Lawrie Knight: Fact checking Waitangi Tribunal claims

Evidence that Northern Maori knew they were ceding sovereignty to the Crown when they signed the Treaty of Waitangi - fact checking the Waitangi Tribunal 2014 findings and the 2023 findings released on the 8^th of December 2023.

The Waitangi Tribunal has stated in it's 2014 inquiry into Te Paparahi o Te Raki, that the Māori who signed the Treaty in the Bay of Islands and Hokianga in 1840, never ceded their sovereignty to the Crown, nor did they cede their authority to make and enforce laws over their people and territories. This view has been confirmed in the 2023 Waitangi Tribunal report dealing with Northern Maori claims.

This finding is now stated as the basis for co-governance by Maori political leaders.

This decision of the Tribunal is based on oral histories from the 415 Ngapuhi claimants who stated that Maori only agreed to a relationship where they and the Governor would be equals, each responsible for their own spheres of influence.

 This finding is of foundational importance in the Maori argument that co-governance of two equal parties was what was understood by Maori when signing the Treaty.

The facts 

Maori in 1840, did not have a written language. The consequence of this with regard to the Treaty of Waitangi is that the chiefs’ decision to sign or not sign was determined by the oratory of the various chiefs speaking their opinion on the consequences of signing the treaty.

This was done in front of the gathering present, inside the tent that had been set up on the grounds of the Waitangi mission on February 5^th 1840.   The meeting lasted five hours and all Maori chiefs present were invited to speak  and had the opportunity to do so if they wished.

Following this, the Maori chiefs and their people continued their debate late into the night at their encampments at the Treaty Grounds.

The following day, led by Hongi Heke, and without any further discussion, the assembled chiefs signed the Treaty of Waitangi.

A missionary and printer for the Church Missionary Service, William Colenso, who had completed printing the New Testament in Maori in 1837, was present inside the Treaty tent and made the only known detailed notes of the meeting of the 5^th February 1840. Colenso wrote his notes at the time of the signing at the request of the Church Missionary Society, London. These notes were later published in a condensed form in 1890 on the 50^th anniversary of the signing. (Ref1)

In Colenso's biography in Te Papa, he is described as having a commitment to "an open Treaty process", and later as being "unpopular with the settlers because of his sympathetic attitude toward Maori". 

It is also recorded that, prior to the Treaty being signed by Heke, he challenged Hobson with the remark "May I ask your Excellency whether it is your opinion that these Natives understand the articles of the treaty which they are now called upon to sign?" as he feared there was not sufficient understanding of the document by the Maori chiefs. Colenso was also responsible in getting the phrase "me te ritenga Maori hoki"  added onto the statement made on the 6^th February regarding recognition by the Governor of the faiths of England, of the Wesleyans, of Rome and "also the Maori customs or usage".

However, the most important endorsement of Colenso’s authenticity is the fact that the Maori Council in 1987 used his record of the speeches of two of the chiefs inside the Treaty tent as supporting evidence in the Maori Council's Lands Case against the Crown in 2014 – where Colenso's record of  those speeches  helped the Maori win that case. (Ref 2).

Consequently, it is clear that his record of the speeches are accepted by the Maori Council as been accurate, allowing the Court to  "hear" and understand the issues and concerns that Maori had around signing or not signing the Treaty.

From these Chiefly speeches in 1840 it can be seen that there were three main issues that concerned them

These were; 

1. The loss of authority and power to the Crown - sovereignty - if the treaty was signed

2. The loss of land due to purchases by settlers

3. Unfair trading practices 

All the speeches are not repeated fully below, only extracts that relate to the individual Maori chief's understanding of the issue of who had the power and authority if they signed the treaty. 

Chiefs who spoke only about land issues or trading matters have not been quoted.

All Maori present would have heard and understood the opinion of each of the speakers as Colenso states that all the chiefs were competent and aggressive speakers and the oratory was in the Maori's native tongue.

The majority of the early speakers were against the signing of the Treaty. 

