On the Waitangi Tribunal's Northland Report

The Waitangi Tribunal yesterday released its report on Stage One of the Te Paparahi o Te Raki (Northland) Inquiry. Stage One of this inquiry was solely concerned with two key agreements: the 1835 Declaration of Independence of New Zealand/He Whakaputanga o te Rangatiratanga o Nu Tireni; and the 1840 Te Tiriti o Waitangi/the Treaty of Waitangi. The Tribunal's own press release summarises the report's findings:

Treaty Signatories Did Not Cede Sovereignty in February 1840 – Tribunal

The rangatira who signed te Tiriti o Waitangi in February 1840 did not cede sovereignty to the British Crown, the Waitangi Tribunal has concluded.

The Tribunal today released its report on stage 1 of its inquiry into Te Paparahi o te Raki (the great land of the north) Treaty claims.

The report concerns the ‘meaning and effect’ of the Treaty in February 1840, when the first signings of te Tiriti took place in the Bay of Islands and the Hokianga. Stage 2 of the inquiry, which is under way, will consider events after February 1840.

‘Though Britain went into the treaty negotiation intending to acquire sovereignty, and therefore the power to make and enforce law over both Māori and Pākehā, it did not explain this to the rangatira’, the Tribunal said.

Rather, Britain’s representative William Hobson and his agents explained the Treaty as granting Britain ‘the power to control British subjects and thereby to protect Māori’, while rangatira were told that they would retain their ‘tino rangatiratanga’, their independence and full chiefly authority.

‘The rangatira who signed te Tiriti o Waitangi in February 1840 did not cede their sovereignty to Britain’, the Tribunal concluded. ‘That is, they did not cede authority to make and enforce law over their people or their territories.’

The rangatira did, however, agree ‘to share power and authority with Britain’.

‘They agreed to the Governor having authority to control British subjects in New Zealand, and thereby keep the peace and protect Māori interests’, the Tribunal said.

‘The rangatira consented to the treaty on the basis that they and the Governor were to be equals, though they were to have different roles and different spheres of influence. The detail of how this relationship would work in practice, especially where the Māori and European populations intermingled, remained to be negotiated over time on a case-by-case basis.’

The Tribunal said that, having considered all of the evidence available to it, the conclusion that Māori did not cede sovereignty in February 1840 was inescapable.

The Tribunal said nothing about how and when the Crown acquired the sovereignty that it exercises today. However, it said, the Crown ‘did not acquire that sovereignty through an informed cession by the rangatira who signed te Tiriti at Waitangi, Waimate, and Mangungu’.

The question of whether the agreement that was reached in February 1840 was honoured in subsequent interactions between the Crown and Māori will be considered during stage 2 of the inquiry.

Those findings were almost immediately being branded as wrong. Just 23 minutes after the media embargo on the Tribunal's report expired, Professor Paul Moon issued his own press release:

 
Tribunal’s Maori sovereignty report “re-writing history” says academic

Auckland University of Technology Professor Paul Moon – who is a Treaty specialist – has criticised the Waitangi Tribunal’s Inquiry into issues of Maori sovereignty, which has been released today, claiming it got basic aspects about the Treaty’s history wrong.

“I was shocked by some do the statements contained in the report,” says Professor Moon. “This is not a concern about some trivial detail, but over the fundamental history of our country, which the Tribunal has got manifestly wrong.”

“In particular, the Tribunal alleges that ‘Britain went into the treaty negotiation intending to acquire sovereignty, and therefore the power to make and enforce law over both Maori and Pakeha’. This is simply not true,” says Professor Moon, “and there is an overwhelming body of evidence which proves precisely the opposite. I cannot understand how the Tribunal got this so wrong.”

Professor Moon is also critical of the way which the Tribunal elevates the importance of the 1835 Declaration of Independence: “The Tribunal sees the Declaration as some profound assertion of Maori Sovereignty. However, the Declaration had no international status, and was regarded by British officials at the time as ‘a silly as well as an unauthorised act.’ For some inexplicable reason, the Tribunal has again ignored all this evidence.”

