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OFFICIAL Wai 1040 #A17





A report commissioned by the Waitangi Tribunal

Samuel D Carpenter

November 2009



Cover page: Drawing by T B Hutton of Hone Heke facing Henry Williams with taiaha, hui at Waimate mission station, 23 September 1844, from Journal of William Cotton, 1844, St John’s College Library, Auckland, New Zealand Preface page ii Acknowledgements iv Introduction 1 Chapter 1: James Busby and the Declaration of Independence 16 Busby’s Path to the Declaration …………………………………………………... 16 The ‘International Standing’ of the Declaration ………………………………….. 27 The Practical Effect of the Confederation of the United Tribes ………………….. 52 Chapter 2: Te Wiremu and He Wakaputanga 67 Henry Williams in the Records, c 1833-1835: a Short Review …………………… 68 Ngā Whakaaro o te Wakaputanga – the Language of the Declaration ……………. 73 Chapter 3: The Treaty as ‘Magna Charta’ 90 A Brief History of the Great Charter, 1215………………………………………... 93 Magna Charta in 17th to 19th Century Discourse ………………………………….. 96 Henry Williams and Magna Charta ……………………………………………….. 104 Chapter 4: Kāwanatanga-Rangatiratanga 112 Pathways to te Tiriti, c 1837-1840…………………………………………………. 113 Te Wiremu and te Tiriti o Waitangi ………………………………………………. 138 Conclusion 169 Bibliography 197 ii Preface This report was prepared pursuant to a Waitangi Tribunal research commission dated 28 April

2009. The commission sought a response to four questions:

(a) How did James Busby conceive of He W[h]akaputanga o Te Rangatiratanga/the Declaration of Independence in 1835, particularly with regard to: (i) its international standing; and (ii) the practical effect of Te W[h]akaminenga/ the Confederation of the United Tribes it proclaimed?

(b) Do we know how Henry Williams understood the nature and effect of He W[h]akaputanga/ the Declaration, and, if so, did his Māori text effectively communicate that understanding to the signatories?

(c) What did Busby and Williams mean when they referred to Te Tiriti/the Treaty as ‘the Magna Carta of the Māori’?

(d) What does the available documentary evidence reveal about Busby’s and Williams’s understandings of the nature and effect of Te Tiriti/the Treaty, especially with regard to the relationship between kāwanatanga and rangatiratanga?

The conclusion of this report will address the Tribunal’s May 2009 direction regarding the substantive issues of this inquiry, although the emphasis will necessarily remain on Henry Williams and James Busby.

About the Author Ko Pukekohe te maunga. Ko Waikato te awa. Ko Bombay te waka. Ko Ngā-Hau-e-Whā te marae. Ko Ngāi Te Tiriti te iwi. I grew up in Pukekohe where my Cornish ancestors settled in the 1870s. I think of myself as someone who has a place in New Zealand ‘by right of the Treaty’ (hence, Ko Ngāi Te Tiriti te iwi.) I completed conjoint Bachelor of Arts and Bachelor of Law iii degrees in 2001 at the University of Auckland. I was admitted to the bar in 2002 and worked as a lawyer for five years in commercial and property law, and civil litigation. In 2008 I was awarded distinction from Massey University for an MA thesis on New Zealand parliamentary debates of the 1850s and 1860s. This thesis was preceded by a dissertation on the relationship between Henry Williams and Hone Heke. I am also shortly to complete a Diploma in te reo Māori at Tai Tokerau Wānanga (NorthTec).

iv Acknowledgements I especially need to thank Barry Rigby. His research at the Turnbull library has meant the inclusion of much material that would not otherwise have been available, especially from the voluminous Colonial Office files. He has also twice reviewed the full report.

Others have read and astutely commented on portions of this report, including Michael Belgrave and Peter Lineham, and my wife, Hana. Jeff Abbott responded with despatch to my requests for articles and inter-loans.

Until a few weeks ago I resided in the Hokianga where the bulk of the report was prepared. Its environs as well as the encouragement of my kaiako and class at the Rawene campus of Tai Tokerau Wānanga have been much appreciated.

He mihi mahana ki a koutou katoa.