1. Te Kemara, chief of the Ngatikawa:

......"If thou stayest as Governor, then, perhaps, Te Kemara will be judged and condemned. Yes indeed, and more than that - even hung by the neck. No, no, no: I shall never say yes to your staying. Were all to be on equality, then perhaps, Te Kemara would say "Yes", but for the Governor to be up and Te Kamara down - Governor high, up, up, up and Te Kamara down, low, small, a worm, a crawler - No, no, no."

2. Rewa, chief of the Ngaitawake tribe:

"What do Natives want of a Governor? We are not whites, nor foreigners.

This country is ours, but the land has gone, Nevertheless, we are the Governor - we, the Chiefs of this our father's land. I will not say Yes to the Governor’s remaining"

3.Kawiti, chief of the Ngatihine Tribe:

"No, no. Go back. What dost thou want here? We Native men do not wish thee to stay. We do not want to be tied up and trodden down....... I, even I Kawiti, must not paddle this way, nor paddle that way because the Governor says  No"

4.Hakiro (speaking on behalf of his chief):

"I say, no, no, no. Go back, go back; Do not sit here.

What wilst thou sit here for? We are not thy people. We are free. We will not have a Governor. Return. Leave us"

5.Tareha, chief of the Ngatirehia Tribe:

"No Govenor for me - for us Native men. We, we only are the chiefs , rulers.

We will not be ruled over. 

What! thou, a foreigner, up and I down! Thou high and I Tareha, the great chief of the Ngapuhi tribes , Low.

No, no; never; Never;....... 

Yes, I say we are the Chiefs. If all were to be alike, all equal in rank with thee - but thou, the Governor up high - up, up, and I down, under beneath! No. no. no!"

These speakers rejected the treaty vigorously in their oratory because of its implications for their authority and power, both of which are considered as essential elements of rangatiratanga.

The chiefs who were for the signing of the treaty, made the following comments.

1.Tamati Pukututu - chief of Te Uri-o-te - hawato Tribe

...Sit Governor, sit, for me, for us. Remain here, a father for us ......

2.Matiu - chief of the Uri-o-ngongo Tribe

...Do not go back, but sit here , a Governor , a father for us ....

3.Pumuka  - chief of the Roroa Tribe

...Stay , remain Governor for me. Hear, all of you. I will have this man a foster -father for me.....

4.Warerahi - chief of the Ngaitawake Tribe

...Yes! What else? Stay, sit: if not, what? Sit, if not, how?. Is it not good to be at peace? we will have this man as our Governor, What!   turn him away!. Say to this man of the Queen, Go back! No, No!

5.Rawiri  - chief of the Ngitatiutahi Tribe:

...Our Governor, our father! Stay here O Governor! Sit, that we may be at peace. A good thing this is for us - yes for us my friends, Native men. Stay, sit. Do thou remain O Governor! to be a Governor for us.

6.Hoani Heke - chief of the Matarahurahu Tribe:

...Yes, it is not for us, but for you, our fathers - you missionaries - it is for you to say, to decide, what it shall be.

It is for you to choose. For we are only natives. Who and what are we? We are children - children solely. We do not know; do you then chose for us.

You our fathers - you missionaries. Sit I say, Governor sit! - a father and a Governor for us.  

7 Tamati Waka Nene  - chief of the Ngatihao Tribe:

...I, Tamati Waka say to thee, sit. Do not thou go away from us:  remain for us - a father, a judge, a peacemaker  .......

8. Patuone - elder brother of tamati Waka Nene 

...Sit, stay - thou, and the missionaries, and the Word of God. Remain here with us, be a father for us , that the French have us not, that Pikopo, that bad man have us not. Remain, governor. Sit stay , our friend.

The pro-treaty chiefs use of terms such as  terms "father", "judge", "a father and governor for us all", "foster father", 'peacemaker", "Governor", it is apparent that it was clearly understood by this group of pro treaty chiefs that the Governor  (the Crown) was to have the position of leadership and  authority over the tribes, and that this was welcomed.

Thus, from the above exerts, it is apparent that both the anti-Treaty and pro-Treaty chiefs clearly understood that :

1. They would not be of equal rank to the Governor
2. They would lose their authority to make their own rules - the Governor's rules would apply
3. They would need to follow the Governor's laws, and it they did not, they possibly could be hung
4. They would be ruled over
5. They would stop being as free as they currently were.
6. That the Governor had the right to make laws
7. That the Governor had the right to judge and be a peace maker.

