Mike Butler: Sovereignty not ceded. Really?

The view that chiefs did not cede sovereignty in 1840, that is being popularised by Auckland University of Technology Professor Paul Moon in a five-minute You Tube clip, looks ridiculous when compared with what was said, and not said, in 1840.

But first, a warning. Don't be daunted by the length of this post, made so by the inclusion of four treaty texts.

Why four? Two are the texts appended to the Treaty of Waitangi Act 1975, one is a revised version by a Waitangi Tribunal member that changed the treaty's meaning. And the last is the Busby February 4, 1840, draft that is most likely the missing final draft in English from which Te Tiriti was translated.

Why include them all? Most treaty discussions centre on cherry picked words ("rangatiratanga") and phrases ("Lands estates forests and fisheries") without any attempt to contextualise them.

In the clip titled Maori sovereignty and the Treaty of Waitangi, Dr Moon of AUT’s Maori Development Faculty says:

Britain decided (in 1839) to “have a treaty with the indigenous population so that it could implement its justice system over its citizens” living in New Zealand. 

“The whole treaty orbits around the issue of sovereignty”.
In the 1980s, “historians began to look more closely at the translation”.

They found discrepancies: “In Article 1 of the English version, all sovereignty goes to the Crown, but in Article 2 of the translated version, sovereignty (chieftainship) remains with the chiefs”.

This “led to the view that the two versions are irreconcilable”.

Therefore, “the obligation of the Waitangi Tribunal and the courts was to determine what the principles of the treaty are because the meaning of the texts themselves could not be reconciled between the translated version and the English version”.

He goes on to say that “Britain formally recognised Maori sovereignty because it had to because these treaties could only be signed between sovereign states”.

Now the treaty is an “internal agreement”, which is “fairly malleable that can be shaped and reshaped to fit the circumstances of the time”.

Since the late 90s “there was a great deal of research done on the origins of the document, precisely what Britain expected from it” and “suddenly you see that Britain didn’t want to govern everyone in the country. They only wanted to govern the settlers living here”. (1)

When asked for evidence that Britain didn’t want to govern everyone in the country, Dr Moon said that "the essential argument is that while there is not one document prior to 1840 where Britain expresses a desire to govern Maori, there are several documents which suggests the opposite. Some examples include:"

1. The report of the Select Committee of the House of Commons on Aborigines in British Settlements (June 1837) in which the idea was proposed for agents to be appointed to territories of interest to Britain (such as New Zealand), and whose explicitly would be to maintain ‘peace and order amongst British subjects resident in or resorting to’ the country.

2. In draft instructions prepared by the Colonial Office in January 1839 for the possible appointment of a consul to New Zealand, the policy was clear that British law would only apply to settlers in the territory.

3. In February 1839, Lord Glenelg wrote of the need for a treaty of cession with New Zealand to enable British rule to extend to ‘where the British are already settled.’

4. In March 1839, Sir James Stephen expressed his desire for the establishment of a ruling body in New Zealand which would only govern ‘the Anglo-Saxon race’.

5. In May 1839, Lord Normanby wrote to the British Attorney General, specifying the need to set up some sort of administration in New Zealand ‘ for governing the numerous body of British subjects who have taken up their abode in the New Zealand islands.’

6. In June 1839, Stephen wrote of the need for British rule to be established in New Zealand to provide ‘for the government of the Queen’s subjects resident in or resorting to New Zealand.’

7. The same month, Stephen wrote to Lord Normanby, recommending that a consul be appointed to New Zealand in order to exercise ‘some competent control over British subjects in the New Zealand islands.’

He added that "this policy of limiting British jurisdiction to British subjects living in the colony lasted until at least 1843, and as evidenced in Lord Stanley's response to the Maketu incident the previous year [in which the son of a chief murdered five people and was hanged]. Stanley wrote to Shortland, the Colonial Secretary, stating that Maori be exempt from colonial law ‘as far as respects their relations and dealing with each other,’ and that ‘native law might be sustained in all cases’ where Europeans were not involved".

However, there are three realities that undermine Dr Moon's argument.

1.The treaty he bases his argument on is not the Maori Te Tiriti text signed by 512 chiefs in 1840. He refers to a “translated version” that includes the word “chieftainship” in Article 2.

That text was re-written by a Waitangi Tribunal member named Sir Hugh Kawharu and that was done some time before 1987 when it was used in the New Zealand Maori Council v Attorney General Appeal Court (lands) hearing to create the so-called treaty principles.

