of it in 1835, only te kawanatanga katoa of their lands was specified. It is difficult not to conclude that the omission of mana from the text of the Treaty of Waitangi was no accidental oversight.74 The Williamses could, Ross concluded, ‘fairly be held responsible’ for this omission.75 The paternalistic assumption behind the act, that Pakeha knew what was best for Maori, and should if necessary humour them into compliance, had thus been incorporated by Williams in the country’s inaugural agreement between Maori and the Crown, and had continued to permeate, she felt, historical interpretations and policy toward Maori in her own time. Similarly, Ross did not believe Henry Williams’s to be beyond reproach on the issue of pre-emption in Article Two of the Treaty. Land was a particularly contentious issue at Waitangi during the Treaty signing. Many of the speeches in the debate concerned land sales, some of which specified Williams’s own land holdings as a point of contention. There was also precedence to show that Maori would not have agreed to a Treaty that prevented them from dispensing of their lands on their own terms.76 However, Ross did not feel Williams to be directly responsible for his mistranslation of pre-emption in the Maori text. She felt it was unlikely that Hobson had indicated the extent to which he intended the embargo on private sales to go. She was, nonetheless, suspicious of the lightness of Williams’s explanation during the Treaty meeting which, as William Colenso had noted, had left Maori clearly misinformed.77 Subsequently he had also perpetuated the misunderstanding when he would have been in a position to support the Maori perspective. Because of his own land interests, she believed, Williams had remained studiously aloof from the subsequent debates over the Treaty and land sales. It was not until 1861, when he was ‘stung into declaring himself’, that he admitted the explanation he had given to Maori was at variance to the use of pre-emption in the English text.78 Ross saw Henry Williams, then, as being culpable for two of the more serious misunderstandings in regard to the interpretation of the Treaty. By considering his intentions and motivations as RACHAEL BELL 51 the principal author of the Maori text she demonstrated the extent to which, in as much as it may be interpreted as ‘sacred pact’, it was also the product of human error and ambition. She maintained that as a document it was based on an element of deceit and omission and should therefore be judged less on what it intended to achieve and more on what it resulted in conveying. This analysis of the Treaty, however, placed Ross in an unenviable position, not only at odds with the accepted scholarly view of how British sovereignty was acquired, but openly critical of a central figure in that iconic event. Exposing the Treaty would be both distressing to Pakeha, who had come to accept the sanctity of a pact which legitimized the European presence in New Zealand, and possibly counterproductive to Maori causes with which she sympathized.79 ‘Much of it is dynamite, I know’, she had written to Beaglehole at the start of her research in 1954.80 While her resolve had strengthened in the face of the increased controversy surrounding the Treaty in the early 1970s, it left her no more comfortable with this aspect of her work. ‘Why I can’t leave well alone I’m damned if I know’, Ross wrote to her friend Ormond Wilson while preparing ‘Texts and Translations’ in 1972. ‘What harm have all the rose-tinted spectacles done me that I am driven to snatch them away from people and trample them under foot?’81 But snatch them she did, feeling as each Waitangi Day celebration passed, with its protests and demonstrations, ‘pious moralising’ and ‘patriotic guff’, that New Zealanders were entrenching a myth, ‘hoist with a monstrous misconception of our own making’.82 Empiricists saw myth, in the sense of historical misunderstanding, as arising out of a natural human tendency toward intellectual ease, or even ‘sloth’. Failing some obvious reason for examination, ‘outrageous improbability’ or contradiction, a historical document could become caught in a cycle of uncritical acceptance: ‘we swallow it whole, we pin our faith to it, we hawk it about and, if need be, embellish it in the