As a consequence of the above understandings, all the chiefs knew that if they signed the Treaty,  there would be a diminishing of their chiefly status, a submission to a superior authority and the imposition of restrictive controls. 

They were aware that they would not be equal parties.

They were aware that these conditions would  impact on their rangatiratanga  - absolute sovereignty.

However, knowing this, at Waitangi, the majority of the chiefs still went ahead and signed on the following day, presumably having been persuaded by the pro-Treaty chiefs of the benefits of doing so on the night of the 5^th February. It is suggested by Claudia Orange in her seminal work on the Treaty of Waitangi that these benefit would have involved increased trade, reduced inter tribal warfare and material benefits.

However, as the Treaty was taken around New Zealand for signing, there were many chiefs that would not sign it due to their understanding that their power and authority would be diminished by signing, and that this was the key factor in the decision to refuse to sign.

Taraia Ngakuti , chief of the Tamaera tribe of the Thames area, did not sign and refused to acknowledge the transfer of sovereignty. He claimed he had a right to resolve disputes by force as he always had.  

Te Hapuku  - a Ngati Kahungunu chief   -  would not sign because of the negative impact on Maori sovereignty and autonomy.  

Rewi Maniapoto did not sign as he opposed the British Crown presence and authority in New Zealand.

Te Kana -a- Takiru did not sign as he believe that he would lose his mana and authority if he did.

Te Heuheu did not sign his allegiance to the Crown as he did not want his mana to be considered inferior to that of a mere woman (Victoria).

It is therefore very clear, both from 

1. the speeches at Waitangi outlined above, and 

2. the refusal of many chiefs to sign the Treaty as it was taken around New Zealand, 

that the Maori chiefs were well aware that signing the Treaty would mean a loss of authority and power to the Crown.

This is crucially important as the 2014 findings by the Waitangi Tribunal in the Te Paparahi o Te Raki enquiry form the legal basis for the concept of co-governance.

The findings of the Tribunal state the following:

1. that the chiefs never intended that the Queen would govern them, and 

      2. in no way did they agree to trading away their sovereignty.

These erroneous findings were based on acceptance of the 2014 Maori claimants' oral history based evidence, by the Waitangi Tribunal, which for this finding consisted of four Maori members, one of whom being the chairman, and one Pakeha member.

This finding is not consistent with the written record of the 1840 speeches, and this anomaly needs to be explained to New Zealanders.

Conclusion

On the basis of what the Maori chiefs stated in their speeches, and the recognition by the Maori Council of the authenticity of Colenso's written records of these speeches, it is apparent that the chiefs had a clear understanding that the relationship between the Crown and the chiefs was to be one in which the Crown was recognised as having superiority and authority.

The Maori chiefs ceded their authority and power - sovereignty - to the Crown by signing, and they were aware of this.

The  2014 Ngapuhi applicants' oral history is inconsistent with Colenso's written record, which has been accepted by the Maori Council as a true record of the speeches.

This evidence proves that the Waitangi Tribunal is wrong in their finding that sovereignty was not ceded.

Therefore, there is no legal basis for the concept of co-governance where Maori and the Crown are equals.

Dr Lawrie Knight MSc (Hons) MB.ChB graduated from Auckland Medical School in 1974 and has worked as a General Practitioner until the present day.

REFERENCES

(1) Colenso, William. . The Authentic and Genuine History of the Signing of the Treaty of Waitangi, New Zealand, February 5 and 6, 1840. First published in 1890. 

(2) "In 1987 in the Court of Appeal, Colenso's record of the speeches of Nene and Patuone the Colenso's notes were used  to exemplify "Maori mentality" on the 5^th February at Waitangi, and to determine that  consistent with the "principles "of the Treaty, the Crown had a fiduciary duty towards Maori under the State Owned Enterprise Act". - NZ Maori Council vs Attorney General  - New Zealand Law Report

(3) Te Ara - Encyclopedia of New Zealand

(4)Te Paparahi o Te Raki (Wai 1040) Regional Inquiry 2014