«TE WIREMU, TE PUHIPI, HE WAKAPUTANGA ME TE TIRITI HENRY WILLIAMS, JAMES BUSBY, A DECLARATION AND THE TREATY A report commissioned by the Waitangi ...»
There is no way rangatira familiar with the New Testament could confuse the word kawana and kawanatanga with any other authority. Buick notes the fascinating event which took place on Sunday 9 February 1840, when Williams led a service at the Paihia church, attended by Captain Hobson, the officers of the Herald, and other members of the ‘Civil staff’. Williams, it seems, preached a sermon on ‘the duties and opportunities of Governments’. This sermon has not survived, or has not been found. In addition to the sermon, according to Buick, ‘intercession was made to the Giver of all Good that He might bestow His fostering care upon the nation new born, and now standing with trembling feet upon the threshold of an expectant life’. See Buick, Treaty of Waitangi, p 163.
494 Busby to Col Sec, 16 Jun1837, No 112, p 251. In 1836 Busby wrote of rangatira ‘yield[ing] up the Government of their Country’ to the British Government/ Crown, see Busby to Col Sec, 26 Jan 1836, No 85, p 190 (see full citation at n 172).
495 Blackstone, Commentaries, vol 1, p 46.
160 And if you are sovereign you will be the law maker or governor.496 Williams, perhaps, did not read Blackstone’s Commentaries or Johnson’s Dictionary. Nonetheless, these authorities illustrate the way in which the notions of sovereignty and government were commonly understood. Their authoritative definitions are in accordance with how both Williams and Busby used the terms.
For Busby, the rangatira of hapū exercised a local and limited government or sovereignty. It was of necessity limited because it relied on personal power and influence, not on institutions of government. Johnson’s Dictionary understood chieftainship in a similar way. A ‘Chiefdom’ was a ‘sovereignty’ (Spenser), but this ‘sovereignty’ should be understood in context of related definitions. ‘Chief’ was defined as ‘a military commander’ (Milton). A ‘Chieftain’ was ‘a leader;
a commander’ (Spenser), and ‘the head of a clan’ (Davies). And ‘Chieftainship’ was simply ‘headship’ (Smollett). Hence, the sovereignty exercised by Māori rangatira was not the same as the sovereignty exercised by the Queen of England. The one was personal government; the other was national institutional government.
The Declaration, in Busby’s view, founded a Māori national government and with it a national sovereignty, ‘however limited the exercise of those [sovereign] rights has hitherto been’.497 Busby believed that this national sovereignty, vested in the Confederation, empowered it to treat with the British Crown.498 As used by Busby, the term sovereignty appears to have been most often used in the 1830s as a technical term: as a principle of national or international recognition.
The Normanby instructions and New Zealand Company opinion tended to base nation or sovereignty status on the possession of civil government (based on stadial theory). This demonstrates forcibly that many contemporaries identified sovereignty status with the possession of civil government.
As discussed above, Coates, Buxton and the Evangelicals generally did not make the same identification. They were willing to acknowledge Māori sovereignty and independence without any theoretical qualifications. Nevertheless, they believed that without civil government Māori
496 Ibid, p 49.497 See text at n 180.498 See above. 161
independence, and indeed Māori rangatiratanga, was frail. Hence the missionaries asked for British government intervention ‘to save a Nation struggling to maintain her independence’.499 The kind of government they called for was one that, of necessity, could exercise a supreme colonial control within New Zealand, although it would also incorporate Māori authority in important ways.
The predominant view of the 1830s, therefore, was that all true civil governments were, by definition, sovereign governments. The existence of representative institutions and courts signalled the presence of a sovereign authority according to the law of nations (or ‘international relations’). Even the English text of the Treaty reflected this view. Article one brought about a cession or surrender of ‘all the rights and powers of Sovereignty’ which the Confederation and individual rangatira exercised or possessed, or were ‘supposed’ to exercise or possess. The qualification is important because it reflected the view that Māori sovereignty, rule or government existed on unstable ground, not having a proper institutional basis. Hence, the very purpose of obtaining the sovereignty was to empower Victoria to establish ‘a settled form of Civil Government’ or ‘the necessary Laws and Institutions’ (preamble). Obtaining sovereignty was the necessary (legal, moral, humanitarian) precondition to establishing the government.
