Maori might one day rival the British Empire for rank and power, observed one of the Englishmen who attended the signing of the Treaty of the Waitangi.
In Felton Mathew’s view, the treaty secured for Maori the freedom and independence to achieve their potential on the world stage.
The signing had meant the "preservation of their liberty and perfect independence," Mathew, the newly appointed acting surveyor-general, recorded in his journal, having earlier noted that the Treaty meant those signing retained "full power over their own people".
Maori "may in after centuries become as enlightened and powerful a nation as we are ourselves", he wrote, in the self-regarding style of his time and background.
They were clearly not the musings of someone who had just watched a people sign away their birth rights. That wasn’t his understanding at all.
Similarly, another eye witness, Colonial Surgeon John Johnson, after hearing Te Rarawa signatory Nopera Panakareao’s comment that "the shadow of the land goes to the Queen, [but] the substance remains to us", wrote nothing could have more beautifully expressed the nature of sovereignty.
It is tempting to think that these men had become caught up in and carried away with the occasion of the signing — the glory of high summer in the Bay of Islands, the mellifluous chorus of the New Zealand bush, the intoxicating relief of agreement — when they recorded their feelings and impressions, especially given the sorry history that would soon commence.
But as lawyer and historian Ned Fletcher argues in his new book The English Text of the Treaty of Waitangi, that "perfect independence", or something very close to it, and a bright and expansive future for Maori was precisely what the framers of the Treaty, back at the Colonial Office in Britain, had in mind. It was precisely what they sent Captain William Hobson off to secure.
In recent decades the Maori text of the Treaty has, quite rightly, been recognised as the authoritative version. It carries the vast majority of the signatures. And after all, the English texts were mere drafts, preparations for that definitive translation.
But a consequence of that understanding has been an argument about whether the Maori version was in fact an accurate translation of the British Colonial Office’s intentions.
The view arose that perhaps sovereignty was mistranslated as kawanatanga, and the guarantee of rangatiratanga was a promise that couldn’t be kept. Such speculation accorded with the dominant view in law and history that English sovereignty trumped any scope for self government or custom, Fletcher says.
It implies the Treaty was, either deliberately or accidentally, a fraud.
Fletcher disagrees with that reading and says the evidence, in all those miles of microfilm, supports something quite different.
"I am arguing, I guess, having regard to the whole history of British dealings with indigenous people and currents of thought in the 19th century and the reasons for British intervention in 1840, and the backgrounds and motivations of people like James Stephen and the Colonial Office, that actually the concept of sovereignty in 1840 wasn’t monolithic and it allowed space in government and law," he says, very deliberately, measuring each word as if in a courtroom.
"There is quite a strong strand in New Zealand scholarship that the Treaty was ambiguous and contradictory, that the British used vague language and hadn’t really made up its mind on all sorts of topics and everything was left to be worked out in the future. But I just don’t read the Colonial Office record in the same way. I think they couldn’t have been clearer about what rights Maori had, and would have post-Treaty."
"Full, exclusive and undisturbed possession", as article two of the English text states, could not have more perfectly described what ownership means.
It is perplexing that anyone ever bought into the idea that Maori might have been guaranteed something less, he says.
The texts, English and Maori, reconcile because because sovereignty — the word used in article one of the English text — in 1840 didn’t mean what we came to assume it meant, he says. At that time, Maori retaining rangatiratanga was entirely consistent with ceding a measure of sovereignty, so the use of kawanatanga (government) and rangatiratanga in the Maori version simply made explicit what was implicit in the English drafts and well understood on the British side.
James Stephen emerges as a central and critical figure in all this.
As Fletcher writes: "No-one contributed more to settling the terms on which Britain intervened in New Zealand in 1840". He dominated the Colonial Office and its political leaders depended on his advice.
Stephen’s family was prominent in the anti-slavery movement and he joined the Colonial Office, it was said, to end slavery — and drafted the legislation that did so.
"The background to the Treaty really lies in the anti-slavery movement and evangelical humanitarianism," Fletcher says.
"Once the anti-slavery movement had achieved its victory, the energy for that flowed into a concern for ‘aboriginal’ peoples in the Empire."
A House of Commons select committee examined the impact of empire on native communities in the second half of the 1830s, looking in particular at attacks on Xhosa in the Cape Colony, but also New Zealand.
As a result of his connections, Stephen was well aware of the reports coming back to Britain from missionary societies in various parts of the world, exposing the mischievous encroachments of colonial governments and settlers, as they rode roughshod over the property rights of indigenous peoples.
His own view was that the property rights and sovereignty of indigenous people could only be modified by their express and informed agreement.
