The Victorians

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

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Past Perspectives on Te Tiriti and the Treaty

8.1 Introduction

There have always been different perspectives about what was agreed at Waitangi in February 1840. From almost themoment of te Tiriti’s signing, the event, too, has been retold differently by Māori and Pākehā – at first by those who witnessed it and soon enough by countless others. In 1846, the former Governor, Robert FitzRoy, noted the markedly varying ways in which the treaty had been interpreted:
  • Some persons still affect to deride it; some say it was a deception; and some would unhesitatingly set it aside; while others esteem it highly as a well considered and judicious work, of the utmost importance to both the coloured and the white man in New Zealand. Thatthe natives did not view all its provisions 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 retention of rangatiratanga. At times, Māori protest at perceived injustices has appeared to accept that there was a full cession of sovereignty, but we suspect this will often 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 Māoriperspectives during the nineteenth century, especially when Māori retained substantive control, 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 their part, Pākehā and the Crown have until relatively recently generally seen the treaty in terms of the English text alone – as a cession of supreme authority in article 1, the guarantee of Māori rights to their property in article 2, and as a statement of some kind of ‘equality’ in article 3 (expressed by some as a requirement for Māori conformity to Pākehā norms). It must be considered, too, that the Crown gave little attention to the treaty for long periods – exemplified by thetreaty sheets themselves 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 often been regarded by Pākehā commentators (at least until recently) as a particularly enlightened and well-meaning act on the part of the British Crown – one from which Māori have benefited, and one which sets New Zealand apart from other settler colonies, particularly those in Australia.
Since the greater Māori assertiveness about treaty rights from the early 1970s, and particularly after the passing oflegislation in 1975 to establish this Tribunal, the extent of writing about the treaty in New Zealand has grown exponentially. Dr (later Professor) 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 thePilgrim Fathers’.2 In this chapter, we first outline the main developments in the recent scholarship about the treaty, andthen consider the key court and Tribunal statements about it. It is relevant for us to concentrate 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 them and the motivations of the participants, based on more careful attention to the full range ofevidence. It also provides essential context for the evidence and submissions 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 conclusions 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 concluded that there were essentially ‘only two significant phases’ in the scholarship: ‘before about 1970 and after’. As he put it:
  • There are of course differences of opinion over aspects and different writers have different emphases. One can occasionally group writers together 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 there was a Maori presence in historical writing. It tells us something of the history of our race relations thatthe same kind of interpretation, 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 considering the Māori perspective. In 1947, Professor James Rutherford, for example, wrote that the British understanding that, through article 1, Māori would become subject to the authority of the Governor was not conveyed by those explaining the treaty; that the ‘restraints and restrictions and responsibilities’ of being British citizens received no emphasis alongside the ‘rights and privileges’ mentioned in article 3; and that kāwanatanga would have seemed a weak authority to the chiefs, especially compared to rangatiratanga, which would have left them thinking they retained ‘all their power authority and “mana” as rangatira overtheir own people’.4 Rutherford’s insights, however, were atypical. The general pre-1970s consensus 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 they hoped to reap from the treaty they were yielding much of their existing power to the Pakeha Governor, and whether it was much or little they were the more willing to surrender it because they realised that the advent of the European had so altered their social conditions that rule by the old method was no longer possible.
  • The sovereignty was the shadow, and the land was the substance; and since the shadow was already passing from them by force ofcircumstances over which they were powerless to exercise control, they consented to its surrender with all the less regret. … TheTreaty of Waitangi therefore became what it professed 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 colonise and govern in New Zealand was incontestable before all the world.6
The Māori refusal to continue quietly to accept this one-sided interpretation helped force changes in the scholarship, as did the international trend towards decolonisation. But so, too, did one particular article in the New Zealand Journal ofHistory in 1972, by Ruth Ross.7 This article, entitled ‘Te Tiriti o Waitangi: Texts and Translations’, stands as probablythe single most important interpretive advance on the subject in modern times. Ross argued that, far from the solemn and far-reaching blueprint for the nation’s development it was often portrayed to have been, the treaty transaction was characterised by confusion and undue haste. She made the important observation that sovereignty was translated by Henry Williams in a different way from his translation of ‘all sovereign power and authority’ in the declaration only a few years previously. She concluded that the Māori text was the true treaty and that what mattered was how it had been understood here, not what the Colonial Office had made of the English text(s) in London. Her rigorous empirical examination of the original documents exposed the unquestioning acceptance of myths about the treaty by an earlier generation of scholars. And she left her contemporaries with the uncomfortable realisation that a reliance on what was said in the English text alone was no longer intellectually honest.
As well as her influence on a range of other scholars in the decades to come, Ross’s article had perhaps an even more important impact. It was a catalyst for the inclusion of the Māori text in the schedule to the Treaty of Waitangi Act 1975, as well as the authority given to the Tribunal in section 5(2) of the Act to ‘determine the meaning and effect of the Treatyas embodied in the 2 texts and to decide issues raised by the differences between them’. Indeed, the third Labour Government’s Caucus Committee on Māori Affairs referred to Ross’s article in its reports of 1973 and 1974 onimplementing the Labour Party’s manifesto promise to legally recognise ‘the principles set out in the Treaty of Waitangi’.These reports were considered by Cabinet and were the basis for its decision to introduce the Bill that became the 1975 Act.8 Dr (later Professor) Michael Belgrave thought that, aside from influencing other scholars and members ofParliament, Ross also ‘provided the historical ammunition’ for the new generation of Māori Tiriti activists.9
An historian who was particularly influenced by Ruth Ross is Dame Claudia Orange, who once described Ross as having ‘handed the baton over to me’.10 Orange’s book, The Treaty of Waitangi, was first published in 1987 and has now sold over 40,000 copies11 – a rare achievement for a work of New Zealand history. With a gentler tone than Ross’s challenging work, Orange articulated many of the same messages as her mentor, although she stressed less theconfusion 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 publication, The Treaty of Waitangiretains its reputation as the authoritative work on the subject. Writing in 1989, Owens thought it came ‘near to the ideal’ in the way it was

  • concerned with what actually happened in 1840, concerned with the continuing dialogue, concerned to balance Maori with Pakeha. Not many who have written about the Treaty have achieved this balance.12
The same year, Professor Keith Sorrenson remarked that Orange had ‘done more than any other historian to recover that submerged Māori history of the Treaty which has hitherto existed largely in oral tradition’.13
Several voices have, however, pushed back against the new orthodoxy of an underlying treaty ‘spirit’ or relationship described by Orange and applied, to a very large extent, by this Tribunal. Perhaps the best-known criticism of this approach came from Professor William H Oliver in 2001, in his essay entitled ‘The Future Behind Us: The WaitangiTribunal’s Retrospective Utopia’.14 Scholars such as Oliver have criticised the Tribunal, as well as other historians, forthe application of contemporary or ‘presentist’ concerns to the analysis of distant events.15 Professor Andrew Sharp and Dr (later Professor) Paul McHugh summarised this argument as follows: ‘The more powerfully the passion to change or preserve the world informs particular histories, the more they bear testimony to their authors’ present concerns.’16Notable examples of ‘anti-presentism’ applied to the signing of te Tiriti include a brief contextual section in Professor Alan Ward’s 1999 book An Unsettled History: Treaty Claims in New Zealand Today; Lyndsay Head’s chapter ‘ThePursuit of Modernity in Maori Society’ published in the same 2001 volume as Oliver’s critique; and Belgrave’s 2005 bookHistorical Frictions: Maori Claims and Reinvented Histories.17 These scholars have not so much returned to thearguments in vogue before the Māori text was considered, but rather employed the Māori text in their argument for sovereignty having been ceded.
In sum, therefore, 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 assumptions. Ross led this major shift, and Orange’s book – which carried on much of the same reasoning – has now been the leading reference text on the treaty for almost 30 years. More recently, however, several scholars have objected to what they see as the application of contemporary judgements to nineteenth-century actions. Historians have continued 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 themselves in chapter 7) and the treaty’s meaning and effect. We exclude reference to any past works by members of this Tribunal.

8.2.1 The wording of the treaty’s texts

(1) The English text

There has been some disagreement among historians as to the exact authorship of the English text (see section 7.4). Ross, for example, dismissed Busby’s claims to have been the principal author of the text as ‘a considerable exaggeration’, and Dr Donald Loveridge in 2006 called them ‘more or less a complete fabrication’.18 Orange, on the other hand, thought his claim ‘not altogether an exaggeration’.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, another 40 with Middle Eastern polities, and over two dozen with Malaysian rulers over roughly the same period.20 Tom Bennionlikewise traversed British treaty-making in the Pacific in the nineteenth century following the apparently oral cession ofsovereignty by the Hawaiian monarch 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 professor and later Justice Sir Kenneth Keith of the New Zealand Supreme Court and International Court ofJustice, as well as by Sorrenson.22
These treaties included the Sherbro agreement of 1825, which used near identical phrases to those in the Waitangi text. Another African treaty in 1840, with King Combo of the Gambia, also bore a close resemblance. As noted in section 7.4, Sorrenson perceived

  • what one might call a treaty language that was in fairly widespread use, ready to be applied wherever a crisis on one of the frontiers ofempire needed to be resolved by the last resort of a treaty of cession.23
Like the similar African treaties, the English text of the Waitangi treaty provided for a complete cession of sovereignty tothe Crown, in exchange for various guarantees and protections, but did not provide for any ongoing authority for theindigenous people.
With specific respect to pre-emption, Ross was adamant that the English text misrepresented British intentions. Hobson’s instructions had been to induce the chiefs to agree that ‘henceforward no lands shall be ceded, either gratuitously or otherwise, except to the Crown of Great Britain’. Instead, the chiefs were asked to cede ‘the exclusive right of pre-emption’. Ross contrasted this wording of article 2 with that of Gipps’s abortive treaty with South Island rangatira who were visiting Sydney (see section 7.11), which was much more specific about an exclusive right ofpurchase (which the chiefs rejected).24 Writing in 1979, Tony Simpson followed Ross’s lead.25 Two decades later, Belgrave gave particular attention to the application of pre-emption in the 1840s but did not discuss the appropriatenessof the term itself, noting merely that

  • Historians have had only a weak understanding of the legal role of pre-emption in the Treaty, regarding it as a policy of convenience, understood by Maori as no more than a right of first refusal.26
Legal scholars have given close attention to the technical meaning of pre-emption. In 1991, McHugh noted the concern expressed by Ross and others 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 there 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 context of Crown relations with aboriginal societies’, there was ample precedent to show the term meant theexclusive right of purchase that Hobson intended.27 More recently, Dr Mark Hickford has noted that such use of ‘pre-emption’ had been employed previously only in United States judgments, and that it is likely that Hobson had been influenced to use it by Governor Gipps, who was familiar with the American cases.28 It is obvious that, if Hobson used an appropriate word, it would nevertheless have been incumbent upon him to explain its meaning properly to those entrusted in turn to explain his treaty for him. Of course, this raises the question as to why Gipps did not use pre-emptionhimself in his own attempted treaty. Dr (later Professor Dame) Judith Binney, like Ross, regarded Gipps’s less ambiguous wording as one factor in the refusal of the Sydney-based rangatira to sign.29

