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

by Thomas Lindsay Buick

Only one question now remains to be discussed. In what relation did those chiefs stand to the Treaty of Waitangi who refused to sign it? It has never been contended that all the chiefs were invited to meet Captain Hobson at Waitangi, nor that all were solicited by his agents to sign the treaty, nor that all who were so solicited agreed to affix their signatures to the document. There was a residuum, which included some of the most powerful chiefs in the land, who either had no opportunity of subscribing their allegiance to the Crown, or who for reasons of their own held aloof. How were these non-participants affected by the compact?

This question was first raised in its practical application by Taraia, a Tauranga chief, who in December 1842 committed what is believed to have been the last act of cannibalism perpetrated in New Zealand. Taraia was not a signatory to the treaty, and the Government were sorely exercised as to whether they were justified in claiming jurisdiction over him. An effort had been made by the Aborigines' Protection Society in London to define the status of these independent chiefs, by submitting the question to Mr. Joseph Phillimore, an eminent English lawyer, and Mr. Phillimore had given them a qualified opinion that if there were any chiefs who had preserved their independence by refusing to become parties to the treaty, then such chiefs may not be bound by its obligations, and may be entitled to distinct and separate consideration. But clearly, in an abstract sense, there could be no such qualification to the unaltered status of these men. They were still chiefs of an Independent State so far as they were concerned, retaining inviolate their mana, and refusing to be compromised by the concessions made by their fellow chiefs.

The Government, then controlled by Captain Hobson, did not share even the qualified view entertained by Mr. Phillimore and those who thought with him. They presumed all natives of New Zealand now to be British subjects and determined that Taraia must be punished. This valiant determination was not, however, given final effect, not because the authorities were dubious of its justice, but because they had become uncertain as to its practicability; so much so that they subsequently deemed it prudent to limit their interference to a warning to that chief, that he might expect to incur the anger of the Governor upon a repetition of his offence. In Taraia's case this reprimand was sufficient to quiet him, but only a few months later Tongoroa, another Tauranga chief, made war upon his neighbours, and the sore which looked as though it had healed was suddenly reopened. Lieutenant Shortland, who had now assumed the post of Acting-Governor, proceeded to Tauranga to arrest the disturber of the peace, but before the apprehension could be effected his accumulating difficulties were further increased by an unexpected communication from Mr. Clarke, the chief Protector of the Aborigines, and Mr. Swainson, the Attorney-General. Both these gentlemen had previously endorsed the contemplated arrest of Taraia, but to the amazement of the Acting-Governor they informed him that more mature reflection had caused them to reverse their opinion, and that they now considered the arrest of Tongoroa would be illegal.

Hurrying back to Auckland, Shortland called a meeting of his Council, and there sought some enlightenment as to this new view-point of the Maori status under the treaty. Amongst those consulted was necessarily Mr. Clarke, the erstwhile Missionary, and now Chief Protector of the Aborigines, whose close and constant intercourse with all the tribes gave him the most favourable facilities for gauging the strength and direction of the native aspirations. In the course of his examination Mr. Clarke was asked:

(1) Do the natives who signed the Treaty of Waitangi acknowledge themselves to be British subjects?

To which he replied:—The natives who signed the Treaty of Waitangi, having been solemnly assured by Her Majesty's representative, the late Captain Hobson, that they should in the fullest sense of the term be entitled to all the privileges of British subjects, consented to be considered as such, with a full understanding that their allegiance depended upon the British Government fulfilling their engagements in that treaty.

(2) How far, and to what extent, do the various tribes in New Zealand acknowledge the Queen's sovereignty?

To this Mr. Clarke's answer was:—The natives alone who signed the treaty acknowledge the Queen's sovereignty, and that only in a limited sense. The treaty guaranteeing their own customs to them, they acknowledge a right of interference only in grave cases, such as war and murder, and all disputes and offences between themselves and Europeans, and hitherto they have acted on this principle. The natives who have not signed the treaty consider that the British Government, in common with themselves, have a right to interfere in all cases of dispute between their tribes and Europeans, but limit British interference to European British subjects.

(3) In your communications with the natives, have you asserted that they are British subjects, and the right of the Government to interfere with them as such? and (4) On making that assertion how far has it been acquiesced in?:—In all my communications with the natives I have been instructed to assert, and have always asserted, that they are British subjects, and amenable to British authority, in which very few, even those who signed the treaty, would acquiesce, save in matters relating to disputes or depredations upon each other (viz. differences between Europeans and natives).

(5) If the Government were to admit that any tribe or tribes of New Zealanders were not British subjects, and were not amenable to the laws, what effect do you think that admission would have on the peace and future colonisation of the colony?:—The admission that the tribes of New Zealanders were not amenable to British law, would, I am apprehensive, be destructive to the interests of the natives and the prosperity of the colony. It would be made use of by designing men to embarrass the Government, to embroil the natives with each other and with the Government, which must be alike injurious to both. Her Majesty's Government having seen fit to colonise New Zealand, it is now an act of humanity to both natives and Europeans to consider the whole of the tribes of New Zealand as British subjects, and to use every honourable and humane means of getting the tribes universally to cede the sovereignty where it has not been ceded.