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

Section 338 of the Act draws a clear distinction between Native lands and Crown lands. Under subsection (1) of that section, where the Governor is satisfied that Native lands have been acquired by the Crown, he shall by proclamation declare such lands to be Crown lands, and under subsection (2), when such lands have been so acquired, he may give effect to any stipulation in the instrument of sale or transfer to His Majesty for the reservation to the natives of any part of such lands, and may reserve or grant such portions in manner required by the natives.

Section 88 of "The Native Land Act, 1909," which has been referred to by His Honour also, recognises that these lands are not "Crown lands." They are only deemed to be Crown lands for the one purpose, namely, that if any person is in possession of or trespassing upon, or injuring the lands against the interest of the Native owners, then, for the purpose of protecting the Native owners the Crown may under the Land Act take proceedings against such wrongdoers. Even this provision is a guarded one, for subsection (3) of that section expressly provides that nothing in it contained shall take away or affect any jurisdiction conferred upon the Native Land Court.

CHAPMAN, J. – I agree with the judgments which have been read. It has been argued that the Treaty of Waitangi was an international treaty entered into with chiefs having the sovereignty. The contrary opinion was pronounced by the Supreme Court in Wi Parata v. The Bishop of Wellington (3 N.Z. Jur. N.S. 72). The terms employed and the mode of execution of the treaty leave it at least an open question whether it was so regarded at the time. It professes to be made with certain federated chiefs and certain chiefs who are not federated, but it does not state over what territories they exercised authority, though the text of the treaty seems to suggest that it was contemplated that it should be made with several chiefs who might possibly be regarded, and were provisionally and hypothetically treated as sovereigns of their respective territories. Later it became a matter of general knowledge, derived, I presume, from maps prepared pursuant to section 21 of "The Native Land Act, 1873," that there are eighteen or twenty tribes in New Zealand. If that be so the numerous signatories of the Treaty of Waitangi can hardly be described as sovereign chiefs. I agree that if they had been explicitly so declared by Her Majesty's government, or had been so treated in a course of political transactions that would have been sufficient to make them so, and that their numbers and their individual unimportance would not have rendered this impossible, provided that in each case there was a sovereign to a territory. Hemchand Devchand v. Azam Sakaral Chhotamlal (1906, A.C. 212). The whole current of authorities shows, however, that the question of the origin of the sovereignty is immaterial in connection with the rights of private persons professing to claim under the provisions of the treaty of cession. Cook v. Sprigg (1899, A.C. 572). Such a treaty only becomes enforceable as part of the municipal law if and when it is made so by legislative authority. That has not been done. The sense in which the treaty has received legislative recognition I will refer to later… From the earliest period of our history, the rights of the natives have been conserved by numerous legislative enactments. Section 10 of 9 and 10 Vict. cap. 103, called an Act to make further provision for the Government of the New Zealand Islands (Imperial, 1846), recognises the laws, customs, and usages of the natives which necessarily include their customs respecting the holding of land. Section 1 of 10 and 11 Vict. cap. 112, called an Act to promote colonisation in New Zealand and to authorise a loan to the New Zealand Company (Imperial, 1847), recognises the claims of the aboriginal inhabitants to the land. To the same effect is the whole body of colonial legislation. The expressions "land over which the Native title has not been extinguished" and "land over which the Native title has been extinguished" (familiar expressions in colonial legislation), are both pregnant with the same declaration. In the judgment of the Privy Council in Nireaha Tamaki v. Baker (1901, A.C. 561), importance is attached to these and similar declarations in considering the effect of colonial legislation. There the whole of the legislation from the date of the constitution is summarised. This summary includes the principal colonial Acts. Referring to section 5 of "The Native Rights Act, 1865," their Lordships say: "The Legislation, both of the Imperial Parliament and of the Colonial Legislature is consistent with this view of the construction of 'The Native Rights Act,' and one is rather at a loss to know what is meant by such expressions as 'Native title,' 'Native lands,' 'owners,' and 'proprietors,' or the careful provision against sale of Crown lands until the Native title has been extinguished, if there be no such title cognizable by the law, and no title therefore to be extinguished." I might refer further to less precise but equally important expressions, such as "tribal lands," in "The Native Land Act, 1873," section 21. The various statutory recognitions of the Treaty of Waitangi mean no more, but they certainly mean no less than these recognitions of native rights.

