The Treaty of Waitangi; or, how New Zealand became a British Colony

"We have not," he wrote, "thought proper, hitherto, to advert to the Treaty of Waitangi except incidentally. But as we observe that it has occasionally been dwelt upon by your Lordship as being of some importance to the view taken by you in opposition to our claims, it is well that we should not quit the subject without remarking that your Lordship appears always to speak of that treaty as bearing on the entire claim of the Company. Now, your Lordship ought to be apprised of the fact that the Treaty of Waitangi itself applies to no part of the vast extent of country over which we claim the right of selection. The chiefs who signed the treaty neither could, nor did, pretend to cede anything but the northern corner of the Northern Island. Subsequently, it is true, Captain Hobson procured the accession to the treaty of chiefs further south. But the alleged accession of the chiefs within the limits of the Company's possessions in the Northern Island rests merely on evidence far too slight and loose to be taken as establishing a fact of such grave public character; at any rate, half at least of the 20,000,000 affected by our claim lie in the Middle (South) Island; and the Middle and Stewart's Islands, it is obvious, cannot be affected by the Treaty of Waitangi, inasmuch as Her Majesty's title to them was 'asserted' on the grounds of discovery without pretence to any treaty or cession."

This attempt to mislead the Minister by a flagrant disregard for the proceedings of Major Bunbury and all that those proceedings implied, was unfortunately but too characteristic of the methods pursued by the Company at this time, whose officers had now developed a dexterity in conjuring with facts against the subtlety of which the Minister could not too jealously guard the public interests.

To the equivocal attitude adopted by the Company Lord Stanley replied through his Under-Secretary, Mr. Hope, in one of the noblest passages ever penned by a British Minister, – a passage in which he sternly refused to sacrifice official integrity to mere commercialism or national honour to ambitious personal ends:

"Lord Stanley," wrote Mr. Hope, "is not prepared, as Her Majesty's Secretary of State, to join with the New Zealand Company in setting aside the Treaty of Waitangi, after obtaining the advantages guaranteed by it, even though it might be made with 'naked savages,' or though it might be treated by lawyers as 'a praiseworthy device for amusing and pacifying savages for the moment.' Lord Stanley entertains a different view of the respect due to the obligations contracted by the Crown of England, and his final answer to the demands of the New Zealand Company must be that, so long as he has the honour of serving the Crown, he will not admit that any person, or any Government acting in the name of Her Majesty, can contract a legal, moral, or honorary obligation to despoil others of their lawful and equitable rights."

Foiled in their efforts to induce the Colonial Minister to award them the full measure of their enormous claim without question or enquiry, the Company then preferred a claim for compensation against the State on the grounds that the policy of the Colonial Office and the proceedings of the Government in New Zealand had brought them to the verge of financial ruin. Still powerful in the House of Commons they were able to exert considerable influence there, and in April 1844 a Select Committee was set up, with Lord Howick, now one of the Company's warmest friends, as Chairman, and an order of reference which authorised them "to enquire into the State of the Colony of New Zealand, and into the proceedings of the New Zealand Company."

The Committee sat until July, taking voluminous evidence from many persons who had some previous knowledge of the country, and when they met to formulate their report it was found that they were sharply divided on material points. A section of the Committee, led by Messrs. Cardwell and Hope, Lord Stanley's Under-Secretary, endeavoured to so frame the report as to make amongst others the following acknowledgments:

That from the time of the discovery by Captain Cook to the beginning of the year 1840, the independence of New Zealand had never been questioned by this country, and in 1832 was recognised by the British Government in a very peculiar and formal manner.

That the urgent applications made by private individuals from time to time to the Colonial Office for the adoption of these islands as a British colony, were reluctantly acceded to by the British Government in 1839, with a view to preventing the evils arising and apprehended from irregular and unauthorised settlement.

That this adoption was effected in the early part of 1840 by an agreement called the Treaty of Waitangi, made by Captain Hobson with upwards of 500 chiefs and other natives, claiming and admitted on the part of this country, to represent the whole population, so far as regarded the Northern Island; while the other islands, which contained no population capable of entering into anything resembling a civil contract, were assumed to the British Crown by the right and title of discovery.[176 - Both sides of the Committee appear to have disregarded Major Bunbury's proceedings, not because they had no constitutional value, but probably because they were not sufficiently posted in the facts.]

That this treaty was made by Captain Hobson in pursuance of instructions previously received from Home, and that his proceedings obtained the subsequent approbation of the Government.

That the natives ceded to the Queen the sovereignty of the Northern Island, and the Crown secured, in return, to the chiefs and tribes of New Zealand, and to the respective families and individuals thereof, the full, exclusive, and undisturbed possession of their lands and estates, forests, fisheries, and other properties, which they may collectively and individually possess, so long as it is their wish and desire to retain the same in their possession.

