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

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.

When Captain Grey reached New Zealand on November 14, he found the country seething with discontent. The European population now numbered approximately 12,000, scattered over widely separated settlements, the natives probably numbered not less than 110,000, many of whom were in open revolt under Heke and Kawiti; many more were holding their allegiance in the balance.

The mischievous resolutions passed by the Select Committee of the House of Commons in the previous year had ere this percolated to the colony, and fired the doubts of the natives as to the sincerity of the Crown. Governor Fitzroy had used his best endeavours to reassure them, and in offering terms of peace to Heke he made it the first stipulation that the covenants of the Treaty of Waitangi should be binding upon both parties. To these advances Heke had sullenly refused to reply. With the rebels unyielding, obviously Grey's first duty was to ascertain where he stood with the friendlies and the neutrals. For this purpose he summoned a meeting at the Bay of Islands, and amidst the ruins of the wrecked town of Kororareka he delivered to the assembled chiefs one of his characteristic addresses, in which, after warning the people against treacherously assisting the rebels, he said:

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.

The opinion assumed, rather than advocated, by a large class of writers on this and kindred subjects is, that the aboriginal inhabitants of any country are the proprietors of every part of its soil of which they have been accustomed to make any use, or to which they have been accustomed to assert any title. This claim is represented as sacred, however ignorant such natives may be of the arts or of the habits of civilised life, however small the number of their tribes, however unsettled their abodes, and however imperfect or occasional the uses they make of the land. Whether they are nomadic tribes depasturing cattle, or hunters living by the chase, or fishermen frequenting the sea-coasts or the banks of rivers, the proprietary title in question is alike ascribed to them all.

From this doctrine, whether it be maintained on the grounds of religion or morality, or of expediency, I entirely dissent. What I hold to be the true principle with regard to property in land is that which I find laid down in the following passage from the works of Dr. Arnold, which I think may safely be accepted as of authority on this subject, not only on account of his high character, but also because it was written, not with reference to passing events, or to any controversy which was at that time going on, but as stating a principle which he conceived to be of general application:

"Men were to subdue the earth: that is, to make it by their labour what it would not have been by itself; and with the labour so bestowed upon it came the right of property in it. Thus every land which is inhabited at all belongs to somebody; that is, there is either some one person, or family, or tribe, or nation who have a greater right to it than any one else has; it does not and cannot belong to anybody. But so much does the right of property go along with labour that civilised nations have never scrupled to take possession of countries inhabited by tribes of savages – countries which have been hunted over, but never subdued or cultivated. It is true, they have often gone further, and settled themselves in countries which were cultivated, and then it becomes a robbery; but when our fathers went to America, and took possession of the mere hunting grounds of the Indians – of lands on which man had hitherto bestowed no labour – they only exercised a right which God has inseparably united with industry and knowledge."