process’.83 Within the New Zealand context historians such as Beaglehole saw mythmaking arising out of the social need to create an accessible tradition: ‘to shed off, as indeed tradition has a habit of doing without deliberately moulding, the inessential for the essential — even if’, he noted, this process ‘sometimes rather inadequately, or erroneously, picks on a symbol…to incorporate its feeling for the essential’.84 Ross may have regarded the myths surrounding the Treaty as resulting from a combination of both laziness and social need. This article concludes with a consideration of Ross’s view of the Treaty within common historical consciousness, or, in the terms of her day, the national tradition. Ross believed Maori and Pakeha both searched for an identity within the Treaty. The document’s lack of clear definition, however, meant that any sense of identity it provided would be illusory. ‘To each one of us’, she wrote in the conclusion to ‘Texts and Translations’, ‘the politician in Parliament, the Kaumatua on the marae, Nga Tamatoa in the city, the teacher in the classroom, the preacher in the pulpit — the Treaty of Waitangi says whatever we want it to say. It is a symbol, of Pakeha self-righteousness, of Maori disillusionment…. The signatories of 1840 were uncertain and divided in their understanding of its meaning: who now can say what its intentions were?’85 Ross’s own intentions were to strip the Treaty of symbolism, to lay it out as objectively ‘TEXT AND TRANSLATIONS’ 52 as the evidence would allow and to view it again from a strictly documentary basis. Seen thus it may, she hoped, be brought back into perspective as only one of a number of processes that contributed to the acquisition of sovereignty and the colonization of New Zealand. When Ross first began work on the Treaty in the 1950s and 1960s, concern over interpretation and implementation of the Treaty was still largely a Maori endeavour, impinging on Pakeha only within the bounds of governmental agencies. With the advent of a new generation of Maori activist groups such as Nga Tamatoa taking protests into more public areas, the need for Pakeha to define the Treaty’s meaning acquired a degree of urgency. While she was still relatively tentative in her seminar presentations, as interest in the Treaty along the lines that Ross had been advocating increased, she was able to become more outspoken in presenting her findings. ‘If I’m no longer just nuts on the subject of the Treaty’, she wrote to Keith Sinclair as he edited ‘Texts and Translations’, ‘I can change down out of this rather apologetic personal gear’.86 ‘Texts and Translations’ was a more open and confident attack on the emotion and symbolism surrounding the Treaty than her earlier seminar. Rather than, in the manner of some academic writing, hoping to redirect an erroneous tradition subtly, she intended to dispel the error altogether. A basic tenet of empiricism was historicism, the necessity to understand a document on its own terms. Ross felt that after the Treaty had been studied and understood from a documentary basis New Zealanders, Maori and Pakeha, would be in a position to resume their debate and decide what place to accord it in the national consciousness. ‘Texts and Translations’ used its empiricist base to claim authority over and discredit contemporary perceptions of the Treaty. Its detailed analysis and stance of scholarly objectivity positioned it as the antithesis to the uncritical recycling of an emotive myth. Yet the individual and subjective elements of Ross’s interpretation were also displayed. ‘Texts and Translations’ had its heroes, and antiheroes, and used emotive language to engage the reader in its argument and to carry that argument over into the concept of ‘felt tradition’. Busby, particularly his account of the drafting, attracted a number of stinging adjectives from Ross: ‘inflated’, ‘distorted’, ‘exaggerated’ and ‘shrill’. He was described as ‘leaping into the fray’ with ‘wild’ arguments, and his authorship of the Treaty was dismissed almost entirely from the perspective of the Maori text: ‘So much’, she stated, ‘for Busby’s claim to have drawn the treaty’.87 Henry Williams, while treated less vehemently than Busby, also emerged with his reputation tarnished. In these respects Ross may be