«TE WIREMU, TE PUHIPI, HE WAKAPUTANGA ME TE TIRITI HENRY WILLIAMS, JAMES BUSBY, A DECLARATION AND THE TREATY A report commissioned by the Waitangi ...»
119 conditions was the limitation of colonization’s geographical extent. The Association rejected this. It wanted the authority to acquire any and all New Zealand territory. The requirement for a capital fund to be obtained upfront from Association members was also rejected. The charter offer was withdrawn when the Colonial Office accepted an Association proposal to bring a bill before parliament.373 The Government, however, opposed the Association’s bill, and Parliament rejected it.374 In the Government’s view, the bill did not provide against injustice to both Māori and settler.375 The bill empowered Commissioners (including Lord Durham, Lord Petre, W B Baring, W Molesworth, and S Hinds) to enter into treaties with Māori for the cession of both ‘sovereign rights’ and lands. Such treaties were to be conditional on ‘the free will and full consent’ of the native sellers. Protectors of aborigines were to be appointed and all treaties were to be made in their presence. Native reserves were to be created within British settlements to enable Māori to share in the advantages of civilized life.376 The inclusion of these elements, clothed in the language of consent, protection, and civilization, was not enough to convince Glenelg and the Government.
In the 1830s it would not have been possible to dismiss treaties with Māori in this way. Busby, Hobson, Stephen, and Glenelg all considered treaties a legitimate way of obtaining Māori 373 Adams, Fatal Necessity, p 113. Glenelg’s offer of a Crown charter is contained in Glenelg to Durham, 29 Dec 1837 [printed], CO 209/2, pp 410-410a. The rejection was communicated immediately in Durham to Glenelg, 30 Dec 1837, CO 209/2, pp 434-439. Hobson’s factory proposal arrived in London in February 1838, hence the geographical limitation was derived by Glenelg from elsewhere, see Adams, Fatal Necessity, p 123.
374 By 92 votes to 32, see M S R Palmer, The Treaty of Waitangi in New Zealand’s Law and Constitution (Wellington: Victoria University Press, 2008), p 46.
375 Adams, Fatal Necessity, p 120.
376 [NZAssn] ‘Bill for the Provisional Govt of British Settlements in the Islands of New Zealand’, 1 June 1838 [printed], CO 209/3, pp 549-561a.
377 This language and sentiment was so dominant that the New Zealand Association Committee felt compelled to resolve, undoubtedly as a sop to Parliamentary and official concerns: ‘That notwithstanding the temporary failure of their application to Parliament this Assn are determined to persevere in their efforts for assuring to the Inhabitants of New Zealand the blessings of Christianity and Civilization and to this Country the advantages of a well regulated system of Colonization’, GS Evans (Sec, NZAssn) to Glenelg, 31 Aug 1838, CO 209/3, p 294.
120 agreement or consent to British intervention. Ironically, the House of Commons Aborigines Committee did not.378 Other Proposals for British Intervention The character of that intervention remained the focus of debate in 1838 and 1839. A number of other proposals were submitted to the Colonial Office in 1838-9, besides those of Busby, Hobson, the New Zealand Association, and the mission societies. Colonel Robert Torrens, for example, one of the key South Australian Commissioners (and a member of the 1826 New Zealand Company), lobbied the Colonial Office in late 1838 with a proposal to establish a ‘regular Government’ in New Zealand. This plan utilized the Confederation and Congress rather than cessions of territory and sovereignty from rangatira.379 New Zealand Association interests tried another tack: utilising ‘The New Zealand Company of 1826 (to whom the Govt of the day promised a charter of incorporation)’.380 On its face, this earlier company involved a different set of names, but the appearance of George Lyall and Lord Durham, both proposed Commissioners in the failed 1838 Association bill, marked this out as a related body. Robert Torrens was also a member of the 1826 company. Torrens’ 1838 proposal also wished to establish a ‘regular form of government’ in New Zealand. Confusingly, this proposal reintroduced cessions of territory from native chiefs. There was also no mention of the Confederation or Congress as forming part of this government.381 James Stephen, sensing these inconsistencies, suggested to Glenelg that the various parties involved in these proposals needed to formulate ‘some one scheme’ for the Government’s consideration.382 378 Perhaps it could be argued that Stephen and Glenelg, at least, ultimately conceded the necessity of a treaty with Māori as the only just way to effect annexation.
379 Col Robert Torrens to Stephen, nd (rec’d 7 Nov 1838), CO 209/3, pp 297-312. This plan utilized the Confederation and Congress rather than cessions of territory and sovereignty from rangatira. Torrens was father of the man who devised the ‘Torrens System’ of land titles in New Zealand and throughout the British Empire.
380 George Lyall to CO, 14 Dec 1838, CO 209/3, pp 313-316.
381 Lyall to Sir George Grey, 28 Dec 1838, CO 209/3, pp 317-321a. Torrens later denied any allegiance to the NZ Company, see Torrens to Normanby, 29 May 1839, CO 209/5, pp 371-374.
382 Ibid, p 321a (Stephen minute).
121 G Fife Angas, another South Australia ‘Founder’,383 weighed into the New Zealand question. He was alarmed at information that the French were considering appointing de Thierry French Consul in New Zealand. Angus suggested that the Government adopt a Factory system to thwart suspected French designs. He recommended that ‘a contract could be entered into with the Chiefs through the agency of a special officer appointed... to incorporate their native country with[in] the British Empire…’384 This appeared to be a further variation on Hobson’s and Torrens’ proposals.
