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528 J Cannon, ed, The Oxford Companion to British History (Oxford: Oxford University Press, 1997), p 957. It also produced the first Treaty of Paris in May 1814 following Napoleon’s abdication in April 1814. This first Treaty restored the Bourbon monarchy, returned most of France’s colonies, and allowed her the boundaries of 1792. PostWaterloo, the second Treaty of Paris was more severe, giving France the 1790 boundaries.

529 See text at n 174.

530 Missionary Register, vol 4, (1816), pp 218, 220-221.

531 Missionary Register, vol 2, (1814), pp 243-244. The same report stated, in similar triumphal language, the nature of Britain’s ‘sacred obligations’ to ‘protect, to instruct, and to redeem’ the ‘savages’ of the world (p 243). The British mission societies were disappointed at the first Treaty of Paris, which allowed the French slave trade to continue for five years and restored African Forts and Factories to her. An address was moved in the House of Lords for abolition of the trade, stating that it was contrary to ‘the Law of Nations’, Missionary Register, vol 2, (1814), pp 246, 253.

179 Companion to British History.532 Williams would have appreciated the relevance of ‘balance of power diplomacy’ applied to a divided Ngāpuhi and a divided New Zealand. In this context, a Congress, huihuinga, or runanga, that brought together Ngāpuhi and other iwi for the purpose of pan-iwi government would have been no mean achievement. Such Māori congresses were not repeated in the period 1836-1839, the period between He Wakaputanga and te Tiriti.

James Busby and British Official Understandings of the Declaration

Busby’s English text of the Declaration of Independence constituted a new Māori ‘Independent State’, and declared its independence at the same time. This differed from the American Declaration of Independence (1776) that was prepared at the same time as separate ‘Articles of Confederation’ setting out the terms on which the American states would unite.533 In 1837 Busby

revealed his thinking that the Declaration was both a ‘constitution’ and a declaration:

The articles of Confederation [that is, the Declaration] having established and declared the basis of a Constitution of Government, it follows, I think, that the rights of a Sovereign power exist in the members of that confederation, however limited the exercise of those rights has hitherto been.534 Therefore, Busby clearly believed that the Declaration of Independence 1835 had international status. Yet the Declaration should not be understood in terms of present day international law.

The Independent State of the United Tribes was not the same thing as a modern day nation-state, nor a European state of Busby’s period. Busby justified the Declaration as establishing a British ‘protectorate’, albeit an informal one. Busby hoped the rangatira Congress, whose ‘laws’ would be guided by himself, would be backed by a British military force, albeit a limited one. Busby’s 1837 statement revealed that he thought the exercise of Māori sovereignty or government had 532 Cannon, ed, Oxford Companion to British History, p 957.

533 The US Congress passed the Articles of Confederation 15 November 1777. They were not ratified until 1 March

1781. See C C Tansill, ed, Documents Illustrative of the Formation of the Union of the American States (Government Printing Office, 1927), (http://avalon.law.yale.edu/18th_century/artconf.asp, 9 November 2009).

534 Busby to Col Sec, 16 Jun1837, No 112, pp 245-263, p 251.

180 been limited. His 1837 protectorate proposals clearly implied a limitation of both the Confederation’s ‘internal’ and ‘external’ sovereignty. Not only would British power deal with other foreign nations in respect of New Zealand (removing ‘external sovereignty’), but Māori government would be guided by British expertise and supported by British military force (limiting ‘internal sovereignty’).535 He complained in 1839 that, ‘in attempting to obtain the cooperation of the Chiefs in execution of any of the functions of a Govt, or to establish amongst them any system of Jurisprudence, there was no foundation on which I could proceed’.536 This was despite the existence of the Declaration.

The nature and effect of the Declaration must take into account its background and its context.