(2) The translation of article 1

In contrast to the detail of the English text, historians have had much more to say about Henry Williams’s translation of it into Māori. Belich described it as having ‘a closer relationship with reality’ than the English text.30 But a number ofscholars have queried why Williams could not have used ‘mana’ or another term to convey the idea of sovereignty. In 1972, Ross was perhaps the first historian to stress that ‘mana’ had been used to translate the notion 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, among others, the very chiefs who had supposedly declared themselves possessed of it in 1835, only te kawanatanga katoa of their lands was specified.31
Clearly influenced by Ross, whom he cited, Ward wrote in A Show of Justice (published shortly after) that using ‘theterm “mana” … would have given the chiefs a clearer indication of what they were ceding’.32 Dr Peter Adams wrote in 1977 that this clarity was ‘no doubt’ why mana was not used.33
In 1979, Simpson referred to the ‘puzzle’ of why Williams used kāwanatanga ‘instead of the much simpler and more basic concept of mana’.34 In 1985, Professor Donald McKenzie wrote that,

  • By choosing not to use either mana or rangatiratanga to indicate what the Maori would exchange for ‘all the Rights and Privileges ofBritish subjects’, Williams muted the sense, plain in English, of the treaty as a document of political appropriation.35
In 2002, Dr (later Professor) Paul Moon wrote that ‘[t]he more appropriate word to use would have been “mana”’.36 And, in his 2003 doctoral thesis, Manuka Henare referred to ‘mana’ having been ‘used in the declaration of independence but mysteriously not in the Māori text of Te Tiriti o Waitangi’.37
Other 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 inconceivable – insane – to have asked the chiefs to sign away their mana, spiritual or political (mana wairua, mana tangata) – or their mana indissolubly associated with the land itself (mana whenua). It would have been a most inappropriate phrase, either alone or more properly defined.39
Lawyer Moana Jackson 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 another. The sovereign mana or rangatiratanga of an iwi was handed down from the ancestors to be nurtured by the living for the generations yet to be. It could not be granted to the descendants of a different ancestor, nor subordinated to the will of another.40
Ward later switched his emphasis from the position 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 other missionaries, in that ‘the Maori version 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 missionaries were ‘genuine, not deceitful’ men who felt that the treaty would protect Māori control over their land.41
Head added weight to this position in 2001, rejecting what she described as ‘an implausible conspiracy 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 only partial records in English of what was said). Head argued that ‘mana’ was the wrong authority for a local kāwana:

  • For Williams, the localisation of authority separated the effective and dignified functions of government; the one was present in New Zealand, the … other retreated to England – to the person, and mana, of the Queen. In this situation, neither mana nor kingitanga were plausible choices for a sovereign authority that Williams wished to convey to Maori as local, delegated power to govern.42
Belgrave also argued that the notion of Williams acting deceitfully was ‘not consistent with his character’. Rather, he thought that ‘mana’ and ‘kingitanga’ were appropriate words for a Māori declaration of their 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 opinion suggests, therefore, that ‘mana’ would not have been viable – either 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,then, 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 whether they wanted a governor and, if they did, what powers the governor would have and what theconsequences would be. These were down-to-earth, realistic discussions, the kind of discussions that Henry Williams would have considered a practical debate about sovereignty.44
Head also thought kāwanatanga apt, reasoning that Māori would have understood it in terms of the Kāwana who
  • they saw in the flesh at Waitangi: a man of higher status than the existing role model, the self-styled kaiwhakarite (functionary) 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 position of authority, associated with the idea of rule by mediation and by force.46
Ward argued that kāwanatanga was coined ‘to describe a concept new to New Zealand – that of national, central power’, which Māori had not been able to exercise through the Confederation.47
Orange, however, thought that the selection of kāwanatanga was ‘not such a happy one’. As she put it:

  • The concept of sovereignty is sophisticated, involving the right to exercise a jurisdiction at international level as well as within national boundaries. The single word ‘kawanatanga’ covered significant differences of meaning, and was not likely to convey to Maori a precise definition of sovereignty.48
Similarly, linguist Professor Bruce Biggs argued that Williams must have ‘assumed, unconsciously or otherwise, that asthe English word “government” implied “sovereignty” its Māorified equivalent would do the same’. However,
  • as there had never been any supra-tribal authority in New Zealand, there 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 considered it ‘doubtful’ whether 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 monolingual and were in no position to make any comparison between the two texts.

(3) The translation of article 2

There is more agreement among historians about the accuracy of Williams’s translation of article 2. Ross noted that rangatiratanga had been used in the Bible to mean ‘kingdom’, and that Hobson had, soon after the treaty signing, referred to ‘te rangatiratanga o te Kuini’ – that is, ‘the Queen’s sovereignty’. ‘Was it any wonder’, Ross wrote, ‘that the New Zealanders at first supposed the Queen had guaranteed them something more than possession of their own lands?’51Orange also thought the use of ‘te tino rangatiratanga’ would have created confusion,
  • for Maori understood the word to mean far more than ‘possession’, as in the English text. In fact, it was a better approximation to sovereignty than kawanatanga.52
Indeed, it was the translation of article 2 in particular that has convinced 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 son Edward to encourage the rangatira to sign, since they believed ‘that the treaty was now the only way that the Maori could be saved from physical or spiritual extinction 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 rather to re-write the Treaty into a form that would be acceptable to the Maoris.54
Sorrenson likewise considered that ‘Williams did not do a straight translation of the English text, but creatively reworked it into a Maori version that he believed Maori chiefs would accept’.55 Perhaps Williams’s strongest critic in this regard is Moon, who (with Dr Sabine Fenton) referred to Williams’s ‘mistranslation’, his ‘strategic omissions’, 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 considered that he might have been purposefully ‘reinforcing the authority of the chiefs by building into the treaty a right to exercise some control’. Regardless, she thought it was clear ‘that the treaty text, in using kawanatanga and rangatiratanga, did not spell out the implications of British annexation’.57
There have, however, been voices raised in support of the accuracy of Williams’s translation. 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 second, yet recent analysis is dependent on this being the case. The British did, of course, care about securingthe colony’s land base. This is logically why confirmation 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 other words, in Head’s eyes, rangatiratanga largely equated to the guarantee of possession in the English text.
Belgrave also wrote in favour of Williams’s fidelity to the English text in using ‘rangatiratanga’. In one sense, he agreed that Williams was attempting to win the chiefs over. As he conceded, ‘There is no doubt that both Williams and Busby believed that the treaty needed to provide strong guarantees of Maori rights if Maori were to agree to a British governor.’ But he had no doubts about Williams’s honesty, nor about the practicality of his translation. As he argued,

  • Williams clearly believed that he had provided a proper translation, and had no sense that he had radically transformed the text. While Williams’s translation 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 considered important in defending a tribal theocracy.59
For Belgrave, Williams’s protection of rangatiratanga was simply an acknowledgement of the realities of Māori society in 1840 and ‘doing nothing other than the obvious’. In an echo of Head, he added that it is ‘to modern ears’ that ‘rangatiratanga’ conveys ‘a strong sense of a retained and exclusive sovereignty for rangatira’.60
In his 1999 book, Ward also denied that there was any deception or sloppiness about the translation. Rather, he thought that

  • the officials and their missionary advisers seem to have made considerable efforts to incorporate their 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 theoretical. Land was what made chieftainship – and much else besides – concrete’.61
As for Williams’s translation of article 2’s pre-emption text, Orange observed that he ‘did not stress the absolute and exclusive right granted to the Crown’.62 McKenzie reflected that the English pre-emption text has

  • been taken to bestow legality on the actions of successive Governments, while the Maori version 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 translation, 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 ofCrown pre-emption’.64 It is not clear whether Belgrave was referring here to Hobson’s definition of pre-emption or to themeaning which Williams’s Māori text was more likely to convey. Indeed, there is no record of Hobson explaining his definition of the pre-emption text to Williams, and the word ‘exclusive’ is absent from every back-translation we have seen, except those of Busby and Dr Phil Parkinson.

(4) Was Williams deceitful or at least a poor linguist?

Let us look further at the suggestion that Williams acted deceitfully. What grounds are there for this accusation? Moonand Fenton argued that the Church’s instruction to him to do all in his power to induce the chiefs to cede sovereignty (see chapter 7) created a clear conflict of interest. They also suggested that his significant land holdings motivated him to serve the Crown well, in anticipation of favourable treatment when his own purchases were investigated.65 Moreover,they argued that he held an essentially dismissive attitude towards Māori and their culture:
  • Williams’s general attitude toward Maori was governed by the extent to which they conformed to his construction of Christianity. He showed no wish to integrate into Maori society, and such involvement in interaction he did have with Maori consistently appeared to be based on his overriding urge to find converts.66
As we have seen, historians like Ward and Belgrave have defended Williams’s honesty. Moreover, some notable criticsof Williams’s translation have hesitated to describe him as dishonest 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 ofterms’, 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 often do’, and she noted that he had a general tendency to simplify the text.68 Biggs concluded that Williams used an inappropriate word for at least one crucially important word in te Tiriti and that te Tiriti was not ‘in any reasonable sense equivalent to the Treaty’. But he concluded that Williams’s translation
  • could only have been well done if definitions of the Māori terms chosen to translate such concepts as sovereignty, rights and powers, pre-emption, etc, had been included, as is done, for example with our statutes. Only then would the meanings chosen by the British Humpty-Dumpty have been made even reasonably 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 son Edward, she added, was certainly fluent in the local dialect but was a ‘green’ young man of 21, and neither father nor son knew much of constitutional law. Te Tiriti, she said somewhat dismissively, was ‘not indigenous Maori; it is missionary Maori, specifically Protestant missionary Maori’.70 Orange largely concurred with Ross’s analysis, noting also the failure to make any use of the young mission printer William Colenso.71
Moon and Fenton took the contrary view, albeit not in Williams’s defence. In seeking to demonstrate his deceitfulness,they argued that his ‘mistranslations’ were no mere accident. Williams had an ‘intimate knowledge of what might be termed “constitutional Maori”’, for example, through his translation of the Declaration of Independence. Moon and Fentonthought that Williams’s stated need to ‘avoid all expressions of the English’ for which ‘there was no expressive term in Maori’ was not the result of ignorance, but rather a means of avoiding direct translation of key words like sovereignty (that is, by using mana). Moon and Fenton also cited Williams’s singular dedication, 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’ theory.73
The question of Williams’s honesty is relevant not only to his written translation but also to his verbal explanations to thechiefs at Waitangi on 5 February. We return to this in section 8.2.2(2). We note here, however, the cautionary note sounded by Owens. In his biography of Richard Taylor, Owens argued that those who have advanced the ‘conspiracytheory’ – that Williams and his son sought to ‘hoodwink’ Māori in order to secure British annexation and an increase in value of his land purchases – ‘have made no attempt to prove that this would be consistent with what is known ofWilliams’ 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 concluded that ‘The blundersof Hobson and his band of do-it-yourself diplomats can more properly be attributed to haste and inexperience than to deliberate deception.’75