That “translation” is a “what the chiefs might have thought” re-interpretation of Te Tiriti into English.

Sir Hugh added 11 footnotes to his “translation” which changed the meaning of key words (most notably “rangatiratanga” which translated “possession” in the original English draft, and “taonga” for “property”), and asserted that chiefs would not understand “sovereignty” despite eyewitness accounts showing that they did, as evidenced by some chiefs objecting to having a chief over them.

Clause 6 of the Treaty of Waitangi Act 1975 gave the tribunal the “exclusive authority to determine the meaning and effect of the Treaty as embodied in the two texts [appended to the act] and to decide issues raised by the differences between them”. (2)

Whether that extended to changing the actual meaning of the treaty is questionable.

In any debate about the treaty, it should be clear that there is the original meaning as drafted, debated, and signed in 1840, and the new meaning since 1987. Dr Moon acknowledges that treaty understanding changed in the 1980s but ignores the 1840 meaning.

2. Dr Moon ignores the discovery, in March 1989, of the Littlewood treaty, which is a document dated February 4, 1840, handwritten in English by the then British Resident, James Busby, on paper with an 1833 water mark on it. (3)

That document looks very much like the final draft in English of the Treaty of Waitangi.

This is because the only differences from Te Tiriti are the date and the absence of the word “Maori” in Article 3, which clarifies that it would be the Maori people of New Zealand who will become British subjects and be protected.

Even though the document has been verified as an authentic document from the time written by Busby, it has been downplayed as a translation and ignored.

For instance, it took three years for the first newspaper report of the find and 17 years for a government report on it.

Discrepancies between the English and Maori treaty texts disappear if the Busby February 4 draft is used.

Dr Moon has in the past energetically tried to discredit the Busby document, mostly by saying it can’t be a treaty because it doesn’t have any signatures on it. (4)

3. If Britain “only wanted to govern the settlers living here”, as Dr Moon says, why is there no evidence of this view from 1839 to 1922? For instance:

1. On August 14, 1839, Lord Normanby directed Hobson to “treat with the Aborigines of New Zealand for the recognition of Her Majesty's Sovereign authority over the whole or any parts of those Islands which they may be willing to place under Her Majesty's Dominion”. Why did he not specify that exercise of sovereignty was over settlers only?

2. On February 4, 1840, Hobson’s team drafted a treaty in which Hobson for Queen Victoria and chiefs would agree that chiefs would cede sovereignty, that chiefs owned what they owned but could sell to an agent of the Queen if they so wished, and that the Maori people of New Zealand would be granted the rights of British subjects and be protected. There is nothing in that treaty says that only settlers would be under the new Governor.

3. The treaty was debated at Waitangi on February 5. Missionary William Colenso’s eyewitness account records 11 chiefs not wanting a governor but five who did. The principal objection was that numerous chiefs did not want to have a chief over them. This is pretty clear proof that the authority discussed then was to include both settlers and Maori. There was no statement that the proposed deal was to involve settlers only, and that chiefs could carry on being chiefs.

4. That treaty was signed on February 6 at Waitangi and subsequently at 34 locations all around New Zealand. In all, 512 chiefs signed. At none of those signings was there any statement that chiefs could carry on being chiefs and that the governor would only control settlers.

5. Then there were the sovereignty proclamations. On May 21, 1840, Hobson issued two proclamations of sovereignty over the North South and Stewart Islands and Major Bunbury issued two further such proclamations over Stewart Island and Cloudy Bay. These covered all of New Zealand. Nowhere was the statement that only British settlers in these areas would henceforth be under the Governor’s control.

6. When some members of some tribes rebelled during the 1860s, at a meeting in Kohimarama in Auckland, on July 10, 1860, a total of 112 chiefs including a number who signed in 1840 committed their support to the treaty as signed in 1840, and to the governor. There was no mention that the governor should limit his governing to settlers.

7. In 1922, Maori Affairs Minister Sir Apirana Ngata addressed grumblings in a spirited defence of the treaty in an imagined dialogue with an old woman in his book The Treaty of Waitangi – an explanation. The treaty he discussed was not the “for settlers only” treaty that Dr Moon promotes.

Dr Moon observed that the treaty is an agreement that is “fairly malleable, that can be shaped and re-shaped to fit the circumstances of the time” looks like he is saying that because it has been twisted it can keep on being twisted “to fit the circumstances of the time”.