First, Busby identified Māori society with the tribal (Anglo-Saxon) society of ancient Britain.537 Second, Busby believed that a Māori nationality could only be forged by uniting this factional or tribal society. Third, Busby assumed that the establishment of a national framework of governance could only be achieved on English or British models. This necessarily required British supervision, advice and military backing for the authority of a tribal collective. British jurisdiction or protection was inevitably the practical means by which a chiefly confederation might be established and preserved. Fourth, in view of this, a collective Māori sovereignty was a British construct. To the extent that a Māori national sovereignty could be established for Busby it was predicated on the establishment of some form of British authority with Māori consent.

For Busby, independence or ‘statehood’ required the exercise of government and law. Hence, Māori statehood would emerge gradually as Congress and its institutions developed. During this development phase the ‘infant’ Māori state would have to depend on Britain for support. The Declaration of Independence was, therefore, as much a declaration of dependence. This is not to deny the legitimacy of the tribal sovereignties that Busby identified from the very beginning of his tenure as British Resident. Indeed the Declaration’s use of the words ‘Congress’ and 535 Wheaton used these two terms (‘internal’ and ‘external’ sovereignty) in explaining the nature of the Ionian Protectorate, which Busby used as a model for his own proposal. See H Wheaton, Elements of International Law, R H Dana, ed, (Boston: Little, Brown & Co, 1866 (1836)), (http://books.google.co.nz/books, accessed 4 November 2009), para 35, ch 2, part 1.

536 See n 433 above.

537 See Busby’s speech to chiefs on his arrival, at n 125 above. Pat Moloney’s research confirms ‘a common comparison of Māori to the Anglo-Saxons of Britain’, see P Moloney, ‘Savagery and Civilization. Early Victorian Notions’, New Zealand Journal of History, vol 35, no 2, 2001, p 158.

181 ‘Confederation’ might have meant that Māori rangatira would retain their original local powers in relation to hapu. But if Māori were to stand on the world stage, then their independence had to be founded on a national or pan-tribal collective.

In Britain, Secretary of State Lord Glenelg acknowledged receipt of the Declaration and its contents. There was, however, no unequivocal statement that Britain acknowledged the Declaration as constituting an independent New Zealand state. The emphasis was rather on the relationship of support and protection which Britain could offer Māori. And even that might be qualified by ‘a due regard to the just rights of others and to the interests of H.M. Subjects’.538 To reiterate these points another way. Busby and most officials thought that full nationality or ‘sovereignty’ status depended on a viable national government. James Stephen’s third draft of Hobson’s instructions stated that ‘international relations’ could not be formed with New Zealand as it possessed no national government or ‘civil polity’.539 Normanby’s final instructions to Hobson qualified New Zealand as a ‘sovereign and independent state’ on identical grounds.540 In summary, the first question of this Tribunal Commission asked about the Declaration’s ‘international standing’. Busby clearly intended the Declaration to have an international effect – to forestall de Thierry. Yet it did not establish a sovereign state dependent entirely on itself. The NSW Governor and Council regarded the Declaration as ‘an approach towards a regular form of Government in New Zealand’.541 Furthermore, the Crown never formally assented to, or gazetted, the Declaration.542 Indeed, the second question posed by the Tribunal for this inquiry wrongly assumes that the Crown ‘signed’ the Declaration.

538 Glenelg to Bourke, [25] May 1836, No 5, CO 209/1, pp 268-270a.

539 CO 209/4, pp 226-227. See discussion of these complexities in chapter 4.

540 ‘…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’, cited in Palmer, Treaty of Waitangi, p 49, and quoted by Gipps in his address to the NSW Legislative Council on 9 July 1840. CO 209/6, p 280a.

541 McLeay to Busby, 12 Feb 1836, No 36/5, NSW Colonial Secretary, Outward Ltrs 1831-1836 [NSW 4/3523] NSW State Archives, Micro Z2710, NA, pp 513-517.

542 The Declaration would not have been ‘gazetted’ since the Crown was not a party to it. The first ‘official’ publication of the Declaration would appear to be in the evidence of Coates and Beecham before the House of Lords Select Committee 1838, see BPP 1837-38 (680), pp 245-246, IUP vol 1.