Baron de Thierry continued to appear in communications of the period 1837-40. Referring probably to the Angas correspondence, Stephen wrote to the Foreign Office that Glenelg had been reliably informed that the French Govt were ‘about to nominate [de Thierry] as their Consul [in New Zealand]’. Glenelg was ‘fully aware’, continued Stephen, ‘of the difficulty of interfering with a Foreign Govt in the selection of its own Agent’, but still considered it proper for the Foreign Office to remonstrate with France against the appointment of someone ‘who has been so constant in his attempts to assume undue authority’.385 In a despatch of October 1837 Bourke informed Busby that he had declined to enter into correspondence with de Thierry. Busby replied that de Thierry had claimed a retinue of 60-70 ‘mechanics and labourers’, but arrived in Hokianga with only four people. Hokianga Māori had confined him to two small pieces of land.386 Bourke’s successor, Governor Gipps, adopted the same policy of declining to engage with de Thierry.387 Busby followed suit. He ignored de Thierry’s half-yearly report from Hokianga in mid-1838. This prompted de Thierry to write direct to Gipps. De Thierry believed the frequent references to him in the Lords New Zealand Committee evidence misconstrued his position on sovereignty. He would never assert his own sovereignty in conflict with either Britain, or in opposition to ‘the New Zealanders themselves’. If Britain established a colony, he believed he should be permitted ‘to act the part of a Parent to the Aborigines of this Country..
383 And father of painter, G French Angas.
G Fife Angas to Glenelg, 20 Dec 1838, CO 209/3, pp 348-349. Stephen minuted the file to Sir George Grey:
‘This is another application for a New Zealand Charter. The Writer is a Gentleman of very high character and has for some time past been well known at this office. Will you take the trouble to dictate the terms of the answer to him[?]’, p 349a.
385 Stephen to Backhouse, 29 Dec 1838, (draft), CO 209/3, pp 117-119a.
386 Busby to Col Sec, 16 Jan 1838, No 120, pp 268-269.
387 H W Parker (Gov’s Private Sec) to de Thierry, 16 Apr 1839, CO 209/4, p 18.
122.’.388 The ‘Decree’ accompanying his letter to Gipps, dated 7 March 1839, announced his intention to act as a Protector, to ensure that Māori retained sufficient land in trust for their subsistence.389 De Thierry was an important figure before he arrived in New Zealand. After that, as Busby’s reports illustrate, he probably deserved the ridicule heaped on him.
Government Views, 1839
Hobson’s version of limited British intervention dominated British official thinking from 1838 until late 1839. At the end of December 1838, the British Government offered Hobson the position of Consul in New Zealand.390 Prior to accepting this position on 14 February 1839 he corresponded with the Colonial Office concerning its responsibilities.391 Based on official correspondence provided to him (probably mainly a selection of Bourke and Busby despatches) he stated: ‘I am now more than ever impressed with the absolute necessity for her Majesty’s Govt adopting speedily some measures for the protection both of the Aborigines, and of the British subjects’ in New Zealand. He endorsed Angas’s suggestion “that the Chiefs might be induced to incorporate their Native Country with[in] the British Empire”, as ‘consummation’ of a Factory system.392 Hobson stated that his 1837 Factory proposal was ‘the only measure short of the actual assumption of Sovereignty by Great Britain calculated to afford protection’.393 He acknowledged its several imperfections: first, it still left New Zealand vulnerable to intervention of foreign powers; secondly, foreign nationals could create difficulties between British subjects and Māori; and thirdly, British subjects would continue to hold ‘vast tracts of land…without recognized titles…creating confusion and strife’.394 Hobson sought to remedy these imperfections. He recommended that the Superintendent (or Chief Factor of the 1837 proposal) should ‘form alliances with friendly tribes, or to act in opposition to those which may be hostile’.
The Superintendent should also have jurisdiction over British subjects throughout New
Zealand.395 Hobson wanted Parliamentary authority to raise a militia of British subjects, and to have a mixed (Māori-Pākehā) police force. A naval vessel should also be at his disposal.396 This was a significantly beefed-up version of the 1837 Factory proposal. In effect, it introduced the police and military force recommendations of Busby’s protectorate proposal. Reading between the lines, these forces would have “roving commissions” over the entire country, especially in respect of British subjects, even if outside the ceded factory territories. Unlike Busby’s proposal, Hobson now wanted authorization to ally with friendly tribes against unfriendly ones. This was not unlike how the East India Company had operated in India. These recommendations would not have found favour in 1837. In 1839 they indicated an escalation in the scale of the proposed intervention. Hobson even suggested that the factory system could lead to complete British paramountcy. Britain should not be deterred, he exhorted, from extending ‘to that highly gifted land the blessings of civilization and liberty, and the protection of English Law, by assuming the Sovereignty of the whole Country, and by transplanting to its Shores, the Nucleus of a moral and industrious population’.397 Hobson’s phraseology was designed to win official support. It drew on common assumptions concerning the superiority of British civilization, in which civil government protected ‘liberty’ and encouraged commerce. Viewed in this light British sovereignty could only be a good thing.
But if Hobson was also suggesting large scale British settlement,398 Glenelg was not listening. In February Glenelg’s minute to Cabinet suggested he was still attempting a CMS Coatesian version of Government intervention:399 The plan which I propose is not one for the encouragement of an extended system of Colonization, but for the establishment of a regular form of Govt, urgently demanded by existing circumstances.
For this purpose it is proposed to obtain by negotiation and Cession from the Chiefs, the Sovereignty for the Queen of certain defined portion or portions of Land... where the British are already settled.400 Draft instructions of the Colonial Office to Hobson under Glenelg’s leadership revealed this bias against large scale colonization and for limited and defined cessions of territorial sovereignty (or factories). An initial draft recommended that a Crown agent should negotiate with Chiefs a cession of Sovereignty ‘on fair terms’ for such part of New Zealand ‘best adapted for the proposed Colony’. A Crown agent should become ‘Governor of the Colony when so acquired’.