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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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The Crown should ensure ‘the protection of the Aborigines by every method which can be devised for that end’. The Crown was to assume direct control of the colony, in contrast to South Australia where too much power was left to local Commissioners. Parliament should legislate to ensure colonial Courts had jurisdiction throughout New Zealand, that is, in the unceded, as well as in the ceded, areas. Within this Crown colony government a charter of incorporation was to be granted to the New Zealand Company (being a remodelled New Zealand Association). The Company would raise loans for public purposes on the security of local revenues, establish banks, dispose of, or on-sell, public lands and apply the proceeds to fund further emigration.401 A second set of draft instructions anticipated Normanby’s final instructions, which suggested a qualified sovereignty only in Māori rangatira and hapū. The sovereignty of Māori in such an uncivilized society could not support ‘a lawful dominion in that full and absolute sense... of the more civilized parts of the World’, again reflecting stadial conceptions that required settled cultivation and use. Yet, this draft continued, rangatira must still consent to the extension of British sovereignty, ‘and a title to that dominion can be legitimately acquired... [only by] voluntary cession of it by the Chiefs in whom it is at present vested’. The limitation of British sovereignty, in Glenelg’s minute, to ‘certain defined portion or portions of Land’ was expressed in this second draft to be a matter of practicality or expediency. However, the draft did clearly instruct Hobson to ascertain which were the predominantly British areas, and then acquire the ‘local Sovereignty’ by cession from the relevant rangatira. In addition, Hobson was to exercise 400 Ibid, p 191a. Glenelg did not mention the Confederation/ te Wakaminenga in his Minute.

401 [First] Draft instructions, 21 Jan 1839, CO 209/4, pp 193a-201a.

125 extraterritorial jurisdiction in unceded areas in his capacity as British Consul. Hence, in the ceded areas he would be Governor (or Lieutenant-Governor) and in the unceded he would remain Consul, reflecting the quasi-diplomatic character of this title. He would however be a “foreign” representative with military and civil power close at hand.402 A longer draft referred to the disavowal of annexation made by the 1837 Aborigines Report.403 However, principles of ‘humanity and justice appear now to require a direct intervention in the internal affairs of New Zealand’.404 Busby had also argued that ‘humanity and justice’ dictated the need for interference by way of protectorate.405 The author of the draft instructions (probably Stephen) implicitly acknowledged departure from the 1837 Report. This was explicitly acknowledged in Normanby’s final instructions.406 The ‘independent National character’ of Māori hapū was limited by the absence of any ‘union’ between them or ‘Civil polity’ which collectively governed them. ‘With men in such a state of Society no international relations can be formed’, the draft went on. Yet, it was ‘right that their title to be regarded as one independent Community should be observed’. Britain ‘disclaim[ed] any pretension to regard their lands as vacant Territory’.407 This passage made explicit the stadial conception that the possession of national civil government was the foundation of true ‘international’ status. Busby expressed this same view, as did the Normanby instructions.408 However, it seems that more on grounds of moral principle, with humanitarians and Evangelicals watching on, Britain was prepared to acknowledge the legal standing of the Māori community for the purpose of entering into an ‘international’ treaty.

The humanitarian and Evangelical lobby advocated the acknowledgement of Māori nationality, independence and sovereignty. Busby too had been attempting to construct this nationality from its component parts – hapū and iwi. Coates and the Aborigines Report, composed largely by the Evangelical Buxton, advocated the most unequivocal recognition of Māori sovereignty. As 402 [Second] Draft instructions, 24 Jan 1839, CO 209/4, pp 203-220a. This may have been the draft attached to Glenelg’s 12 Feb 1839 Minute.

403 [Third] Draft instructs, nd, CO 209/4, pp 221-242a.

404 Ibid, p 222.

405 See text at n 191.

406 Palmer, Treaty of Waitangi, p 49.

407 [Third] Draft instructs, pp 226-227.

