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

by Thomas Lindsay Buick

In the meantime, I assure the whole of the chiefs that it is the intention of the Government, most punctually and scrupulously to fulfil the terms and provisions of the treaty which was signed at Waitangi on the arrival of Governor Hobson. I have heard that some persons, evil disposed both towards the Queen of England and the Chiefs of this country, have told you that by your signing that paper you lost your lands. This I deny. By that treaty the protection of the Queen and your possessions are made sure to you. Your lands shall certainly not be taken from you without your consent. You can sell your lands to the Crown, or not sell them, just as you think proper, but, remember, that when once you do sell them, they must be promptly and justly given up.

The professions of the Government's good-will to the natives were renewed, they were told of the Queen's solicitation for their material, moral, and religious welfare, and once more assurances were given that equal justice would be meted out to both Maori and European, to which Tamati Waaka Nēne replied: "It is just."

As the result of this conference Grey felt that he could rely upon the loyalty of the friendly natives, and that this adhesion to the Crown grew out of the fact that they were, as the Governor expressed it in his Despatch, "Unanimous in desiring protection and support from the Government; that they were quite aware of the advantages conferred upon them by the annexation of New Zealand to the British Empire, and that the large mass of the inhabitants sincerely desired to see peace and tranquillity restored, so that the Government might be invested with that weight and authority which is essentially necessary to enable it properly to perform its functions."[182]

With the position of parties both in England and in the colony thus firmly determined, it appeared that the Treaty of Waitangi would now be accepted as the basis of a settlement of the colony's affairs; but these sanguine expectations were speedily doomed to disappointment. By one of those inexplicable revolutions which not infrequently occur in the wheel of political fortune, Sir Robert Peel's Ministry was ousted from office in the latter part of June. Lord John Russell came back to power, and Lord Howick, who in the meantime had succeeded his father as Earl Grey, became Chief Secretary for the Colonies in the new administration.

As Lord John Russell had so recently modified his views upon the subject of the Treaty of Waitangi as to admit of his saying that Maori rights in land narrowed down to territory "in actual occupation by them," the way had been cleared by which his Secretary for the Colonies might put into operation his pet theories for the nullification of the Treaty of Waitangi.[183] This opportunity came to him when it fell to his lot to prepare a new Constitution for the youngest of Britain's possessions.

New Zealand had now been a colony independent of New South Wales for the better part of five years, during which time, under the advantages of a more or less settled government, she had made phenomenal progress. So rapid had been her development, so steadily had her population increased, that in the opinion of many of her most influential Colonists the time had arrived when they should be invested with all the privileges of responsible government. With this democratic movement the Governor was in entire sympathy and aided the aspirations of the people by the weight of his influence. The implicit confidence which the Home authorities at this period placed in Grey's discretion doubtless led them to more readily acquiesce in the liberalisation of the Charter granted in 1840, and in conveying to the Governor the determination of Parliament, the Colonial Secretary explained that the necessity of a fundamental change from the position created when Captain Hobson was appointed had been insisted on by all parties to the discussion, there being an almost equally unanimous concurrence among them that the change should be in the direction of calling the settlers to participate much more largely in the business of legislation and local self-government. He accordingly enclosed on December 23 (1846) the Imperial Act, and the Royal Instructions which were to give effect to this determination.

The functions of a governor in a Crown Colony are many and various, and Grey's receipt of this Despatch was perhaps as picturesque as any event in his romantic life. There was insurrection at Whanganui—a reflex of Heke's rebellion in the north—whither Grey had gone to aid in its quelling, and he was watching from a hill-side a skirmish between the troops and the insurgents when the Chief Secretary's communication was handed to him. He sat down upon the grassy bank, and with the crack of rifles and the hiss of bullets ringing in his ears he calmly read the fateful document. What the Governor's feelings were when he perused the Charter we need not stay to enquire. Fortunately he had been given a discretionary power as to when it should take effect, and he did not wait long before he determined that its indefinite suspension was inevitable. Grey's brief experience in New Zealand, as well as his innate love of justice, had taught him to regard the Treaty of Waitangi as the sheet-anchor of the colony's settlement, upon the faithful observance of which it was alone possible to maintain peace with the Maori.

In two vital particulars the new Charter fatally traversed the treaty, and one can only marvel, in the face of the obvious meaning which attaches to the plain words of the compact, how any British Minister could satisfy himself with the sophistry indulged in by the Colonial Secretary. A cardinal omission was detected by the Governor in the fact that no provision was made for the representation of the Maori race in the contemplated Parliament, to which, as British subjects, they were entitled; but worse than all, Earl Grey had again promulgated his strangely perverted opinions upon the subject of native ownership of lands. The Charter was covered by a lengthy Despatch in which the Chief Secretary elaborated his views, and in order that those views may not suffer by condensation they are here quoted at length. After adverting to the manner in which the various heads of his instructions had been classified, he proceeds:

Believing that the instructions, as thus prepared,[184] will be found to convey their meaning perspicuously and completely, I abstain from any attempt to recapitulate or explain their provisions. I turn to other topics on which it seems indispensable that on the present occasion I should convey to you explanations, for which, of course, no appropriate place could be found in the legal instruments already mentioned. I advert especially to what relates to the aborigines of New Zealand and the settlement of the public lands in those Islands. I cannot approach this topic without remarking that the protracted correspondence to which it has given rise, the public debates and resolutions which have sprung from it, and the enactments and measures of your predecessors in the Government, have all contributed to throw into almost inextricable confusion the respective rights and claims of various classes of individuals amongst the inhabitants of New Zealand, to render very embarrassing the enquiry in which you must doubtless be engaged respecting the line of conduct which Her Majesty's Government expect you to pursue, and at the same time to make it almost impossible for us to determine with any confidence what that conduct ought to be, and how far, in a state of affairs so complicated, it is possible now to act upon the principles to which, in the absence of these difficulties, I should have prescribed your adherence. I will not attempt any retrospect of those documents and proceedings; I should be but adding to the perplexity which I acknowledge and regret. It will be my attempt rather to explain, as briefly as the nature of the subject admits, what is the policy which, if we were unembarrassed by past transactions, it would be right to follow, and which (so far as any freedom of choice remains to us) ought still to be adopted, regarding the right of property in land which should be acknowledged or created, more especially as affecting the aborigines of New Zealand.

I enter upon this topic by observing that the accompanying statute, 9th & 10th Vict., ch. 104, sec. 11, repeals the Australian Land Sales Act, as far as relates to the lands situate in New Zealand. Thus there is a complete absence of statutory regulation on the subject. The Queen, as entitled in right of her Crown to any waste lands in the colony, is free to make whatever rules Her Majesty may see fit on the subject. The accompanying Charter accordingly authorises the Governor to alienate such lands. The accompanying instructions direct how that power is to be used. I proceed to explain the motives by which those instructions have been dictated.