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

by Thomas Lindsay Buick

(6) Supposing that we should treat as British subjects, by force, those tribes, who have uniformly refused to cede the sovereignty to Great Britain, should we be keeping faith with the principles we professed when we originally negotiated for the cession of the sovereignty?:—In treating those tribes as British subjects by force who have refused to cede the sovereignty to Great Britain, would not only be considered by the natives as a breach of faith with the principles originally professed when negotiating for the sovereignty, but would, I am apprehensive, lead to a destructive war, and although the result would be destructive to the native race, it would be inglorious to the British Government, and at variance with the designs of Her Most Gracious Majesty in adding this interesting people and country to her Dominions.

From the Protector of the Aborigines who only pretended to interpret Maori opinion as he gleaned it in his progress through their pas and settlements, the Executive turned to their Attorney-General, Mr. Swainson, for his more recent interpretation of the position as it appealed to the trained mind of a jurist, and Mr. Swainson only put into less direct language the pronouncement of Wiremu Tamihana, the King Maker, who during the hey-day of the King movement scorned the authority of the Queen over his land: "I am chief of Ngati-Haua, which is an independent tribe. My father, Te Waharoa, was chief before me. Neither he, I, or any of my people signed the treaty, therefore we are not bound by it." Mr. Swainson's opinion was as follows:

From the evidence given before the Council by the Protector of the Aborigines (Mr. Clarke), it appears that, as I have already stated, there are numerous tribes who have not ceded their sovereign rights to the Queen, and who do not yet acknowledge her sovereign authority. For the reasons already given, I think it would be consistent neither with justice nor with the principles we professed, viz. that we came here to treat for and not to assume sovereignty, to treat those tribes in all respects as British subjects, and to impose upon them our penal code; in this opinion, also, the Protector's opinion coincides. I am also of opinion that so numerous are these tribes, and many of them so distant, that were we disposed to do so we have not the power. At the same time, I am persuaded that the benefits of British protection, and the laws administered by British judges, would far more than compensate the natives for the sacrifice of their independence. These benefits, however, I am equally persuaded, can only be obtained on the voluntary surrender by them of their own sovereign rights, and on their "free and intelligent" submission to British authority. To subjugate them would require a large armed force; but by the employment of persuasion, the influence of example, and the general spread of civilisation among neighbouring tribes, there is ground to expect that they will gradually submit themselves to the operation of British laws. To constantly point out to them the benefits they will derive from doing so, and to impress upon them, to use the language of the Secretary of State, the impossibility of Her Majesty's extending to them an effectual protection unless the Queen be acknowledged as the Sovereign of their country, or at least of those districts within, or adjacent to which Her Majesty's subjects may acquire land or habitations "is the course, I believe, to be most calculated to effect the object of establishing an absolute sovereignty over the whole country."

Though doubtless giving to these expressions of opinion the respectful consideration which was their due, the Acting-Governor decided to assume the responsibility of setting them aside, and following the dictates of his own judgment. To him it seemed that it would be fatally weak to admit in the practical administration of the country the nice line of distinction drawn by the Attorney-General or subscribe to the opinion expressed by Mr. Clarke, "that every honourable and humane means should be used to prevail on tribes to cede the sovereignty where it has not been ceded," as in his judgment this would have been an over-ready admission that they were beyond the pale of the British Crown, and no more effectual means could have been adopted of disseminating the harmful acknowledgment. The troops were accordingly sent to Tauranga, but no arrests were made. Here prudence again prevailed and the officer in charge was instructed only to employ the soldiers "in the general preservation of peace." When these proceedings were reported in due course to Lord Stanley, he warmly endorsed the view adopted by Lieutenant Shortland[191] and as warmly censured Swainson, who was told in the plainest terms that he could not be permitted to entertain the views to which he had given expression, and hold a public office at the same time.

As a matter of abstract reasoning, Lord Stanley was probably wrong, as a matter of practical administration he was probably right, but the correctness of his attitude depended for its success upon the tactfulness of its application. Fortunately New Zealand has, in the main, been blessed with administrators of wide sympathies, and a paternal parliament has generally, though not always given the native race the most indulgent exposition of the treaty. Mistakes may have been made, misapprehensions may have occurred, even technical breaches of the treaty may have been committed, but since the administration of native affairs was handed over to the Colonial Government in 1863 there have been but few instances of flagrant violation of native rights. Prior to this date the care and control of the Maori still vested in the Imperial authorities, even after representative institutions had been granted to the country; and while that condition lasted there was, unhappily, an all too frequent clashing of the two races. With one or two exceptions these conflicts had a common origin in an over-anxious desire on the part of the Europeans to become possessed of native land, as opposed to the deep-founded pertinacity with which the chiefs clung to their ancestral domains. The first of these exceptions was the insurrection of Hone Heke in 1845, which was not in its inception a dispute regarding land, but an undisguised protest against the exercise of the Queen's sovereignty. Land did ultimately play its complicating part in the disruption, but in its initial stages it was the revolt of a volatile man who felt the treaty had carried him further than he intended it should lead him; it was the protest of an ambitious chief who loved notoriety as much as he loved his independence. Heke fell upon what now appears to have been the weak point in Hobson's negotiations; that while he may have, and doubtless did, convey to the natives a clear enough idea of what was meant by the sovereignty of the Queen, he does not appear to have taken sufficient care to explain with any detail what its possible effects might be. Assuredly he was not endowed with such a mental vision as to foresee all that was to happen, nor to conjure up within his mind all the changes that were inevitable in evolving a State from a condition of barbarism to one of civilisation. One thing, however, must have been obvious both to him and to those who were associated with him, that no government could be organised and carried on in a new country without a revenue adequate for all its varied purposes. Under Lord Normanby's instructions funds were to be temporarily provided from New South Wales, but the permanent revenue was to be raised within New Zealand itself, of which a large part, it was hoped, would be derived from the sale of land. Other sources of income in the way of customs duties and taxation in varied forms must also have been in contemplation, but we have no evidence that Captain Hobson ever took occasion to explain to the people that sovereignty would cost them something; that revenue which had been falling into the hands of the chiefs would be diverted into the coffers of the State, and that with the surrender of their independence they must also surrender the levies which they had been making upon the whalers.

