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165 rangatira. An alliance with a great imperial ariki would preserve the country from foreign aggression and would establish internal order. The Queen’s Kāwana Captain Hobson could protect their rangatiratanga.507 Ross’s use of Declaration terminology has superficial merit. It appears to be a simple case of taking a word used in one document (mana = sovereignty) and using it in a second document to mean the same thing (cede sovereignty = cede mana). But the above contextual considerations prove that simple word transference is not a good understanding of the way translation must work in practice. The fact is that sovereignty was an English word. There was no direct Māori equivalent. A Māori sovereignty declared in part by the significant word mana in 1835 was not going to work to mean the giving up of that mana in 1840. To Williams this was not intended in

1840. Mana was something that rangatira could declare themselves possessed of in He Wakaputanga: they already had it. It was not something that could be surrendered (‘ka tuku rawa atu’) to another rangatira in te Tiriti, regardless of how powerful she was. In practice, translation must proceed by capturing the spirit or sense of the source language. This is more akin to the ‘simultaneous interpretation’ used by the Waitangi Tribunal (and by the United Nations) in its

hearings. Williams admitted the translation difficulties:

In this translation it was necessary to avoid all expressions of the English for which there was no expressive term in the Māori, preserving entire the spirit and tenor of the treaty.508 Williams believed that with words like sovereignty, for which there was no Māori equivalent, the best approach was to avoid translating these and instead use an introduced word or transliteration that Māori understood via other means. Kāwanatanga was very likely one of those transliterations. In a sense Māori already had their ‘picture’ of the type of authority that would be exercised by the Queen through her Kāwana. It was provided in the New Testament by the Roman Governors and by the Australian Governors from first hand experience of some chiefs.

Anne Salmond talks about how Governor Philip King’s return of Huru and Tuki from Norfolk 507 Belgrave, Historical Frictions, p 59, states it simply: ‘As a translator, Williams in 1835 was describing the kind of sovereignty that Māori were declaring for themselves. Five years later, ‘mana’ or ‘rangatiratanga’ were not appropriate in translating a sovereignty that was transferrable’.

508 Oranga, Treaty, pp 39-40.

166 Island in 1793 led to ‘a close relationship between Northland Māori and Kaawana Kingi…’509 This shows that the concept of a Governor and his authority had been familiar to Ngāpuhi for some time before 1840. Michael Belgrave provides a further contextual interpretation of

Williams’ choice of kāwanatanga for sovereignty:

…the one idea that was repeated again and again in the treaty debates was that of a governor. No Maori was recorded as discussing the meanings of the three articles with Hobson or any other bearer of the treaty for signing. However, Maori repeatedly debated whether they wanted a governor and, if they did, what powers the governor would have and what the consequences would be. These were down-to-earth, realistic discussions, the kind of discussions that Henry Williams would have considered a practical debate about sovereignty.510 To have told the chiefs that the Kāwana possessed mana and would exercise it within New Zealand was superfluous – this was plain for all to see. As Orange has written, ‘rangatiratanga and kawanatanga each has its own mana’.511 Rangatira debating at Waitangi clearly understood that the Kāwana came to exercise authority (or mana). The real question they were concerned about was whether they would be equal with him or beneath him in power and status. If they accepted Kāwanatanga, what would that mean for their own authority?512 Ruth Ross was probably correct in stating: ‘It is difficult not to conclude that the omission of mana from the text for the Treaty of Waitangi was no accidental oversight’. It is reasonable to argue that if he had considered it, he would have discounted it as an option, for one or more of the above considerations. It was probably not accidental. It may well have been deliberate. Either 509 A Salmond, Between Worlds (Auckland: Viking/ Penguin Books, 1997), p 232.

510 Belgrave, Historical Frictions, p 60.

511 Orange, Treaty, p 42.

512 According to Colenso, Te Kemara, Rewa, Kawiti, Hakiro, and Tareha queried the relative authority of Governor and chiefs, see Colenso, Treaty of Waitangi (1890). All but Tareha signed. Does this mean the others were satisfied they would be equal with the Governor? It seems not, because Te Kemara and Rewa appeared to sign only reluctantly on 6 Feb, and Kawiti signed much later. Perhaps they considered a British Governor the best choice in the circumstances. Alternatively, perhaps they felt that to leave their marks off the parchment would reduce their standing/mana in the eyes of the British authorities.