This relic of the treaty came into the AUTHOR'S possession after the volume was printed and is now inserted as a supplementNo te 30 o nga ra o Hanuere, 1840

E taku hoa aroha,

Tenei ano taku ki a koe; na, tenei ano tetahi kaipuke manawa kua u mai nei, me tetahi Rangatira ano kei runga, no te Kuini o Ingarani ia, hei Kawana hoki mo tatou. Na, e mea ana ia, kia huihuia katoatia mai nga Rangatira o te Wakaminenga o Nu Tireni, a te Wenerei i tenei wiki tapu e haere ake nei, kia kitekite ratou i a ia. Koia ahau ka mea atu nei ki a koe, e hoa, kia haere mai koe ki konei ki Waitangi, ki taku kainga ano, ki tenei huihuinga. He Rangatira hoki koe no taua Wakaminenga tahi. Heoi ano, ka mutu taku.

Naku,

Na tou hoa aroha, Na te PUHIPI.

KI A TAMATI WAKA NENE.

Text of the invitation sent to Tamati Waka Nene to attend the meeting of chiefs at Waitangi, 5th February, 1840(Original in the Auckland Museum)TRANSLATION(By H. M. STOWELL)Of the 3Oth day of January, 1840.

O my dear friend.

Herewith something special from me to you. A Man-o-war vessel has called here particularly, with a certain Chief on board. He is sent by the Queen of England, as a Governor for us.

Now, he desires that as many representative New Zealand chiefs as possible be gathered together by Wednesday of next week to see him.

I now therefore say unto you, O friend, make your arrangements to come along here to Waitangi, to my home here, to this gathering and meeting. For you yourself are a typical representative chief and will be welcomed to the meeting as such.

That is all, mine ends here,

From your sincere friend, From Te PUHIPI (Mr. Busby)

To Tamati Waka Nene.

BIBLIOGRAPHY

The following authorities have been consulted during the compilation of this work, and will serve as a useful bibliography of the treaty: —

A Chapter in the History of New Zealand. Sir W. Fox. 1883.

Adventure in New Zealand. E. J. Wakefield. 1845.

An Appeal on Behalf of the Ngatiraukawa Tribe. T. C. Williams. 1873.

Ao Tea Roa (Long White Cloud). W. P. Reeves. 1898.

Appendix to Twelfth Report of New Zealand Company. 1844.

Aureretanga. G. W. Rusden. 1888.

Australia and New Zealand. A. Trollope. 1873.

Authentic and Genuine History of the Signing. Rev. W. Colenso. 1890.

Britain of the South. C. Hursthouse. 1857.

British Colonisation of New Zealand. Aborigines Protection Society. 1846.

Christian Mission to the Aborigines of New Zealand. Rev. J. Warren. 1863.

Correspondence with Earl Grey. Wesleyan Mission Committee. 1848.

Early History of New Zealand. Brett Publishing Co. 1890.

Early History of the Catholic Church in Oceania. Bishop Pompallier. 1888.

England and the New Zealanders. Sir W. Martin. 1847.

Extracts from Final Report. G. Clarke. 1846.

Facsimiles of Treaty of Waitangi. H. H. Turton. 1877.

Forty Years in New Zealand. Rev. J. Buller. 1878.

Governor Gordon and the Maori. Sir R. Stout. 1883.

Handbook for Emigrants. Dr. J. Bright. 1841.

Handbook to New Zealand. E. J. Wakefield. 1848.

Heke's War. Rev. R. Burrows. 1886.

History of Early Colonising of New Zealand. H. T. Kemp. 1901.

History of New Zealand. Alfred Saunders. 1896.

History of New Zealand. G. W. Rusden. 1883.

Judgments of Court of Appeal in re Tamihana Korokai v. The Solicitor-General. 1912.

Judgments of Mr. Justice Chapman and Sir William Martin, C. J., in re Regina v. Symonds. 1847.

King Country, The. J. H. Kerry-Nicholls. 1884.

Kohimarama Conference, Proceedings of. 1860.

Letters from New Zealand. Dr. Martin. 1845.

Life and Times of Patuone. C. O. Davis. 1876.

Life of Archdeacon Henry Williams. H. Carleton. 1874.

Life of Rev. J. H. Bumby. Rev. A. Barrett. 1852.

Life of Bishop Selwyn. Rev. H. W. Tucker. 1879.

Life of Captain James Cook. Rev. A. Kippis. 1788.