8.2.2 The oral debate

(1) The oral nature of Māori society

Given what she regarded as the deficiencies in Williams’s translation, Orange felt that ‘explanation of the articles would be crucial’.76 What, then, have historians and other scholars argued about the discussions at Waitangi and Mangungu and their importance relative to the written words of the treaty texts themselves? As we mentioned in chapter 5, McKenzie noted the Māori embrace of letter writing, which miraculously allowed the writer ‘to be in two places at once, his body in one, his thoughts in another’. But he rejected the ‘absurd … European myth’ that, in the quarter-century since Marsden’s first written land transaction at Rangihoua in 1814, Māori had accepted
  • a signature as a sign of full comprehension and legal commitment, to surrender the relativities of time, place and person 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 decision-making was oral and confirmed in the consensus not in thedocument. It is inconceivable that Williams’s explanations to them in Maori were wholly one way, that there was no response and no demand for reverse mediation. In signing the treaty, many chiefs would have made complementary oral conditions which were more important than (and certainly in their own way modified) the words on the page.77
Orange also argued that
  • The oral nature of the Waitangi deliberations was thus of paramount importance, particularly in a Maori tradition in which relationships were customarily sustained and modified through lengthy discussion.78
Belich put the point even more strongly. He went so far as to call the oral transactions, rather than the written texts, ‘thehistorical treaty’. He described them as
  • a series of oral agreements among chiefs, as well as between them and those speaking for the Governor, which must have varied from treaty meeting to treaty meeting. [Emphasis in original.]79
Nonetheless, we should not forget that some rangatira were acutely conscious of the importance of the written word. As we have seen, Makoare Taonui began at Mangungu by asking for Hobson’s speech to be written down. Hobson’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 stone, 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 toolsof the Pakeha, persist, but words which are spoken fade as they fall.’81

(2) The Crown’s assurances

What has been contended 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 communication at Waitangi about what changes the treatywould bring. He argued that:
  • the chiefs ‘had little understanding of the legal concept of national sovereignty as understood by the officials’;
  • ‘[t]he gulf between Maori and British purposes in 1840 was very great’; and
  • Hobson disregarded Māori objections and reservations and regarded signature-gathering as more of ‘an exercise in public relations’ than a ‘weighty mission’.
Ward concluded:
  • Bent on their mission, Hobson and his staff were basically careless of the opinions of the people they had come to save, and cared little that the exercise of their 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 position over time, coming to regard Hobson and the missionaries as having had much more honourable intentions. But, writing in 1999, he was prepared to accept that, even if the rangatira knew theCrown would exercise authority, the Crown’s communication had been less than frank:
  • It can be argued that British officials should have explained much more clearly just how the Crown’s sovereignty (kawanatanga) would impinge upon Maori rangatiratanga. The reason they did not do so, and instead put the most positive and encouraging construction onthe Treaty, is that securing the authority necessary to control the land trade was extremely urgent.83
It is often argued that the interpretation invited by Hobson’s and the missionaries’ messages was that kāwanatanga was sought mostly to control ‘lawless’ Europeans, and the Queen’s sovereignty would henceforth apply only to Pākehā. Ward concluded as much in A Show of Justice, writing, ‘In general the chiefs considered 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 controlling Europeans, a task which was becoming burdensome, and he allowed for the possibility that
  • the concept of partial sovereignty, over Europeans only, was mentioned in the treaty debates. Right up to January 1840, partial sovereignty over European existing settlements was the option most discussed by the British, and this might have percolated through to New Zealand.85
Moon was emphatic that Hobson’s expressed intent was protective and benign. As he wrote in 2002,
  • Hobson explicitly and unambiguously presented the Treaty to Maori as an instrument of protection – a means of allowing the Crown to rule over the settler population in order to regulate European behaviour. He was certainly never open about this rule enveloping Maori as well.86
An important contribution to the scholarship has come from scholars who have translated into English the first-hand comments of contemporary French observers. They include Philip Turner’s thesis of 1986 and published work by Dr Peter Low.87 Both, for example, translated a notable observation of Bishop Pompallier’s assistant, Father Louis-Catherin Servant. Turner’s version was as follows:
  • The governor proposes to the tribal chiefs that they recognise his authority: he gives them to understand that this authority is to maintain good order, and protect their respective interests; that all the chiefs will preserve their powers and their possessions. A great number of the latter speak, and display in turn all their Maori eloquence. Most of the orators do not want the governor to extend his authority over the natives, but only over the Europeans.88
Belich described Hobson’s agents as quite capable of ‘shifting’ the emphasis in their explanations to obtain Māori consent. To make this point, he quoted Turner’s translation of Servant.89 Orange, who also used Turner,90 gave this summation of the discussions at Waitangi:
  • Couched in terms designed to convince chiefs to sign, explanations skirted the problem of sovereignty cognisable at international law and presented an ideal picture of the workings of sovereignty within New Zealand. Maori authority might have to be shared, but Hobsonwould merely be more effective than Busby, and British jurisdiction would apply mainly to controlling 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
  • missionary explanations of the terms and concepts, particularly those given by Henry Williams, fudged precise meanings and potential contradictions and emphasised instead the protective and benevolent intentions of the document as it would affect Maori.92
Owens, who as we have seen rejected the notion of deceit behind the text of te Tiriti, wrote in 2004 that Hobson laid emphasis on the need for sovereignty to restrain British subjects and avoided mentioning that, ‘if sovereignty was ceded, Maori would also be restrained’.93 Orange noted that Hobson’s emphasis at Mangungu was similar: there he made ‘repeated assurances’, according to Hobbs, that
  • the Queen did not want the land, but merely the sovereignty, [so] that … her officers … might be able more effectually to govern her subjects … and punish those of them 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 ofsovereignty in detail. His overall conclusion about the way the Crown’s message was conveyed was that
  • Records of Treaty discussions between officials and chiefs … show the Crown’s determination to prohibit warfare and other violent practices within Maori society. The chiefs would have been remarkably obtuse if they had not recognised that the Queen’s authority was to extend over them in some way. Indeed, some declined to sign the Treaty for precisely that reason.95
In perhaps a similar manner to Belgrave’s reference to ‘modern ears’ (see section 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 discussions – either enlarging the meaning of rangatiratanga and reducing that of kawanatanga, or vice versa – are largely a projection onto the past of present-day goals or intentions.96
Despite differences over the intentions held by Hobson and his missionary agents, there is general agreement that they 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 missionary influence was crucial in obtaining the chiefs’ consent at both Waitangi and Mangungu and that Colenso made his famous intervention on the morning of 6 February partly out of concern that the chiefs would blame the missionaries if they later felt cheated. Moon and Fenton, for their part, argued that Williams
  • seems to have complemented his mistranslation of the text with a more elaborate but equally effective litany of verbal misrepresentations – carefully bypassing, at all stages, any suggestion that in signing the Treaty Maori would be surrendering their sovereignty.97
Historians who have defended Williams’s honesty appear to have focused on his actual translation of the text rather than his verbal explanations at Waitangi. In Ward’s case, however, we have his recent views on Williams’s spoken communications with the rangatira, as presented to our inquiry (see section 9.3.3(1)).
There has been relative unity among historians about the failure to explain the pre-emption clause properly, although views have differed as to whether 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 they had restrained themselves from selling their land to whomsoever they will”’. The chief Hara, for example, responded when told he could not sell his land privately, ‘What! Do you think I won’t do what I like with my own?’The clamours of protest from Māori and settlers alike led to Governor FitzRoy’s pre-emption 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 alone 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 rather exploded any notion that the pre-emption clause had indeed been explained to mean what Normanby’s instructions intended:

  • when it touched upon the land, the pre-emption clause had to be explained to them over and over again, and the following is theexplanation that was given: The Queen is to have the first offer of the land you may wish to sell, and in the event of its being refused bythe Crown, the land is yours to sell it to whom you please. This explanation, I most conscientiously assert was given to them, and thusthey understood it; and, … had any other explanation been given to them, the treaty never would have been signed by a chief in theBay of Islands. I am bound, in honor, to make this statement, however at variance it may be with that made by the editor of theAucklander [Busby].
  • I should have considered the whole body of missionaries guilty of trickery – if not treachery – to the New Zealanders, had they not fully and clearly explained to the natives the meaning of the pre-emption clause. [Emphasis in original.]99
Ross thought that Williams’s recollection of having explained the clause ‘over and over again’ was possibly ‘theexaggeration of hindsight, because it hardly squared with comments made by Colenso at the time that the chiefs thought that there was no restraint on them ‘selling their land to whomsoever they will’.100 Indeed, Orange concluded that, far from the clear (and contradictory) statements that Busby and Williams claimed in hindsight, the ‘explanationof pre-emption is likely to have been rather muddled:
  • The treaty negotiations suggest … that the exclusive nature of pre-emption was not always clearly understood. Nor did Maori graspthe financial constraints that pre-emption might bring; it was presented, it seems, either as a benefit to be gained or as a minor concession 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 contradicted – indeed nullified – by pre-emption, either 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-emption clause’.103
So was Williams deliberately misleading on this specific matter? McKenzie implied as much. He suggested that, while ‘neither Hobson nor Williams could have communicated the full import of “pre-emption” to those who were asked to assent to the treaty’, Williams’s simplification of the issue in his translation

  • showed less readiness than did Colenso to penetrate ‘the Native mind’ and ‘explain the thing in all its bearings … so that it should betheir very own act and deed’. One might be accused of arguing from hindsight were it not for Colenso’s contemporary insight.104
Orange, however, thought Williams could be excused. While she granted that he would have probably been aware ofHobson’s desire for an exclusive right of purchase, given the latter’s 30 January proclamation, she accepted that Williams and the other treaty negotiators – who were mainly missionaries – would not have been able to explain pre-emption properly, and would naturally have emphasised its protective functions:
  • It is quite likely that [the] negotiators did not realise the full significance of pre-emption; Hobson may not have widely publicised thefinancial provisions for the colony and the part that pre-emption would play [in funding the colony].105
Ross noted in this regard that Hobson’s instructions were confidential.106

