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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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Third, edicts of the provincial governors or praetors. Lastly, the native laws and institutions of 482 Clarke to Col Sec, 19 Oct 1844, BPP 1845 (369), pp 35-36, IUP vol 4, p 416. Some of Clarke’s perspectives on this were incorporated into the Native Exemption Ordinance of 1844, see http://www.nzhistory.net.nz/people/robertfitzroy.

483 G C Lewis, An Essay on the Government of Dependencies (London: John Murray, 1841), (http://books.google.com/books).

154 the country as they existed prior to Roman rule. The provinces usually retained all their own laws – especially respecting mattes of property, contracts, marriage and the like – that were not inconsistent with Roman law. Public order and the criminal law was by contrast under the immediate control of the imperial power. Lewis stated that the ‘libertas’ (liberty, ‘rangatiratanga’?) of a Roman dependency consisted mainly in its being allowed to retain its own civil laws, and to administer them by native judges.484 Lewis assumed an existing (native) legal system akin to Rome. In Roman colonies, by contrast with provinces, incoming Roman settlers expelled the native inhabitants.485 Discussing English colonies, Lewis wrote that British subjects took with them as much of the common law as was applicable to their circumstances.486 The case was different if Britain acquired a dependency by cession or conquest which was not colonized by British subjects. Again Lewis assumed cases of conquest or cession between Western nations such as the Dutch and French, ‘which already possess[ed] a legal system of their own’. Like Roman provinces, the private law of contracts and property remained unaltered until amended by positive enactment.487 Britain’s qualified recognition of the 1835 Declaration in effect acknowledged the existence of a separate legal code. New Zealand post-1840 can be viewed as a hybrid of a Roman province and a Roman (or British) colony. British officials and governors faced the challenge of adjusting the interests and laws of two different populations.

C W Richmond, in an 1858 New Zealand General Assembly speech, pertinently analysed the three different policy approaches concerning Māori governance since the inception of British rule. Secretary of State Lord Stanley and Protector George Clarke advocated recognizing Native custom. George Grey’s early paper on Australia recommended the immediate application of British law to the aborigines, as did the 1844 Commons Select Committee. Richmond favoured a third approach, which Grey later advocated, which was ‘to insinuate or induce the acceptance of British law’. Richmond condemned the Stanley-Clarke view on the basis that ‘barbarous laws perpetuate barbarism’. He discounted the second on the basis that it was ‘neither humane nor practicable’, involving as it would the ‘subjugation of the aborigines’.488 The Stanley-Clarke

–  –  –

view was that expressed by section 71 of the 1852 New Zealand Constitution Act, which allowed for the creation of separate Native districts in which customary law would apply. This section was never fully utilized by Governors Gore-Browne, Grey, or the New Zealand Assembly.489 It nevertheless reflects the missionary-humanitarian view of Māori policy that Māori should be allowed local self-government or rangatiratanga. In many ways this was advocating nothing more than the concept of local self-government still prevalent in the British constitution in 1840.

Colonial self-government was of course the aspiration of the settler population and was finally granted in the 1850s by the Crown.

In summary, Māori rangatiratanga was declared in He Wakaputanga. It was protected under te Tiriti. Chiefs still exercised their powers independently of the Government post-1840 but there was a need to support their powers. A Māori national body or ‘state’ was arguably the central idea of the English text of the Declaration. But in missionary views the integrity of the Māori people (or nation) would still be ensured if rangatira powers and tikanga were acknowledged at the local level.

The Translation of Sovereignty: Kāwanatanga?

This section argues that Williams equated civil government with sovereignty. Therefore, the transliteration of government or governorship, ‘kāwanatanga’, was to Williams’ an appropriate way of rendering the meaning of sovereignty in te Tiriti’s article one.

themselves repugnant to humanity, by an enactment of the Legislature. Native Courts should, then, be organized throughout the land, to adjudicate in cases where Natives only are concerned, and to administer justice according to Native usages; against whose decisions, in cases purely Native, no appeal could lie’, ibid, p 443.