Viewed in this light, kāwanatanga should be understood as the most appropriate word to describe the substance of the cession of sovereignty in article one.
The Translation of Sovereignty: Mana?
Ruth Ross, in her well known New Zealand Journal of History article (1972),500 suggested that Williams should have ‘associated mana with kawanatanga in the translation of sovereignty’, for then ‘no New Zealander would have been in any doubt about what the chiefs were ceding to the Queen’.501 Some recent historians repeat this argument.502 Many non-historians have adopted it, 499 Clarke to Coates, 16 Nov 1838, CMS/CN/0 101.
500 R M Ross, ‘Te Tiriti o Waitangi: Texts and Translations’, New Zealand Journal of History, vol 6, no 2, 1972, pp 129-157.
501 Ibid, p 141.
502 P Moon and S Fenton, ‘Bound into a Fateful Union: Henry Williams’ Translation of the Treaty of Waitangi into Māori in February 1840’, Journal of the Polynesian Society, vol 111, no 1 (2002), pp 51-63, although see counterto the extent that it has arguably become the central doctrine of a modern Treaty orthodoxy.
Michael Belgrave has recently traced the rise of this ‘modern treaty’ from Ruth Ross’s article:
‘This is a treaty of two texts with major differences between them, creating doubt whether sovereignty was transferred in 1840 and emphasising the tribal nature of the guarantees under
Article Two’.503 He cites a heath sector publication as an example of this ‘modern treaty’:
In Article One of Te Tiriti, the Rangatira were granting ‘kawanatanga’ to the Crown.
Rangatira believed this term to be less than sovereignty. It was a missionary transliteration of the word ‘governorship’. The missionaries used the story from the Bible to explain that Pontius Pilate was a governor and had limited powers under Ceasar, who retained sovereignty. The Rangatira were agreeing to kawanatanga (governorship) by the Crown, not mana (sovereignty).504 Rachael Bell has critically assessed the 1970s historical context of Ross’s article. Although Ross adopted a strict empirical methodology, which focused on the treaty texts, her ‘hypercritical’ treatment of Busby and Williams’ weakened her analysis. Her secular environment made her liable ‘to distrust and dismiss’ the contribution of both to the Treaty.505 The following section addresses the problematic nature of the ‘modern treaty’ that has flowed from Ross’s article.
As argued in the previous section, kāwanatanga was in substance what Māori were granting to Queen Victoria. They were granting her the authority to establish the kāwanatanga that they did not in reality exercise. The need for ‘peace and good order’ and the protection of Māori ‘just Rights and Property’ (preamble, English text) in the face of European land purchase and argument by J Laurie, ‘Translating the Treaty of Waitangi’, Journal of the Polynesian Society, vol 111, no 3 (2002), pp 255-258.
503 M Belgrave, Historical Frictions: Māori Claims and Reinvented Histories (Auckland: Auckland University Press, 2005), p 45. Belgrave shows how Ross’s analysis was employed by Māori writers, who articulated the modern ‘Māori sovereignty’ position based on the concept of two distinct Treaty texts and modern concepts of sovereignty in international law. Belgrave critiques this non-contextual basis for the modern treaty: ‘Its supporters reclaim the text in te reo, but not its context in tikanga – the Māori values and world-view which must have informed their understanding of the Treaty remain opaque’. Belgrave’s analysis attempts to free the treaty’ ‘from hindsight and from the tyranny of textual and legally driven analysis’. See Historical Frictions, pp 46-55 for the ‘modern treaty’ and ch 2 for Belgrave’s entire analysis.
504 Ibid, p 45.
505 R Bell, ‘ “Texts and Translations”: Ruth Ross and the Treaty of Waitangi’, New Zealand Journal of History, vol 43, no 2, 2009, pp 52-53.
163 lawlessness was the problem that lead to the Treaty in the first place, certainly from a missionary perspective. Although article one of the English version used the term ‘cede’, meaning to ‘give up one’s rights to [sovereignty]’, the reality was more accurately expressed by the preamble which referred to Hobson treating for ‘the recognition of Her Majesty’s Sovereign authority’.