It looks like the time has come to restore the treaty to what it meant in 1840.

Here are the four treaty texts so that you can compare the differences for yourself. Remember, the treaty was drated in English and translated into Maori. The intent of the treaty and the original meaning of all words are clear in the original English draft, which is most likely the Busby February 4 document which is placed first:

Busby February 4, 1840, draft (the Littlewood treaty)

Preamble
Her Majesty Victoria, Queen of England in her gracious consideration for the chiefs and people of New Zealand, and her desire to preserve them their land and to maintain peace and order amongst them, has been pleased to appoint an officer to treat with them for the cession of the Sovreignty [sic] of their country and of the islands adjacent to the Queen. Seeing that already many of Her Majesty’s subjects have already settled in the country and are constantly arriving: And that it is desirable for their protection as well as the protection of the natives to establish a government amongst them. Her Majesty has accordingly been pleased to appoint me William Hobson a captain in the Royal Navy to be Governor of such parts of New Zealand as may now or hereafter be ceded to Her Majesty and proposes to the chiefs of the Confederation of United Tribes of New Zealand and the other chiefs to agree to the following articles.

Article first
The chiefs of the Confederation of the United Tribes and the other chiefs who have not joined the confederation, cede to the Queen of England for ever the entire Sovreignty [sic] of their country.

Article second
The Queen of England confirms and guarantees to the chiefs and the tribes and to all the people of New Zealand, the possession of their lands, dwellings and all their property. But the chiefs of the Confederation of United Tribes and the other chiefs grant to the Queen, the exclusive rights of purchasing such lands as the proprietors thereof may be disposed to sell at such prices as may be agreed upon between them and the person appointed by the Queen to purchase from them.

Article third
In return for the cession of their Sovreignty [sic] to the Queen, the people of New Zealand shall be protected by the Queen of England and the rights and privileges of British subjects will be granted to them.

Signed, William Hobson
Consul and Lieut. Governor.

Now we the chiefs of the Confederation of United Tribes of New Zealand assembled at Waitangi, and we the other tribes of New Zealand, having understood the meaning of these articles, accept them and agree to them all. In witness whereof our names or marks are affixed. Done at Waitangi on the 4th of February, 1840. (5)

Te Tiriti o Waitangi Maori language translation February 5, 1840

KO WIKITORIA te Kuini o Ingarani i tana mahara atawai ki nga Rangatira me nga Hapu o Nu Tirani i tana hiahia hoki kia tohungia ki a ratou o ratou rangatiratanga me to ratou wenua, a kia mau tonu hoki te Rongo ki a ratou me te Atanoho hoki kua wakaaro ia he mea tika kia tukua mai tetahi Rangatira – hei kai wakarite ki nga Tangata maori o Nu Tirani – kia wakaaetia e nga Rangatira Maori te Kawanatanga o te Kuini ki nga wahikatoa o te wenua nei me nga motu – na te mea hoki he tokomaha ke nga tangata o tona Iwi Kua noho ki tenei wenua, a e haere mai nei. Na ko te Kuini e hiahia ana kia wakaritea te Kawanatanga kia kaua ai nga kino e puta mai ki te tangata Maori ki te Pakeha e noho ture kore ana. Na kua pai te Kuini kia tukua a hau a Wiremu Hopihona he Kapitana i te Roiara Nawi hei Kawana mo nga wahi katoa o Nu Tirani e tukua aianei amua atu ki te Kuini, e mea atu ana ia ki nga Rangatira o te wakaminenga o nga hapu o Nu Tirani me era Rangatira atu enei ture ka korerotia nei.

Ko te tuatahi
Ko nga Rangatira o te wakaminenga me nga Rangatira katoa hoki ki hai i uru ki taua wakaminenga ka tuku rawa atu ki te Kuini o Ingarani ake tonu atu – te Kawanatanga katoa o o ratou wenua.

Ko te tuarua
Ko te Kuini o Ingarani ka wakarite ka wakaae ki nga Rangitira ki nga hapu – ki nga tangata katoa o Nu Tirani te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa. Otiia ko nga Rangatira o te wakaminenga me nga Rangatira katoa atu ka tuku ki te Kuini te hokonga o era wahi wenua e pai ai te tangata nona te Wenua – ki te ritenga o te utu e wakaritea ai e ratou ko te kai hoko e meatia nei e te Kuini hei kai hoko mona.

