White wash?
The author of a new book says it sheds light on what the Treaty of Waitangi really meant and that its drafters expected M¯aori self-government and British sovereignty to co-exist, writes Audrey Young
There are many places the story of Ned Fletcher, criminal lawyer, could begin: 1975, the year his mother, Sian Elias, had him; 2001, the year he was admitted to the bar, or the career highlight of prosecuting the Red Fox Tavern murderers in 2021.
But the story of Dr Ned Fletcher, legal historian, is fixed in quite another world and century. Arguably, it begins in 1836 when an inspiring antislavery civil servant called James Stephen began working at the Colonial Office in London, advising politicians on remote places such as New Zealand.
It has culminated in a detailed book by Fletcher on the English text of the Treaty of Waitangi, published this week by Bridget Williams Books, which challenges established views about ignoble intentions of the British.
“In history, we are quite addicted to the view that the English and Ma¯ori texts don’t reconcile and in particular that sovereignty acquired by the Crown is incompatible with the guarantee of rangatiratanga,” Fletcher tells the Weekend Herald.
“It’s a very strong view in our history that the two texts of the Treaty don’t reconcile, that there was a mistranslation, that in all likelihood that that was a deliberate mistranslation and that the Treaty is a fraud.
“My principle point of difference from the mainstream of New Zealand scholarship is that I think the two texts do reconcile, that sovereignty wasn’t this monolithic beast that meant absolute indivisible, thoroughgoing power but that sovereignty as used in the Treaty was compatible with plurality in government and law and that means that sovereignty or ka¯wanatanga reconciles with rangatiratanga.
“And on the British side, they were perfectly happy with the idea of Ma¯ori continuing to manage their own affairs.”
Fletcher believes the Treaty was negotiated in 1840 with the utmost good faith by those who drafted it.
He fully expects that some will see his conclusions as a “white-wash” and just wanting to paint empire in a good light.
But from his extensive research into the English text of the Treaty, and the role of London’s Colonial Office, he concludes that the drafters expected Maori self-government to co-exist with British sovereignty — that the two texts of the Treaty reconcile rather than clash.
That is at odds with the view that the English version of the Treaty, in which Ma¯ori cede sovereignty to the Crown in article one, is incompatible with the Ma¯ori text in which the chiefs retain tino rangatiratanga in article two.
Fletcher said his view of the Treaty was in line with historians such as Trevor Williams and Keith Sinclair but in contrast to Ruth Ross and Claudia Orange.
The book is largely based on Fletcher’s PhD thesis from the University of Auckland, which he submitted in 2014 — the same year his wife, Natalie Walker, was appointed Manukau Crown Solicitor and they established the firm Kayes Fletcher Walker.
Fletcher’s interest in the Treaty of Waitangi is quite separate from his day job as a Crown prosecutor in Manukau.
He has never been a Treaty litigator, unlike his mother.
Before becoming a judge, then Chief Justice, Sian Elias acted for the Ma¯ori Council in important treaty cases including the famous 1987 Lands case in the Court of Appeal, which cemented the principle of partnership in the Treaty.
And it was his mother, indirectly, who led to Fletcher’s focus on the Treaty. In the 1990s, when he was trying to decide on a subject for his MA thesis in history, she suggested it be on the bringing of English law to New Zealand.
That began not just a fascination with the 1830s but with archival research.
“It gave me some exposure to the Treaty and whether the received view about the Treaty being hastily and inexpertly drawn up and [being] chaotic and contradictory was correct.
“Perhaps above all it gave me a real taste for the joys of doing original archival research. You put me in front of a microfilm machine and I’m so happy. I just love it.”
It took a long time to write — he won’t say how many years, although way more than the three he initially thought it would take. He also had a year off his research when he was diagnosed with leukemia.
It is a very long book, 529 pages of writing and a further 193 pages of appendices, including notes, a bibliography, archival sources, copies of Treaty drafts and acknowledgements.
THE BOOK tells the story of how the compatibility of British sovereignty with ongoing Ma¯ori self-government and recognition of Ma¯ori property rights came to be overlooked, says Fletcher.