(3) Oratory

One noted aspect of the oral transaction is the way that rangatira who were dramatically opposed in their 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), Hobson warned them somewhat cynically of what they would face at hui:
  • The Koraroes (Korero – debates) as they are called will be a great tax on your patience, for probably everyone present will address you in a long speech full of angry opposition, but very little to the purpose; but to secure a favourable termination to the debate you have only to obtain the friendship of one or two of the most influential chiefs, who will probably give a favourable turn to the meeting, and all present will very soon yield to your proposal.108
In 1914, Buick agreed with Colenso that Te Kēmara’s speech was merely ‘theatrical display’ and an exercise in ‘Maori vanity’.109 A similar understanding of the nature of the speeches persists. Parkinson, 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 rathertheatrical tradition’.110
Others have stressed the practice of Māori oratory. Dr (later Professor Dame) Anne Salmond, for example, described thenature of whaikōrero in her 1975 book Hui, noting that hui attendees ‘best appreciate a speech full of drama and fire – an impassioned 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 occasion to test propositions and theories. As King explained, with respect to Waitangi, ‘It was a convention of whaikorero (Maori discussion) that all arguments, positive and negative, should be put.’112 Binney concluded that the speech-makers atWaitangi and Mangungu used the discourse to ‘emphatically [open] up’ the ‘essential issue’ of the chiefs’ and theGovernor’s respective authority. As she put it:

  • On the three occasions for which we have some record of the speeches made, at Waitangi, Kaitaia, and Te Horeke, this pattern ofhostility, suspicion, questioning of the translations, 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 theLands case in 1987 (see section 8.3.2) and was quoted by Dr (later Professor) Jane Kelsey in her 1990 book A Questionof Honour? Sir James wrote as the last surviving member of Te Rūnanga o Te Tiriti o Waitangi, a committee ofdescendants of Ngāpuhi treaty signatories first established in the 1880s. The tradition he recounted was that, after Hobson presented the treaty on 5 February, the rangatira retired to Te Tii, where they resolved among themselves at long last to sign it. But they decided that they would nonetheless ‘offer token opposition to the Treatythe next day, and they arrived at Waitangi saying that they 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 only token opposition. A token because it should have been obvious to all the historians and lawyers and everyone else who had been dealing with the Treaty … Why did they get up and oppose the signing of the Treaty and then immediately get up and sign it and append their moko? And then shookthe Governor by the hand and Captain Hobson said ‘He iwi kotahi tatou’.114
Elements of the chronology here differ from the narrative that we have set out in chapter 7, reflecting the way that oral tradition can shift details of events over time. However, the essence of the traditionthe offering of token resistance,the importance of the discussions among the rangatira on the evening of 5 February, and the final decision 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 their sovereignty and mana.115

(4) The evening of 5 February

The possibility remains that a key reason why chiefs so avowedly opposed to the treaty on 5 February willingly signed iton the 6th is that they 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 these things: they must trust to the advice of their missionaries’.116 Orange considered 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 attention from matters to which they might take exception.117
Orange concluded, therefore, that the decision to sign te Tiriti involved ‘a remarkable degree of trust’ on the part of thechiefs: ‘They were encouraged by the advice of the English missionaries that Maori interests would be best served by agreeing to the treaty.’118 This was the case not only at Waitangi but also at Mangungu, where Hobbs thought missionary intervention had been vital to securing the chiefs’ signatures.
Little coverage about what the missionaries may have said on the evening of 5 February exists in the modern scholarship. Indeed, these discussions have been seldom mentioned beyond snippets – such as Owens noting that Richard Taylor was probably not present 119 – or have done little more than repeat Williams’s own assertion 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 contained one more or less final oral assurance in the form of Hobson’s statement to each signing rangatira: ‘He iwi tahi tatou’. The meaning and significance of these words have been subjectsof debate in their own right.
What might be called the traditional view is that Hobson confirmed thereby that Māori and Pākehā were now equal members of the state, with the same rights and obligations. This interpretation 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 reaction against special laws favouring the Māori population. Some recall Captain Hobson’s words at Waitangi after the chiefs had signed the Treaty: ‘Now we are one people’.121
In 1998, Sorrenson suggested that Hobson’s words had served the agenda of assimilating Māori but that such a use was no longer tenable. As he put it:
  • That injunction has been uttered many times since and by successive governors at Waitangi anniversary ceremonies who could still get away with it in the middle years of this century. But not any more.122
National Party leader Dr Don Brash invoked Hobson’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 nation based on one rule for all’.123
A few days later, the Governor-General, Dame Silvia Cartwright, took the step of signalling that Hobson’s message would not have been understood that way by the chiefs:

  • Just a few days ago, I listened to the second Rua Rau Tau lecture given by Dame Joan Metge. As others have done before her, she likened the relationship among all the people who make up modern New Zealand to a rope – many strands which when woven or working together create a strong nation. She recalled the words of Lieutenant Governor Hobson at Waitangi on 6 February 1840 to each rangatira who signed the Treaty that day: ‘He iwi tahi tatou’ which Governor Hobson, incorrectly it seems, understood to mean: ‘We are now one people’. Dame Joan, a distinguished scholar and member of the Waitangi National Trust Board that administers theland 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 together make a nation.’124
This implicit endorsement of Metge’s position by one of Hobson’s successors has not quelled the debate.
Some popular misconceptions about Hobson’s words include the notion that they formed part of the treaty itself 125 – a rather selective Pākehā emphasis on the oral nature of the transaction, perhaps. A variation on this idea is that Hobson‘proclaim[ed]’126 the words – in both languages127 – and that therefore they had the same effect as the written terms. Another view is that Hobson’s statement was ‘probably more important than the document itself’, and that it was uttered by Governor Grey.128 Others have even claimed, rather fancifully, that the words were spoken by each chief as they signed.129
Some noted historians have not delved into the symbolism of Hobson’s statement: Belich in Making Peoples and even Moon in his biography of Hobson made no mention 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 one people’). By this, she may have meant what Ward suggested in 1999: that Hobson was referring to ‘two races embarking on the common enterprise of nation-building’130 – a somewhat similar position to that of Metge. In this, these scholars all had something in common with Justice Casey in the 1987 Lands case. He thought Hobson was referring tothe partnership between Māori and Pākehā, ‘rather than to the notion that with a stroke of the pen both races had become assimilated’.131
Orange, for her part, thought Hobson was appealing to rangatira who had embraced Christianity by emphasising the link between Māori and British ‘as one 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 version. Asone of the more comprehensive assessments of Hobson’s sentence, we set out Metge’s consideration of it in full:

  • At Waitangi on 6 February 1840, William Colenso tells us, Lieutenant-Governor Hobson 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 one people’. In doing so, he missed three subtle points. First, the word iwi means nation as well as people. Secondly, if Hobsonmeant one (unified) people he should have said ‘he iwi kotahi’; tahi without the prefix ko means together. Thirdly, the last word, tātou, certainly means the first person plural we / us, but it is a special form, one without an equivalent in English. Use of tātou signals the fact that the we in question 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 translation has been used to emphasise the idea that ‘we are all New Zealanders’, a model I have rejected as unduly reductionist. Some years ago I suggested the translation ‘We many peoples together make a nation133 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 – continue to debate and work out how to relate to each other, with the Treaty as our guide.134
In 1985, McKenzie rejected the fact that some rangatira had signed their names as indicating their full understanding ofand assent to the written terms of the treaty. He concluded that, of the more than 500 signatures to te Tiriti,
  • the highest possible number of personal 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 they have not been penned by signatories practised in writing and therefore fluent in the art. We are forced to conclude … that [the typical signatory atWaitangi] … 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 only the most elementary competence. The presumed wide-spread, high-level literacy of the Maori in the 1830s is a chimera, a fantasy creation of the European mind. Even at Waitangi the settlement was premised on the assumption that it was, for the Maori, an oral-aural occasion.135
Drawing on McKenzie, Belich likewise stressed that very few signatories were able to read what they signed. He doubted the signatures and marks were evidence of rangatira abandoning their ‘traditional practice of making solemn and binding verbal agreements on the basis of formal discussion at major meetings called for the purpose’. Rather, they were ‘concessions to Pakeha ritual, snapshots of the great event’.136
Head, however, was critical of what she called McKenzie’s depiction of the signatures as ‘mere squiggles on the paper – a squiggle of signature length maybe, but only 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 ‘wrong frame’, she suggested. Instead, and in contrast to Belich, she argued that the fact that the rangatira had signed their names or marks symbolised their ‘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 offered the British the power of their names, which was the effective form of their authority. [Emphasis in original.]137