It is conceivable that had this surrender of a means to opulence been clearly contemplated by the chiefs as a part of the colonising scheme those at the Bay of Islands would have been the more easily reconciled to it by the natural expectation that even larger sums would be flowing in to them from the sales of land. If these anticipations ever existed they were doomed to disappointment, for instead of entering upon an active campaign of land-buying the Governor suspended the purchases he should have made, and wasted his money on a site for a town, while the rigid enforcement of the pre-emptive right acquired by the Crown closed the market against the buyers of open country lands. This restriction was felt to be not without its element of injustice; for upon a more critical examination of the terms of the treaty it was found that though the Crown claimed the exclusive right to extinguish the native title, nothing had been determined as to the price to be paid or as to the time within which the purchase should be made. Thus, chiefs like Heke, who had been in receipt of substantial sums by way of anchorage money from the shipping found their perquisites appropriated by the State, while they derived no compensating benefit from the sale of land.

The first flush of disappointment which surged within the breast of Heke as he contemplated the unexpected effects of the new power was fed by the angry adventurers and thwarted speculators, who, in their chagrin at the interception of their schemes, had no compunction in inciting him to a course which ultimately led to a declaration of hostility against the Queen and to open war against the Crown.

Not so the Waitara war of 1860, which found its origin not so much in a desire to violate the treaty, as in a blundering endeavour to observe its most important provision. The taking up of arms by Wiremu Kingi was not in its spirit rebellion against the Queen's sovereignty, but a reply to the Governor's attempt to divest him of his rights by insisting upon purchasing land from one whom Wiremu contended could not by any application of native law be constituted the owner. There was on the part of the natives the greatest reluctance to resort to arms, their desire being to test the disputed point of ownership before a properly constituted Commission; but when these overtures were rejected and the Governor held on his headstrong way, they felt there was no course compatible with their high-strung sense of dignity, but to refer the momentous issue to the final arbitrament of war. The story of the Waitara campaign is too well known to need recapitulation here, but in the opinion of many of those skilled in the intricacies of Maori land tenure it was a blunder of the first magnitude, for which Governor Gore-Browne, and not the Colonial Parliament was wholly responsible. If, then, the war was unjust, the confiscation of native land which followed upon the suppression of what was called rebellion was branded with the same injustice.

And just as one wrong perpetuates itself in the form of others, this confiscation has ever since burned deep into the hearts of the Taranaki natives, and led in the early eighties to what is known as the Te Whiti movement. Like his predecessor, Wiremu Kingi, Te Whiti was a much-misunderstood man. For this state of misconception he may have himself been largely accountable, for as a concession to the Maori love of the mysterious he so combined religion with his politics, and dealt so freely in the mystic, that it was frequently difficult to separate intangible prophecy from the things that really mattered in his material policy. But shorn of all its grotesqueness the movement which centred round the Parihaka prophet and his uncle Tohu was not a repudiation of the Treaty of Waitangi, nor was it a revolt against the authority of the Queen. At its base lay the grievance, or the fancied grievance, which was before them every day in the shape of the confiscated lands. There upon the wide Waimate Plains they saw European homesteads whose occupancy was in their eyes a crime against Maori rights. Te Whiti felt he had two things to do. He had to assert his right to those lands, and he had to agitate for justice. He accordingly sent his faithfuls to plough up the fields of the farmers and the lawns of the settlers, in the mistaken hope that he would be able to force the issue before a competent tribunal and there determine who had broken the treaty—the Maori or the Pakeha.

The Government of that day saw things differently. They had no desire to exhume the remains of past mistakes with a possibility of being called upon to repair them at a cost of much treasure and more dignity. They preferred to stand upon the settled policy of their predecessors, and instead of sending a Commission to discover what was at the back of the prophet's mind, they sent troops and took him prisoner. Te Whiti may have been a dreamer, he may have been a babbler of vain things, but he was never a rebel, nor the maker of rebels; but for saying "I love my land" he was legislated into rebellion, and made to appear as a criminal.