Williams rendered this: ‘Kia w[h]akaaetia e nga Rangatira Māori te Kawanatanga o te Kuini’ (That the Chiefs may agree to/acknowledge the Government of the Queen). The sense of this was Māori agreeing to accept a new authority in the land rather than giving up an authority that they themselves already exercised.
Viewed in this light, the Treaty did not represent a loss of Māori authority. Rather, it was providing them with the protection of a chiefly authority and civil government that they had previously not possessed. In a theoretical sense (the sense used by Coates of the CMS) they may have been losing their sovereignty or independence. In substance, however, British power and institutions could protect their rights and property in a way not otherwise possible. Ross’s argument rests on the assumption that British sovereignty meant the loss of Māori authority or prestige (‘mana’). Williams, however, believed or hoped that the Treaty would protect Māori chieftainship just as the English Magna Charta protected the landed rights and local customary privileges of British gentry and freeholders. In other words, Williams envisaged the Treaty protecting the substance of their mana as chiefs of hapū. As the decades passed, this comtemplated future did not eventuate. Yet this does not change the fact of missionary expectations in 1840. Hindsight is an unreliable guide in interpreting the meaning of te Tiriti in February 1840.
In Williams’ eyes, the Crown promised to protect ‘o ratou rangatiratanga, me to ratou w[h]enua’ (their chieftainship and their lands (preamble)), or ‘te tino Rangatiratanga o o ratou w[h]enua o ratou kainga me o ratou taonga katoa’ (the true/full Chieftainship of their lands, of their villages and all their valued properties (article two) at the level of local hapū and whanau. Alan Ward
supports this interpretation:
The missionaries and officials did not use the term mana to translate ‘sovereignty’. It has been suggested that this amounted to a deliberate deceit, but this is too harsh a 164 judgement. With reason the British did not believe that Māori had a well-developed concept of national sovereignty. Hence the use of the term kawanatanga to denote the new thing the British were claiming. They were quite prepared to recognise tino rangatiratanga – the mana of rangatira – at the local level.506 Ward’s interpretation inverts Ross’ assumption that the Treaty meant loss of Māori rights and authority. But there is another sense in which ‘mana’ was inappropriate as a word to express sovereignty. The essence of mana, in its original Māori context, was the possession of authority and personal influence, both inherited from tūpuna and enhanced by personal endeavour (through feats in battle, for example). The meanings of mana that tie it intrinsically to chiefly whakapapa and personal ihi or power, mean that it is something that could never be given up.
Understanding this, Te Wiremu would not have used mana as an equivalent for sovereignty.
The argument that mana was used, along with Kingitanga, in He Wakaputanga to express the phrase ‘all sovereign power and authority’ is perhaps the strongest contextual argument for why it should have been used in te Tiriti. Ross argued this and many have followed her. This view starts to look shaky, however, if the above considerations are allowed to have their due weight.
The different contexts and purposes of He Wakaputanga and Te Tiriti must also be kept in mind.
Mana was an appropriate term in 1835, in a document that was intended to incorporate a new Māori nation on British or European lines. The Māori concept of mana conjoined with the European concept Kingitanga appropriately conveyed to rangatira the notion that the ‘sovereign power and authority’ (‘ko te Kingitanga ko te mana’) they were declaring over their collective lands was a new conception and phenomenon. Their mana was exerted in 1835 to declare a new confederate nation. In 1840, their mana was exerted in choosing to come under the protection of the Queen of England. This would not necessarily deprive them of their mana; it might well enhance it. At least, this was the missionary view. It may well also have been the view of the 506 A Ward, A Show of Justice: Racial 'Amalgamation' in Nineteenth Century New Zealand (Auckland: Auckland University Press and Oxford University Press, 1973), p 44. Ward continued: ‘The misleading aspect of this lay in their not discussing fully how kawantanga would impinge upon rangatiratanga, though this was certainly discussed to some extent in relation to the prohibition of warfare and violent retribution’. This relationship will be discussed below. Ward seems to have qualified his view that this lack of discussion was ‘misleading’ in his An Unsettled History: Treaty Claims in New Zealand Today (Wellington: Bridget Williams Books, 1999), as it was not possible to comprehend in 1840 how this relationship would work in detail, see text at n 450 below.