regarded as being hypercritical. Claudia Orange, for example, writing 15 years after ‘Texts and Translations’, and drawing on Ross and her same sources, was notably more supportive of Busby. Not being as emphatic in dismissing the English text, Orange suggested that he might ‘be forgiven for the proprietary pride with which he discussed the treaty in later years’.88 Assessing Williams’s translation of the Treaty, she credited him with seeking to preserve, through his choice of rangatiratanga in Article Two, the authority of the chiefs and their ‘right to exercise some control’, at a time when by international understandings they may not have been regarded as having any at all.89 Lyndsay Head has also been critical of the naivety with which Williams’s RACHAEL BELL 53 translation of the Treaty has been approached.90 Writing to release Maori terminology from the legacy of ‘linguistic essentialism’ initiated by Ross, she dismissed the ‘implausible linguistic incompetence and an implausible conspiracy to deceive’ attributed to Williams’s choice of terms.91 Pre-Treaty usages of the term mana, for example, suggested to Head not only the appropriateness of its omission from the Treaty text but also the accuracy of tino rangatiratanga because the term reflected the ‘logic of the Treaty’s concern with land’ at that time. ‘Henry Williams’, she concludes, ‘translated the treaty of Waitangi for his day, not for posterity’, any lightness or amateurishness noted by Ross and subsequent historians need not require such a ‘paranoic analysis’.92 Such readiness by Ross to distrust and dismiss missionary contribution may be characteristic of her historical environment. In a recent assessment of religion in New Zealand history John Stenhouse noted a hypercritical tendency among post-war historians writing about Christianity. They were a generation who, ‘with Sinclair leading the way’, played down the role of religion in history in favour of nationalist ‘myths of origin’, and a ‘secularized’ past.93 Ross, certainly, was sceptical of the work of early missionaries, but her main concern with mission records was that they had been used too exclusively and too uncritically in New Zealand history. As a result missionary views and prejudices, especially with regard to Maori, had continued to permeate historical interpretations to her present day.94 This was particularly so in Williams’s case because of his elevated historical reputation. She did, however, recognize a margin for personal interpretation, and conceded that hers was a more critical view than many. ‘How extraordinary’, she wrote to Ormond Wilson of his own work on Nga Puhi, ‘that we should so often read H. W. differently’.95 Ross more frequently gave credit to William Colenso, the mission printer, for his own scepticism regarding Williams’s explanation of the Treaty and for his ‘courageous stand’ at the Waitangi signing. The most outspoken section of ‘Texts and Translations’ was its conclusion, with its eminently quotable description of the Treaty as ‘hastily and inexpertly drawn up, ambiguous and contradictory in content, chaotic in its execution’. ‘To persist in postulating that this was a “sacred compact”’, Ross maintained, ‘is sheer hypocrisy’.96 While engaging in dispassionate analysis, her conclusion provided a catchphrase that the general public could latch onto, quote at parties and argue about.97 Between the seminar presentation and the publication of the article the phrase had already come into popular use, being quoted by Maori MP Whetu Tirikatene-Sullivan and used on National Radio. It was so hackneyed by the end of the year, in fact, that Ross considered not including it in the article at all.98 In 1981 J.M.R. Owens used her catchphrase to introduce the Treaty in his chapter of the Oxford History of New Zealand and in 1982 Bob Brockie incorporated it into a cartoon on the Treaty for the National Business Review.99 ‘Mrs Ross’, Brockie wrote, acknowledging his source ‘[of] Auckland University history department and author of this universal put-down must be gratified to see her words passing into the vernacular’.100 That perhaps was an accurate summary of the goal of a particular style of history in the post-war period: empiricism in the vernacular. ‘Texts and Translations’ was Ross’s last