Waitangi: Ned’s ‘puzzling’ Treaty

Two particular words are doing an awful lot of work in Ned Fletcher’s final argument to his monumental book The English Text of the Treaty of Waitangi, and these are “protection” and “guardianship.” 

The evidence of “guardianship” is slight enough. And the evidence for “protection” is confused by the different meanings of the two framers who use the word – and by Fletcher’s heroic misunderstanding of what it means.

Where Colonial Office lynchpin James Stephen is most influenced in his use of “protection” by the more up-to-date humanitarian impulse of the Evangelicals of the Clapham Sect (with whom he was linked), James Busby’s use of the word is inspired more by what was still the “common-sense” view from earlier decades that protection of law means the protection of right. These two conceptions clash and, being situated even further in time from those common-sensical views, it is to the former that Fletcher looks for his thesis. 

Yet even as they clash, it is Busby’s view that is most evident in Fletcher’s re-created English text. The word appears twice: Hobson’s preamble confirms to signatories the Queen’s commitment to “Protect their just Rights and Property,” which sets the context, and the Third Article confirms this to be “Her Royal Protection,” imparting “all the rights and privileges of British subjects.”

Note that in the Treaty’s only written references to protection, this one, it never appears without the word “rights.” (In his verbal explanation at the first signing, Williams records that he translated the phrase from the preamble to the principal chiefs as “to protect them in their rights as chiefs, and rights of property” and the clarifying Third Article as “will protect the natives of New Zealand, and will impart to them all the rights and privileges of British subjects.”)

So what does the written word tell us then about the nature of the protection being offered in the Treaty? 

The Treaty’s promised Royal Protection of their “just Rights and Property” protects the “moral space” within which they may exercise those “just rights.” In other words, it was a protection that afforded them liberty. This is not trivial. “It was not liberty exercised independently, or in defiance of sovereign authority,” explains author Ewen McQueen. “It was liberty fostered in submission to, and under the protection of, governing authorities.” In other words, the protection and definition of each individual’s “moral space,” framing it and guarding it in law, expanded each person’s individual liberty. This is the understanding — of “the Law as our protector” — that several chiefs expressed two decades later in the 1860 Kohimarama Conference.

This however was not made conspicuous enough.

Instead, we have Fletcher’s claim before us that “protection” relates to guardianship. He suggests we look to the records of the Treaty signings, where this language of “protection,” he says, is “conspicuous.”

Except it isn’t. 

In the most thorough oral record of the signing, Colenso records the word as appearing only twice. And far from conspicuous, it appears only in Hobson’s introduction, from his prepared notes. Notably, I would have said, not one chief takes up the refrain.

So what’s the context? In his prepared introduction, Hobson notes to the chiefs, “You yourselves have often asked the King of England to extend his protection to you.” (This of course refers to He Whakaputanga, Busby’s 1835 Declaration of Independence.) “Her Majesty,” says Hobson, “now offers you that protection in this treaty.” And that’s it. The only two times we know for sure the word was spoken.

Colenso records no further clarification. The unreliable Felton Mathew’s less precise one-paragraph summary of the presentation differs somewhat – and naturally it is on this that Fletcher most relies. Hobson, says Mathew in his book written after the event, “set forth briefly but emphatically, and with strong feeling, the object and intention of the Queen of England in sending him hither to assume the government of these Islands, provided the native chiefs and tribes gave their consent thereto.” That object, Mathew wrote in his diary, was “the necessity which existed for the Government to interfere for their protection on account of the number of white people who had already taken up their abode in this country. He then caused to be read to them [by Williams] a treaty which had been prepared, by which the native chiefs agreed to cede the sovereignty of their country to the Queen of England, throwing themselves on her protection but retaining full power over their own people – remaining perfectly independent, but only resigning to the Queen such portion of their country as they might think proper on receiving a fair and suitable consideration for the same.” 