Life of Lord John Russell. J. Reid-Stuart.

Life of Rev. Samuel Leigh. Rev. A. Strachan. 1863.

Life of Sir George Grey. W. L. and L. Rees. 1892.

Manawatu Purchase Completed. T. C. Williams. 1867.

Maori English Tutor. H. M. Stowell. 1913.

Maori History. Lieut. – Col. M'Donnell. 1887.

Maori King, The. Sir John Gorst. 1864.

Maori Record (Newspaper). 1906.

Memoir of Rev. R. Davis. Rev. J. D. Coleman. 1865.

Narrative of United States Exploring Expedition. Commander Wilkes. 1845.

New Zealand. Alexander Kennedy. 1873.

New Zealand. Charles Terry. 1842.

New Zealand. Dr. R. G. Jameson. 1841.

New Zealand and its Aborigines. W. Brown. 1845.

New Zealand and its Colonisation. W. Swainson. 1859.

New Zealand and the War. W. Swainson. 1867.

New Zealand Gazette (Newspaper). 1840.

New Zealand Journal. 1840-1848.

New Zealand Revisited. Sir John Gorst. 1908.

New Zealand Year Book. 1912.

Notes on Early Life in New Zealand. Rev. G. Clarke. 1903.

Notes on Maori Matters. Mr. Justice Johnston. 1860.

Old New Zealand. F. E. Manning. 1863.

Parliamentary Debates (English), vols. 81-82. 1845.

Parliamentary Papers (English). 1839-1848.

Personal Narrative of Visits to New Zealand. Dr. Marshall. 1836.

Proceedings of the Royal Colonial Institute. January 1883.

Remarks on New Zealand. Captain R. Fitzroy. 1846.

Remarks on New Zealand. W. Brodie. 1845.

Reminiscences of a Veteran. Col. T. Bunbury. 1861.

Reminiscences of the War in New Zealand. Lieut. Gudgeon. 1879.

Romance of a Pro-Consul. James Milne. 1899.

Sketches in New Zealand. James Cowan. 1901.

Story of New Zealand. Dr. A. S. Thompson. 1859.

Te Ika a Maui. Rev. Richard Taylor. 1855.

The Aborigines' Friend, pp. 139-157.

The New Zealanders and their Lands. D. Coates. 1844.

The New Zealand Question. L. A. Chamerovzow. 1848.

The War in New Zealand. Sir W. Fox. 1860.

Voyage to the South Pole, vols. viii. and ix. Dumont D'Urville.

Waitara War – Numerous Pamphlets relating thereto.

1

On one occasion when Lord John Russell was asked by a French Diplomat how much of Australia Britain claimed, he promptly replied, "The whole of it."

2

As indicating the state into which society had fallen it may be mentioned that one Master of a trading vessel who had no muskets to sell, gave a chief a packet of corrosive sublimate wherewith to destroy his enemies. To correct this condition of affairs a proclamation was published in the New South Wales Government Gazette in 1814 appointing the Rev. Mr. Kendall and the chiefs, Ruatara, Hongi and Korokoro, Magistrates at the Bay of Islands, for the purpose of suppressing outrages. This authority was subsequently revoked as being illegal.

3

"The Rev. Mr. Kendall has received a commission to act as a Magistrate, but it does not appear that he possesses the means of rendering effective assistance to the natives against the oppressions of the crews of European vessels, and of controlling in any degree the intercourse that subsists between them." – Commissioner Bigge to Earl Bathurst, 1823.

4

This practice was prohibited by the Governor of New South Wales by Proclamation, on November 9, 1814.

5

Edward Doyle underwent the extreme penalty of the law at Sydney for a burglary committed at the Bay of Islands on June 18, 1836, the sentence being imposed under a statute of George IV.

6

The Wesleyan mission in New Zealand originated in a visit made to this country in the year 1819 by the Rev. Mr. Leigh, a missionary of the Wesleyan Society then stationed in New South Wales. He made the visit for the benefit of his health on the recommendation of the Rev. Mr. Marsden.

7

Petition sent to King William through Mr. Yate, per Colonial Secretary of New South Wales, November 16, 1831.

8

The French were called by the natives "the tribe of Marian" after Captain Marian du Fresne, who met his untimely death at their hands in 1772. To show that these fears were not altogether unfounded, it may be mentioned that the French ship La Favourite anchored in the Bay of Islands the day after the petition was signed.

