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«TE WIREMU, TE PUHIPI, HE WAKAPUTANGA ME TE TIRITI HENRY WILLIAMS, JAMES BUSBY, A DECLARATION AND THE TREATY A report commissioned by the Waitangi ...»

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48 There is no doubt that protectorate language was a prominent code for British control of the time.

However, Busby’s comment should not be dismissed as mere rhetoric. Familial and hereditary relationships (whanaungatanga and whakapapa) also structured Māori society; hence the language of ‘to matou Matua’ (our Father) in the Lord’s Prayer might naturally have resonated with Māori whakaaro and tikanga. The language of ‘matua’ or parent with reference to missionaries and Busby himself was certainly quite prevalent in the debates on te Tiriti (as recorded by Colenso). These considerations lend a certain substance to Busby’s claim that the appeal to His Majesty as ‘matua’ and protector derived from the kōrero of Chiefs. Whether this reference supports an argument that the Declaration was as much a Māori creation as a European one is going several steps further: this would imply that the English text and Māori texts were at most drafts prior to presentation to chiefs on 28 October 1835.130 Another possibility is that Busby text and Williams’ translation (prepared pre-28 October) was simply mimicking Māori modes of address, with which the missionaries in particular were long familiar.

The Reception of the Declaration in NSW and England Busby’s despatch of a Declaration copy direct to R W Hay, Undersecretary of State for Colonies,

was eventually received and minuted by Hay as follows:

[A]cknowledge receipt and authorize Mr B to assure the Chiefs that H.M. will not fail to avail Himself of every opportunity shewing his good will and of affording them such support and protection as may be consistent with due regard to the just rights of others and to the interests of H.M. Subjects.131 130 As argued by M A Henare, The Changing Images of Nineteenth Century Māori Society – From Tribes to Nation, PhD Māori studies thesis, Victoria University of Wellington, 2003, pp 187-201; see discussion below at n 217.

131 Hay minute 28 May 1836 on Busby to Hay, 3 Nov 1835, No 4, pp 264-264a, CO 209/1, ATL. Busby’s despatch was also marked ‘Copied for Aborigines Comm. Apr/37’, that is the House of Lords Select Committee on New Zealand, which sat April and May 1838.

49 These words found their way (in modified form) into Secretary of State Lord Glenelg’s 25 May 1836 despatch to NSW Governor Bourke (drafted by Hay),132 which read:

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 shewing His good will 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 H.M. Subjects.133 The Glenelg (Hay) despatch also noted that Busby’s 2 November 1835 despatch had been

received and that it had enclosed:

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.134 I perceive that the Chiefs at the same time came to the resolution to send a copy of this declaration to His Majesty; to thanks him for his acknowledgement of the Flag;

and to entreat that, in return for the Friendship and protection which they have shewn and are prepared to shew 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.135 Although this despatch noted the substance of the Declaration, it did not extend official British endorsement of the Declaration as constituting an independent New Zealand state. The emphasis

–  –  –

was rather on the relationship of support and protection which Britain could offer the New Zealanders. Even that might be qualified by ‘a due regard to the just rights of others and to the interests of H.M. Subjects’.

For his part, Governor Bourke accepted the Declaration but rejected article two with respect to the legislative powers of the Congress. This was serious, as Busby envisaged the primary function of the Confederation as legislative. Bourke reported to Glenelg that Busby had alerted him of de Theirry’s declared intention to establish himself as independent sovereign of New Zealand.136 Bourke approved the Declaration except for the part of article two which said that the chiefs would not allow any other legislative authority to be established.137 Bourke attributed this portion of article two to the proceedings of MacDonnell and the Rev. William White in procuring the ban on the import of spirits in Hokianga. Bourke noted that he published this ban in the NSW Government Gazette. He added that Busby opposed a similar measure in the Bay of Islands.138 Glenelg, as a sound Evangelical concerned for both spiritual and material welfare, concurred

with Bourke (as did the New Zealand missionaries) in relation to the prohibition issue:

…I cannot but record by entire concurrence in your opinion that, however upright may have been [Busby’s] motives, he judged unwisely and acted with great indiscretion in placing himself in opposition to your measures for preventing and discouraging the introduction of Ardent Spirits amongst the Natives of New Zealand.