The entire scaffolding of Fletcher’s argument for separate Māori jurisdiction or law as a permanent thing falls to the ground when one realises that Stephen, and the Colonial Office, did not intend such a state of affairs to be permanent. They expected continual progress towards their end goal of full equality

Nevertheless, since the impetus for this idea of protection comes from Normanby’s instructions to Hobson, as written by James Stephen, it is to Stephen that we should look for his meaning. And we only need to slip back 12 years from Waitangi and look over to Africa’s Cape Colony to discover what Stephen might have thought this meant. Praising a law that “gave ‘[Khoikhoi] and other free persons of colour’ the same rights as whites in the Cape Colony,” Stephen supported temporary restrictions on Khoikoi before full implementation. “[S]eparate laws must be made for different classes in society,” he said, but only as long as their “wants and conditions in life are essentially dissimilar”. He wrote, “It is not because the two races differ in complexion or in descent but because their wants and occupations are [at present] entirely different, that they must be placed, to a certain extent, under different systems of Law.” [Emphasis mine.]

This was simply Stephen the gradualist, the practical administrator — his appreciation “of the need for recognising existing social and economic conditions.” [My emphasis.] His long-term aim remained however, the God-given “equality before the law for all men” to which he had devoted his life. But he was wise enough to understood that took time.

*

Stephen understood that this was a gradual process, with full equality before the law being the endpoint to be aimed for. But Fletcher has wholly misunderstood the point that it would take time.

In his own blunt fashion, Native Secretary Donald McLean makes this point to assembled chiefs at the 1860 Kohimarama meeting “Some of you have said that the laws for the Maori are not the same as the laws for the Pakeha. This is in some measure true. Children cannot have what belongs to persons of mature age; and a child does not grow to be a man in a day.”

A point on which Stephen himself is both so far-seeing – and often so explicit (and frequently enough cited by Fletcher himself). “In our relations with [Māori],” writes Stephen in 1843 to correct New Zealand’s pedantic attorney-general Swainson, “it is necessary to be circumspect, & just, & to keep as close to the law as circumstances will [presently] allow – a complete observance is [as yet] out of the question.” [Emphasis mine.] 

Those circumstances at the time limiting “a complete observance” encompassed both Māori understanding and appreciation of English law, and the colonial governments’ abject inability to enforce it with the meagre forces at their disposal. So what did the circumstances in 1843 allow? What was the fullest possible extension of English law to Māori? Stephen gave Swainson a likely laundry list: “I know of no reason why in all matter purely inter se [between or amongst themselves] – their marriages, inheritances, contracts, & so on, & even in the definition and punishment of their crimes – [Māori] should not live under their own law or customs, such customs only excepted, as are abhorrent from the universal laws of God –, as for example infanticide and cannibalism. And even in questions between the State and the Natives, I know not why they should not be governed by their own laws & customs to the utmost possible extent; gradually of course superseding them by our own law, as the natives may learn to understand and appreciate it. “[Emphasis mine.]

Fletcher himself, who quotes this passage, fails to fully understand and appreciate it. Because the entire scaffolding of his argument for separate Māori jurisdiction or law as a permanent thing falls to the ground when one realises that Stephen, and the Colonial Office, did not intend such a state of affairs to be permanent. They expected continual progress towards their end goal of full equality. 

*

One of Fletcher’s biggest oversights is his handling of the concept of rights, most especially of property rights. The word appears in the Treaty’s English text in each of the Articles and the Preamble, more than twice as many times as the word “protection” (which, as mentioned above, only ever occurs in association with the word “rights”) and much more than the word “guardianship” (which fails to appear at all, though the concept does).

So the idea of rights needs a thorough examination. But Fletcher’s treatment is almost entirely legalistic – excellent as far as it goes, but this is not nearly far enough. ‘Rights in law’ is a different thing to ‘things that should be recognised as rights.’ Lawyers talk about the former; philosophers and Colonial Office Under-Secretaries the latter. 

Why does this matter so much? It matters because so much now depends upon it. So we need to know, all the way down to the root, what it was the framers meant – each of them – when they wrote that word on those pieces of paper

Fletcher talks almost solely about rights-in-law. He records debates on legal title, rights of occupancy, customary versus common law rights, territorial versus sovereignty rights, and different contemporary views on Māori property rights. All good as far as that goes. But he never once ventures to discuss the philosophical foundation of rights themselves, or in what manner contemporaries viewed this foundation. Are they God-given, equal and eternal? Are they simple legal fictions? Or are they, as Jeremy Bentham claimed, “nonsense on stilts”?