Ka tukuna tēnei mihi ki te Kaihanga, te Runga Rawa, te Kaha Rawa. Nāna nei ngā mea katoa i hanga. Tēnei te mihi ki te hunga mate, rātou ngā rangatira kua wheturangitia. Moe mai i raro i te parirau mahana. Ka huri au ki te kanohi ora, kia ora mai tātou katoa.

–  –  –

Prologue Henry Williams wrote in January 1839 that missionary ‘fears’ were ‘much increased’ by the ‘active measures of the French Roman Catholic Bishop [Pompallier] and Priests supported as 1 A Declaration of Independence of New Zealand, fourth paragraph: ‘…[the chiefs] entreat that [the King of England] will continue to be the parent of their infant State, and that he will become its Protector from all attempts upon its independence’.

2 The Treaty of Waitangi, second article: ‘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…’ 3 Williams to Sec, CMS, Paihia, 11 Jan 1839, Auckland Museum Library (AML), MS 91/75, vol 102, p 10.

4 Busby to Alexander Busby, 13 June 1839, AML, MS 46.

5 W Shakespeare, ‘King John’, in The Complete Works of William Shakespeare (New York: Avenel Books, 1975), p 377.

2 they are by the appearance of two French Men of War’. According to Williams the first frigate to appear in the Bay of Islands went to the Chathams to avenge the seizure of a French whaler and the murder of the crew. Williams proposed that a CMS missionary accompany the whaler to act as translator, in the hope that punishment of innocent parties would be avoided. The French commander refused this offer. The second frigate, the Venus, arrived from Tahiti where it had exacted a fine because French Catholic missionaries had been refused residence on the island.6 In June 1839, James Busby commented that he had ‘no doubt’ of the French having ‘an eye to this country’, while de Thierry ‘expects a French ship of war’.7 In August, he wrote that Bishop Pompallier had told a ‘Christian village’ at Waimate of the Venus proceedings at Tahiti.

Pompallier apparently ‘warned them to take care that the same thing did not befall them’. Busby purported to quote the Bishop’s statement to Māori that ‘the French were the first discoverers of

this country and had the best right to it’.8 In the same letter Busby wrote:

I was very much struck lately with an article from the ‘Journal de Depots’ a French [naval] service official paper on the importance of Colonies and Fisheries as the only means of obtaining seamen for a Navy the want of which along in the late war prevented France from being what her Secretarial position entitled her to be, the Arbitress of Europe [emphasis added].

Busby and Williams’ concerns reflected the realities of geo-politics between Britain and European kingdoms in the early nineteenth century. Busby’s reference to the ‘late war’ was probably a reference to the Napoleonic Wars, which concluded in 1815 after Wellington defeated the French General at Waterloo. French aspirations to be ‘arbitress’ or arbiter of a new Europe had been real and still lingered in British imaginations 25 years later. The formative years of Williams (born 1792) and Busby (born 1801) were dominated by England’s war with France and 6 Williams to Sec, CMS, 11 Jan 1839, AML, MS 91/75, vol 102, pp 9-10. Williams thought it significant that the Venus was ‘of largest class’ – 500 men and 1500 tons. Williams supposed that Pompallier and his priests were the ones expelled from Tahiti, but this was not correct. Philip Turner, ‘The Politics of Neutrality: The Catholic Mission and the Māori 1838-1870’, MA history thesis, University of Auckland, 1986, argues that Pompallier was politically neutral, yet several of his actions suggest otherwise. In 1840 Pompallier called for a French consular and naval presence in the Bay of Islands (pp 22-23). In July 1840 he appealed to one French naval commander to annex the South Island (pp 92-93).

7 Busby to A Busby, 13 June 1839, AML, MS 46.

8 Busby to A Busby, 8 August 1839, AML, MS 46.

3 other powers (1793-1815). Williams served in the Royal Navy in the Napoleonic Wars. When he was retired on half-pay at their close in 1815 he was twenty-three years old.