408 See below paragraphs for relevant citations of Normanby instructions.

126 expressed in chapter two, Evangelicals saw the acknowledgement of Māori sovereignty, or independence, as a scriptural and moral imperative. God had made people-groups and man must therefore respect their independence. This national independence was not based on the existence of a civil polity or institutions of government, or even on a formal declaration of independence.

Rather, it existed in the God-given nature of things.409 And it was the Evangelical Glenelg who had acknowledged the Declaration, although he seems to have been more concerned about it protecting Māori from foreign spoliation. This practical concern for Māori welfare was as much the concern of Evangelicals in England and New Zealand as was any acknowledgement of nationality.410 The conceptions of Māori independence in the Aborigines Report and the Normanby instructions differed. The 1837 Report founded independence in scriptural and moral imperatives, whereas the Normanby instructions and earlier drafts of these founded it in stadial conceptions of cultivation and the existence of civil government. The Aborigines Report did acknowledge that the lack of governing institutions, including a military force and courts capable of controlling crime, made New Zealand independence weak. But these practical limitations were not expressed to limit national independence as a question of ‘political rights’.411 In fact, the Normanby instructions paraphrased the Report as acknowledging in Māori a ‘title to the soil and to the sovereignty of New Zealand’ that was ‘indisputable’ and which had been ‘solemnly recognized by the British Government’.412 However, just as the earlier draft instructions (just outlined) had done, Normanby later qualified the acknowledgment of New Zealand ‘as a





sovereign and independent state’ on stadial grounds:

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.413 409 See above.

410 See above. Glenelg never unequivocally acknowledged Māori independence or sovereignty as such. He may well have felt constrained by his official position from doing so.

411 Aborigines Report, p 128.

412 Palmer, Treaty of Waitangi, p 49.

413 Ibid, p 49. This is quoted by Gipps in his address to the NSW Legislative Council on 9 July 1840. CO 209/6, p 280a.

127 As the earlier draft had expressed it, the Māori community had no ‘Civil polity’ to unite it.

Hence the surrender of their ‘national independence’, shaky at best, would be a little sacrifice.414 Having previously admitted Māori rights, the Queen could only acquire any New Zealand dominion or sovereignty with Māori consent.415 This seems a concession to moral principle, to uphold the faith of the Crown’s previous acknowledgement, rather than a full admission of a fundamental political or legal right, for which the stadial basis was absent. By contrast, Coates and his colleagues admitted no such civilizational (stadial) barriers. Coates even argued explicitly that ‘the New Zealanders, though uncivilized, are, strictly speaking, an Independent State, and [should] be dealt with accordingly’.416 Whether or not Māori possessed civilization did not determine whether they possessed rights, including the right not to be subject to a sovereignty or government not of their own choosing. The basis of rights was, fundamentally, not the condition or state of their society, but the fact that they were as much creatures of God as were the English. This vision of a universal humanity was the substance of Evangelical concern for Māori and indigenous peoples generally.

The Aborigines Report reluctantly conceded the necessity of a narrowly defined British

intervention:

Your Committee deprecate any further interference with the internal affairs of the South Sea Islands [New Zealand and Pacific], except as they would authorize the consular agents to frame, and the King in council to establish, all such special rules as may be necessary for maintaining peace and order amongst British subjects resident in or resorting to the island.417 The Report recommended the appointment of Consuls with jurisdiction to try British subjects ‘on the spot’ or, in serious cases, transport them for full trial at the nearest fully constituted court.418 414 Ibid, p 50.

415 Ibid, p 49.

416 Coates, The Principles, Objects, and Plan of the New-Zealand Association Examined, pp 28-29. Coates also admitted the difficulty that Māori did not comprehend the principles of ‘inter-national law’ or ‘the obligations which that law imposes on Independent States, in their intercourse with each other’, but this did not diminish the reality that New Zealand was still an Independent State.

417 Aborigines Report, p 130.

418 Ibid, 129.

128 The Consul’s jurisdiction was not expressed as requiring any cession of territorial sovereignty.419 By contrast, Normanby instructed Hobson ‘to treat with the Aborigines of New Zealand for the recognition of Her Majesty’s sovereign authority over the whole or any parts of those islands which they may be willing to place under Her Majesty’s dominion’.420 Normanby’s instructions were the first to clearly outline a plan of total territorial sovereignty.