9

He afterwards became Earl of Ripon.

10

Mr. Busby's father had been appointed in 1823 as a Mineral Surveyor and Civil Engineer for the colony of New South Wales, by Earl Bathurst, and Mr. Busby accompanied him as a settler, taking with him capital to the extent of about £1000. At the time of his appointment Mr. Busby was Collector of Internal Revenue and a Member of the Land Board of New South Wales.

11

The Bill was not passed, because it was found that Parliament was legislating in a "foreign country," and this it has no power to do.

12

Mr. Busby's difficulties in this connection were considerably increased by the fact that when British subjects were accused they frequently sheltered themselves under the American flag, saying, "We are Americans, you have no right to interfere with us." – Captain Fitzroy.

13

"After ardent spirits were introduced in the neighbourhood of Hokianga the Christian natives themselves became so sensible of the evils resulting from the use of them, that under the influence of the Missionaries the chiefs assembled and agreed to certain regulations, the effect of which was to prohibit the introduction and sale of ardent spirits. Those regulations received the sanction of the Governor of New South Wales, and were for a time partially carried into effect. Our Missionaries have transmitted a copy of the resolutions adopted at a meeting of the natives at Hokianga for the formation of a Temperance Society. Those resolutions were signed by fifteen native chiefs. One chief who was present declined for a time, but at length he agreed, and also signed them. Another chief remarked that it would be desirable that wine and porter should also be prohibited, for if they were allowed the English would say when the rum casks came that they were wine and porter, and by that means spirits would continue to be smuggled into the river. The later accounts give us reason to fear that notwithstanding these regulations spirits continued to be introduced there in defiance of the laws made by the native chiefs." – Rev. Dr. Beecham before Committee of House of Lords.

14

The British Admiralty agreed to respect and protect the New Zealand ships' registers after the National flag had been hoisted.

15

Korero = talk, debate, discussion.

16

Dr. Marshall, surgeon of H.M.S. Alligator, mentions that during his visit to the district he had become interested in a chief named Hau, who, prior to the voting, asked the Doctor for his opinion, on the designs. The Doctor favoured the one ultimately chosen, and Hau "having discovered how my taste lay, paid me the compliment of adopting it, and canvassed others for their votes also." This influence in all probability decided the election. After cession of sovereignty to the Queen in 1840 this flag was of course superseded by the Union Jack as a National ensign. It was then adopted by the Shaw Savill & Albion Shipping Company, and is now flown by them as their house flag.

17

Kororirori was a mixture of flour and water, sweetened with sugar, of which the natives had become very fond. While the feast was in progress word came that Pomare had arrived at the Bay at the head of a large armed party. Mr. Williams was sent to enquire why he had brought arms to a peaceable gathering? He replied, "It is New Zealand custom," and then added, "The Rangatira from the warships have their swords, and we ought not for shame to be without our guns," an observation which left little room for an effective rejoinder. Pomare, who was a great stickler for etiquette, was offended because he thought he had not been properly invited, and took this method of showing his displeasure. He was however soon placated by the Missionary.

18

Vide his despatch of November 21, 1834.

19

The Baron has been described as a crotchety enthusiast rather than a knavish schemer.

20

Nēne gave him 5000 acres, which was subsequently reduced by quarrels and quibbles to 1000 acres.

21

Sir George Gipps, Governor of New South Wales, in succession to Sir Richard Bourke, in a despatch dated August 1840, speaks of the Declaration, as entirely a measure of Mr. Busby's concoction, and designates it "a silly as well as an unauthorised act – a paper pellet fired off at the Baron de Thierry."

22

The chiefs who signed this document were thoroughly representative of the tribes residing between the North Cape and the latitude of the River Thames.

23

Dr. Jameson concludes his unalluring picture, by the statement: "It is to the Missionary labour only that we can justly attribute the abolition of infanticide, polygamy, and the atrocities of native warfare which have disappeared before the dawn of Christianity."

24

This claim is still the subject of negotiation between the British and United States Governments.

25

Probably the Wentworth Purchase.

26

The deed confirming this transaction is now in the Hocken Collection at Dunedin.