That this treaty is binding, in conscience and policy, on the British Government and is highly valued by the native tribes.

That although the laws and usages of the natives with regard to the possession of and title to land are very obscure and complicated, yet evidence has been adduced to the Committee showing that these laws and usages are in some sense recognised by the natives, as well among themselves as in reference to European purchasers, and many instances have been proved in which they have voluntarily and fully recognised European titles.

That while it appears highly probable that much of the soil of New Zealand will ultimately rest in the British Crown, as land to which no proprietary title of any kind can be established by an individual, or by any tribe, yet it is impossible, by any fair construction of the treaty, to limit the native claims either to the pas or to the grounds in actual cultivation by the natives at any particular time.

That any attempt to carry out in practice any such construction must alienate the natives from every feeling either of confidence or affection towards the British Government, and would probably lead to conflicts of a sanguinary character, or even to an exterminating warfare between the races, for which the British power in these Islands is at present wholly inadequate and unprepared.

That it is not expedient to increase the military force in the colony, at great expense, for a purpose unjust in itself, and tending to retard the peaceful settlement of the colony and the civilisation of the native race.

These recommendations of Mr. Cardwell, which also largely reflected the opinions of the Government, were energetically opposed by Lord Howick and his friends, who put forward a counter series of suggestions, which just as strongly reflected the views and aspirations of the New Zealand Company, particularly upon the crucial point that no acknowledgment should be made of any proprietary rights on the part of the natives in the unoccupied lands of New Zealand. They affirmed amongst other things:

1. That the conclusion of the Treaty of Waitangi by Captain Hobson with certain natives of New Zealand, was a part of a series of injudicious proceedings which had commenced several years previous to his assumption of the local Government.

2. That the acknowledgment by the local authorities of a right of property on the part of the natives of New Zealand in all wild lands in those Islands, after the sovereignty had been assumed by Her Majesty, was not essential to the true construction of the "Treaty of Waitangi," and was an error which has been productive of very injurious consequences.

3. That means ought forthwith to be adopted for establishing the exclusive title of the Crown to all land not actually occupied and enjoyed by natives or held under grants from the Crown, such lands to be considered as vested in the Crown for the purpose of being employed in the manner most conducive to the welfare of the inhabitants, whether natives or Europeans.

When the Committee was asked to determine which of these two rival reports it would adopt, it was found that opinion was evenly divided, but on a division being taken Lord Howick succeeded in defeating his opponents by the narrow majority of one vote, the voting being as follows upon the question proposed by Mr. Roebuck: "That the Committee now proceed to the consideration of the resolutions proposed by the chairman as the basis of the report."

Ayes – 7.

Mr. Milnes.

Mr. Roebuck.

Mr. Hawes.

Mr. Aglionby.

Mr. Charteris.

Lord Francis Egerton.

Lord Ebrington.

Noes – 6.

Mr. Hope.

Mr. R. Clive.

Mr. Cardwell.

Lord Jocelyn.

Sir Robert Inglis.

Mr. Wilson Patten.

In vain did Mr. Hope endeavour by moving amendments to induce the Committee to adopt a view of the Treaty of Waitangi more favourable to the natives, but through the divisions of several days the Company held its majority, and on July 23 the Committee agreed to the draft report proposed by Lord Howick, and which was based on the resolutions previously approved. When this report was laid before the House of Commons it was found that the Committee had traversed the policy adhered to by the Melbourne and the Peel Governments in its interpretation of the Treaty of Waitangi, and that they had taken the responsibility of declaring that:

The evidence laid before your Committee has led them to the conclusion that the step thus taken (the promotion of the Treaty of Waitangi), though a natural consequence of previous errors of policy, was a wrong one. It would have been much better if no formal treaty whatever had been made, since it is clear that the natives were incapable of comprehending the real force and meaning of such a transaction, and it therefore amounted to little more than a legal fiction, though it has already in practice proved to be a very inconvenient one, and is likely to be still more so hereafter. The sovereignty over the Northern Island might have been at once assumed without this mere nominal treaty, on the ground of prior discovery, and on that of the absolute necessity of establishing the authority of the British Crown for the protection of the natives themselves, when so large a number of British subjects had irregularly settled themselves in these Islands, as to make it indispensable to provide some means of maintaining good order amongst them. This was the course actually pursued with respect to the Middle and Southern Islands, to which the Treaty of Waitangi does not even nominally extend, and there is every reason to presume that, owing to the strong desire the natives are admitted to have entertained for the security to be derived from the protection of the British Government and for the advantages of a safe and well-regulated intercourse with a civilised people, there would have been no greater difficulty in obtaining their acquiescence in the assumption of sovereignty than in gaining their consent to the conclusion of the treaty, while the treaty has been attended with the double disadvantage: first, that its terms are ambiguous, and in the sense in which they have been understood highly inconvenient; and next, that it has created a doubt which could not otherwise have existed, which, though not in the opinion of your Committee well founded, has been felt and has practically been attended with very injurious results, whether those tribes which were not parties to it are even now subject to the authority of the Crown.