Why is that important? It’s important because the purpose of government is the protection of what this word represents, and every one of the times that word is used in the text (and it’s used four times), the writer means something very specific. Something that is their conception of what it means, based on their own understanding at that time.

It really does deserve a whole chapter. In Fletcher’s 526-page book, such a discussion merits barely a paragraph.

Bad Ned.

He has chapters on the history and management of Empire – good ones, all – but the book would benefit immensely from a chapter on the history and changing understanding of individual rights, and the application and (mis)understanding of property rights. Because, if properly understood in their full philosophical and historical context, this would change the title and content of his final chapter: ‘The Meaning of the Treaty.’

Again, why does this matter so much? It matters because so much now depends upon it. So we need to know, all the way down to the root, what it was the framers meant – each of them – when they wrote that word on those pieces of paper. 

It matters most of all because if the Treaty is about “protection” of Māori, as Fletcher concludes, then as the Preamble makes very plain that was to manifest as “Protect[ion of] their just Rights and Property.” Which seems vastly different to Fletcher’s conclusion that it must lead to inter-tribal self-government. So it does matter what this means philosophically. Government protection of a person’s “right to” or “rights in” something is vastly different to the government protection or guardianship of a person or group. One is the foundation of a liberty-loving land; the other begins to build a paternalistic Welfare State.

The Treaty talks of “rights,” “property rights,” and “rights and privileges,” but it uses the concept as it was only loosely understood in 1840. In essence, 1840 represents a transitional period – Jeremy Bentham’s utilitarian notion of government creating “the greatest good for the greatest number” was already overturning Locke’s individualistic rights-based view even before it had acquired a full and certain philosophical defence. “Fairness” was taking over from “freedom.” Little wonder perhaps that Stephen himself overlooked in his drafted instructions to Hobson any reference to rights beyond a single “admission” of the Chiefs’ rights of sovereignty, and it was left to the slightly more down-to-earth Busby, as Fletcher adroitly recounts, to add these references in both the Preamble, and in a new second Article so that the Treaty might “achieve the desired object.”

But he still manages to confuse individual rights and collectivised rights.

*

If there’s one book I’ve enjoyed reading, pondering, and debating with these last 12 months then it’s The English Text of the Treaty of Waitangi.

Despite my criticisms, despite its flaws, despite the errors and omissions, it is a mighty piece of work which I thoroughly recommend. Wrestle with it, debate it with yourself and others, above all make full use of the history therein and his re-casting and piecing together of The Final English Text. That is masterfully done. Enjoy it.

But it is flawed, most especially in its conclusions. Given the book’s obvious weight and stature, and what might be done with those conclusions, it’s important to point this out.

It could be said that it doesn’t really matter. That the book in fact proposes no major change from the current debate. After all, the book argues that if we rely upon the English text as reconstituted here, then British intervention in 1840 was to establish government only over British settlers, and to otherwise ensure the continuation of inter-tribal government and custom. A plurality of governance in one territorial area.  Whereas the current mainstream interpretation, after decades of debate, is to rely upon the Māori-language version, which is already said to “split the powers of authority into two: kawanatanga (governorship), which was to be ceded to the British, and rangatiratanga which was to be retained by Māori.” There seems little practical difference between the two. Which is, I suppose, his main point.

Except as David Williams (one of Fletcher’s thesis supervisors) points out, this present approach still “requires a set of extrapolated principles to resolve the problem of the English and Māori texts saying different things.” Court-written principles that have been much debated ever since – one of them in particular, “partnership,” empowering the recent push towards co-governance. Williams, who sits on the Waitangi Tribunal, reckons Fletcher’s new interpretation of the English text will take away any grounds for debate at all because it confirms, he says, “that cession of sovereignty as understood in 1840 did not impose English law on Māori. Rather, it assumed that tikanga, as the law in operation for the Māori world, would continue.” 

So it is a more radical view. A conclusion that, I’ve argued here, is unsupported.

Richard Epstein has pointed out, “The whole quid pro quo in the Treaty was the guarantee of property in exchange for sovereignty and protection. If [this] interpretation is, in fact, the correct one, I find it hard to see how the Treaty makes internal sense or why anyone would sign it.”