The justness of this reasoning must, I think, be generally admitted, and if so, it can hardly be denied that it is applicable to the case of New Zealand, and is fatal to the right which has been claimed for the aboriginal inhabitants of those islands to the exclusive possession of the vast extent of fertile but unoccupied lands which they contain. It is true the New Zealanders, when European settlement commenced amongst them, were not a people of hunters: they lived, in a great measure at least, upon the produce of the soil (chiefly perhaps its spontaneous produce) and practised to a certain extent a rude sort of agriculture. But the extent of land so occupied by them was absolutely insignificant when compared with that of the country they inhabited; the most trustworthy accounts agree in representing the cultivated grounds as forming far less than one-hundredth part of the available land, and in stating that millions of acres were to be found where the naturally fertile soil was covered by primeval forests or wastes of fern, in the midst of which a few patches planted with potatoes were the only signs of human habitation or industry. The islands of New Zealand are not much less extensive than the British Isles, and capable probably of supporting as large a population, while that which they actually supported has been variously estimated, but never, I believe, as high as 200,000 souls. To contend that under such circumstances civilised men had no right to step in and take possession of the vacant territory, but were bound to respect the proprietary title of the savage tribes who dwell in but were utterly unable to occupy the land, is to mistake the grounds upon which the right of property in land is founded. To that portion of the soil, whatever it might be, which they really occupied, the aboriginal inhabitants, barbarous as they were, had a clear and undoubted claim; to have attempted to deprive them of their patches of potato-ground, even so to have occupied the territory as not to leave them ample space for shifting, as was their habit, their cultivation from one spot to another, would have been in the highest degree unjust; but so long as this injustice was avoided, I must regard it as a vain and unfounded scruple which would have acknowledged their rights of property in land which they did not occupy; it is obvious that they could not convey to others what they did not themselves possess, and that claims to vast tracts of waste land, founded on pretended sales from them, are altogether untenable. From the moment that British dominion was proclaimed in New Zealand, all lands not actually occupied in the sense in which alone occupation can give the right of possession, ought to have been considered as the property of the Crown in its capacity of trustee for the whole community, and it should thenceforward have been regarded as the right, and at the same time the duty of those duly authorised by the Crown, to determine in what manner and according to what rules the land hitherto waste should be assigned and appropriated to particular individuals. There is another consideration which leads to the same conclusion. It has never been pretended that the wide extent of unoccupied land, to which an exclusive right of property has been asserted on behalf of the native inhabitants of New Zealand, belonged to them as individuals, it was only as tribes that they were supposed to possess it, and granting their title as such to have been good and valid, it was obviously a right which the tribes enjoyed as independent communities – an attribute of sovereignty, which, with the sovereignty, naturally and necessarily was transferred to the British Crown. Had the New Zealanders been a civilised people this would have been the case – if these islands, being inhabited by a civilised people, had been added either by conquest or by voluntary cession to the dominions of the Queen, it is clear, that according to the well-known principles of public law, while the property of individuals would have been respected, all public property, all rights of every description which have appertained to the previous sovereigns, would have devolved, as a matter of course, to the new sovereign who succeeded them. It can hardly be contended that these tribes, as such, possessed rights which civilised communities could not have claimed.

Such are the principles upon which, if the colonisation of New Zealand were only now about to begin, it would be my duty to instruct you to act; and though I am well aware that in point of fact you are not in a position to do so, and that from past transactions a state of things has arisen in which a strict application of these principles is impracticable, I have thought it right that they should be thus explicitly stated in this Despatch (as they are in the Royal instructions to which it refers), in order that you may clearly understand that, although you may in many respects be compelled to depart from them, still you are to look to them as the foundation of the policy which, so far as it is in your power, you are to pursue.

The imperfect information which alone at this distance I can hope to obtain as to the actual state of affairs in New Zealand, renders it impossible for me to venture to prescribe to you how far you are to go in attempting practically to act upon the principles I have laid down. I should infer from your own Despatches, as well as from those of your predecessors, that the right of the Crown could not now be asserted to large tracts of waste land which particular tribes have been taught to regard as their own. It appears that you have found it expedient to admit these pretentions to a considerable extent; and having done so, no apparent advantage could be suffered to weigh against the evil of acting in a manner either really or even apparently inconsistent with good faith. While, however, you scrupulously fulfil whatever engagements you have contracted, and maintain those rights on the part of the native tribes to land which you have already recognised, you will avoid as much as possible any further surrender of the property of the Crown. I trust also that the evil which would otherwise arise from the concessions already made, may to a great degree be neutralised by your strictly maintaining the exclusive right of the Crown to purchase land from the native tribes to which it has been assumed that it belongs. This right, resting as it does not only upon what has been called the "Treaty of Waitangi," but also upon the general and long-recognised principles of national law, is one so important that it ought almost at all hazards to be strictly enforced. To suffer it to be set aside would be to acquiesce in the ruin of the colony, since it would be fatal to the progressive and systematic settlement of the country. It is by the sale of land at more than a nominal price that its appropriation to individuals in allotments in proportion to their power of making use of it can alone be secured. It is the mode by which, with least inconvenience and difficulty, funds can be raised for emigration and for executing those public works which are necessary for the profitable occupation of the soil; in short, it is the very foundation on which systematic colonisation must be based. But if the native tribes are permitted to sell large tracts of land to individuals for a mere nominal consideration, it is obvious that so much land will be thrown upon the market as entirely to defeat the attempt to sell such lands as the Crown may still retain, at a price sufficient to answer the objects of the policy I have described.

