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Ned Fletcher, The English Text of the Treaty of Waitangi
Book Review
Book review by Karen Feint KC*
The only dull thing about this book is the title: The English Text of the Treaty of Waitangi. It would be a mistake to judge the book by its cover, however, because this fascinating and exemplary work of scholarship turns on its head the contemporary understanding of the meaning of the Treaty. As the Hon. Justice Sir Joe Williams says in his foreword to the book, there is no doubt that “Dr Fletcher has shifted the debate’s centre of gravity, and for that, Treaty law, history and scholarship owe him a debt of gratitude” (p.viii).
Dr Ned Fletcher’s ground-breaking conclusion is that the Māori and English texts of the Treaty of Waitangi reconcile, because the British fully intended to preserve Māori tribal self-government, property, and tikanga Māori (customary law). He thereby rejects the prevailing orthodoxy that the British Crown intended to acquire absolute and indivisible sovereignty in law and government over Aotearoa, and to assimilate Māori into settler society. Fletcher persuasively argues that the British objective was rather “to set up an arrangement similar to a federation, in which the sovereign power did not supplant tribal government” (p.529), and was limited to the objects of foreign relations, justice, peace and good order, and trade.
Since Ruth Ross’s insightful essay of 1972 comparing the English and te reo Māori texts of the Treaty, the conventional wisdom has been that they hold different and irreconcilable meanings in at least two key respects. First, the chiefs ceded “sovereignty” in the English version of Article 1, but the te reo version uses an ambiguous coined term “kāwanatanga” (governorship; it is thought that “mana” would have been the more precise term to express the source of power and authority). Secondly, in the English version of Article 2, the Crown guarantees to the chiefs the “full exclusive and undisturbed possession” of their lands and other properties, but the te reo version refers instead to their “tino rangatiratanga” (absolute chieftainship or political authority).
The argument advanced by historians such as Ross and Claudia Orange is that the acquisition of sovereignty was incompatible with the guarantee of rangatiratanga, and that Māori were misled by the mistranslation of the English text, most probably by deliberate design rather than sheer incompetence. This has led many historians, and the Waitangi Tribunal, to regard the Māori text as the authoritative version, because it is the one signed by nearly all the 500-odd signatories (bar 39 rangatira at Waikato Heads and Manukau who signed an English version), and the contra proferentem rule presumes that ambiguity in meaning should be construed against the party that drafted it.
Fletcher warns us against taking an ahistorical view of the Treaty, interpreting it in light of events after the mid19th century, when successive settler governments aggressively attempted to crush Māori political autonomy through the wars of the 1860s and pursued assimilation of Māori society as a means of “civilisation”. To build his case, Fletcher lifts his gaze from a narrow focus on the text of the Treaty, to consider imperial policy throughout the British Empire in the 18th and early 19th centuries. He shows that in many parts of the British Empire the Crown tended to accommodate plurality by recognising indigenous systems of law and government, and protecting preexisting property rights (although, interestingly, Australia was an outlier in adopting the legal fiction of terra nullius).
The 1830s and 1840s were a time of flux in the history of European ideas. Liberal ideals sought to reconcile colonisation with the protection of indigenous populations, and the British government was lobbied by the humanitarian movement, which having succeeded in outlawing slavery had turned its attention to the plight of indigenous peoples in British colonies (fully aired in the Select Committee on Aborigines in British Settlements over the 1835-1837 period). However, there were also competing ideas based on racial discrimination and notions of racial superiority that were in the ascendancy throughout the 19th century, such as “stadial theory”, and the argument that indigenous peoples would benefit from colonisation through assimilation into a “civilised” society. Some scholars, such as Paul McHugh, argue that by 1840 the previous tolerance of plurality had been eclipsed by a policy of developing colonies for British settlement subject to absolute rule, but Fletcher does not agree that this was the intention for New Zealand, at least in 1840.
Fletcher methodically works his way through the documentary record to reconstruct the thinking of the time. Britain was reluctant to colonise New Zealand, but by 1839 had concluded that it had no choice but to intervene in order to protect Māori from the lawless environment created by the thousands of disorderly and profligate British subjects living there. Its hand was forced by the New Zealand Company setting sail for New Zealand in May 1839, intent on acquiring as much land as it could before the imposition of British sovereignty and the outlawing of private purchases from Māori.
The Colonial Office, cognisant of the humanitarian concerns, decided that a cession of sovereignty from Māori was a necessary precondition to establishing a colony. The ideology was developed by James Stephen, the under-secretary who headed the Colonial Office, and a brilliant and principled lawyer. Fletcher describes Stephen as the “chief architect” of the Treaty (p.493) because he was primarily responsible for drafting Lord Normanby’s instructions which framed its terms. Those instructions set out important principles, stipulating that the “free and intelligent consent” of Māori had to be obtained to the cession of sovereignty, that Māori “indisputably” had title to the land, that Māori needed to retain the land necessary for their comfort and subsistence and not be permitted to enter into any contracts injurious to themselves, and that it would be necessary for the Crown to impose pre-emption (a Crown monopsony right of purchase of Māori land), ostensibly to protect Māori from land speculators.
The Article 2 guarantee of Māori tino rangatiratanga, tribal autonomy, is not explicitly spelled out in Normanby’s instructions, or the English text, but Fletcher argues that it is consistent with both the principal purpose of establishing government over British subjects for the protection of Māori, and with imperial policy elsewhere in the Empire, which Stephen well understood. His fine-grained analysis of the text also reveals some support for the argument (the reference in the preamble to protecting the “just Rights and Property” of Māori; the Article 1 cession of sovereignty over territories, not tribes; the promise of Royal protection in Article 3; and that retention of tribal property self-evidently requires the retention of customary law).