The last (or third) set of the Glenelg instructions had explicitly stated that a cession of the entire country ‘would be a needless encroachment upon the rights of the Aborigines’, and would risk complications with foreign powers (an interesting inversion of the thinking that saw issues with confined factory-based sovereignty). Instead, Hobson should acquire only areas occupied by British settlers, or where ‘they assert a proprietary right...’421 This draft also stated that the British Government would not encourage Emigration. Its current policy was to regulate existing settlement, and to protect Māori from its adverse effects.422 James Stephen, who was Permanent Undersecretary at the Colonial Office from 1836 to 1847, was perhaps the key policy maker for New Zealand. He was also an Evangelical, son of James Stephen, the close accomplice of William Wilberforce in the fight to abolish the slave trade.

Stephen the son was mentored by Wilberforce. He also served on the CMS Committee for nine years (until 1822).423 Some of Stephen’s policy advice during his tenure as Colonial Undersecretary should be highlighted. After Glenelg resigned in February 1839, Stephen summarised the Government position: ‘I hold the two Cardinal points to be kept in view in establishing a regular Colony in New Zealand are, first, the protection of the aborigines, and, secondly, the introduction among the Colonists of the principles of self Government…’.

However, colonial self-government was not immediately to be granted as it might jeopardise Māori interests. The colony was to be established, under a Consul, in particular districts ceded in Sovereignty to the British Crown. Acquiring control of limited districts created difficulties in unceded areas, said Stephen. For the unceded areas he recommended ‘the middle course of 419 Ibid, p 130.

420 Palmer, Treaty of Waitangi, p 50.

421 [Third] Draft instructs, pp 230a-231a.

422 Ibid, pp 241-242a. This would seem inconsistent with the earlier (first?) draft which proposed the NZ Company as the agent of planned immigration and land purchase and sale, although with other limitations on its powers.

423 A G L Shaw, ‘Sir James Stephen (1789-1859)’, from http://www.oxforddnb.com (accessed October 2009).

129 obtaining from the Chiefs an agreement to place [such areas] under British protection’. This last point tacitly recognised the relevance of Busby’s protectorate. Significantly, also, Stephen believed that the Colonial Office should give the New Zealand Association or Company a ‘short and Conclusive’ rejection of their request for Government support. The Government cannot support a Bill ‘for the enlargement of Her Majesty’s Dominions’ introduced by anyone ‘except the Ministers of the Crown’.424 This referred to a draft bill transmitted with a letter from Hutt of the New Zealand Company a few days before.425 On 30 April 1839, Stephen minuted that Normanby could not condone the New Zealand Company proceeding. In a meeting with Hutt the day before, Normanby had been advised that a Company vessel, under Colonel Wakefield, was shortly to depart for New Zealand to establish a colony. A letter from Hutt the same day (29 April) was presumptuous enough to request British naval assistance and letters of introduction to the Australian Governors. Stephen maintained this meeting and letter was the first time Normanby had heard of these plans. Stephen’s minute advised Normanby ‘to obtain cession in Sovereignty [to] The British Crown of those parts of New Zealand which are or shall be occupied by HM’s Subjects’. Parliament, he urged, should declare all lands purchased by the Company subject to Crown repurchase, and Normanby should decline all the requested assistance. The essence of this advice was communicated to Hutt by return. It included the statement that ‘the parties concerned should be distinctly apprised, that H.M. Govt cannot recognize the authority of the [Company] Agents’.426 424 Stephen to Labouchere, 15 Mar 1839, CO 209/4, pp 326-331. He also summarised Glenelg’s statement to Durham on 5 Feb 1838: ‘a Colony should be formed on the model of the Old New England Constitutions, that is, on a Body Corporate with a joint stock... To this were added, various elaborate provisions for the defence of the Natives’.

425 Hutt to Normanby, 12 Mar 1839, CO 209/4, pp 531-531a.



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