182 Issue 3: The effect of He Wakaputanga/ The Declaration 1835 ‘What then was the effect of He Wakaputanga/ The Declaration at 1835?’ Williams’ View At one level, Henry Williams probably considered that He Wakaputanga affirmed the mana or authority that rangatira already exercised as chiefs of hapū. At another level, given the French/ de Thierry threat, Williams would have seen sense in rangatira collaborating for mutual support and strength against foreign incursion and for internal order. From the written record, it is difficult to say to what extent the idea of national civil governance was understood and expressed the definite intentions of rangatira. Certainly there were no further Confederation hui or runanga at Waitangi until 5-6 February 1840 (and that could not be viewed as the yearly legislative hui envisaged by the Declaration).

Williams probably saw the fourth article as of equal importance than any of the others. It is possible that he had in mind the history of interchange between rangatira and England; that he thought the Declaration reinforced the alliance with Britain which began with Hongi and Waikato’s hui with King George IV in 1820. Williams and his CMS colleagues (perhaps with scribe Pare’s assistance) certainly expressed the fourth article in idiomatic Māori – in the language of parent and child. They possibly saw this article as bringing Britain’s protection closer.

Missionaries conceived the British monarch as a protecting parent. His/her protection reflected God’s greater parental protection. Only by being dependent on God could individuals and states be truly free or independent of sin. Similarly, Māori dependence on a British parent would ensure their rangatiratanga in a world being divided between rival European states.

Te Wiremu probably believed that the idea of a Māori Congress was a rational idea. Like Busby, he probably believed that its viability would depend on the support of British authority. His 183 advice to Busby about constructing a House of Assembly for the Confederation to meet demonstrated that he was thinking about the practicalities of a Māori government. His advice about te kara (the 1834 flag) and his involvement in preparations for the powhiri and hakari on Busby’s arrival, show that he walked in a Māori world in which symbol, ceremony, and hospitality were significant values.

Busby and Official Views

In 1836, the neutral ground of Busby’s Residency was stained with the blood of a Whananaki hapū after Te Hikutu’s surprise attack. Pākehā traders were implicated in the property dispute which led to this affray. In 1837, Busby witnessed the battle for Kororareka resume between Pomare and Titore and their allies. Other issues relating to land and trade arose between settlers and Māori.

These issues convinced Busby that te Wakaminenga would only have limited practical effect without the support of British governing institutions and a military force. Yet the British or NSW Governments never granted Busby the legal authority or practical means to enforce any law or prohibition that the Confederation might make.

From a twenty-first century standpoint it is easy to dismiss Busby’s talk of Māori tutelage in British ways as imperial paternalism, or as a pretext for acquiring British control of the country.

However Busby’s exact motivations are less important than his actual proposals and what they say about his worldview. His proposals were paternalistic. Yet this merely reflects his understanding of the appropriate relationship between a civilized British empire and a Māori tribal society that was in the early stages of becoming civilized. In this context ‘civilization’ meant almost entirely one thing – ‘Civil Government’. That is what Busby believed the British could offer Māori, in addition to the equally important process of Christian conversion.

Busby’s 1837 protectorate proposals for the tutelage of Congress (or te Wakaminenga) by British authority should be placed within the overarching master narrative of civilization that structured his worldview. Busby believed that societies could, over time, scale the ladder of civilization.

184 English society, and Scots society in quite recent history, had experienced such advances.

Equally, so could Māori society. Busby believed that in time Māori could become both ‘Jurymen’ and ‘Legislators’. Quite what the relationship would be, at that point, between te Wakaminenga and British authority is not clear from his protectorate proposals.

Captain William Hobson noted the very limited achievements or organization of the

Confederation in 1837:

At present, notwithstanding their formal declaration of independence, they have not in fact any Government whatsoever. Nor could a meeting of the Chiefs who profess to be the Heads of the United Tribes take place at any time without the danger of bloodshed.543 Disunited tribes remained vulnerable to manipulation by ‘turbulent individuals’, said Hobson.544 It was in this despatch that he proposed the ‘factory system’ for New Zealand, modelled on his Indian experience.

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