489 However, F D Fenton, Resident Magistrate in the Waikato, advocated Māori village self-government in March 1857 to Governor Gore Browne. Fenton appeared to advocate the use of s71 Constitution Act 1852, see AJHR 1860, E–No 1c, pp 1-13. And Gore Browne proposed a law code adapted to Māori circumstances for ‘native districts’, in his memorandum to ministers of 28 April 1857, see AJHR 1858, E–No 5, pp 7-8. These considerations support McHugh’s argument that Crown functionaries at 1840 would not have seen Crown sovereignty as negating Maori customary law or property rights. Hobson had served in the East Indies and had seen Indian custom and property existing under or alongside the operations of British government or sovereignty. Legal pluralism was the norm within the British Empire. See McHugh, ‘The Lawyer’s Concept of Sovereignty’, pp 182-183.





156 The identification of the two – sovereignty and government – in Williams’ mind can be seen from his July 1847 letter to Bishop Selwyn, in which he detailed how he had explained the Treaty to Māori.490 Bishop Selwyn had requested this explanation because of the furore over the ‘waste-lands’ despatch from Earl Grey to Governor Grey. Selwyn’s letter opened with the

statement that this ‘waste-lands’ despatch:

…distinctly denies the right of the New-Zealanders to their unoccupied lands, in entire violation, as I conceive, of the Treaty of Waitangi. As you were commissioned by Captain Hobson to interpret and explain the treaty to the natives, both in the North and the South, and were expressly directed by him in his official letter, not to allow any one to sign till he fully understood it, I hereby request you to inform me in writing what you explained to the natives, and how they understood it.491 In the preamble of his actual translation (the Māori text of te Tiriti), Williams chose to render both ‘Sovereign authority’ and ‘Civil Government’ as ‘Kawanatanga’. In the first article, ‘all the rights and powers of Sovereignty’ was likewise rendered as ‘te Kawanatanga katoa’. In his 1847 letter to Bishop Selwyn these three phrases were rendered ‘Government’, ‘settled government’ and ‘the Government’, respectively. He did not attempt to gloss his Māori text as a ‘literal’ translation of the English text by rendering kāwanatanga back into English as sovereignty. It does not appear that Selwyn ever noted any inadequacy or inaccuracy in Williams’ translation/explanation. There was some criticism at the Waitangi discussions that Williams was not translating appropriately, but never any indication that the issue concerned the translation of sovereignty. These considerations are one indication that Williams, Selwyn and their contemporaries, essentially equated British sovereignty with British government/kāwanatanga.

They suggest that to Williams sovereignty meant the exercise of government.

Other statements in his letter to Selwyn demonstrate that he believed he had adequately

conveyed the intention of the English text:

–  –  –

The Instruction of Captain Hobson was, ‘not to allow any one to sign the treaty till he fully understood it;’ to which instruction I did most strictly attend. I explained the treaty clause by clause at the signing of the same, and again to all the natives in this part of the Island previously to the destruction of Kororareka, on March 11, 1845; I maintained the faith of the treaty and the integrity of the British Government, and that the word of her Majesty was sacred, and could not be violated.

That the natives to whom I explained the treaty understood the nature of the same, there can be no doubt; for by this explanation alone I was enabled to give considerable check to the proceedings of the natives in arms, and to suppress the irritation excited by unprincipled Europeans as to the intention of her Majesty’s Government, who had spread the report that the country was seized in her Majesty’s name. By this explanation many tribes remained neutral, and others acted with the troops as allies of the British military force.

This passage shows that Williams thought he had explained the nature of the Treaty and that the Treaty did not mean that ‘the country was seized in her Majesty’s name’. The word ‘seized’ in this context suggests that the Queen was taking possession of the country by military occupation.

The fact that the Crown deployed only about 80 troops, a handful of mounted police and whatever naval forces were available in early 1840 did not amount to military occupation.