Ko te tuatoru
Hei wakaritenga mai hoki tenei mo te wakaaetanga ki te Kawanatanga o te Kuini – Ka tiakina e te Kuini o Ingarani nga tangata maori katoa o Nu Tirani ka tukua ki a ratou nga tikanga katoa rite tahi ki ana mea ki nga tangata o Ingarani. (signed) William Hobson,
Consul and Lieutenant-Governor.

Na ko matou ko nga Rangatira o te Wakaminenga o nga hapu o Nu Tirani ka huihui nei ki Waitangi ko matou hoki ko nga Rangatira o Nu Tirani ka kite nei i te ritenga o enei kupu, ka tangohia ka wakaaetia katoatia e matou, koia ka tohungia ai o matou ingoa o matou tohu. Ka meatia tenei ki Waitangi i te ono o nga ra o Pepueri i te tau kotahi mano, e waru rau e wa te kau o to tatou Ariki. (6)

The official English text

Preamble
HER MAJESTY VICTORIA Queen of the United Kingdom of Great Britain and Ireland regarding with Her Royal Favour the Native Chiefs and Tribes of New Zealand and anxious to protect their just Rights and Property and to secure to them the enjoyment of Peace and Good Order has deemed it necessary in consequence of the great number of Her Majesty's Subjects who have already settled in New Zealand and the rapid extension of Emigration both from Europe and Australia which is still in progress to constitute and appoint a functionary properly authorized to treat with the Aborigines of New Zealand for the recognition of Her Majesty's Sovereign authority over the whole or any part of those islands – Her Majesty therefore being desirous to establish a settled form of Civil Government with a view to avert the evil consequences which must result from the absence of the necessary Laws and Institutions alike to the native population and to Her subjects has been graciously pleased to empower and to authorize me William Hobson a Captain in Her Majesty's Royal Navy Consul and Lieutenant Governor of such parts of New Zealand as may be or hereafter shall be ceded to her Majesty to invite the confederated and independent Chiefs of New Zealand to concur in the following Articles and Conditions.

Article the first
The Chiefs of the Confederation of the United Tribes of New Zealand and the separate and independent Chiefs who have not become members of the Confederation cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty which the said Confederation or Individual Chiefs respectively exercise or possess, or may be supposed to exercise or to possess over their respective Territories as the sole Sovereigns thereof.

Article the second
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; but the Chiefs of the United Tribes and the individual Chiefs yield to Her Majesty the exclusive right of Preemption over such lands as the proprietors thereof may be disposed to alienate at such prices as may be agreed upon between the respective Proprietors and persons appointed by Her Majesty to treat with them in that behalf.

Article the third
In consideration thereof Her Majesty the Queen of England extends to the Natives of New Zealand Her royal protection and imparts to them all the Rights and Privileges of British Subjects. W HOBSON
Lieutenant Governor.

Postscript
Now therefore We the Chiefs of the Confederation of the United Tribes of New Zealand being assembled in Congress at Victoria in Waitangi and We the Separate and Independent Chiefs of New Zealand claiming authority over the Tribes and Territories which are specified after our respective names, having been made fully to understand the Provisions of the foregoing Treaty, accept and enter into the same in the full spirit and meaning thereof: in witness of which we have attached our signatures or marks at the places and the dates respectively specified. Done at Waitangi this Sixth day of February in the year of Our Lord One thousand eight hundred and forty.(7)

The Kawharu reinterpretation

Preamble
Victoria, the Queen of England, in her concern to protect the chiefs and the subtribes of New Zealand and in her desire to preserve their chieftainship (1) and their lands to them and to maintain peace (2) and good order considers it just to appoint an administrator3 one who will negotiate with the people of New Zealand to the end that their chiefs will agree to the Queen's Government being established over all parts of this land and (adjoining) islands (4) and also because there are many of her subjects already living on this land and others yet to come. So the Queen desires to establish a government so that no evil will come to Māori and European living in a state of lawlessness. So the Queen has appointed 'me, William Hobson a Captain' in the Royal Navy to be Governor for all parts of New Zealand (both those) shortly to be received by the Queen and (those) to be received hereafter and presents (5) to the chiefs of the Confederation chiefs of the subtribes of New Zealand and other chiefs these laws set out here.