On the other hand, Glenelg also approved of the Declaration in terms of its effect in forestalling

other foreign powers who would (much like Ardent Spirits) cause harm to Māori:

136 Bourke to Glenelg, 10 March 1836, HRA 1/18, pp 352-355.

137 Ibid, p 353.

138 Ibid, pp 354-355. Bourke and his Council approved the Declaration, even though Busby did not have specific authority for it. But they objected to article two, which they thought was inserted to override McDonnell’s Hokianga law prohibiting liquor imports. And they cautioned Busby to seek NSW’s sanction for any future measures of importance before submitting them to rangatira for adoption. McLeay to Busby, 12 Feb 1836, No 36/5, NSW Colonial Secretary, Outward Ltrs 1831-1836 [NSW 4/3523] NSW State Archives, Micro Z2710, NA, pp 513-517.

51 Every motive of humanity and of National policy combine in favour of Mr Busby’s efforts to defeat the attempt of the person calling himself Baron de Thierry, to establish a Sovereignty over the New Zealanders. The success of such a scheme would not only have introduced a new and dangerous power in the neighbourhood of our Australian Colonies, but could scarcely have failed to bring about, at no remote period, the depopulation of New Zealand, or at least the extinction of the Aborigines.

Glenelg also noted that he had not done anything about legislation to protect Māori but was still hoping to do something.139 Conclusion: did the Declaration have ‘international standing’?

Busby clearly intended the Declaration to have an international effect – to forestall de Thierry.

Yet the Crown never formally assented to, or gazetted, the Declaration.140 Moreover, Busby and most officials thought that full nationality status or ‘sovereignty’ depended on a viable national government. James Stephen’s third draft of Hobson’s instructions stated that ‘international relations’ could not be formed with New Zealand as it possessed no national government or ‘civil polity’.141 Normanby’s final instructions to Hobson qualified New Zealand as a ‘sovereign and independent state’ on identical grounds.142 139 Glenelg to Bourke, 26 August 1836, HRA 1/18, p 506. Adams notes that a Colonial Office bill to grant Busby judicial power under the NSW Government failed to pass the Commons on the basis that New Zealand was a foreign country for which Britain could not legislate. British subjects could not, legally, even be apprehended in New Zealand, see P Adams, Fatal Necessity: British Intervention in New Zealand, 1830-1847 (Auckland: Auckland University Press and Oxford University Press, 1977), pp 65-66. According to Tapp, Glenelg withdrew Howick’s South Seas Bill from Parliament in mid 1836, see E J Tapp, Early New Zealand: A Dependency of New South Wales 1788-1841 (Melbourne: Melbourne University Press, 1958), p 104.

140 The Declaration would not have been ‘gazetted’ since the Crown was not a party to it. The first ‘official’ publication of the Declaration would appear to be in the evidence of Coates and Beecham before the House of Lords Select Committee 1838, see BPP 1837-38 (680), pp 245-246, IUP vol 1. Therefore, the second question posed by the Tribunal for this inquiry wrongly assumes that the Crown ‘signed’ the Declaration (see Conclusion).

141 CO 209/4, pp 226-227. See discussion of these complexities in chapter 4. The NSW Governor and Council regarded the Declaration as ‘an approach towards a regular form of Government in New Zealand’, see McLeay to Busby, 12 Feb 1836, No 36/5, NSW Colonial Secretary, Outward Ltrs 1831-1836 [NSW 4/3523] NSW State Archives, Micro Z2710, NA, pp 513-517.

142 ‘…so far at least as it is possible to make that acknowledgement in favour of a people composed of numerous, dispersed, and petty tribes, who possess few political relations to each other, and are incompetent to act, or even deliberate in concert’, cited in Palmer, Treaty of Waitangi, p 49, and quoted by Gipps in his address to the NSW Legislative Council on 9 July 1840. CO 209/6, p 280a.