Yet English antipathy to France had deeper roots than any personal experience of the French Revolutionary and Napoleonic Wars (1793-1815). The words Shakespeare put imaginatively into the mouth of his historical King John (1166-1216) reflected widespread values in postReformation England. The English King was ‘supreme head’ or sovereign under God, ‘that great supremacy’. He was no longer accountable to any other earthly or papal authority. He was, rather, defender of his Protestant subjects and their Protestant rights and liberties. The French Wars of 1793-1815 produced a different kind of English reaction to France. Instead of reacting to the supposed despotism of Catholic monarchy, the English reacted conservatively to the excesses of the French Revolution. Nevertheless, English conceptions of monarchy, government and religion were central to both types of anti-France sentiment. During the French wars, the king became a kind of ‘pseudo-medieval’ symbol of majesty and social order.9 In the New Zealand context, Evangelical theological antipathy to Catholic doctrines intensified these generic English fears of a French-Catholic state.10

Texts and Contexts

This report is focussed on Henry Williams’ (Te Wiremu) and James Busby’s (Te Puhipi) understandings of He W[h]akaputanga o Te Rangatiratanga/the Declaration of Independence 1835 and te Tiriti o Waitangi/ the Treaty of Waitangi 1840. It adopts a ‘texts in context’ approach to the material. This could also be called a ‘socio-linguistic’ approach.11 He Wakaputanga and te Tiriti are the central texts. Interpretation of Busby’s and Williams’ commentary about these two texts is a further key to their meaning. These texts and commentary 9 B Hilton, A Mad, Bad, and Dangerous People? England 1783-1846 (Oxford: Clarendon Press, 2006), pp 29-30.

10 See L Colley, Britons: Forging the Nation 1707-1837 (New Haven and London: Yale University Press, 1992) for the famous thesis that a British Protestant national identity was formed during a century or more of wars with Catholic and then Revolutionary France.

11 In academic terms, this is a ‘New Historicist’, ‘linguistic-turn’, and/or ‘Cambridge-School’ (Q Skinner and J G A Pocock) approach. These methodologies focus on the meaning of language or ‘discourse’ in their historical contexts, especially as revealed through literature. It also combines elements of British social and constitutional history, and analysis of colonial and imperial contexts.

4 are set in the context of New Zealand events and the policy approaches of the London authorities.

The report also contends for the relevance of other texts and contexts. Tony Ballantyne has recently argued that the Treaty should be seen within an Empire narrative, not just viewed as the foundation of a nation. British imperial agents used treaties as a diplomatic tool of imperial expansion. He distinguishes the theory of treaty-making, in which parties meet on a level playing field, with the reality of unequal bargaining positions.12 These observations are relevant to the Treaty of Waitangi. Māori kōrero at Waitangi on 5-6 February demonstrated concerns about loss of authority and loss of land. Not all of this language can be attributed to the rhetorical nature of Māori oratory or whaikōrero. Some of those rangatira who signed te Tiriti were obviously reluctant to sign, yet felt compelled to. Perhaps Te Wiremu assured some of the Queen’s benevolent protection. Many, probably, felt this formal alliance with an imperial monarchy enhanced their mana. Some probably still feared their mana or authority might suffer under the new regime of the Queen’s Governor. Nevertheless, a treaty proferred by an imperial superpower in 1840 was not something to be treated lightly. Regardless of whether rangatira accepted it or not, concerns about loss of authority, land, and unjust trade were not going to disappear.

Yet this geo-political or empire context contributes only partially to understanding the terms of the Treaty, along with the Declaration. Other texts and contexts need to be added to picture.

There is a need to ‘anthropologise’ both Māori and Pākehā. That is, the words and actions of Williams and Busby, Nene and Heke, need to be understood within their particular worldviews.

These figures need to be seen as operating within their own system of values and perceptions, or their own cultural, social and religious worldviews.13 The opening paragraphs of this introduction placed Williams’ and Busby’s fears of French intervention in the context of British ideas about their own monarchy and constitution. These 12 T Ballantyne, ‘The State, Politics and Power, 1769-1893’, in G Byrnes, ed, The New Oxford History of New Zealand (Auckland: Oxford University Press, 2009), pp 104-105.

13 Tony Ballantyne argues that European figures need to be anthroplogised just as Māori figures have been in recent times, see T Ballantyne, ‘Christianity, Colonialism and Cross-cultural Communication’, in J Stenhouse and G A Wood, eds, Christianity, Modernity and Culture: New Perspectives on New Zealand History (Adelaide: ATF Press, 2005), pp 32-33.

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