Professor Moon says the most concerning aspect of the report is the way in which the Tribunal seems to be re-writing history with little apparent regard for evidence. “This report may serve the interests of some groups,” he says, “but it distorts New Zealand history in the process, and seriously undermines the Tribunal’s credibility”

Moon's comments were widely reported, on Stuff, for example, and the New Zealand Herald website. Neither media organisation seemed to consider it important to sound out the views of other Treaty experts, highlighting once again the basic historical illiteracy of much of the New Zealand media.

But what of the substance of Moon's criticisms? It is difficult to know why he objects to the notion that Britain sought to acquire sovereignty and the power to make and enforce law over both Maori and Pakeha. The Secretary of State for the Colonies, the Marquis of Normanby, issued instructions to William Hobson on 14 August 1839 that were unambiguous on the point. Hobson was instructed that:

Her Majesty’s Government have resolved to authorize you 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. (GBPP, 1840 [238], p.38).

It is certainly the case that the British government did not expect to exert complete control over Maori communities from the outset. Hobson was informed that:

until they can be brought within the pale of civilized life, and trained to the adoption of its habits, they must be carefully defended in the observance of their own customs, so far as these are compatible with the universal maxims of humanity. (GBPP, 1840 [238], p.39).

That final qualification was crucial, and Hobson was further instructed that 'the savage practices of human sacrifice, and of cannibalism, must be promptly and decisively interdicted'.

What about the British government response to He Whakaputanga/the Declaration of Independence? This is what the Secretary of State for the Colonies, Lord Glenelg, wrote to the governor of New South Wales in May 1836:

I have received a Letter from Mr. Busby, enclosing a Copy of a Declaration made by the Chiefs of the Northern Parts of New Zealand, setting forth the Independence of their Country, and declaring the Union of their respective Tribes into One State, under the Designation of the Tribes of New Zealand. I perceive that the Chiefs, at the same Time, came to the Resolution to send a Copy of their Declaration to His Majesty, to thank Him for His Acknowledgement of their Flag; and to entreat that, in return for the Friendship and Protection which they have shown and are prepared to show to such British Subjects as have settled in their Country, or resorted to its Shores for the Purposes of Trade, His Majesty will continue to be the Parent of their infant State, and its Protector from all attempts on its Independence.

With reference to the Desire which the Chiefs have expressed on this Occasion to maintain a good Understanding with His Majesty’s Subjects, it will be proper that they should be assured, in His Majesty’s Name, that He will not fail to avail himself of every Opportunity of showing His Goodwill, and of affording to those Chiefs such Support and Protection as may be consistent with a due Regard to the just Rights of others, and to the Interests of His Majesty’s Subjects. (GBPP, 1837-38, (680), p.159).

Normanby told Hobson in 1839 that the British government 'acknowledge New Zealand as a sovereign and independent state' (though he qualified that with reference to the tribal nature of its political structures). It was in part this prior acknowledgement that led the British to seek a cession of sovereignty in 1840. Particular efforts were later made to secure the signatures to the Treaty of Waitangi of those who had earlier signed He Whakaputanga. Te Wherowhero, though approached more than once to sign the Treaty, refused. Te Hapuku of Hawke's Bay (another of those to sign the Declaration) did sign the Treaty.

These are matters that have been well traversed by historians in recent decades. Indeed, as the Tribunal notes in its report, its findings are hardly controversial but reflect a wider historical consensus. The fact that it is not a unanimous consensus does not change the fact that many historians would have no difficulty with the Tribunal's findings.

(By way of disclosure, I gave expert evidence in the Stage One hearings, though not directly relating to He Whakaputanga or the Treaty. My evidence concerned the wider context of early contact and encounter between Maori and Pakeha in the north of New Zealand).