Your Committee have observed that the terms of the treaty are ambiguous, and in the sense in which they have been understood, have been highly inconvenient; in this we refer principally to the stipulations it contains with respect to the right of property in land. The information that has been laid before us shows that these stipulations, and the subsequent proceedings of the Governor, founded upon them, have firmly established in the minds of the natives notions which they had but then very recently been taught to entertain, of their having a proprietary title of great value to land not actually occupied, and there is every reason to believe that, if a decided course had at that time been adopted, it would not have then been difficult to have made the natives understand that, while they were to be secured in the undisturbed enjoyment of the land they actually occupied, and of whatever further quantity they might really want for their own use, all the unoccupied territory of the Islands was to vest in the Crown by virtue of the sovereignty that had been assumed.

The findings of the Committee were thus so radically opposed to the established views of Lord Stanley upon the construction to be placed upon the treaty, that the Minister refused to countenance them in any way, or to ask the House of Commons to become a party to a policy which, had it been enforced, would inevitably have led Britain into one of her little wars, as inglorious as it would have been unjust.[177 - In October 1845, Governor Fitzroy wrote to Lord Stanley: "I cannot believe that those most dangerous resolutions of the House of Commons (Committee) in 1844 respecting unoccupied land, can be adopted by Her Majesty's Government, but if such should be the fatal case, the native population will unite against the settlers and the destruction of the colony as a field for emigration must result."]

In transmitting a copy of the Committee's report to Governor Fitzroy, the Chief Secretary stressed in his Despatch of August 13 (1844) the narrow margin of votes by which the report had been adopted, and emphasised the high moral principle that it was still the duty of both the Governor and himself to administer the affairs of the colony "with a due regard to a state of things which we find, but did not create, and to the expectations founded, not upon what might have been a right theory of colonisation, but upon declarations and concessions made in the name of the Sovereign of England." The power of Parliament was, therefore, not invoked to aid the Company in evading its just obligations to the natives. Their land claims were still to be the subject of searching enquiry by the Chief Commissioner, Mr. Spain, and for the moment the Treaty of Waitangi was vindicated by the steadfastness of the Colonial Minister. But the battle was not over, the scene of the conflict only was changed. On June 17, 1845, Mr. Charles Buller, then representing Liskeard, and whose long association with Lord Durham and Mr. Gibbon Wakefield had more than once brought him into prominence in New Zealand affairs, sought to induce the Commons again to discuss both the policy and administration of the colony on the floor of the House. Then ensued the historic debate, during which New Zealand achieved the distinction of claiming the exclusive attention of Parliament for three consecutive nights.

It would be superfluous to recapitulate here the speeches delivered during this memorable discussion, embodied as they are in the records of the nation; it is, however, worthy of passing remark that for the sake of some party advantage several prominent members, notably Lord John Russell, chose to reverse all their previous professions on the subject of the Treaty of Waitangi, and threw the weight of their influence into the scale against the just recognition of the rights of the New Zealand natives. Well might Rusden exclaim: "On what plea could the Whigs abandon the construction put upon the treaty by their own leaders who made it?"

A division being taken, Mr. Buller's motion was defeated, and on receipt of this intelligence Governor Fitzroy[178 - Vide his letter to Archdeacon Henry Williams, November 11, 1845.] wrote with perfectly natural elation to Henry Williams: "Let me congratulate you on the result of the three nights' sharp debate in the House of Commons on New Zealand. The Company were beaten by fifty-one votes, the integrity of the Treaty of Waitangi being thus secured against all their infamous endeavours, for that was the point at issue."

While the events thus far narrated in this chapter had been evolving from the lap of time, Governor Hobson had died,[179 - Governor Hobson died at 12.15 A.M. on September 10, 1842, at Auckland. Amongst a large section of the Northern Maoris the belief was current that he had been makutaed (bewitched) by an old tohunga (priest) at a banquet, the tohunga being instigated by the section of natives who were opposed to the treaty.] and had been buried at Auckland. Lieutenant Shortland's brief term of administration had been darkened by the Wairau Massacre, the first fruit of the contempt shown by the Wakefields for the landed rights of the natives. His successor, Governor Fitzroy, had long since been driven to distraction by the machinations of the Company and the failure of the Home authorities to give him needful support in either men or money. The crowning disaster of his administration was the attack upon the town of Kororareka at daylight on March 11, 1845, by Heke and Kawiti. The House of Commons had been ignorant of this happening when it had debated Mr. Buller's motion in the previous June, but when the ominous tidings reached England in July, that wary gentleman sprang once more alertly to the attack by moving: "That this House regards with regret and apprehension the state of affairs in New Zealand; and that those feelings are greatly aggravated by the want of any sufficient evidence of a change in the policy which has led to such disastrous results."