“The arc of the book is rather a sad one, about how those original understandings came to be eclipsed.”
Part of the reason for that was that the New Zealand Company (which was focused on land purchases and colonisation) pushed the line that Ma¯ori were never civilised enough to have had sovereignty or property in land.
He said there were also big factors at the macro level including “the tsunami” of British immigration to New Zealand from the mid-1850s, the conferral of government on white colonies, the retreat of evangelical humanitarianism and the rise of racism throughout the empire and a growing intolerance to plurality in legal thought.
“Those are just some of the bigger forces which meant that those who actually held to the original understanding of the Treaty were always fighting a losing fight.”
Of those, the scale of immigration to New Zealand was undoubtedly the biggest factor.
The way the Colonial Office looked upon New Zealand, it was going to have a few small maritime settlements focused on whaling, timber extraction and some arable farming.
Settlers were largely to have been kept apart from Ma¯ori, therefore leaving the colonial administration to deal with the European population and Ma¯ori managing themselves to a great extent.
By 1852, there were only about
30,000 Europeans in New Zealand. But within six years, the European population had eclipsed the Ma¯ori population. That surge was reflected elsewhere, including Australia which in 1841 had a European population of
210,000 but by 1860 had risen to 1.2 million.
“Of course, things changed. When you get that scale of settlement . . . there’s no way back from that. In a way, a feature of New Zealand history is that people fought for so long to hold to the original understandings of the Treaty.
“And in some ways, I think the bleakest part of our history is into the
20th century, when the Treaty completely fades from view — at least so far as Pa¯keha¯ are concerned.”
Fletcher said the issue of land ownership and rangatiratanga were inextricably linked.
In the end, Ma¯ori land was alienated through a combination of large-scale purchases, the operation of the Native Land Court to convert customary land to Crown title, confiscations and wars.
In 1864, the book says, New Zealand’s former Premier and AttorneyGeneral, Henry Sewell, identified the principal cause of the New Zealand wars as being an insistence on monolithic sovereignty that left no scope for Ma¯ori government and law.
Sewell had dismissed the argument that all subjects of the Queen were subject to the same law as “superficial”.
He wrote at the time: “Natives as well as settlers, are, it is true, equally subjects of her Majesty, but there is nothing inconsistent with her Majesty’s paramount authority in permitting natives to enjoy as law their own usages and customs, nor anything criminal in their seeking to embody this native law in some fixed form under a head and magistrates of their own choice.”
Fletcher acknowledges that Sewell’s view in the 19th century is the antithesis of the “one law for all” refrain frequently heard in the 21st century.
“We now think that sovereignty means ‘this’, and if we don’t have ‘one law for all’, everything’s going to fall apart, the sky’s going to fall.”
Legal history showed that sovereignty was compatible with plurality in government and law “but legal history more generally teaches that law is what you want it to be”.
“Law is what modern society needs and if we decide we want cogovernance arrangements, well, we can have them. There’s no legal impediment to these things. The past can set us free.”
In his research, Fletcher formed strong views about the key English players of the day behind the Treaty and what it meant in 1840.
He says naval Captain William Hobson (later Governor), who received his instructions from the Colonial Office to go to New Zealand in 1840 to negotiate a treaty, was a dashing figure who had literally fought pirates in the Caribbean. He was dutiful and unimaginative.
“He would have been a great friend to have.”
James Busby had been the British Resident in New Zealand since 1833 and assisted Hobson. But during the course of his research, Fletcher switched his view from one of admiration for Busby to exasperation, at one who was concerned principally with his own career and advancement. Fletcher speculates he suffered from a bipolar disorder but he threw himself into the task of helping Hobson to conclude the Treaty.
Busby is also credited with the addition of the property guarantee in Article 2 of the Treaty, which states: “Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates, Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession.” Article 2 also gave the Crown monopoly rights to buy their lands when they wished to sell.
MANY OF Fletcher’s conclusions are based on the central role in New Zealand policy of one James Stephen who, he said, was “in a class of his own”.