There were acquisitive eyes on these islands in the 1830s, and the Colonial Office eventually recognised that it might be their role to mediate between them – between those who wanted Māori souls for God, and those who wanted some of their land for colonisation. The Colonial Office essentially decided to try transferring all responsibility for colonisation to themselves, and to outsource to missionaries the necessary cultural change of Māori while pledging to protect their rights in law. 

As time progressed, this simple policy programme of “Christianity and the Law” began to unravel, in part due to the breakdown in the understanding of the rights to be protected, a confusion between collective and individual rights – and an increasing disrespect for and misunderstanding of the very concept of rights themselves. If they were discussed at all, it was only in a very strict legalistic sense.

So I’ll close here by going back to the simple permissive legal maxim that Fletcher misunderstands, i.e., that principle of English law sometimes called the “general power of competence,” or more simply: “Everything which is not forbidden is allowed.” It may seem strange to accuse a lawyer of such obvious acumen of not fully understanding a legal maxim, but that might be the best way to sum up. 

Fletcher argues that the Treaty promises to Māori self-government and protection in law. As he nears his own conclusion, Fletcher falls down repeatedly on his understanding of what exactly the Treaty means by “protection,” and by what “self-government” would look like if fulfilled. The permissive legal maxim of “everything not forbidden is allowed” can serve as a guide here. 

The problem is exposed in his last few pages, as he brings his argument for a “pluralistic government” to a close – this being, he says, “not inconsistent with” English law. (If he means it is consistent, then why doesn’t he just say that?) In support of being “not inconsistent with” he has us running after a cluster of “textual pointers” that he wants to say something different than they do, before arresting himself to say that the Treaty’s promise of “‘full, exclusive and undisturbed possession’ recognises that Māori society was to be left free to regulate itself.” In his view this would “leave inter-tribal government undisturbed.”

This is puzzling indeed. Not least because the promise to protect in law an individual’s “full, exclusive and undisturbed possession” of property is a claim of property rights – not a never-ending pledge for the continuing existence of an “inter-tribal government” that never existed and never would. Moreover, as Richard Epstein has pointed out, “The whole quid pro quo in the Treaty was the guarantee of property in exchange for sovereignty and protection. If [this] interpretation is, in fact, the correct one, I find it hard to see how the Treaty makes internal sense or why anyone would sign it.”

But it’s especially puzzling because, in the context of this legal maxim, all that is meant by self-regulation and undisturbed possession here is that “everything not forbidden is allowed,” under law. That law being for the protection of property rights, and forbidding physical coercion by others. It is not an assertion of pluralistic government: it is instead a commitment to the protection in law of one’s own moral space – one’s turangawaewae, a place to stand – a place in which one is free to act by right because one is protected in law from physical coercion by others.

The confusion occurs, I think, because of the Treaty’s (and Fletcher’s) frequent confusion between collective and individual rights – seemingly recognising individual property rights at one moment while promising at the next moment protection for (contradictory) ‘collectivised’ rights – ‘rights’ that still vested tribal land and decision-making over it (and others) in the hands of chiefs.

And in further part it is blindness to the idea that implementing unfamiliar law on a “new frontier” takes time – especially so with people unfamiliar with, and sometime even hostile to, the very idea of a “rule of law.” It takes time, a gradual process – and even though the Colonial Office themselves understood this pretty clearly, Fletcher seems unable to see even the plain words in which they so often state them. Instead, he claims that what they promised was a permanent and ongoing state of tribal self-governance. This is not supported even by his own evidence. 

That said, if there is a right to permanent self-government in the Treaty, then it is that of which John Locke spoke: which is the individual right to govern oneself free of let or hindrance by others – this self-governance being the source of all freedom. In libertarian terms, all one requires from a legal authority for this self-governance to function is to be protected in one’s genuine rights, for coercion to be outlawed and to be otherwise left alone by that authority. Thereafter, all human interaction becomes voluntary,

Would that this were the meaning one could draw from either Treaty, or Tiriti. Or from today’s lawmakers.

The first half of Peter Cresswell’s epic review appeared in ReadingRoom yesterday. The two-parter is a considerably abbreviated version of his original 17,000-word (!) opus which appeared on his blog Not PC.

The English Text of the Treaty of Waitangi by Ned Fletcher (Bridget Williams Books, $70) is available in bookstores nationwide.