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

by Thomas Lindsay Buick

This letter Captain Hobson acknowledged with becoming courtesy, and promised that as, under existing circumstances, no question could arise respecting the sovereign rights of Her British Majesty over every part of the colony of New Zealand, he would willingly forego the exhibition of any authority that could have a tendency to weaken Captain Lavaud's influence over the minds of his countrymen. He would therefore not display the British flag or publish any proclamation at Akaroa, unless some pressing and unforeseen event should render such measures necessary.[166]

Fortunately no such exceptional circumstances did arise before the formal acknowledgment was made by France, and in the following November Hobson, when penning his despatch to the Home authorities, was able to assure them that Captain Lavaud's attitude had been consistent throughout; that he had frankly disclaimed any national intentions on the part of his Government, but had vigilantly supported the claims of the French emigrants as private individuals. As a matter of fact, since he had satisfied himself as to the validity of Britain's pretensions, Captain Lavaud had taken up the position that he was in these waters for no other purpose than to see his countrymen peaceably settled on the estate of 30,000 acres to which the Nantes-Bordelaise Company believed they had secured a title by one of those loose transactions so common in the history of New Zealand. He was determined to preserve the peace until he should be instructed to make war.

But had his intentions been other than peaceable, Captain Hobson's precautions in sending Magistrates to Akaroa could not have made the British title more secure than it already was. The Treaty of Waitangi was a compact such as no civilised nation could, or would ignore, and when Major Bunbury, by virtue of that treaty, hoisted the British flag at the Cloudy Bay pa on June 17, 1840, he put the sovereignty in the South Island beyond all question of doubt until it could be wrested from Britain by force of arms.

The most that can be said for the sudden despatch of the Britomart to Akaroa, and the proceedings of her Captain and his associates there, is that the presence of British authority on the Peninsula may have prevented the growth of any false ideas concerning national interests in the minds of the emigrants, and so obviated possible friction at a later date. In no sense did it give anew to Britain a right that had already been ceded to her by the only people who were capable of ceding it—the natives. That the official mind of France had no delusions on this point was demonstrated during the discussion which engaged the Chamber of Deputies after the receipt of Captain Lavaud's despatch, when M. Guizot, as Foreign Minister, maintained in the face of the sharpest opposition that the British proclamation read at Cloudy Bay determined by the highest principles known to nations in whom the right of sovereignty lay.

It is both interesting and instructive to observe that during this debate M. Guizot declined to seriously discuss the proclamation issued by Captain Hobson on May 21, declaring the Queen's sovereignty over the South Island, "by right of discovery," although the point was warmly pressed by MM. Billault and Berryer. Captain Hobson had always favoured this mode of dealing with the South Island, he being under a grave misapprehension both as to the number and character of the natives residing there. Before he left England he felt that his instructions were meagre in this regard, and in seeking more explicit direction from the Chief Secretary of State he drew the attention of Lord Normanby to what he regarded as a material distinction between Britain's position in the two Islands. In August (1839) he wrote to his Lordship:

The first paragraph (of the original instructions) relates to the acquisition of the sovereign rights by the Queen over the Islands of New Zealand. Under this head I perceive that no distinction is made between the Northern and Southern Islands, although their relations with this country, and their respective advancement towards civilisation are essentially different. The Declaration of Independence of New Zealand was signed by the United chiefs of the Northern Island only (in fact only of the Northern part of that Island) and it was to them alone that His late Majesty's letter was addressed on the presentation of their flag; and neither of these instruments had any application whatsoever to the Southern Islands. It may be of vast importance to keep this distinction in view, not as regards the natives, towards whom the same measure of justice must be dispensed, however their allegiance may have been obtained, but as it may apply to British settlers, who claim a title to property in New Zealand as in a free and independent State. I need not exemplify here the uses that may hereafter be made of this difference in their condition; but it is obvious that the power of the Crown may be exercised with much greater freedom in a country over which it possesses all the rights that are usually assumed by first discoverers, than in an adjoining State which has been recognised as free and independent. In the course of my negotiations, too, my proceedings may be greatly facilitated by availing myself of this disparity, for with the wild savages in Southern Islands, it appears scarcely possible to observe even the form of a treaty, and there I might be permitted to plant the British flag in virtue of those rights of the Crown to which I have alluded.

A Section of the Treaty Signatures.

To this Lord Normanby replied that Captain Hobson had correctly interpreted his instructions when he limited his Lordship's remarks concerning the independence of the New Zealanders to the tribes inhabiting the Northern Island. His knowledge respecting the Southern Island was too imperfect to allow of his laying down any definite course of action to be pursued there. If it were really as Captain Hobson supposed, uninhabited, or peopled only by a small number of tribesmen in a savage state, incapable from their ignorance of entering intelligently into any treaties with the Crown, then the ceremonial of entering into any such engagements with them would be a mere illusion and pretence which ought to be avoided, and discovery might be made the basis of the Crown's claim. Still he had a marked predilection in favour of a treaty as the only means of affording an effective protection to the natives; "but," he continued, "in my inevitable ignorance of the real state of the case I must refer the decision in the first instance to your own discretion, aided by the advice you will receive from the Governor of New South Wales."

The frankness with which Lord Normanby admitted his "inevitable ignorance" of native conditions in the South Island is in striking contrast to Hobson's confident assurance that they were "wild savages with whom it was scarcely possible to observe even the form of a treaty," for at this time his intercourse with the southern tribes was as limited as that of the Chief Secretary's. Nor was his knowledge of them any more complete when he issued his proclamation on May 21. He was then clearly under the impression that the southern tribes were a people physically, intellectually, and socially much inferior to those whom he had met in the North; in fact, so much inferior that he did not believe them capable of understanding the spirit or the letter of a treaty. Such an opinion could only have been founded upon information conveyed to him at the Bay of Islands, and that by chiefs who, glorying in the pride of conquest, were no doubt wont to look upon their southern enemies as the siftings of the race; as "the remnant of their meal." It is therefore open to doubt whether Hobson ever anticipated any great measure of success when he despatched Major Bunbury to the South, and it is conceivable that the results achieved by that ambassador were as pleasing to the Lieutenant-Governor as the information was surprising that the Southern Island and the southern people had been much misunderstood. The falsity of the impression under which Captain Hobson acted, together with all that had gone before, completely undermines the value of his proclamation of May 21, and M. Guizot was only stating the fact when in answer to his critics he declared in the Chamber of Deputies that "this method of taking possession (by right of discovery) has never had any serious consequences. It could not be regarded as having constituted rights, and that is so true that the English Government has been the first to proclaim it."