publication on the Treaty. In the ‘TEXT AND TRANSLATIONS’ 54 10 years before her death in 1982 she continued voluntary work on church archives and then, for a time, was a Senior Research Fellow at The University of Auckland, but she did not continue publicly in the Treaty debate. With a handful of other scholars, she had contributed to a new body of Treaty scholarship, one that represented something of a watershed in New Zealand society. In her analysis of the drafting and signing of the Treaty, Ross had demonstrated the extent to which its hurried and somewhat ill-thought through execution undermined its effectiveness as a document of cession. Her intention was to historicize the Treaty text, to locate it clearly in the context in which it was signed. In doing so she hoped to free the Treaty from its retrospective burden as a symbol of national identity, and to free New Zealanders from the Treaty myth. Compared with the celebratory view of the Treaty at the time, Ross’s analysis left New Zealanders with lean pickings. If their wish was to use the Treaty to found a tradition, she believed they needed to accept it as being the document in Maori, with all the contradictions and limitations that entailed. For Maori it would mean accepting that forests and fisheries were not specifically guaranteed by the Treaty, and for Pakeha, relinquishing the myth of a warmly welcomed and benign colonization. An honest tradition required acceptance of both successes and failures. On uncovering a degree of truth about a historical document or situation one could not then use it as a corrupt means, no matter how worthy the end. If, when viewed objectively, the Treaty did not supply the answers New Zealanders were looking for, Ross suggested they would do better to look elsewhere rather than superimposing their frustrations and desires onto an inadequate symbol. In the years following the publication of ‘Texts and Translations’, the institutionalizing of the Treaty through the Waitangi Tribunal greatly increased Treaty scholarship in New Zealand. While many of the empirical aspects of Ross’s article were embraced, and indeed have become fundamental to understandings of the Treaty, her challenge to its primacy in the national discourse has gone unanswered. In an outspoken 2001 essay on Tribunal histories, Professor Bill Oliver drew attention to the ways in which he believes ‘Tribunal hermeneutic and history’ have become ‘less concerned to recapture the past reality than to embody present aspiration’.101 ‘[B]y an appeal to timelessness’, Oliver maintained, ‘which in effect enables it to apply the standards of its own time to the events of an earlier time — the Tribunal was able to establish a basis for ideal colonising policies which, it believes, should have informed government action affecting Maori from the very beginning’.102 To have adhered to ‘a more academic way of doing history’, he suggests, would have resulted in its ‘political effectiveness’ being ‘severely curtailed’.103 Like Ross, Oliver argued that the historical reality of the Treaty had been put aside in favour of its symbolic potential, in this case through the Treaty principles which circumvent the specific conditions of 1840 and stretch a bridge between a ‘retrospective utopia’, present political objectives and future aspirations. Where Ross saw interpretation of the Treaty as being used to legitimize a Pakeha presence and the myth of benign colonization, Oliver perceived a similar ‘intellectual suppleness’ is now used to hold the government accountable, both for the ‘settler-state aggression’ of the colonial RACHAEL BELL 55 period and in addressing Maori grievance. This dehistorization, he asserted, has reduced the Treaty once more to what it ‘patently is not — a simple guide to simple action’.104 The dynamic of the Treaty has been reversed, perhaps, but the problem remains the same. RACHAEL BELL Massey University – Palmerston North ‘TEXT AND TRANSLATIONS’ 56 NOTES *My thanks to Tim Beaglehole, Kerry Taylor, Lachy Patterson, Basil Poff and Margaret Tennant for their help with the preparation of this article. 1 Ruth Ross, ‘Te Tiriti o Waitangi: Texts and Translations’, New Zealand Journal of History (NZJH), 6, 2 (1972), p.154. 