"New Zealand provided him a unique opportunity to put his enormous experience of Empire and his empathy towards indigenous peoples into practice in the framing up of the instructions that he wrote for Hobson," Fletcher says.
It was an opportunity to craft a solution specifically suited to the New Zealand situation, with the interests of the indigenous population at the centre.
Such was the consensus in Britain behind Stephen’s approach that Fletcher is a little unsure why the picture has become so muddied over the years.
The Colonial Office records and papers have been available on microfilm in New Zealand for decades, he says.
"I think that people have just ignored inconvenient evidence that is right there in plain sight."
Understandings at that time about land ownership highlight the point, and were summed up by the Secretary of State for the Colonies Edward Stanley in a speech to the house of Lords in 1845, in which he said the Crown was bound, under the Treaty, to honour the proposition that "except in the case of the intelligent consent of the natives, the Crown has no right to take possession of land".
The Crown’s right of preemption in land sales had been included in the Treaty to keep land in Maori hands.
"I think we have missed, a little, the very vigorous debates there were over Maori sovereignty, but especially property and land in the years after 1840, and how determinedly the Colonial Office insisted on Maori property rights for a long period of time," Fletcher says.
"Just as we have missed, I think, many statements by those who participated in making and signing of the Treaty, insisting that British sovereignty was compatible with ongoing Maori self-government."
Commitment to that state of affairs only began to unravel when, in the 1850s, white settler government attempted to impose a monolithic sovereignty on European and Maori alike.
While much of this played out in the North Island, and particularly in its northern reaches, it’s the application of the Treaty in the South that perhaps best illustrates the intention of the British at the time.
Stephen, New Zealand Resident James Busby and others involved in the framing of the Treaty were all much better informed about the North Island than they were about the South. Busby was stationed in the north and those prodigious correspondents, the missionaries, were also more active north of the strait.
As a result, Hobson was given some flexibility in terms of his approach to the peoples of the South Island, and did indeed issue a proclamation of sovereignty before signing of the Treaty in the South was complete.
However, even that action was not regarded as diluting the independence of South Island iwi or their property rights.
"The Colonial Office didn’t rely on claim of sovereignty by discovery over the South Island or at any time consider that its rights or the rights of Ngai Tahu and other iwi in the South Island were different by virtue of the different history and approach," Fletcher says.
The clearest statement of that came in an 1844 select committee draft report by under-secretary George Hope that "whatever rights were secured by Treaty to the natives on the northern side of Cook’s Straits [sic], must, in equity, be conceded by the Crown to those on the southern side".
A similar approach was taken towards those iwi and hapu who did not sign the Treaty, all the same rights and privileges were to be extended to them.
Stephen argued at the time that this involved no difficulties, as British sovereignty was compatible with Maori continuing to live under their own law.
To understand his perspective on that, we need to travel north again, to the parts of the North Island covered by He Whakaputanga.
Busby was intimately involved with the declaration — as he was later with the Treaty — advocating an approach consistent with Colonial Office thinking, and advancing the idea that a "confederation" of chiefs was the way forward for Maori to operate on the international stage, while individual iwi would otherwise continue to maintain their independence and sovereignty.
As applied to the Treaty of Waitangi, that meant outsourcing "kawanatanga" to the British Crown, while retaining "te tino rangatiratanga", or "perfect independence", beyond that limited delegation.
And, anyway, both the tribes and the Colonial Office were in agreement that what most urgently required attention from the Crown was the European flotsam besetting New Zealand.
"I think the Colonial Office record could not be clearer, the reason for British intervention in 1840 was to establish government over British settlers for the protection of Maori," Fletcher says.
The Colonial Office had been concerned about reports of lawlessness and land-sharking.
Hobson’s instructions included the observation that escaped convicts and ship deserters in New Zealand could become the "nucleus of piratical Adventurers, dangerous to the peaceful Commerce of all Nations in the Southern Hemisphere".
At that stage, in early 1839, Hobson was still being advised to treat for British sovereignty only over those small sections of the country where European settlers were based. It was thought New Zealand’s European population might only ever number in a few tens of thousands. Hobson’s remit was later extended only reluctantly to ensure Britain could control its own wherever they were in the country.
Fletcher is not saying that we need to be ruled by the original understanding of the treaty in 1840, but that it is important to understand what sovereignty meant in 1840.
It is not accurate to say British sovereignty necessary meant one law for all, he says. That is not historically accurate.
"I think if history teaches anything, and the history of law, it is that we have a free hand and that law can be whatever we need it to be."
In the Aotearoa New Zealand of 2022 that can help us understand co-governance initiatives, he says.
"Set against the idea that in 1840 the British intended Maori to a large degree to continue to manage their own affairs, the co-governance initiatives that we currently have seen are pretty modest really."