The first and most important step which you will have to take with the view of introducing a regular system with respect to the disposal of land, will be to ascertain distinctly the ownership of all the land in the colony. The extent and limits of all which is to be considered as the property either of individuals, of bodies politic or corporate, or of the native tribes, must in the first instance be determined, and the whole of the remainder of the territory will then be declared to be the Royal demesne. The results of this enquiry must be carefully registered, and a regular record henceforth preserved, showing to whom all lands in New Zealand belong. This measure has been repeatedly and earnestly inculcated on your predecessors, and I cannot too strongly repeat the same injunction.

Chapter XIII. of the Royal Instructions was devoted to placing into legal phraseology the Minister's policy for "the Settlement of the waste lands of the Crown" and Clause 9 of that Chapter more particularly dealt with the method by which the native titles were to be ascertained and recognised.

(9) No claim shall be admitted in the said land Courts on behalf of the Aboriginal inhabitants of New Zealand to any lands situate within the said islands, unless it shall be established, to the satisfaction of such Court, that either by some Act of the Executive Government of New Zealand as hitherto constituted, or by the adjudication of some Court of competent jurisdiction within New Zealand, the right of such aboriginal inhabitants to such lands has been acknowledged and ascertained, or those from whom they derived the title, have actually had the occupation of the lands so claimed, and have been accustomed to use and enjoy the same, either as places of abode or tillage, or for the growth of crops, or for the depasturing of cattle, or otherwise for the convenience and sustentation of life, by means of labour expended thereon.

The newspapers in England which supported the New Zealand Company published with undisguised exultation Earl Grey's Despatch, and hailed him as a Daniel come to judgment.185 The Maoris regarded the matter in quite a different light. Here they were being asked to submit for ratification, by an extraneous authority, their lands which they and their forefathers had fought for, and which they had ever guarded with a jealous care that only death itself could terminate; lands which they had been told by Captain Hobson and the Missionaries were to be theirs to loose or to hold as they pleased; lands of which the Treaty of Waitangi had solemnly recognised them as already the indisputable owners. Was this then the much vaunted honour of the Queen? was this to be the unhappy end of all her high-sounding promises? The fire of indignation ran through the Maori veins as they contemplated the deception; the rumble of discontent grew as the tidings spread; the breath of battle was in the air.

The position of the Governor was delicate in the extreme, and probably only two things stood at this critical juncture between the colony and war – the Maori confidence in Grey, and Grey's confidence in himself. "What was I to do indeed?" he afterwards said. "My instruction was not alone that of the Colonial Office; but the Constitution had been sanctioned by Parliament. A man's responsibility in the larger sense is, after adequate deliberation, to proceed as he determines to be just and wise. If he has to decide, not for himself only but for others, unto future generations, there lies his course all the more. There was one clear line for me, simply to hang up the Constitution, and intimate to the Home authorities my ideas about it." In accordance with this decision he wrote on August 20 (1847) to his chief, describing with that directness of which his pen was capable the ferment into which this impossible statesmanship had thrown the country.

I have to state to Your Lordship that within the last few days I have received alarming accounts from various quarters of the island regarding the excitement created in portions of the country most densely inhabited by natives, upon the subject of the introduction of the new Constitution into this country, and the steps that may be taken regarding the registration of their lands. I am not yet in a position that would enable me to state whether actual insurrection, upon an extensive scale is to be immediately apprehended; but I cannot entertain any doubt that the country is in a very critical state. I will lose no time in taking such measures as are in my power to quiet the apprehensions which at present exist, and I will also delay for some time the introduction of the proposed Constitution, but I beg again earnestly to press upon your Lordship the advantages which would result from in so far modifying the proposed Constitution as to leave the Governor the power of being able certainly to promise the natives that he will enact any measures which they may request as essential to their interests, and which the Governor may also consider to be absolutely requisite to secure the tranquillity of the country.