167 way, the omission of ‘mana’ from te Tiriti does not demonstrate any inaccuracy in its translation (or interpretation), nor does it reveal any deceit on Williams’ part, as Moon and Fenton allege.513 Two other points can be made about the Declaration as a translation context for the Treaty. Few, if any, have argued that Kingitanga could have been used to convey the cession of sovereignty.

Having declared themselves also possessed of Kingitanga in 1835, could they not have surrendered this to the Queen (on Ross’s argument)? First, it did not make sense for ‘Kingitanga’ to be surrendered to a Queen, who presumably exercised ‘Kuinitanga’: the gender specificity of the terms does not work. The real reason, though, is the same as for mana: Kingitanga, to the extent it can be seen as equivalent to rangatiratanga or mana, was being preserved by the Treaty in the missionary mind. There was also talk of establishing a Kingitanga in 1839. Use of that term would therefore risk confusion.514 The other, more significant, observation about the Declaration-Treaty relationship is the fact that the Declaration used ‘Kawanatanga’ to translate ‘any function of government’ in paragraph two.

The chiefs declared that they would not permit any ‘legislative authority’ (‘te wakarite ture’) nor ‘function of government’ to be exercised apart from their collective authority. It would appear to be this same ‘Kawanatanga’ which in the Treaty is ceded to the Queen: the phrase ‘ka tuku rawa atu ki te Kuini of Ingarani ake tonu atu te Kawanatanga katoa o o ratou w[h]enua’ (give up completely to the Queen of England forever the entire Government of their lands). Busby’s suggestion that ‘te Wakaminenga’ (the United Tribes, or the Assembly of the ) be used instead of ‘huihuinga’ (which probably referred to the Congress of the Declaration) which the Williams had originally drafted, suggests that Busby was alive to the relationship of Declaration to Treaty and the powers that they had declared and were now ceding. Their discussion suggests Williams would also have recognised the connection with kāwanatanga. In both te Tiriti and the Declaration, kāwanatanga could have equally embraced ‘any legislative authority’ and ‘function of government’, both legislative and executive powers being part of civil government. Hence, the rangatira of the Confederation were clearly granting to the Kāwana the right to exercise the

–  –  –

national powers of governance that they had declared themselves possessed of in the Declaration.

In a sense, the Treaty could be viewed as a formal delegation of those powers; a delegation the Declaration had allowed for (in the same paragraph two).

The 1985 Manukau Tribunal rejected the idea that Te Wiremu deliberately deceived rangatira

with his choice of words. They accepted his use of ‘kawanatanga’:

In his Declaration of the Independence of New Zealand (Te Wakaputanga o te Rangatiratanga o Niu Tireni) Busby [sic, Williams] used ‘mana’ to describe ‘all sovereign power and authority’. Some commentators consider that ‘mana’ best describes ‘sovereignty’ and imply that a careful avoidance of ‘mana’ in the Treaty is obvious and was misleading, the missionaries knowing that no Maori could cede his mana. We think the missionaries’ choice of words was fair and apt. In English terms the personal standing of the Queen (her mana) is divorced from the Crown’s authority. To capture that sense, and to ensure that in ceding the right to make laws the Māori retained his mana without denying that of the Queen, ‘Kawanatanga’ was an appropriate choice of words. It also underlines the spirit of the Treaty of Waitangi apparent in both the English and Māori texts [emphasis added].515 The Manukau Tribunal’s definition of Kāwanatanga as ‘the right to make laws’ was consistent with Williams’ understanding of both government and sovereignty. It also recalls Blackstone’s authoritative legal definition of ‘sovereignty’ as equivalent to ‘legislature’.516

–  –  –

Conclusion The research brief for this report was confined to James Busby’s and Henry Williams’ conceptions of the Declaration of Independence and the Treaty of Waitangi. In the course of researching and writing this report, other surrounding documentation and contexts have been considered, especially Colonial Office files. This research and report informs the conclusion below, which will address several of the substantive issues identified by the Tribunal’s direction of 29 May 2009. It will also form the basis of a summary of evidence for hearing presentation purposes.