2 Ruth Ross, ‘The Treaty on the Ground’, in W. Parker, ed., The Treaty of Waitangi, Its Origins and Significance, A Series of Papers Presented at a Seminar Held at Victoria University of Wellington, 19–20 February, 1972 under the auspices of the Department of University Extension of the University, Wellington, 1972. 3 Ross, ‘Texts and Translations’. 4 Keith Sinclair to Ross, 7 April 1972, MS 1442, 83:4, Auckland War Memorial Museum Library (AWML). 5 Ranginui Walker, Ka Whawhai Tonu Matou, Struggle Without End, 2nd ed., Auckland, 2004; Claudia Orange, The Treaty of Waitangi, Wellington, 1987. 6 Walker, p.90. 7 For a model of historical engagement with the community see the series of essays by J.C. Beaglehole, ‘The New Zealand Mind’, The Australian Quarterly, 12, 2 (1940), pp.40–50; ‘History and the New Zealander’, in Ernest Beaglehole, ed., The University and the Community, Essays in Honour of Thomas Alexander Hunter, Wellington, 1946, pp.98–124; ‘The New Zealand Scholar’, in Peter Munz, ed., The Feel of Truth, Essays in New Zealand and Pacific History Presented to F.L.W. Wood and J.C. Beaglehole on the Occasion of Their Retirement, Wellington, 1969, pp.237– 52. 8 Sinclair to Ross, 17 August 1956, MS 1442, 91:1, AWML. 9 Ross to J.C. Beaglehole, 2 July 1957, MS 1442, 9:1, AWML. 10 Ross to Beaglehole, 18 April, 2 July 1957, MS 1442, 91:1, AWML. 11 A description of this process and of her time in Motukiore appeared in her essay in the festschrift for Wood and Beaglehole: R.M. Ross, ‘The Autochthonous New Zealand Soil’, in The Feel of Truth, pp.47–59; see also W.L. Renwick, ‘“Show Us These Islands and Ourselves. . . Give Us a Home in Thought”, Beaglehole Memorial Lecture, 1987’, NZJH, 22, 2 (1987), pp.197–214. 12 Tim Beaglehole, A Life of J.C. Beaglehole, New Zealand Scholar, Wellington, 2006, p.250; Personal communication with Tim Beaglehole, 30 July 2008; Ch.V. Langlois and Ch. Seignobos, Introduction to the Study of History, trans G.G. Berry, London, 1898; Sir Henry Lambert, The Nature of History, London, 1933; C.H. Williams, The Modern Historian, London, 1938; see also Victoria University College Calendar, 1944, p.39. 13 Beaglehole, ‘The New Zealand Scholar’, p.251; Keith Sinclair, ‘New Zealand’, in Robyn Winks, ed., The Historiography of the British Empire-Commonwealth: Trends, Interpretations, and Resources, Durham, NC, 1966, p.182. 14 Langlois & Seignobos, p.67. This text has been used to provide the empirical methodological framework discussed in this article. 15 Beaglehole, ‘History and the New Zealander’, p.106. 16 Ross to Dora and Graham Bagnell, 16 November 1954, MS 1442, 90:2, AWML. 17 H.H. Turton, ed., Facsimiles of the Declaration of Independence and the Treaty of Waitangi, 2nd ed., Wellington, 1960; Ross to Beaglehole, 2 July 1957, MS 1442, 91:1, AWML. 18 Turton, Preface. 19 T. Lindsay Buick, The Treaty of Waitangi or How New Zealand Became a British Colony, Wellington, 1914; 2nd ed., 1933; 3rd ed., 1936. 20 Chris Hilliard, ‘Island Stories, the Writing of New Zealand History 1920–1940’, MA thesis, The University of Auckland, 1997, p.70. 21 Hilliard, pp.71–73. Hilliard was working from Buick’s 1936 edition. 22 Orange, p.ix. 23 Buick, 1914, p.92. (Italics in the original.) 24 Buick, 1933, p.113. 25 Buick, 1914, p.227; 1933, p.283. 26 Ross to Ormond Wilson, 2 February 1972, MS 1442, 91:1, AWML. 27 Sir Apirana Ngata, The Treaty of Waitangi, an Explanation/Te Tiriti o Waitangi, he Whakamarama, trans. M.R. Jones, Christchurch, 1950. 28 ibid., p.2. 29 ibid., p.5. RACHAEL BELL 57 30 ibid., p.8. 31 ibid. 32 ibid., p.10. 33 Walker, p.174. 34 Ngata, p.16. 35 J. Rutherford, Hone Heke’s Rebellion, 1844–1846: An Episode in the Establishment of British Rule in New Zealand, Bulletin No.34, Auckland University College, 1947; J. Rutherford, The Treaty of Waitangi and the Acquisition of British Sovereignty in New Zealand, 1840, Bulletin No.36, Historical Series No.3, Auckland University College, 1948. 36 Rutherford, Hone Heke’s Rebellion, p.8. 37 ibid. 38 ibid. 39 ibid., p.9; Chris Hilliard, The Bookmen’s Dominion: Cultural Life in New Zealand, 1920– 1950, Auckland, 2006, p.96. 