Summer read: Morgan Godfery analyses the arguments in Ned Fletcher’s meticulously researched book, The English Text of the Treaty of Waitangi.

First published December 12, 2022.

Historians often make the best lawyers. The study of history requires a close reading of various sources, the careful evaluation of sometimes competing evidence, and construction of a narrative that makes sense of it all. In many ways, this is similar to the study of law. Lawyers, judges, and academics pull at the same threads – written and oral sources – and weave an argument, judgment or article. Justice Susan Glazebrook, who sits on the bench of the Supreme Court, is a trained historian as well as (obviously) a lawyer. Yet the best historians are only very rarely lawyers. Legal training encourages the construction of an argument – and that might or might not take form as a narrative. Historians are often less concerned with “judging” history than clarifying it, making connections, and theorising its meaning and implications. But Ned Fletcher, who is a lawyer doing history, is a notable exception. Fletcher’s prize piece, with the unfussy title The English Text of the Treaty of Waitangi, is an immense contribution to both history and the law. 

Fletcher’s PhD thesis, from which the book is based, ran to 1,000 tightly argued pages. The English Text of the Treaty of Waitangi is hardly much shorter. It seems reckless to “summarise” the book’s contents in a review this brief, but in the interests of engaging with the evidence and arguments Fletcher presents it’s worth articulating his theses. The first is that the premise for British intervention in 19th century New Zealand was to establish government over British settlers for the protection of Māori. The earliest missionaries were horrified at drunken, debauched Kororāreka – at one time the largest whaling port in the Southern Hemisphere – condemning it as the capital of vice. Similarly lawless settlers and itinerants were resident in other ports. In other times, administrators in distant London might pay no mind to the happenings in the remotest corner of the world. But the prospect of large scale, privatised settlement under the New Zealand Company’s management was imminent. Would Wellington, the soon-to-be Company settlement, become another Kororāreka?

Fletcher immerses himself in the archives in London, uncovering the gloomy view London’s politicians and colonial administrators took of the settlers in New Zealand. The Colonial Office’s preference – perhaps reflecting the humanitarian sentiment dominant in London at the time – was for Māori to avoid contact with Europeans (save for the missionaries who would work on the natives’ collective social improvement). But come 1837, Fletcher explains, it was impossible to maintain a policy of non-interference. Europe had reached New Zealand whether the Colonial Office liked it or not. Reluctantly, Lord Normanby issued instructions to the Navy’s Lieutenant Hobson directing him to obtain sovereignty according to “the free [and] intelligent consent of the natives” according to “their established usages”. The instructions, then, preclude any fraudulent motives or deeds. These sentiments – protection from unruly British settlers and free and intelligent consent – made their way into the wording of the English text’s preamble. The British are anxious to protect the just rights and property of the chiefs of New Zealand, the preamble reads, and secure to them the peace and good order they’re due.  

Students of history will know that this finding isn’t necessarily “new”. Writing in 1961, the eminent historian Keith Sinclair described Lord Normanby’s instructions, which acknowledged the “war and spoilation” that follows from British colonisation and the need to “avert” a repeat in New Zealand, as a “new and noble beginning in British colonial policy”. But Fletcher digs deeper, examining the early drafts of the instructions. Granted, a draft is not a final instruction, but the early versions are nonetheless useful for clarifying the thinking – the need to establish government over British settlers for the protection of Māori – that informed the final version. This is all well and good, and Fletcher establishes beyond a doubt that the intentions behind intervention were, to borrow Sinclair’s words, noble. That’s an unfashionable finding. For presentists, the agents of colonisation are uniformly evil. That’s cartoonish morality, but one area where the presentists are probably correct is that what matters is impact, not intention. The British assumed sovereignty, whether politely or otherwise.

This is where Fletcher’s second thesis is important. In the late 1970s, the most prominent activist movements, perhaps taking their lead from the conclusions of the great Ruth Ross, who argued that the Treaty was contradictory in its content and chaotic in its signing, argued that the document was a “fraud”. The Waitangi Action Committee took that message to the Treaty grounds itself, confronting Pākehā New Zealand with the sins of its own making. Later historians and lawyers argued the two texts – English and Māori – worked at cross purposes. The English text guaranteed sovereignty for the Crown. For philosophers from Hobbes onward sovereignty was ultimate, absolute, and (importantly for our purposes) indivisible. That is, incapable of being carved into pieces and distributed to eager local or regional rulers. But the Māori text reaffirmed this ultimate power – “rangatiratanga” – for the signing chiefs. What the Crown receives, at least in the Māori text, is kāwanatanga or “governorship”. Thus, as the great Keith Sorrenson notes, the Māori text demands the signing chiefs cede “rather less” – kāwanatanga – while retaining “rather more” – tino rangatiratanga.