This debate was not less acrimonious than its predecessor, for not only was Lord Stanley attacked, but Mr. Stephen, the permanent head of the Colonial Department, was assailed with equal virulence. Stanley had ere this removed to the House of Lords, and Stephen was precluded by virtue of his position from defending himself. But for these two men, as well as for the honour of the nation, Sir Robert Peel stood in stalwart defence. He told the House that he was not enamoured of the policy which had resulted in the consummation of the Treaty of Waitangi. For his part he candidly admitted that in his opinion it was a mistake, but since the treaty was an indisputable political fact, its obligations must not be violated. Lord Melbourne's Government, he said, had with a full sense of their responsibility, entered into the compact and England was unquestionably bound by it.[180 - In the previous debate Sir Robert had said: "If ever there was a case where the stronger party was obliged by its position to respect the demands of the weaker it was the engagements contracted under such circumstances with these native chiefs."]

In vindication of Lord Stanley he declared that the real purpose behind Mr. Buller's motion was an insidious desire to unjustly censure his Minister for avowing his determination to carry honourably into effect the treaty made by his predecessor. Then reverting to the land question he continued: "After all the volumes of controversy which have appeared, the question really resolves itself into this: Shall the Government undertake to guarantee in this country, within certain limits in New Zealand, a certain amount of land without reference to the rights to that land vesting in the natives? This I tell you distinctly we will not do, and if the House entertains a different opinion, it is but right that it should give expression to it. We will not undertake, in the absence of surveys and local information as to the claims of the natives, to assign to you a million, or any other number of acres, and dispossess the natives by the sword."

In concluding he again entered upon a vigorous defence of his Colonial Minister, declaring his continued confidence in Lord Stanley in the following resolute words: "I will not do that which the New Zealand Company seem to think I might do – undertake to supersede a Minister who I believe has discharged his official duties with almost unexampled ability, and with a sincere desire to promote the interests of every colony over which he now presides."

Influenced by the Premier's strenuous advocacy, the House again rejected Mr. Buller's motion on July 23, but the friends of the Company derived some comfort from the knowledge that a despatch had been sent recalling Governor Fitzroy, who, in his anxiety to restore the bankrupt finances of the country, had disregarded the Royal instructions, and instituted a local currency as well as having taken the more serious responsibility of varying the inflexible policy of the Government by waiving the pre-emptive right of the Crown[181 - Vide his Ordinance of March 26, 1844. For an able justification of this measure the reader is referred to Mr. George Clarke's Final Report, 1846, the manuscript of which is in the Hocken Collection at Dunedin. The pre-emptive right was finally abrogated in the Native Land Act of 1862.] to purchase land from the natives, in the hope of removing the growing discontent and of enhancing the revenue from increasing sales.

Defeated in Parliament, the Company's next proceeding was almost humorous in its hysteria. They procured an opinion from Mr. William Burge, in which that gentleman averred, on his reputation as a lawyer, that the British occupation of New Zealand was from the beginning unlawful, and based upon no sound constitutional foundation. This remarkable document they transmitted to Lord Stanley on July 7, in the hope that he would be so awed by it as to cause him to considerably modify the instructions which they were convinced he would, in his normal frame of mind, most certainly tender to Captain Grey, whom he had selected to succeed Governor Fitzroy. Lord Stanley was made of different stuff. He suffered no particular trepidation from Mr. Burge's startling discovery, but merely sent his opinion on to Fitzroy Kelly, Attorney-General, Sir Frederick Thesiger, Solicitor-General, and to Sir Thomas Wilde, who had been the Attorney-General in Lord Melbourne's Cabinet when Captain Hobson was sent out to negotiate the Treaty of Waitangi. These gentlemen averred with equal confidence that neither the reasons advanced by Mr. Burge, nor any other considerations which had occurred to them, furnished them with any well-founded doubt upon the question of Britain's sovereignty in New Zealand.

Reinforced by the opinion of this eminent trio, Lord Stanley sent a copy to the new Governor, telling him to be guided by it in his conduct, at the same time instructing him that if the Company attempted to make capital in the colony out of Mr. Burge's pronouncement, he was to counter the move by giving equal publicity to the joint opinion of the three legal advisers of the Crown.