8.2.3 The meaning and effect of the treaty

What, then, have historians concluded about the treaty’s overall meaning and effect? Was sovereignty ceded, on thebasis of the full and informed consent Hobson was expected to obtain in his instructions from Normanby? We begin with Ross, whose memorable conclusion was that, far from being a ‘sacred compact’ (as described by Lord Bledisloe, theGovernor-General who bequeathed the treaty grounds to the nation), ‘the Treaty of Waitangi was hastily and inexpertly drawn up, ambiguous and contradictory in content, chaotic in its execution’. Who could say what the intentions behindthe treaty were, she asked, when even the signatories were so ‘uncertain and divided in their understanding’ of themeaning of te Tiriti? 138 Other 1970s historians followed Ross in rejecting the longstanding view of the treaty as a willing cession by Māori to the Crown in exchange for protection. As Ward put it in 1973:
  • The chiefs’ signing was taken by the British as a meaningful recognition of the supremacy of the Queen and her agent the Governor. In fact it had almost none of that quality. The Maori leaders had little understanding of the legal concept of national sovereignty as understood by the officials. They had instead a very lively conception of the mana of the land and the mana of the people embodied inthe senior-ranking chiefs of the various lineages. This they had no intention whatever of surrendering; rather they 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 control, but that it is likely none understood the full implications of what the British had in mind:
  • The political realities of an anarchic frontier situation were no doubt sufficiently apparent for some of the leading chiefs to realize that thecession meant the acceptance of some degree of control and authority over Maori–pakeha relations and over Maori activities which affected them; this some of them welcomed. Yet it is unlikely that the chiefs understood either the extent of the control and authority envisaged by the new British administration, or the long-term implications of the transfer of sovereignty; nor, of course, were any real attempts made to explain them. Without that understanding the signing of the Treaty of Waitangi was an act of trust.140
Adams’s implication was that it was a trust that would be betrayed.
Writing in 1979, Simpson took a different tack, still rejecting the notion of a sacred compact but suggesting that at least some rangatira signed as a means of self-preservation. In his view, the speeches of the rangatira showed that many ‘saw their own authority declining under the force of Christianity and European technology’. Hobson was thus ‘a prop totheir authority’, and the rangatira ‘saw the Treaty as an opportunity to reintroduce stability in a world changing to their disadvantage’.141 Thus, while Hobson would have regarded the treaty as a ‘charade’ imposed on him by the ColonialOffice, and the Colonial Office would have seen it as ‘a sop to the powerful Church Missionary 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 they saw little alternative. It is important to note only that in these proceedingsthere is no sign of the vaunted covenant between Maori and pakeha.142
Into the 1980s, Orange concluded that, from the oral debate, ‘Maori might well have assumed … that their sovereign rights were actually being confirmed in return for a limited concession of power in kawanatanga.’143 As she put it:
  • When Hobson reported these proceedings to the Colonial Office, he asserted that efforts had been made to explain to the chiefs ‘in thefullest manner’ the effect that might result from the treaty. It is difficult to see how he could honestly claim this. As presented, the treatyseemed to be confirming the chiefs’ authority and directing its efforts mainly at Pakeha, aiming specifically at better control of British subjects. Such control 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, other predictable changes that would affect Maori life do not appear to have been touched on. Most importantly, there is an absence of any explanation that Maori agreement to kawanatanga (‘sovereignty’ in the English text) would mean British annexation, a substantial transfer of power that would bring international recognition of New Zealand as a British colony. On the contrary, from the emphasis on protection, Maori might have expected that they were being offered an arrangement akin to a protectorate.144
In other words, according to Orange, the Māori text failed to convey the meaning of the English text, and Hobson’s agents – be they Busby or the missionaries – failed to ‘clarify the difference’; the treaty was presented ‘in a most benevolent light’; and the evident Māori concern that they would lose their mana or authority was assuaged by theguarantee of rangatiratanga. ‘It looked’, Orange concluded, ‘as if the treaty was asking little of them but offering much.’ But the chiefs still had to place ‘a remarkable degree of trust’ in their advisers. Ultimately, ‘Maori expectations of benefits from the agreement must in the end have outweighed fears, enabling reluctant chiefs to put aside reservations’.145
Another important 1980s contributor 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 offer what they had asked for: a British protectorate, which preserved their chieftainship’, while they ceded governorship of theland 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 retention of rangatiratanga would have convinced the chiefs that ‘they were retaining the substance of power’. This was because ‘those who had been to Poihakena [Port Jackson, 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 Hobson’s representatives at the treaty meetings ‘soft-pedalled the full implications of the transfer of sovereignty. They played upthe 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 control 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 consider the transaction at face value, in terms of the way the Māori signatories saw it. Kāwanatanga was the right word for what Māori were prepared to convey. The deal was struck through the exchanges atthe hui, not through the mere affixing of signatures to parchment. This suggestion of an agreement having indeed been forged at Waitangi, but just not one 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 Hobson might have wished the Maoris to sign one thing, and they might have signed something totally different. Were they bound by what they signed or what Captain Hobson meant them to sign?
Ross turned this on its head and asked, ‘Was the Crown bound by what Hobson signed, or by what he assumed its meaning to be?’152 Likewise, Low took Pompallier’s observation in a letter of 14 May 1840 that ‘few understood well what they did in signing. They were won over by presents and by their 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 asthe European understanding of the treaty as a cession of full sovereignty:
  • Perhaps, after all, chief Patuone’s gesture with his two index fingers was not altogether wrong. Could it have shown a quite tenable interpretation of the word kawanatanga as denoting some kind of protectorate system (such as later occurred in Tonga, where full rangatiratanga is retained to this day)? And could we therefore say that the text of the Treaty does not truly mean what the British intended it to mean? If so, then perhaps Bishop Pompallier’s letter to his superiors should have said: ‘Captain Hobson 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 they were to acquire ‘full and real sovereignty’, Māori may have understood the Crown’s sovereignty as nominal only – like that of ‘a monarch who “reigns but does not govern”’. He noted Māori resentment of ‘British interference in local matters, except where they themselves 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 wondered 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 longer seems tenable.’ This no doubt led him in Making Peoples in 1996 to conclude that familiarity with the Australian governors meant that Northland Māori probably ‘realised that signingthe treaty implied agreement to a big increase in settlement and in the power of the British state in New Zealand’, and that only some of the rangatira would have regarded Busby as a precedent for the kāwana.155
But neither Binney nor Belich appeared to mean by this that the rangatira accepted that the increase in British power would affect the operation of rangatiratanga or their substantive sovereignty. Binney’s suggestion that the rangatira believed they 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. Rather, she wrote then that Hobson and the missionaries had convinced therangatira ‘of the need for an intervening authority to protect Maori interests, and to mediate between them and the traders and settlers’.156 In other words, Māori understood that the Governor’s interventions would essentially control Pākehā or help resolve Māori–Pākehā disputes, and not undermine their own authority. It is a moot point whether she might have considered 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 control settler behaviour. Belich too had the impression 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 [them] from the burden of ruling the large new Pakeha communities, and assist them in policing the Pakeha–Maori interface’ (emphasis added).157
Other writers have rejected the notion of Māori agreeing, through te Tiriti, to the Crown holding a higher authority, although again there are differences of opinion about whether Māori were to be partly subject to the kāwana’s authority. In 1991, Tribunal chairperson Chief Judge Edward Durie wrote that

  • From the Maori text, … read in light of the culture and people’s subsequent conduct, it is doubtful whether Maori saw themselves as ceding sovereignty, or understood what that culture-laden concept meant. It seems more likely that Maori saw themselves as entering into an alliance with the Queen in which the Queen would govern for the maintenance of peace and the control of unruly settlers, while Maori would continue, as before, to govern themselves.158
It is not entirely clear whether Durie believed the Queen’s role in maintaining the peace included stopping intertribal fighting, for example. In 1998 Sorrenson was more dismissive of the Crown’s authority, contrasting the chiefs’ retentionof their rangatiratanga with ‘whatever vague powers they might have conceded to the kawana or governor’.159 In 2002, Moon 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 concluded that Hobson was seen as weak and ineffectual, and that ‘For many chiefs … the issue of governance, in whatever manifestation, was palatable only when it applied to Europeans’. Such was the failure to give any impression to the contrary, he wrote, that ‘any serious historian would shudder at claims that the Maori knew exactly that they 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 relationship in which Britain was to continue its assistance in Māori nation building’. The Queen was offering help in Māori establishing a ‘civil society’, with ‘laws that would govern the behaviour amongst 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 Hobson as a ‘hired hand’ who would help sail the ship, rather than as the ship’s owner.161
What, though, of what we might call the neo-traditionalists who have maintained that Māori agreed to cede full and ultimate control to the Crown? Ward, in 1999, laid some emphasis on the Māori text of the treaty for this position. 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 they did not want that authority over them. Ultimately, Ward concluded, the argument made by those such as Tāmati Waka Nene that the clock could not be turned back carried theday:

  • There was clearly a widespread appreciation that the problems of modernity required more concerted 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 officials shared a common purpose.162
Ward acknowledged that the urgency to bring the land trade under control left it unclear how rangatiratanga and kāwanatanga would relate to each other in practice. But he added that many British officials would have regarded theentire matter as rather academic, because they saw Māori decline as inevitable.163
Head, in 2001, thought that much of the scholarship about the treaty was based on the notion that Māori had been ‘duped’. This, she argued, overlooked Māori agency. In her view, the rangatira were not innocent and ‘enclosed in traditional thinking’, but rather were very interested in pursuing ‘westernisation’. She identified the principal cause of this as musket warfare, which she described as having created massive social disruption and strife. The rangatira thus sought ‘a value system that would delegitimise inter-group fighting – one that would create the conditions for thedevelopment of a civil society which repressed warfare’. They made a rational choice, she argued, to adopt the means by which ‘the foreigners ordered their world’. In this regard, Head saw a link between conversion and the treaty: ‘Christianity offered a model of governance where peace was protected by law, and where revenge was the responsibilityof the state.’ The northern chiefs’ support for the treaty was thus ‘a response 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 thecritical idea in the Treaty as far as Maori were concerned.164
Belgrave, in 2005, also depicted the impact of settlement and the attraction of modernity as the reasons rangatira signed te Tiriti:
  • Rather 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 culmination of a process of debate that had taken place over a number of years, made almost inevitable by the land rush that accompanied theprospect of a British takeover. Only 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 another 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 protection from each other. While Belgrave accepted that the treaty was a ‘seizure of power’, he concluded nonetheless that ‘it was not done without a degree of consent’.166
We conclude this summary by mentioning the accounts of three prominent legal experts. We begin with McHugh, who in 1989 invoked the Victorian jurist A V Dicey’s distinction 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 their legal sovereignty to the Crown through the treaty, but had retainedtheir political sovereignty, or their rangatiratanga, and thus exercised a check on the Crown’s authority. His account ofthe treaty’s significance, according to English law, was in these terms:

  • it is clear that the Crown’s government over the Māori tribes originates from their formal consent in the Treaty of Waitangi. This consent was considered a legal prerequisite to the Crown’s erection of an imperium (government) over the Tribes. The association of sovereign authority with the consent of the governed is but a particular and local example of a principle of British constitutional theory dating at least from the beginning of the seventeenth century.167
In this work, McHugh did not examine the quality of that consent. However, he expanded on such matters in his 1991 book, The Māori Magna Carta. In particular, he questioned whether the rangatira who signed te Tiriti intended to cedetheir legal sovereignty. Commenting that it ‘would be foolish to expect there to have been an exact meeting of minds’ between the parties in 1840, he noted that ‘the indications’ from careful historical and anthropological reviews were thatthe rangatira believed they were retaining their own authority over their people according to their customary law. Despite this, McHugh argued, the Crown’s acquisition 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 only with prior consent.168 His summary description 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, ongoing relationship 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 population.169
In 1999, Professor Jock Brookfield pointed to some agreement by Māori scholars, such as Professor (later Sir) Hugh Kawharu in 1984, that kāwanatanga applied to aspects of Māori life, such as the right to make war. He asked whether and how, in light of that, kāwanatanga could be a merely subordinate and delegated power. He noted, on the other hand, that Moana Jackson and others 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 considered, he thought it possible that some signatories did have the ‘revolutionary intentionof transferring some part of their mana to the Crown, nothwithstanding Jackson’s view that this would have been invalid, and that other chiefs did not have that intention. He ventured that thedifferences in viewpoint of the Māori scholars he named
  • may in fact mirror the differing expectations of the various chiefs. It is surely likely that, for whatever reason, they did not all understandthe 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 reconcile the first two articles of the Treaty with each other, it is far more difficult – indeed impossible – to reconcile 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 revolutionary act in relation to the customary legal systems of the hapu of the signatory chiefs.171
The third legal perspective we note here is that of Dr Matthew 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 Constitution. Like Brookfield, Palmer noted the likely divergence of opinion among treaty signatories:
  • Each Māori hapū, led by their rangatira, would have made judgements about whether to agree to the Treaty based on a combination offactors. These would have varied depending on the geographic circumstances of the hapū, the nature and extent of their experience ofEuropeans, and their strategic position in relation to other hapū.172
Bearing this in mind, and noting the absence of an authoritative hapū-by-hapū analysis of these influences, Palmer set out the considerations that he believed would have led a ‘realist rangatira’ to sign te Tiriti at the time:
  • If some relationship 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 interactions in New Zealand. The British might be able to do some good in controlling their own people in relation 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 strengthen, a rangatira’s authority to lead his hapū. Most rangatira probably did not have the same understanding of the land pre-emption provision in Article II as the British did. Nor do I think it likely that many, if any, rangatira would have shared the British conception of sovereignty in Article I. The proposed relationship with a more powerful ally would have resonated with the customary dynamics of shifting alliances with larger aggregations of hapū. Queen Victoria was a reassuringly distant sort of ariki to have to deal with in this regard. The missionaries seemed generally benign and sometimes useful and they thought it was a good idea. The British clearly put some value on signing the Treaty, given the ceremony 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 honour all its terms in future, it would be better to have the Britishthemselves signed up to some sort of statement of commitment to your interests.173
Palmer then set out several statements from 1840s New Zealand to support his interpretation, and went on to quote from a series of modern scholars to show the degree of ‘common ground’ about the meaning and effect of the treaty from theBritish and Māori perspectives in 1840. Palmer concluded that it was clear that
  • the Crown and Māori were choosing to establish a formal relationship with the other that related to the exercise of power in New Zealand – particularly that Britain was taking on responsibilities in relation to foreign relations and British subjects.
However, ‘there was no common understanding of the extent to which the British power to govern, and the continued authority of rangatira, were to interact’.174
In a more strictly legal interpretation of the position at international law, Palmer also concluded that,