52 The practical effect of the Confederation of the United Tribes British observations of the Confederation, 1836-1840 Captain William Hobson, after attempting to resolve the Northern Alliance-Pomare conflict in 1837 (see below for a fuller account of these events), noted the very limited achievements or

organization of the Confederation:

At present, notwithstanding their formal declaration of independence, they have not in fact any Government whatsoever. Nor could a meeting of the Chiefs who profess to be the Heads of the United Tribes take place at any time without the danger of bloodshed.143 Disunited tribes remained vulnerable to manipulation by ‘turbulent individuals’, said Hobson.144 It was in this despatch that he proposed the ‘factory system’ for New Zealand, modelled on his Indian experience (considered below).

Hobson reported his view some two and a half years later to Bourke’s successor, Governor

Gipps, that:

it is true a formal declaration of Independence has been made by the New Zealand Chiefs; but that in fact the New Zealanders but little understood the nature of that proceeding, and that they never fulfilled its obligation. No confederation had ever been formed to enact Laws nor for any other useful purpose, it was an experiment wh[ich] had failed…145 This was notwithstanding that Hobson had carried to Sydney in July 1837 four British subjects charged with theft from a British settler in New Zealand (Capt Wright), along with a ‘warrant’

–  –  –

for their arrest signed by three rangatira of a five member Committee appointed by the Congress (this was procured by Busby).146 In 1836 Bourke’s Executive Council pointed out to Busby that the Declaration was geographically limited to the tribal areas of those rangatira who had signed it (something he was well aware of),147 but in July 1840 Governor Gipps lowered the estimation of the document even

further:

it was, in fact, a manoeuvre played off by him against the Baron de Thierry, and it was not even pretended that the natives could understand the meaning of it; still less could they assemble yearly in congress and pass laws, as Mr. Busby, in his declaration, had made them say they would do.... His declaration of independence (for it was his) was indeed, I think, a silly as well as an unauthorized act.... it was, in fact, as I have said before, a paper pellet fired off at the Baron de Thierry.148 The context of these 1840 statements by both Hobson and Gipps requires careful analysis as they were made five years later and in the context of debates on British pre-Treaty land claims. It is not true to say that the Declaration was unauthorised, although it may well have involved Busby’s creative interpretation of his instructions regarding the encouragement of a ‘settled form of government’ amongst Māori.

Busby would have resented Gipp’s demeaning of the Declaration and the Confederation. In 1837 Busby had considerable plans for the Confederation, albeit within a formalized British

protectorate. Nevertheless, Busby wrote in June 1837:

146 Despatch of 3 Jul 1837 to Col Sec, cited by Loveridge, ‘The “Declaration of the Independence of New Zealand” of 1835’, p 20.

147 See Loveridge, ‘The “Declaration of the Independence of New Zealand” of 1835’, pp 17-18. This can be read as an attempt by the Council to exclude McDonnell’s liquor law from the operation of article two of the Declaration.

148 Ibid, p 22.

54 Thus would the way be prepared for confiding to the [Māori] people the trust of Jurymen, in like manner as to the Chiefs of Congress, that of Legislators, when a generation should arise sufficiently enlightened and virtuous to be capable of these high functions.149 This quote was Busby’s ‘plan of Government’ for New Zealand.150 However, this portion of the plan had to be gradually worked towards, and to this end New Zealand needed Britain to provide military support for a civil establishment, founded on the Confederation, but advised and indeed directed by British officials experienced in the art of government. The Congress of Chiefs, as the annual assembly of the Confederation, was always intended to be a legislative body – a parliament. But experience since October 1835 had proved the validity of Busby’s earlier thinking that a confederation of rangatira alone, even with his advice, would be incapable of establishing effective executive government. Two key events, and many subsidiary ones, affected Busby’s thinking, although his view in general terms always remained consistent. The first event was the dramatic altercation between Te Hikutu and a hapū from Whananaki at a Waitangi hui in January 1836. The second was the flair up between the Northern and Southern Alliances of Ngāpuhi, between Titore and Pomare and their associated hapū, at Peiwhairangi.



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