“In my view, he was a civil servant of the highest calibre. He was a man of high intelligence, vast experience, wise judgment and he had a strong moral compass.”
Stephen’s mother died when he was 7 and his father married the sister of slavery abolitionist William Wilberforce. ( James Stephen was also the grandfather of writer Virginia Woolf but died in 1859, well before she was born in 1882).
Stephen was connected with the social reformers of the Clapham Sect. Fletcher says he entered the Colonial Office to continue the fight against slavery, drafting legislation to end slavery in the British Empire and then turning to indigenous peoples when he became Under-Secretary of State for Colonies.
“Indigenous peoples were a concern to him,” says Fletcher. “He believed strongly that their property and political rights needed to be protected and could only be modified with their agreement.”
New Zealand offered Stephen a unique opportunity to issue a set of instructions to create a native policy. “He took great care with it.” The instructions went through a number of drafts to see Hobson through the period of coming out to New Zealand and negotiating for cession of sovereignty.
“Once sovereignty was achieved, and New Zealand separated from New South Wales, there were muchdetailed sets of instructions to Hobson in relation to property and legal issues. I think we were very lucky [Stephen] was in that position at that time and was given a pretty free rein by the Secretaries of State for Colonies to formulate British policy towards New Zealand and towards Ma¯ori.
“And undoubtedly, part of the reason things started to turn after 1846 and 1847 was that was when he retired.”
The nature of Ma¯ori land interests was the subject of debates about the Treaty from soon after it was signed, both in the colony of New South Wales, which governed New Zealand until it became a colony itself in 1841, and in the British Parliament.
The New Zealand Company was pushing the case for any land that was uncultivated or unoccupied by Ma¯ori to be available for Crown purchase and sale, a notion strongly opposed by Stephen and various Secretaries of State for Colonies.
As Stephen told Secretary of State for Colonies Lord John Russell: “I would take care that the mere forms and phraseology of the contracts should embody and recognise the great cardinal principle, that the lands are not ours, but theirs — that we have no title to them, except such as we derive from purchase — and that their future claims upon us in respect of such lands are the claims, not of paupers for alms, but of vendors for the fulfilment of a binding contract.”
The New Zealand Company complained at various times that the socalled doctrine of discovery, cited in the US at the time, should prevail, that James Cook had already given the British sovereignty and that it was wrong to assume Ma¯ori had property rights.
Lord Russell’s instructions in December in 1840 clearly opposed such a view, saying of Ma¯ori: “They have been formally recognised by Great Britain as an independent state; and even in assuming the dominion of the country this principle was acknowledged, for it is on the deliberate act and cession of the chiefs, on behalf of the people at large, that our title rests.”
Lord Russell’s successor as Secretary of State for Colonies was Lord Stanley, who told the House of Lords in 1845 that the extent of Ma¯ori interests in property and land was dependent on Ma¯ori law and custom, which had to be examined to find the answer.
“If those laws and customs showed a particular tribe owned a particular piece of uncultivated land, that was the answer,” said Fletcher.
He then recited part of the important Lord Stanley’s speech from the 1845 speech: “That law and that custom are well understood among the natives of the islands. By them we have agreed to be bound, and by them we must abide. These laws — these customs — and the right arising from them on the part of the Crown — we have guaranteed when we accepted the sovereignty of the islands; and be the amount at stake smaller or larger; so far as native title is proved — be the land waste or occupied — barren or enjoyed, those rights and titles the Crown of England is bound in honour to maintain; and the interpretation of the Treaty of Waitangi, with regard to these rights, is, that, except in the case of the intelligent consent of the natives, the Crown has no right to take possession of land. And having no right to take possession of the land itself, it has no right and so long as I am a minister of the Crown, I shall not advise it to exercise the power of making over to another party that which it itself, it does not possess.”
Fletcher: “They don’t make speeches like that anymore.”
Ned Fletcher says Captain William Hobson, who was instructed to go to New Zealand in 1840 to negotiate a treaty, was dutiful and unimaginative.