Fletcher’s conclusions may be startling to modern eyes, but he argues they are entirely consistent with the thinking of the architects of the Treaty and the leading Pākehā intellectuals of the 1840s. Fletcher cites contemporary understandings of officials and eyewitnesses present at the Treaty signings as the “most compelling evidence” that the Treaty protected Māori independence and tribal government (p.527).
These witnesses include Governor Hobson himself, who confirmed in writing in April 1840 that Māori customs would be protected (p.528), and Henry Williams, the missionary who translated the Treaty and who regarded the Treaty as the “Magna Carta of the aborigines of New Zealand”, in which sovereignty was surrendered for the preservation of order and peace, while chiefs retained their full rights of chieftainship (pp.480-481). Some accounts invoked the rangatira Nōpera Panakareao’s eloquent imagery that “the shadow of the Land goes to the Queen, the substance remains to us” (p.332). In 1860, the first Chief Justice, William Martin, advocated that Māori had retained full tribal authority, and only ceded sovereignty or governorship to the extent necessary “to avert the evil consequences which must result from the absence of the necessary Laws” (borrowing the language from the preamble to the Treaty) (p.484).
Fletcher closes his book by opining that the Treaty was “conceived, written and affirmed in good faith” (p.529). This is a contestable - and arguably naïveconclusion which made this (perhaps unduly cynical) Treaty practitioner raise an eyebrow. Fletcher makes a convincing case for the Colonial Office’s principled position that the Crown would be responsible for protecting Māori property rights, and that the early constitutional arrangements were devised to achieve that end (including the Crown’s right of pre-emption, and the Land Claims Ordinance 1841 that provided that pre-1840 purchases of Māori land were invalid, until proven as fair on inquiry). However, it is debatable whether the Crown’s role was wholly protective, given that the right of pre-emption also served the ulterior purpose of financing colonisation. Further, the Crown was aware that the New Zealand Company was proceeding with its colonisation scheme based on land speculation on a large scale. And, of course, those protective policies unravelled alarmingly rapidly once politics got in the way. Fletcher posits (fairly I think) that the 1840s cannot be judged by the revisionist views that had taken hold by the 1860s, when the Crown waged aggressive wars against Māori to defeat the Kīngitanga and secure land for settlers, and the Treaty was treated as a “simple nullity” (to quote Wi Parata). But even in the 1840s, although the Crown rejected outright the New Zealand Company’s arguments that sought to deny Māori property rights, it ultimately reached a forced resolution of the Company’s audacious land claims (based on an entirely spurious “purchase” of 20 million acres of land in 1839), in a way that prioritised settler interests in Wellington and Nelson over the Māori landowners.
This book is not the final word on the Treaty: it consciously only tells one side of the story; the te reo Māori version, and Māori understandings of Te Tiriti o Waitangi, are beyond the scope of the book. What is striking and important, however, is that the British understanding of the Treaty that Fletcher has conveyed appears to resonate much more closely with Māori understandings of the nature of the compact. In 2014, the Waitangi Tribunal found that the rangatira who signed Te Tiriti agreed to share power in a relationship in which they would be equal - “equal while having different roles and different spheres of influence” – while retaining their authority to make and enforce law over their people and their territories (Waitangi Tribunal, He Whakaputanga me te Tiriti: The Declaration and the Treaty (2014), p.xxii).
There is an extraordinary breadth and depth of scholarship in this book (even judging by the standards of the doctoral thesis that it started life as), as it ranges across the British Empire, and deep into the annals of colonial records in London and Wellington. Quite apart from the impressive research, this book is an enormously enjoyable read. Fletcher is an insightful and curious writer, and an astute judge of character. He builds into the history interesting vignettes of the key players, such as the redoubtable James Stephen, the opinionated, dogmatic, and self-aggrandising British Resident James Busby, and the dutiful but unimaginative Governor William Hobson.
While Fletcher has set the Treaty firmly in the context of 1840s’ thinking in the Colonial Office, paradoxically those ideas seem curiously contemporary today. First, modern case law recognises that Māori customary title survived the acquisition of sovereignty and is
cognisable in law (Attorney-General v Ngāti Apa [2003] 3 NZLR 643 (CA)), a conclusion which aligns wholly with Stephen’s understanding of English common law in the 1840s. Secondly, recent Supreme Court jurisprudence has recognised that tikanga Māori is part of the common law, and that the tino rangatiratanga guarantee in Article 2 recognises “Māori rights to live by and benefit from tikanga” (Ellis v R [2022] NZSC 114, at [98] per Glazebrook J). Fletcher’s thesis that the Treaty was intended to protect Māori selfgovernance raises questions about the implications for the law. Is the Crown’s sovereignty qualified by the tino rangatiratanga rights of Māori? Might there be a convergence between the recognition of tikanga as part of the common law of Aotearoa New Zealand, and an acknowledgement that tikanga necessarily has to function through Māori self-determination? These are questions to ponder over the Christmas holidays when I finally have the time to pay this important book the attention it deserves.
*Karen Feint KC practises from Thorndon Chambers in Wellington. She has a wide-ranging civil litigation and public law practice, with particular expertise at the interface of Crown and Māori relations - constitutional law, judicial review, equity, indigenous rights, and Treaty of Waitangi law. For more information see: https://www.chambers.co.nz/barristers/karen-feint
The English Text of the Treaty of Waitangi
by Ned Fletcher
How was the English text of the Treaty of Waitangi understood by the British in 1840? That is the question addressed by historian and lawyer Ned Fletcher, in this ground-breaking new book.
‘A masterful exegesis . . . the quality of Dr Fletcher’s research and the power of his reasoning demands attention and respect.’
— The Hon. Justice Sir Joe Williams