40 Ross to Sinclair, 8 May 1972, MS 1442, 83:4, AWML. 41 Ross to Sinclair, 13 April 1973, MS 1442, 83:4, AWML. 42 Ross to Beaglehole, 19 April 1955, MS 1442, 24:5, AWML. 43 Ross to Beaglehole, 2 July 1957, MS 1442, 91:1, AWML. 44 ibid. 45 For examples of newspaper articles concerning Maori rights and the Treaty of Waitangi in Ross’s own collection see MS 1442, Boxes 82–84, AWML. 46 J.C. Dakin, ‘Preface’, in The Treaty of Waitangi, Its Origins and Significance, A Series of Papers Presented at a Seminar Held at Victoria University of Wellington, 19–20 February 1972 under the auspices of the Department of University Extension of the University, W. Parker, ed., Wellington, 1972. 47 ‘Historically worthless’, Ross to Beaglehole, 2 July 1957, MS 1442, 91:1, AWML. 48 Langlois and Seignobos, pp.63–67. 49 ibid., pp.71–86. 50 Ross, ‘The Treaty on the Ground’, p.17. 51 ibid., pp.17, 27; Ross, ‘Texts and Translations’ p.134. 52 Ross, ‘The Treaty on the Ground’, p.21; Ross, ‘Texts and Translations’, p.142. 53 Ross, ‘Texts and Translations’, p.135. 54 Ross to Beaglehole, 1 April 1954, MS 1442, 24:5, AWML; ‘Our Queen to Visit Historic Waitangi’, Auckland Star, 6 June 1953, p.2. 55 Ross, ‘Texts and Translations’, p.132. 56 Langlois and Seignobos, p.96; Ross, ‘The Treaty on the Ground’, p.18. 57 Ross, ‘The Treaty on the Ground’, p.18. 58 Ross, ‘Texts and Translations’, p.139. 59 ibid., p.138. 60 Ross, ‘The Treaty on the Ground’, p.16; Ross, ‘Texts and Translations’, p.136. 61 Ross to A. G. Bagnall, 16 November 1954, MS 1442, 90:2, AWML; Ross to Beaglehole, 2 July 1957, MS 1442, 91:1, AWML. In her letters at the time of her initial research she had described finding early Maori dictionaries to be ‘inadequate’. In the seminar paper, however, she acknowledged ‘Williams Maori Dictionary’ as a key source: ‘The Treaty on the Ground’, p.16. 62 Hugh Carleton, The Life of Henry Williams, Auckland, 1877, p.12, cit. Ross, ‘Texts and Translations’, p.139. 63 Ross, ‘The Treaty on the Ground’, pp.21–22; Ross, ‘Texts and Translations’, pp.142–3. 64 Ross, ‘Texts and Translations’, p.141. 65 ibid., pp.142–3; Ross, ‘The Treaty on the Ground’, pp.20, 22. 66 Rutherford, Acquisition of British Sovereignty, p.48; Ngata, pp.5, 7. 67 Ross to Beaglehole, 2 July 1957, MS 1442, 91:1, AWML. 68 Ross, ‘Draft of Talk to Auckland Historical Society, July 1971, MS 1442, 79:4, AWML. 69 Ross to Ormond Wilson, 23 July 1972, MS 1442, 99:1, AWML. 70 Langlois and Seignobos, p.161. 71 Ross to Wilson, 23 July 1972, MS 1442, 99:1, AWML. 72 Buick, 1914, p.92. 73 Ross, ‘The Treaty on the Ground’, p.20. 74 Ross, ‘Texts and Translations’, p.141. 75 ibid. ‘TEXT AND TRANSLATIONS’ 58 76 ibid., p.145. 77 ibid. 78 ibid., p.152. 79 Ross, ‘The Treaty on the Ground’, p.21. 80 Ross to Beaglehole, 1 April 1954, MS 1442, 24:5, AWML. 81 Ross to Wilson, 13 July 1972, MS 1442, 99:1, AWML. 82 Ross to Donald Hope Evans, 8 July 1976, MS 1442, 83:3, AWML; Ruth Ross, ‘Presentation to Jay Cees, Auckland, September 1972’, MS 1442, 79:2, AWML. 83 Langlois and Seignobos, p.69. 84 Beaglehole, ‘History and the New Zealander’, p.118. 85 Ross, ‘Texts and Translations’, p.154. 86 Ross to Sinclair, 13 April 1972, MS 1442, 83:4, AWML. 87 Ross, ‘Texts and Translations’, pp.139, 150. 88 Orange, p.37. 89 ibid., p.41. 90 Lyndsay Head, ‘The Pursuit of Modernity in Maori Society: The Conceptual Bases of Citizenship in the Early Colonial Period’, in Andrew Sharp and Paul McHugh, eds, Histories, Power and Loss, Uses of the Past — A New Zealand Commentary, Wellington, 2001, pp.97–121. 91 ibid., p.105. 92 ibid., p.108. 93 John Stenhouse, ‘God’s Own Silence, Secular Nationalism, Christianity and the Writing of New Zealand History’, NZJH, 38, 2 (2004), pp.52–68. 94 Ross, ‘Presentation to Auckland Historical Society, July 1971’, MS 1442, 79:4, AWML. 95 Ross to Wilson, 23 July 1972, MS 1442, 99:1, AWML. 96 Ross, ‘Texts and Translations’, p.154. 97 Sinclair to Ross, 7 April 1972, MS 1442, 83:4, AWML. 98 Ross to Wilson, 28 January 1973, MS 1442, 99:2, AWML. 99 J.M.R. Owens, ‘New Zealand Before Annexation’, in W.H. Oliver, ed., with B.R. Williams, The Oxford History of New Zealand, Wellington, 1981, p.51. 100 Bob Brockie, ‘Letters to the Editor’, National Business Review, 1 March 1982, p.26. 101 W.H. Oliver, ‘The Future Behind Us: the Waitangi Tribunal’s Retrospective Utopia’, Histories, Power and Loss, p.9; see also the articles by Jim McAloon, Giselle Byrnes and Michael Belgrave in the NZJH Forum, NZJH, 40, 2 (2006), pp.194–250. 102 Oliver, p.12. 103 ibid., p.21. 104 ibid., p.28.