Williams emphatically denied that the cession of sovereignty to the Crown authorized military possession of the whenua of Aotearoa. He clearly believed that sovereignty had been ceded or acknowledged by Māori.492 But he clearly did not believe that sovereign status made the Crown owner of all the unoccupied or waste-lands of the country. He probably had little understanding of the concept of the Crown’s underlying or ‘radical’ title – a feudal legal fiction.

492 Williams to Coates, 3 Oct 1840, CMS/CN/0 101, reel 65. In defence of his colleagues, he cited how essential they were ‘when the Sovereignty of these Islands has been ceded to Her Majesty by the Chiefs...’ A task that took 3 months could have taken 3 years. Williams does not however use the word sovereignty very much at all in his correspondence concerning the Treaty.

158 Johnson’s Dictionary of the English language supports the view that the notion of sovereignty was at least implied by the notion of government. The word ‘Government’ or gouvernement, from the French, was defined Form of community with respect to the disposition of the supreme authority (Temple); an established state of legal authority (Milton); administration of publick affairs (Walker) The phrase ‘supreme authority’ in this definition is equivalent to the Dictionary’s definition of ‘sovereignty’ as ‘supremacy’ or ‘supreme power’. Hence, government was the form or arrangement of sovereignty in a community. The definitions of the terms ‘to govern’ and ‘governor’ employed the meaning of sovereignty with even greater clarity:

‘To Govern’ (gouverner, Fr): to rule as a chief magistrate (Spenser); to regulate, to influence, to direct (Davenant) ‘Governour’ (gouverneur, Fr): one who has the supreme direction (Hooker); one who is invested with supreme authority in a state (Psalm 22); one who rules any place with delegated and temporary authority (Shakespeare) The last definition of governor, derived from Shakespeare, refers to a lesser form of authority.

However the first two definitions clearly invoke the concept of sovereignty. In the New Testament, kāwana and kāwanatanga were used to refer to the title and authority of the Roman governors. In Te Kawenata Hou, kāwanatanga is used to translate a Roman province (Acts 23:24). The Roman governors exercised a delegated authority from the Roman Emperor. It is misleading however to infer from this that kāwanatanga was a lesser form of authority, as within the province of Judaea, for example, Pontius Pilate was the ‘chief magistrate’ and had ‘the supreme direction’ (to use Johnson’s definitions) of the civil government. He was ruling as a representative of the Empire which claimed an absolute jurisdiction within the lands of Judaea (though with jurisdiction over religious and moral matters exercised by the Jewish Council of priests and elders). Williams evidently understood the authority and function of Governor Hobson in much the same way. Within those territories ceded by rangatira, Hobson would 159 exercise the Queen’s sovereign authority. It is spurious to suggest that ‘Kawanatanga’ in te Tiriti denoted anything less than the controlling civil power of the land.493 That Williams believed government was both an adequate and meaningful translation of sovereignty is supported by other contemporary sources. Busby himself equated the terms when

he said of the chiefs’ authority:

What acts approaching to sovereignty or Government have been exercised by the Chiefs in their Individual capacity as relates to their own people, and in their collective capacity as relates to their negotiations with the British Government…494 The great legal authority Blackstone defined sovereignty in terms of civil government, and vice

versa:

Municipal law is ‘a rule of civil conduct prescribed by the supreme power in a state’ [emphasis in original]. For legislature…is the greatest act of superiority that can be exercised by one being over another. Wherefore it is requisite to the very edifice of law, that it be made by the supreme power. Sovereignty and legislature are indeed convertible terms; one cannot subsist [exist] without the other [emphasis added].495 ‘Sovereignty’, said Blackstone, is equivalent to the legislative power. Legislation, he said, is the essence of government. Hence, if you exercise civil government in a state you will be sovereign.

493 Kawana also has a quite precise application to a civil ruler. It is not used for ‘governor’ of a feast (John 2:8), Jesus as the ‘Governor’ or Ruler of the people of Israel (Matthew 2:6), or for the ‘governor’ of a ship (James 3:4).



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