  • On the basis of the English text, Britain likely considered that the Treaty enabled and legitimised, at international law, the British assertion of sovereignty in New Zealand. On the basis of the Māori text, those rangatira who signed the Treaty may reasonably have considered that while it allowed Britain to regulate the behaviour of Pākehā and deal with foreign powers, the Treaty provided assurance of the continued authority of rangatira in leading their hapū independently of British decision-making. … On the basis of what we know today, an interpretation of the Treaty of Waitangi that accorded to most rangatira an intention to cede sovereignty is, in my opinion, untenable. The implication of this view is that the Treaty is not a treaty of cession, as assumed by international lawyers such as Crawford and Brownlie who focus on the question of capacity rather than the terms of the Treaty. Rather, it may have been more analagous to a ‘treaty of protection’.175
We return to international law when setting out the submissions 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 considered the matter in 1999, very much doubted that Hobson would have been deterred. He observed that ColonialOffice officials had debated whether obtaining a cession of sovereignty from Māori was even necessary, given theamount of land that Māori had already ‘sold’, but had concluded it would be better to pursue a cession by treaty. Moreover, Ward noted that Hobson had been granted authority to proclaim sovereignty over the South Island by right ofdiscovery, and provision 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 themselves the necessary authority to annex New Zealand, according to European law. It is almost certain they would have carried through their intention, even if the chiefs had not signed the Treaty at Waitangi. In fact Hobson 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 proclamations, ‘the British were acting as if they had governmental authority in New Zealand before the Treaty was even drafted’.176 Similarly, Moon wrote in 2002 that Hobson’s 30 January 1840 proclamations ‘referred, significantly, to the existing and prospective settlement of British subjects in New Zealand, as though to provide some constitutional safety-net should the plans for the Treaty not eventuate’.177 Other historians have no doubt but that the British were there to stay, come what may – Ian Wards, for example, who in 1968 stressed theBritish readiness to use military force if necessary.178
Legal scholars, however, have expressed considerable 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,

  • There is overwhelming evidence of the Crown’s belief that it was legally restrained from exercising any constituent power in New Zealand without Māori consent. The formal Institutions and Commission to Hobson as well as supplementary documentation of 1839 bear this out.179
Palmer added in 2008 that
  • I believe it is clear that in 1840 British government practice, British government interpretation of international law and other sources ofinternational law were all consistent with the stated British recognition of sovereignty residing with Māori rangatira on behalf of their hapū. This recognition of New Zealand sovereignty was a reason, in terms of government policy, and international law at the time, for Britain to treat with Māori for cession of sovereignty.180
We return to the work of historians and other scholars when we set out how those who appeared at our inquiry advanced or disputed these recent interpretations. We turn now to another set of perspectives on the treaty: those of the courts and previous Tribunal panels.

8.3 Previous Tribunal and Court Statements

8.3.1 Waitangi Tribunal reports

Any consideration of what previous Tribunals have said about the relationship entered into under the treaty at Waitangi in 1840 must first take into account the nature and extent of the Waitangi Tribunal’s jurisdiction. First, the Treaty ofWaitangi Act 1975 is premised on there being one treaty, embodied in two texts. Section 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 jurisdiction to determine the meaning and effect of the Treaty as embodied in the 2 texts and to decide issues raised by thedifferences between them.
Secondly, as is stated in the preamble to the 1975 Act, the Tribunal’s task is
  • to make recommendations on claims relating to the practical application of the Treaty and to determine whether certain matters are inconsistent with the principles of the Treaty.
The ‘certain matters’ that can be examined by the Tribunal for their consistency with treaty principles are set out in section 6 of the Act. It provides that any Māori or group of Māori can claim to have suffered prejudice as a result of: any legislation passed in New Zealand on or after 6 February 1840; any delegated legislation made under the authority ofsuch legislation; any policy or practice adopted by, or proposed to be adopted by, or on behalf of the Crown; and any act done or omitted on or after 6 February 1840 or proposed to be done or omitted, by or on behalf of the Crown.181
Together, sections 5 and 6 of the Waitangi Tribunal’s constituent Act set certain boundaries to our jurisdiction which, inevitably, are reflected in previous Tribunals’ approaches to and statements about the matters that have been beforethem. First, the Tribunal has no authority to contradict the Act’s premise that there is one treaty with two texts, and earlier Tribunals have had no cause to question that premise. Rather, both texts have been considered during the nearly 40 years in which the Tribunal has been articulating and applying treaty principles.
Secondly, the fact that the Tribunal’s jurisdiction is over claims about matters ‘on or after 6 February 1840’ has meant that previous Tribunals have largely confined their 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 context for, and thesignificant events, including he Whakaputanga, leading up to 6 February 1840. Thus, the information upon which earlier Tribunals have based their 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 information produced and tested in this inquiry.
Thirdly, most other Tribunals have considered other 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 they have in fact considered the same kinds of evidence as we have. Tribunals inquiring into claims in thenorthern part of New Zealand have tended to fall into this category because of the unique importance of te Tiriti to claimants there. 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 discussion of past Tribunal statements to these kinds of inquiries.
In sum, the Tribunal reports we consider 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 ofSovereignty’, while others have regarded a cession of sovereignty as being very clear to both parties. To illustrate thecontrast, the Motunui–Waitara Tribunal wrote in 1983 that ‘te tino rangatiratanga’, the retention of which was guaranteed to Māori, ‘could be taken to mean “the highest chieftainship” or indeed, “the sovereignty of their lands”’.182 Consistent 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 conditioned’, and ‘tino rangatiratanga’ meant ‘full authority status and prestige with regard to their possessions 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 control; thechiefs’ speeches at Waitangi demonstrated that they understood this; and ‘tino rangatiratanga’ equated more to ‘tribal self-management’.184 Shortly after, in August 1988, the Mangonui Sewerage Tribunal also referred to the ‘rights of tribal self-management that flow from the Treaty’. It stressed, as the Court of Appeal had done in the Lands 185 case theprevious year (see below), that the Crown’s role was, as Tāmati Waka Nene had put it at Waitangi: ‘father, judge and peacemaker’.186
In 1989, legal scholar Ani Mikaere considered 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 bythe 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 acquisition of sovereignty. She noted that Justice Somers had held that the Tribunal would henceforth be bound by the Court of Appeal’s interpretation of treaty principles. Altogether, Mikaere thought, this represented ‘a significant shift on the vital question whether the Treaty constituted a treaty ofcessionon 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 consider that the Tribunal has made some significant observations since the Lands case that do not merely repeat theCourt of Appeal’s reasoning.
For us, two Tribunal reports stand out for their consideration of the circumstances surrounding the signing of te Tiriti andtheir influence on our understanding of the treaty’s meaning and effect. The first of these is indeed the Report on theOrakei Claim of 1987, which is regarded as a landmark Tribunal report on treaty interpretation, setting the tone for many subsequent reports.188 On a key issue for this inquiry, it commented as follows:

  • The Maori text … conveyed an intention that the Maori would retain full authority over their lands, homes and things important to them, or in a phrase, that they would retain their mana Maori. That of course is wider than the English text which guaranteed ‘the full, exclusive and undisturbed possession of lands, estates, forests, fisheries and other properties’ so long as the Maori wished to retainthem. The Maori text gave that and more.
  • To the Crown was given ‘Kawanatanga’ in the Maori text, not ‘mana’[,] for … the missionaries knew well enough no Maori would cede that. ‘Kawanatanga’ was another missionary 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 theEnglish cultural assumptions that go with it, the unfettered authority of Parliament or the principles of common law administered by theQueen’s Judges in the Queen’s name. But nor does the Maori text invalidate the proclamation of sovereignty that followed the Treaty. Contemporary statements show well enough Maori accepted the Crown’s higher authority and saw themselves as subjects[,] be it withthe substantial rights reserved to them under the Treaty.189
In other words, the Orakei Tribunal seems to have thought that a cession of sovereignty is by no means apparent in thewords of the Māori text, which almost all chiefs signed. However, it did think such a cession was confirmed by Māori statements made during the oral transaction, such as the concern expressed by various rangatira that the Governor would have a higher status. As its conclusion states, ‘The cession of sovereignty … is implicit from surrounding circumstances.’ Nonetheless, as we have noted, the Tribunal still considered that the chiefs retained their ‘full authority’ or mana over their lands and ‘things prized’.190 It did not grapple with the apparent contradiction between ‘full authority’ for Māori and sovereignty for the Crown.
The Orakei Tribunal also discussed the pre-emption clause of the treaty at some length. It concluded that, had theCrown’s plans to fund ongoing colonisation 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 constant reiteration by Captain Hobson and his agents of the Crown’s commitment to the protection of their lands and their rights the chiefs understandably failed to appreciate therisk they ran in agreeing to this provision.191
However, that Tribunal would not agree with Adams that profitable resale of Māori land ‘was precisely the reason for pre-emption’. Instead, it considered that the protective concerns in Normanby’s instructions – that Māori would not sell more land than they could afford to for their comfort and support, and that their remaining land would increase in value as thesettler population grew – were equally important.192
The Orakei Tribunal also found that, in the case of any ambiguity between the English and Māori versions, ‘considerable 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 them read Maori. But the Maori version was for them the only 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 second report we refer to is the Muriwhenua Land Report of 1997. It is fair to say that, prior to our own inquiry, no other 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 investigation of these matters was not as extensive as our own, it nevertheless made use of secondary 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 northern Tiriti signings (at Waitangi, Mangungu, and Kaitaia) by Salmond, which at our request was presented by Salmond in very similar form at our own inquiry.194 For these reasons, the Muriwhenua Land Tribunal’s findings are worth noting.
That Tribunal’s focus was on pre-1865 (including pre-treaty) land transactions. It therefore made conclusions on themaintenance of Māori customary practices. For example, it noted that Hobson promised to preserve Māori custom in the‘fourth article’:

  • From the Treaty guarantee of rangatiratanga (or traditional authority), from oral undertakings to respect the custom and the law, and from the guarantee that Maori could keep their land, Maori had cause to believe that the Europeans already in possession of land held itonly on customary terms. The Treaty debate could not have disabused them of the customary notion but, rather, could only have reinforced it.195
On the broader issue of whether Māori willingly ceded their sovereignty, the Muriwhenua Land Tribunal made several significant points, including the fact that critical aspects of British sovereignty were simply not discussed:
  • When considering the Treaty of Waitangi and British expectations, 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 modification, or that Maori law and authority would prevail only until they could be replaced. Similarly, while Maori assumed that they 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 deception was intended, the assumption was none 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 intentions. But, while the Tribunal perceived goodwill, it ultimately saw little mutuality, and implicit in this was, we think, the conclusion 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 their own world-view and spoke of things which carried a raft of implications that they could take for granted and yet only they could know. Matters had to be put simply, and British constitutional norms were as incomprehensible to Maori as Maori societal norms were a mystery to the British. What needs to be stressed, therefore, is that each side approached the Treaty with genuine good feelings for the other – Maori seeking advantages from Pakeha trade and residence, the British expecting benefits from this expansion of their empire. They also proposed protection for the indigenous people. As a wealth of historical material reveals, there was in England at this time a strong evangelical and humanitarian tradition consistent with this objective. As Maori knew, the terms were not as important as the hearts of those making them.
  • The result, however, is that, despite the goodwill, the parties were talking past each other. Maori expected the relationship to be defined by their rules. It was natural to think so and, far from disabusing them of that view, the Treaty and the debate reinforced it. By the same token, the British, true to what was natural to them, assumed that sovereignty had been obtained by the Treaty and therefore 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, therefore, the Muriwhenua Land Tribunal excused the lack of mutual understanding by viewing the treaty as born of honourable intentions which gave it its underlying meaning:
  • Whatever the mismatches of Maori and Pakeha aspirations, none gainsay the Treaty’s honest intention that Maori and Pakeha relationships would be based on mutual respect and the protection of each other. For Maori, these principles were essential to any alliance. For the British, they were part of the art of statesmanship and of humanitarian objectives.198
We note finally that the Muriwhenua Land Tribunal also considered 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 occasion, and leaves stories to memorialise the event’. Whilethe common view was that Hobson had been ‘harangued with allegations’, the Tribunal pointed out that ‘impassioned declamation is also a standard oratorical tool’. Thus, the chiefs repeated the claims from ‘mischievous’ Pākehā that they would be enslaved or lose all their 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 relationship are therefore 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’ conclusions about the understandings of thetreaty parties in February 1840 are not based on extensive evidence of historical events. The reason, however, stems from the courts’ inability to challenge the fundamental legal rule that sovereignty lawfully declared cannot be lawfully questioned.
Under New Zealand law, the treaty cannot be the basis of litigation in the courts unless it has been given effect by statute. Before the 1980s, there were only isolated statutory references to the treaty. One example was section 8 of theFish Protection Act 1877, which provided that nothing in the Act was to affect any of the provisions 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 theMuriwhenua Fishing Claim commented on that provision:

  • It recognized the Treaty of Waitangi but the manner in which it did so illustrates a recurring theme, apparent also in Maori land laws (theNative Land Act 1862 for example) that Maori concerns for the recognition of Treaty interests could be met by mentioning the Treaty inthe Act, in a general way, and although nearly everything else in the Act might be contrary to Treaty principles.201
The general absence of statutory recognition of the treaty until relatively recently explains the paucity of litigation 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 objections by Māori to particular New Zealand laws have most often been expressed in petitions to Parliament or, since 1975, in claims to this Tribunal.
A significant change was heralded with the election of the fourth Labour Government in 1984 and its enactment ofseveral statutes that required the Crown, variously, to act consistently with, give effect to, take into account, or have regard to the principles of the treaty. Thus, as Palmer has argued, the ‘first serious interpretation of the meaning of theTreaty of Waitangi by New Zealand appellate judges’ was in the so-called Lands case of June 1987. This resulted fromthe New Zealand Māori Council’s challenge, under section 9 of the State-Owned Enterprises Act 1986, to theGovernment’s transfer of assets to State-owned enterprises.203 The Lands case necessarily focused on the principles arising from the treaty (as section 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 their chieftainships and possessions 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 tothe meaning of the Treaty. They are issues best determined by the Waitangi Tribunal to whom they 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 declaration of thehighest judicial tribunal in New Zealand.206
The Lands case judges were unanimous in concluding 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 determinations of the WaitangiTribunal. They provide grounds for thinking that there 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 opinion that the question of sovereignty in New Zealand is not in doubt. On 21 May 1840 Captain Hobson 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 Islandon the grounds of discovery. These proclamations were approved in London and published in the London Gazette of 2 October 1840.The sovereignty of the Crown was then beyond 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 situation 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.
There were other reminders that it was the subsequent assertion of sovereignty by Britain that mattered legally, rather than whether Māori intended to cede it in te Tiriti. For example, Justice Richardson observed that:

  • It now seems widely accepted as a matter of colonial law and international law that those [May] proclamations [by Hobson] approved by the Crown and the gazetting of the acquisition of New Zealand by the Crown in the London 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 Bisson considered the exchanges at Waitangi in the most (although still partial) detail. He concluded that ‘there 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 version’. 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 Hobson to be ‘a father, a judge, a peace-maker’,209 rather than from Hobson’s own account, with Nere’s demand being ‘You must be our father! 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 Bisson also quoted Colenso’s account of Patuone’s speech and reached this conclusion about the agreement entered into:
  • Just as Captain Hobson assured the Chiefs that they might rely implicitly on the good faith of Her Majesty’s Government the Chiefs entered into the Treaty, ‘in the full spirit and meaning thereof’.
  • The passages I have quoted from the speeches of two Maori Chiefs and from the letter of Governor Hobson 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 protection from other foreign powers, for peace and for law and order. They reposed their trust for these things in the Crown believing that they retained their own rangatiratanga and taonga. The Crown assured them of the utmost good faith in the manner in which their existing rights would be guaranteed and in particular guaranteed down to each individual Maori the full exclusive and undisturbed possession of their lands which is the basic and most important principle of the Treaty in the context of the case before this Court.211
In 1989, the Tainui Māori Trust Board sought to protect tribal interests in confiscated 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 non-Māori had to accept the need for reparation for past and continuing breaches ofthe treaty. On the other hand, he said, Māori had to understand that
  • the Treaty gave the Queen government, Kawanatanga, and foresaw continuing immigration. The development of New Zealand as a nation has been largely due to that immigration.
No other discussion on the arrangement was entered into: the word ‘sovereignty’, for example, was not mentioned in anyof the judgments.212
That same year, in the Fisheries case the Court of Appeal considered the fishing rights of the five iwi of Muriwhenua under section 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 Sealordcase.214 Palmer regarded these two cases – along 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 neither Fisheries nor Sealord did the judges discuss the exchange of sovereignty or kāwanatanga for the guarantee oftino 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 Corporation to Radio New Zealand and Television New Zealand. This long-running litigation, known as theBroadcasting Assets case, came before the Court of Appeal later in 1991 and the Privy Council in 1993. Again, thejudges did not consider the original treaty discussions. For our purposes, the only matters of note are that Justice McKay, who delivered the majority judgment of the Court of Appeal, deferred to President Cooke and Justice Richardsonin the Lands case on the nature of the treaty relationship; 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 nation by Maori’.216
We mention one final Court of Appeal decision. In the Whales case of 1995, in which the Ngāi Tahu Māori Trust Board challenged the Director-General of Conservation over the allocation of an additional whale-watching licence at Kaikoura (section 4 of the Conservation Act 1987 requiring the Crown to ‘give effect’ to the principles of the treaty) – and in whichthe court found that Ngāi Tahu were entitled to a ‘reasonable degree of preference’ over other permit applicants – President Cooke summed up the Crown’s authority under the treaty as follows:

  • By the first article of the Treaty of Waitangi there 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 version there also set out describes as kawanatanga. Alternative English renderings sometimes given of the latter word are ‘complete government’ (see Sir Hugh Kawharu’s versionreproduced in New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641, 662–663) or ‘governance’. Clearly, whatever version or rendering is preferred, the first article must cover power in the Queen in Parliament to enact comprehensive legislation forthe protection and conservation of the environment and natural resources. The rights and interests of everyone in New Zealand, Maori and Pakeha and all others alike, must be subject to that overriding authority.217
Again, there was no discussion of the February 1840 foundation for the Crown’s ‘overriding authority’ in article 1.