But Fletcher’s second thesis is that British “sovereignty” wasn’t understood as inconsistent with plurality in government and law. Or, in simple language, the Colonial Office meant for Māori to maintain their traditional government and custom (i.e. law). This cuts against popular understandings. In many accounts, the two Williamses were morons, mistranslating the key term – sovereignty – in the Māori text as kāwanatanga. But Fletcher expertly explains that general practice in the Empire, at least pre-1840, was to accommodate Indigenous systems of government alongside or within British sovereignty. This was the case for periods of time in Upper Canada, parts of West Africa, and the Cape Colony. Why would New Zealand be any different? That builds on a point Sorrenson made in the mid-20th century – which never quite made it into the popular discourse – that the British came to Waitangi with centuries-worth of experience negotiating treaties. Were the Williamses bumbling idiots or was something else going on? 

Fletcher lines up convincing evidence that something else really was going on. In 1835, he explains, the United Tribes of the Confederation of New Zealand declared their kāwanatanga in the Declaration of Independence. That kāwanatanga included the power to preserve order, dispense justice, and regulate trade. This is remarkably similar to the powers the Colonial Office sought to regulate their own settlers, and the powers they secured in the Treaty of Waitangi five years later. On that understanding “sovereignty” is understood in the manner in which it was articulated in Lord Normanby’s instructions, in various departmental minutes in London, in Parliamentary speeches, and other sources. In short, sovereignty for the purposes of the Treaty was the power to govern British settlers. This left (in theory) rangatiratanga – Indigenous government – intact. This is very much contrary historiography. There are only a few other scholars who take it up. Paul Moon, for example, in Te Ara ki te Te Tiriti: The Path to the Treaty of Waitangi, argues that Hobson only envisaged the Crown’s law applying to the European settlers of so-called trading factories (roughly: ports like Kororāreka).

That places Fletcher in a strange political position because his third thesis, based on his findings from the first two theses, argues that the English and Māori texts actually do reconcile. Fletcher is suitably restrained in his conclusions and how he understands their implications, but this is a shot across the bow of Parliament, the executive, the courts, and a number of activists. Parliament, the executive, and the courts maintain a faithful commitment to the “principles of the Treaty of Waitangi”, a series of bland statements and actions that aim to construct a compromise between the indivisible sovereignty the Crown assumes and the rangatiratanga iwi and hapū were guaranteed. Fletcher’s third thesis is equally confronting for some activists, too, whose moral claims sometimes rest on the assumption that the conflict between the English language sovereignty and the Māori language rangatiratanga is a consequence of, at best, personal trickery and, at worst, imperial corruption.

Of course, the position of most activists is that the English version is irrelevant. The vast majority of chiefs signed the Māori language version making rangatiratanga the most important guarantee. Fletcher’s conclusion – that sovereignty does not negate rangatiratanga – is useful but not necessarily determinative. But if the English text is only useful insofar as it contextualises what we know of the Māori text (that rangatiratanga was reaffirmed and kāwanatanga was ceded, which Fletcher endorses) what, then, are the political implications of the book? Liberal lawyers and historians welcome the overdue effort to polish the Crown’s foundations, confirming that the Treaty is a constitution worth adhering to. Equally, conservatives can extract their own comforts. The earliest colonial administrators were far from monsters. They were, by the standards of the time, “enlightened” technocrats and leaders seeking a more just, humane colonial policy. Does this make Fletcher’s work conservative? 

Of course not. As Fletcher points out, the original understandings of the Treaty – that it would establish government over British settlers for the protection of Māori while preserving their Indigenous forms of government and custom – would give way to aggressive governmental and settler expansion from 1846. Historical materialists who argue that material relations drive history, not ideas or “Great Men”, would recognise this aggressive expansion as inevitable. The New Zealand Company was importing the British class system bringing finance and labour to the emerging colony. But what the Company – and the Crown – were lacking was the property to sustain that finance and labour. The earliest settlers in Wellington (and other Company towns) were miserable after landing in their cold, muddy backwaters without the neat plots of land the advertisers in London had promised. This disappointment – and the need for Māori land to underpin economic growth – would transform into shameless aggression only two decades later. 

This is where the historical materialists might identify with Fletcher’s work arguing that the failure to keep faith with the Treaty’s original (good) intentions demonstrates (again) that material relations produce the “structure” of society and politics (i.e. the good intentions) are the superstructure. Fletcher, as you can imagine, isn’t quite a Marxist partisan. But the Marxist position is a useful challenge: if the tension – or dialectic – between productive forces (labour and technology) and material relations (property, employment, finance, etc…) drives society’s development, where does that leave Fletcher’s argument that the Treaty’s texts reconcile? Where do historians, lawyers, and activists take that?

The answer, at least in the short term, is obvious. Co-governance. Sharing decision-making power, like in resource management, is precisely what the country’s Māori and British founders envisaged. When the concept and practice of co-governance is under increasing attack, The English Text of the Treaty of Waitangi and its conclusions come just in time.