The seven issues defined by the Tribunal are:

He Wakaputanga/ The Declaration

1. How did Māori understand He Wakaputanga/ The Declaration? And, therefore, what was the nature of the relationship and the mutual commitments they were assenting to in signing He Wakaputanga/ The Declaration?

2. How did the Crown understand He Wakaputanga/ The Declaration? And, therefore, what was the nature of the relationship and the mutual commitments it was assenting to in signing He Wakaputanga/ The Declaration?

3. What then was the effect of He Wakaputanga/ The Declaration at 1835?

Relationship between He Wakaputanga/ The Declaration and Te Tiriti/ The Treaty

–  –  –

Te Tiriti/ The Treaty

5. How did Māori understand Te Tiriti/ The Treaty? And, therefore, what was the nature of the relationship and the mutual commitments they were assenting to in signing Te Tiriti/ The Treaty?

6. How did the Crown understand Te Tiriti/ The Treaty? And, therefore, what was the nature of the relationship and the mutual commitments it was assenting to in signing Te Tiriti/ The Treaty?

7. What then was the effect of Te Tiriti/ The Treaty at 1840?

Preliminary Issue: the Place of Missionaries in He Wakaputanga and Te Tiriti The Tribunals’ questions divide the interpretive task between Māori and Crown views. This binary division does not easily apply to the position of Henry Williams and his colleagues.

Considered from the perspective of ‘the Crown’, missionaries were not part of the Crown in a formal, institutional sense. They were not its paid employees or servants. Nevertheless, they did act informally as interpreters or translators for Government officials in 1835 and 1840. In addition, the missionaries were themselves British subjects. They believed certain things about Her Majesty’s Government and their own constitution. They possessed a loyalty to their own country and doubted the goodwill of other foreign powers when it came to the interests of Māori and the mission. Hence, the missionaries were personally interested in the growth of an alliance between the New Zealanders and British authority, and encouraged Māori to see Britain in a positive light. Although they were not officially part of the Crown, they believed in the Crown’s integrity and supported its protective mission in New Zealand.

In a legal sense, because the Crown authorised missionaries to explain the documents to Māori in 1835 and 1840, they can be considered Crown ‘agents’. Yet despite this, and despite their 171 identity as ‘British subjects’, they were first and foremost missionaries. Their mission in New Zealand concerned the spiritual and material interests of the Māori populace. In bringing ‘te Rongopai’ – the Goodnews, or the Gospel of Peace – to Māori, missionaries became part of a Māori world in varying degrees. They acquired Māori language and adopted Māori modes of address (as is revealed by Henry Williams adopting the ‘rere’, with taiaha in hand, at Waimate in 1845).517 Over time they obtained understandings of Māori tikanga and worldview. Williams’ position as translator/ interpreter in 1835 and 1840 reinforced the missionaries as an ‘in-between’ people. They bridged the divide between the British and Māori worlds. Their missional role to Māori was dependent on them retaining the trust of Māori, in particular rangatira. Missionaries knew in 1840 that their mission depended on the Crown keeping faith with the Treaty. These considerations suggest that Te Wiremu and colleagues would not have jeopardised their mission purpose by ‘duping’ Māori to accept a Treaty that was not in their best interests. The translation of the Treaty was not a ‘fraud’. If it had been, Williams would have been sentencing the New Zealand mission to the death penalty. Ultimately the Crown’s dishonouring of the Treaty significantly tarnished missionary Christianity in New Zealand, in Māori eyes.518 To summarise this point, the Māori texts of He Wakaputanga and Te Tiriti must be understood, from Williams’ perspective, as speaking to the Māori world and Māori concerns, at least as much as to British concerns. The Māori texts were missionary-Māori documents, rather than Crown documents. As such, they incorporated Williams’ perception of what the English texts meant, in language that he considered Māori would best be able to understand.

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