8.4 Conclusion

Prior to the 1970s, discussion 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 there, in the background, as the nation’s founding document, and most Pākehā believed that the agreement made was accurately reflected in the English text.
Then, from the 1970s, partly prompted by Māori assertiveness over their rights and the global trend towards decolonisation, historians acknowledged that the rangatira signed and understood the Māori text of the treaty, and not theEnglish one. This consciousness radically shifted the scholarship. Māori perspectives on the treaty’s meaning – basedon the Māori text and particularly the concept of tino rangatiratanga – could no longer be overlooked. The result has been an ongoing national debate about the nature of the agreement concluded at Waitangi, and particularly the extent to which Māori treaty rights continue to oblige and constrain the Crown.
A number of years after this new phase of interpretation began to develop, the Waitangi Tribunal started to consider 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 considered the nature of theagreement 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 assumptions. That is not a criticism of those judges or panels, for the very natureof their respective jurisdictions has fashioned the evidence and submissions before them and, inevitably, has been reflected in their decisions.
Regardless of these limitations, the focus on the treaty in history-writing and litigation over the previous four decades created an impressive back-drop to the commencement of our own inquiry in 2010. Yet, our inquiry promised only to sharpen this focus. In the next chapter we set out the range of evidence and submissions presented to us over our five weeks of hearings in 2010 and 2011. These both echoed the previous discourse and took the treaty debate in new directions, as we shall see.
1. Ian Wards, The Shadow of the Land: A Study of British Policy and Racial Conflict in New Zealand 1832–1852(Wellington: Department of Internal Affairs, Historical Publications Branch, 1968), p 42
2. James Belich, Making Peoples: A History of the New Zealanders – from Polynesian Settlement to the end of theNineteenth Century (Auckland: Allen Lane, 1996), p 193. Belich was referring to historians writing throughout New Zealand’s past, rather than only since the 1970s. In a similar vein, Tony Simpson wrote in 1979 (Te Riri Pakeha: TheWhite Man’s Anger (Waiura: Alister Taylor, 1979), p 31) that: ‘There can be few people who have grown up in this country who do not have in their mind’s eye the official vision of the Treaty of Waitangi. It is a scene that leaps from a hundred school projects, and which is evoked at interminable length in official speeches on innumerable occasions. 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 Rutherford, ‘Hone Heke’s Rebellion 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 Long 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 Colony (Wellington S and W MacKay, 1914), pp 227–228
7. Ruth M Ross, ‘Te Tiriti o Waitangi: Texts and Translations’, NZJH, vol 6, no 2 (1972)
8. Matthew Palmer, The Treaty of Waitangi in New Zealand’s Law and Constitution (Wellington: Victoria University Press, 2008), pp 134, 184–187
9. Michael Belgrave, Historical Frictions: 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,, accessed 12 June 2014
12. Owens, ‘Historians and the Treaty of Waitangi’, p 6
13. M P K Sorrenson, ‘Towards a Radical Reinterpretation of New Zealand History: The Role of the Waitangi Tribunal’, inWaitangi: 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 (Wellington: Bridget Williams Books, 2001), pp 9–29
15. Another example of this is Dr (later Professor) Giselle Byrnes’ book The Waitangi Tribunal and New Zealand History(Melbourne: Oxford University Press, 2004).
16. Andrew Sharp and P G McHugh, ‘Introduction’, in Histories, Power and Loss, p 2
17. Alan Ward, Unsettled History: Treaty Claims in New Zealand Today (Wellington: Bridget Williams Books, 1999); Lyndsay Head, ‘The Pursuit of Modernity in Maori Society: The Conceptual Bases of Citizenship in the Early Colonial Period’, in Histories, Power and Loss, pp 97–121; Belgrave, Historical Frictions
18. Ross, ‘Te Tiriti o Waitangi’, p 135; Donald Loveridge, ‘The “Littlewood Treaty”: An Appraisal of Texts and Interpretations’ (commissioned research report, Wellington: Treaty of Waitangi Research Unit, 2006), p 14 n 58. Tony Simpson followed Ross and wrote that Busby’s claims to having drafted the treaty were ‘almost certainly a falsification, for the Treaty seems, from surviving drafts, to be the joint work of Hobson and his secretary, Freeman, with Busby’s contribution limited to changing a few words here and there’: Simpson, Te Riri Pakeha, p 50.
19. Claudia Orange, The Treaty of Waitangi (1987; repr Wellington: Bridget Williams Books, 2003), p 37
20. Paul McHugh, Aboriginal Societies and the Common Law (Oxford: Oxford University Press, 2004), p 111
21. Tom Bennion, ‘Treaty-Making in the Pacific in the Nineteenth Century and the Treaty of Waitangi’, Victoria Universityof Wellington Law Review, vol 35, no 1 (2004), pp 173, 201. Bennion’s article was originally written as a student paper in 1987, and expanded and published later in response to ongoing interest in its contents.
22. Sir Kenneth Keith, ‘Handling and Settling Disputes Arising From The Treaty of Waitangi’, 9th Commonwealth Law Conference Papers, 1990, p 244; M P K Sorrenson, ‘Treaties in British Colonial Policy: Precedents for Waitangi’, inSovereignty and Indigenous Rights: The Treaty of Waitangi in International Contexts, ed William Leslie Renwick (Wellington: Victoria University Press, 1991), p 17
23. Sorrenson, ‘Treaties in British Colonial Policy: Precedents for Waitangi’, p 17
24. Ross, ‘Te Tiriti o Waitangi’, pp 143–145
25. Simpson, Te Riri Pakeha, pp 51
26. Michael Belgrave, ‘Pre-emption, 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 concerning European histories and ius gentium, and he deployed these sources in defending the entitlement of imperial administrations to manage anglophone settlers and territories in alien locations’. Hickford wrote of a ‘northern American literary cargo of pre-emption’. Hickford also suggested that the inclusion of ‘pre-emption’ arose from lessons learned from the problematic beginnings of European settlement in the Port Phillip District of New South Wales in 1835, where John Batman and others 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 Relations: 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 Amalgamation in Nineteenth Century New Zealand (Auckland: Auckland University Press, 1973), p 44
33. Peter Adams, Fatal Necessity: British Intervention in New Zealand, 1830–1845 (Auckland: Auckland University Press, 1977), p 164
34. Simpson, Te Riri Pakeha, p 50
35. D F McKenzie, Oral Culture, Literacy and Print in Early New Zealand: The Treaty of Waitangi (Wellington: Victoria University Press, 1985), p 41
36. Paul Moon, Te Ara kī te Tiriti: The Path to the Treaty of Waitangi (Auckland: David Ling Publishing, 2002), p 146. Thesame year, Moon and Sabine Fenton wrote an article critical of Williams for bypassing the use of ‘this obvious choice’, mana: Paul Moon and Sabine Fenton, ‘Bound to a Fateful Union: Henry Williams’ Translation of the Treaty of Waitangiinto 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 (Wellington: GP Books, 1989), p 27
40. Moana Jackson, ‘The Treaty and the World: The Colonization 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 Recognition 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 Frictions, 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 Annexation’, in The Oxford History of New Zealand, ed William H Oliver (Wellington: 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 Annexation’, p 52
55. M P K Sorrenson, ‘Waitangi: Ka Whawhai Tonu Matou’, in Amongst Friends: Australian and New Zealand Voices from America, ed Patty O’Brien and Bruce Vaughn (Dunedin: University of Otago Press, 2005), p 178
56. Moon and Fenton, ‘Bound to a Fateful Union’, pp 57–59
57. Orange, The Treaty of Waitangi, pp 41–42
58. Head, ‘The Pursuit of Modernity’, p 107
59. Belgrave, Historical Frictions, 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 Frictions, p 60
65. Simpson (Te Riri Pakeha, p 51) also cited Williams’s land holdings as a factor motivating him about the treaty: ‘Thesooner English law was established, the sooner he would be assured of possessing his land.’
66. Moon and Fenton, ‘Bound to a Fateful Union’, 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. Moon and Fenton, ‘Bound to a Fateful Union’, 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 (Wellington: Victoria University Press, 2004), p 44
75. Owens, ‘New Zealand before Annexation’, 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, Wellington
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. Moon, Te Ara kī te Tiriti, p 131
87. See Philip Turner, ‘The Politics of Neutrality: The Catholic Mission and the Maori, 1838–1870’ (MA thesis, Universityof Auckland, 1986); Peter Low, ‘Pompallier and the Treaty: A New Discussion’, 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 southern districtsof New Zealand in 1840. See Peter Tremewan, French Akaroa: An Attempt to Colonise Southern New Zealand(Christchurch: Canterbury University Press, 2010 (first published 1990)).
88. Louis Catherin Servant as translated by Turner, ‘The Politics of Neutrality’, p 88
89. Belich, Making Peoples, pp 195–196. Turner’s translation differs little from Low’s.
90. Turner’s 1986 thesis 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. Moon and Fenton, ‘Bound to a Fateful Union’, 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 Annexation’, 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 Authentic 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 Parkinson, “Preserved in the Archives of the Colony”: The English Drafts of the Treaty of Waitangi (Wellington: New Zealand Association for Comparative Law, 2004), p 53
111. Anne Salmond, Hui: A Study of Maori Ceremonial Gatherings (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 Question of Honour? Labour and the Treaty, 1984–1989 (Wellington: Allen and Unwin, 1990), pp 8–9
115. Ibid, p 11
116. Colenso, The Authentic and Genuine History of the Signing of the Treaty of Waitangi, p 33. Here Colenso was quoting Busby’s recollection 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 publication of Ross’s 1972 article. His foreword was dated October 1972, the same month Ross’s article appeared.
121. McHugh, The Māori Magna Carta, p 224
122. Sorrenson, ‘Waitangi: Ka Whawhai Tonu Matou’, p 178
123. Don Brash, Nationhood (speech to Orewa Rotary Club, 27 January 2004),, accessed 20 February 2012
124. Dame Silvia Cartwright, Waitangi Day Address 2004,, accessed 28 November 2012
125. See, for example, ‘Constitutional Reform’, New Zealand Listener, vol 236, no 3786 (1 December 2012), p 6, where a correspondent to the Listener wrote in late 2012 that, ‘When considering the role of the Treaty of Waitangi in any proposal for a constitution, there is only one clause that needs to be taken forward. It’s the one that sums up the purpose and essence of the Treaty: “We are now one people.”’. In ‘Apartheid 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 one people.’
126. See, for example, ‘New Zealanders’, Christchurch Press, 18 February 1998, p 43
127. See, for example, ‘Bad Move’, Dominion, 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’, Nelson Mail, 11 May 2012, p 11; ‘Call to be Heard’, Nelson Mail, 17 May 2012, p 9; ‘Waitangi Day Unrest’, Southland Times, 12 March 2012, p 4. See also theopinion piece ‘Apartheid Looming in NZ with “White” Underdog Voice’, Nelson Mail, 31 December 2011, p 17. We note that this version 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 ofHistory’, 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, 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. Simpson, 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 (Wellington: 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 Interpretation of Racial Conflict (Auckland: Auckland University Press, 1986), pp 20–21
155. James Belich, ‘Hobson’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. Sorrenson, ‘Waitangi: Ka Whawhai Tonu Matou’, p 179
160. Moon, 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 Frictions, p 62
166. Ibid, pp 62, 65
167. Paul McHugh, ‘Constitutional Theory 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: Revolution, Law and Legitimation (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. Moon, 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 suasion’ 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. Section 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 other matters dealt with by section 6 (written laws, acts, and omissions), 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 inconsistent 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 (Wellington: Government Printing Office, 1989), p 51
183. Waitangi Tribunal, Report of the Waitangi Tribunal on the Manukau Claim (Wellington: Government Printer, 1985), pp 66–67
184. Waitangi Tribunal, Report of the Waitangi Tribunal on the Muriwhenua Fishing Claim, 2nd ed (Wellington: Government Printing Office, 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 only 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 Mangonui Sewerage Claim (Wellington: 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 (Wellington: Brooker and Friend, 1991). Paul Hamer (‘A Quarter-Century of the Waitangi Tribunal: Responding to the Challenge’, in The Waitangi Tribunal: Te Roopu Whakamana i te Tiriti o Waitangi, ed Janine Hayward and Nicola Wheen (Wellington: Bridget Williams Books, 2004), p 6) wrote of the report: ‘It represented the Tribunal’s first extensive and thorough articulation of Treaty principles, breaking new ground and setting effective precedents for future inquiries. The report reflected the careful hand not only ofJudge Durie but of a full panel of six, including legal expert Gordon Orr, who contributed significantly to the Treatyprinciples section’.
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 (Wellington: GP Publications, 1997), p 114
196. Ibid, p 115
197. Ibid, p 116
198. Ibid, p 117
199. Ibid, p 111
200. This provision, 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 litigation that successfully challengedthe 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. Hobson 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 Conservation [1995] 3 NZLR 553 at 558, 562
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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.

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