27

"The Missionaries have been successful, but I think a greater effect might be given to them if their minds were relieved from those secular things which press upon them on behalf of their children. If they could devote their lives to the service of Christianity instead of trying to better the condition of their own children. At present they are cultivating their land. To use the words of the Rev. Henry Williams – They are just holding on for their children, seeing no other prospect for them than the cultivation of those lands. They cannot send them home to England, for that would be too expensive; New South Wales would not be desirable for them, and this is their only chance." – Evidence of Mr. John Flatt (formerly a catechist of the C.M.S.) before a Parliamentary Committee.

28

This war, it is said, arose through some one on board the Roslyn Castle carrying off a native woman of high rank to sea. Her friends at Kawakawa accused the people of Kororareka of killing and eating her in satisfaction of an old feud. This they denied, but a war ensued, 1500 fighting men being engaged, the war continuing for several months, eighty being killed.

29

In 1821 Mr. Henry Goulburn, by direction of Earl Bathurst, informed R. M. Sugden that his Lordship "did not feel he had any power of approving any particular encouragement to the establishment of a colony in New Zealand." In 1822 Earl Bathurst informed Thomas England and Messrs. Taylor and Upton that no encouragement was given by the Government to settlers to proceed to New Zealand. In the same year Mr. John Thomson, A.M., Edinburgh, offered to found a colony of 50 sober men, 100 Sepoys, and 100 convicts, as "the inhabitants of New Zealand are just in that state of civilisation to be made useful." In November 1823 Lieutenant-Colonel Nicolls, an ex-Indian officer, made a proposal to Earl Bathurst to establish a colony of military pensioners. In the following month Baron de Thierry's scheme was brought under the notice of the Government. The year 1825 saw the first New Zealand Company established. Colonel R. Torrens, who afterwards did such good work in South Australia, applied in 1826 for the command of a military force in New Zealand, and so enable him to "make preliminary arrangements which would facilitate the future colonisation of these islands upon sound economical principles."

30

It was said that at one period of its existence the New Zealand Association could command 42 votes in the House of Commons.

31

Lord Glenelg did not on this occasion urge as an objection that New Zealand was not a part of the British Empire.

32

After the Association was formed into a Company Lord Howick became one of its most ardent supporters.

33

A select Committee of the House of Lords was set up in 1838 "to enquire into the present state of the Islands of New Zealand and of the expediency of regulating the settlement of British subjects therein."

34

"It was only within the last three months that I received a letter from Paisley, stating that if a colony were formed in New Zealand on the principles laid down in our publication in that neighbourhood alone there were a hundred respectable persons – indeed I am not sure the expression was not 'respectable families,' but I have not the letter with me – who would emigrate immediately" (Dr. Hinds before the House of Lords Committee). Mr. G. S. Evans, LL.D., in his evidence stated there was an Association in the West of Scotland consisting of 200 members, and another in the Carse of Gowrie consisting of at least 100 persons, all anxious to emigrate to New Zealand.

35

Vide his letter to Lord Durham, December 29, 1837.

36

"I was the principal founder of the Company and the principal Managing Director from the time of its formation till the summer of 1846, allowing for intervals of absence occasioned by illness and other occupation at a distance from England. My incapacity changed the whole character of the direction of the New Zealand Company's affairs, which then fell into the hands of a few persons in whose minds sound principles of colonisation and colonial government were as nothing compared with pounds, shillings, and pence." – Evidence of E. G. Wakefield before a New Zealand Parliamentary Committee on New Zealand Company's debt – Sessions 1 and 2.

37

For the text of the above Memorandum I am indebted to Mr. R. M'Nab, who copied it from the original in the Record Office, London. Mr. Stephen, who wrote the Memorandum, was, at the time, an officer of the Church Missionary Society.

38

Lord Normanby became Colonial Secretary on February 8, 1839.

39

Vide his letter to Lord Palmerston, December 12, 1838.

40

Captain Hobson had acquired some distinction in the Navy by the capture of a band of pirates in the Mediterranean, the personal bravery displayed by him on that occasion being decidedly meritorious. He was afterwards engaged with the sloop-of-war Rattlesnake, and first attracted political notice by his report to the Government on the state of Society in New Zealand. Major Bunbury, who had considerable personal knowledge of him, describes him as an officer who wrote a good despatch, was fluent of speech, and was not without abilities, but had not the necessary grasp of thought to seize the main point of a question – to separate the grain from the chaff. He was very jealous of his authority and obstinate, particularly as disease made encroachment on his frame and intellect. He was of social habits and had the faculty of making private friends and also of creating public enemies. Mrs. Hobson is described as "an interesting person."