Article 1
The Chiefs of the Confederation and all the Chiefs who have not joined that Confederation give absolutely to the Queen of England for ever the complete government6 over their land.

Article 2
The Queen of England agrees to protect the chiefs, the subtribes and all the people of New Zealand in the unqualified exercise7 of their chieftainship over their lands, villages and all their treasures.(8) But on the other hand the Chiefs of the Confederation and all the Chiefs will sell (9) land to the Queen at a price agreed to by the person owning it and by the person buying it (the latter being) appointed by the Queen as her purchase agent.

Article 3
For this agreed arrangement therefore concerning the Government of the Queen, the Queen of England will protect all the ordinary people of New Zealand and will give them the same rights and duties (10) of citizenship as the people of England.

signed] William Hobson Consul & Lieut Governor

Postscript
So we, the Chiefs of the Confederation of the subtribes of New Zealand meeting here at Waitangi having seen the shape of these words which we accept and agree to record our names and our marks thus. Was done at Waitangi on the sixth of February in the year of our Lord 1840.

The 11 footnotes say:

1. 'Chieftainship': this concept has to be understood in the context of Maori social and political organisation as at 1840. The accepted approximation today is 'trusteeship'.
2. 'Peace': Māori 'Rongo', seemingly a missionary usage (rongo — to hear: ie, hear the 'Word' — the 'message' of peace and goodwill, etc).
3. Literally 'Chief' ('Rangatira') here is of course ambiguous. Clearly, a European could not be a Māori, but the word could well have implied a trustee-like role rather than that of a mere 'functionary'. Māori speeches at Waitangi in 1840 refer to Hobson being or becoming a 'father' for the Māori people. Certainly this attitude has been held towards the person of the Crown down to the present day — hence the continued expectations and commitments entailed in the Treaty.
4. 'Islands': ie, coastal, not of the Pacific.
5. Literally 'making': ie, 'offering' or 'saying' — but not 'inviting to concur'.
6. 'Government': 'kawanatanga'. There could be no possibility of the Māori signatories having any understanding of government in the sense of 'sovereignty': ie, any understanding on the basis of experience or cultural precedent.
7. 'Unqualified exercise' of the chieftainship — would emphasise to a chief the Queen's intention to give them complete control according to their customs. 'Tino' has the connotation of 'quintessential'.
8. 'Treasures': 'taonga'. As submissions to the Waitangi Tribunal concerning the Māori language have made clear, 'taonga' refers to all dimensions of a tribal group's estate, material and non-material — heirlooms and wahi tapu (sacred places), ancestral lore and whakapapa (genealogies), etc.
9. Māori 'hokonga', literally 'sale and purchase'. 'Hoko' means to buy or sell.
10. 'Rights and duties': Māori at Waitangi in 1840 refer to Hobson being or becoming a 'father' for the Māori people. Certainly, this attitude has been held towards the person of the Crown down to the present day — hence the continued expectations and commitments entailed in the Treaty.
11. There is, however, a more profound problem about 'tikanga'. There is a real sense here of the Queen 'protecting' (ie, allowing the preservation of) the Māori people's tikanga (ie, customs) since no Māori could have had any understanding whatever of British tikanga (ie, rights and duties of British subjects). This, then, reinforces the guarantees in article 2. (8)

Sources
1. Paul Moon, Maori sovereignty and the Treaty of Waitangi, https://www.bing.com/videos/riverview/relatedvideo?q=Maori+sovereignty+and+the+Treaty+of+Waitangi+%2b+Moon+%2b+You+Tube&mid=ADD194D5603AF05F51BBADD194D5603AF05F51BB&FORM=VIRE
2. Treaty of Waitangi Act, https://www.legislation.govt.nz/act/public/1975/0114/latest/DLM435368.html
3. Martin Doutre, The Littlewood Treaty, De Danann Publishers, Auckland 2005
4. Paul Moon, Exploding popular myths, https://www.nzherald.co.nz/kahu/paul-moon-exploding-popular-myths-about-the-treaty-of-waitangi/W3OZUQIQ2CC5PNX3OA4GGSUHGY/
5. Doutre ibid
6. Treaty of Waitangi Act ibid
7. Treaty of Waitangi Act ibid
8. Waitangi Tribunal, Translation of the Maori text, https://www.waitangitribunal.govt.nz/treaty-of-waitangi/translation-of-te-reo-maori-text/