Preliminaries

The Treaty of Waitangi of 6 February 1840 was the climax to a long series of events which finally led the British Government with “extreme reluctance” to establish the sovereignty of the Crown over the islands of New Zealand. In his first voyage to New Zealand in 1769–70, Cook had taken possession of the country in the name of King George III, but nothing further came of it. By the end of the eighteenth century, when the first sealers and whalers were active in New Zealand waters and European settlement was already taking shape, the authorities at New South Wales kept an eye on the situation and endeavoured to impose some sort of authority over a country which, if not a British possession, could at least be regarded as a British protectorate of sorts. But the Colonial Office had no desire to intervene in New Zealand affairs and was anxious to leave it as a field for missionary enterprise free from the problems of large-scale white settlement. Indeed, the Colonial Office went so far as to adopt the subterfuge of treating New Zealand as a substantive State, joined to Great Britain by ties of “friendship and alliance”, even though the Maoris had not even the rudiments of a national government and were certainly without a supreme authority capable of negotiating with foreign powers. Meanwhile the unauthorised settlement of the country by Europeans continued in a most haphazard and unsatisfactory manner, with the result that, despite British repudiation of any claims to sovereignty, the Government decided to appoint James Busby as British Resident at the Bay of Islands. He arrived there in 1833. The appointment was a diplomatic farce, for Busby had not the slightest means at his disposal to curb internal anarchy and impose his authority over the growing white communities which by the late thirties were scattered throughout both islands. Confronted with a most serious internal situation, the powerful missionary societies changed their ground and now began to press for official intervention, especially as Edward Gibbon Wakefield'sNew Zealand Company was busy planning the systematic colonisation of the country. There was the further fear that a French colonising company might also be in the field. Hence, in December 1838 the long period of official inertia ended with the decision to appoint an officer to New Zealand “invested with the character and powers of British Consul”. The choice fell on Captain William Hobson who had visited the Bay of Islands in 1837 in HMS Rattlesnake. According to his instructions, Hobson was to negotiate with the chiefs as if they themselves constituted an independent government. In effect, if sovereignty were to be extended over part, or the whole of New Zealand, the British Government held that it must come from a treaty based on the free will and consent of the Maori people, and not from any right of discovery, occupation, or conquest.

But before Hobson could set out, some decision had to be reached as to the manner whereby the territory, if ceded, might be administered. In May 1839 the Law Officers of the Crown ruled that it would be lawful for the Crown to annex to the Colony of New South Wales any territory so ceded; furthermore, that the legislative authority of the Governor and Council of New South Wales could be extended to the settlements of New Zealand as soon as they were ceded. Thereupon the Commission to Governor Sir George Gipps was altered and enlarged, and he was reconstituted and reappointed Governor in Chief over the Colony of New South Wales, including any territory which might be acquired by the Crown in New Zealand. Meanwhile, the drafting of Hobson's instructions was under way. He was solemnly warned against asserting the sovereignty of Great Britain unless “the free and intelligent consent of the natives, expressed according to their established usages”, had been obtained. Equally important was the injunction, directed against “land sharking” and the grandiose schemes of the New Zealand Company, that no lands should be ceded except to the Crown. Furthermore, any lands ceded to the Crown for purposes of settlement were to be restricted to such areas as the natives could alienate, “without distress or serious inconvenience to themselves”.

On 25 August 1839 Hobson sailed from England in HMS Druid. He reached Sydney on 24 December and at once began discussions with Gipps on the all-important question of New Zealand sovereignty, and the problems arising from the irregular land purchases made by Sydney speculators, which had gone on in a fantastic manner. Accordingly, on 19 January 1840, the day following Hobson's departure for New Zealand in HMS Herald, Gipps issued three proclamations dated 14 January. The first extended his jurisdiction to such territory in New Zealand as might be acquired in sovereignty. The second declared that the oaths of office had been administered to Hobson as Lieutenant-Governor of whatever territory might be ceded. The third stated that no title to land purchased henceforth would be recognised unless derived from the Crown, and that commissioners would be appointed to investigate past purchases.

Hobson arrived at the Bay of Islands on the morning of 29 January. On the following afternoon he landed at Kororareka and read the Queen's commissions. He next read two proclamations which made it clear to the European community that a settled form of government would be established and that land titles would be investigated. Meanwhile, the northern chiefs had been summoned to Waitangi for the purpose of negotiating a treaty, the draft of which followed the general principles laid down in Hobson's instructions. On the morning of 5 February, when Hobson explained the terms of the treaty and its necessity, he began a debate which lasted throughout the day. Next morning the text of the treaty, which had been “translated” into Maori, was read again with much explanation and counter-discussion. In the end 45 chiefs signed the treaty by drawing their moko, the tattooed design on each face, upon the parchment. By this acceptance of the terms of the treaty, Hobson felt justified in concluding that such action “must be deemed a full and clear recognition of the sovereign-rights of Her Majesty over the northern parts of this land ….” This explains why he signed the treaty as “Consul and Lieutenant Governor” since the cession concerned the northern territory only. Thus the treaty signed on 6 February 1840 was but one of many steps in the “progressive acquisition of sovereignty”, for the cession of the whole of New Zealand, as Hobson realised, had to be won by instalments. With this in mind, Hobson was at the Waitemata on 21 February, but sudden illness ruined his plans. He therefore provided certain officials and missionaries with signed copies of the text of the treaty, and commissioned them to secure the signatures of the chiefs in districts hitherto uncanvassed. When, moreover, Major Thomas Bunbury arrived at the Bay of Islands from New South Wales in April 1840, he was sent as far south as Stewart Island in quest of signatures. But before Bunbury had time to return, Hobson forced the issue by proclaiming on 21 May 1840 that, by virtue of the rights and powers ceded to the Crown by the Treaty of Waitangi, the sovereignty of the Queen was established over the whole of the North Island. At the same time he proclaimed the authority of the Queen over the South Island and Stewart Island, on the grounds of discovery. These actions were subsequently approved by the British Government. When Hobson's dispatch of 25 May 1840, with its enclosures, reached London, the proclamations were published in the London Gazette of 2 October. The British title to sovereignty over the whole of New Zealand was then beyond legal question; it was an accomplished fact.

THE TREATY OF WAITANGI

The Text in Maori

(This text is copied from the first sheet of the treaty, dated 6 February 1840, and neither spelling nor punctuation has been altered. It should be borne in mind that, as the Maoris had no word for governor or sovereignty, the missionaries coined “Kawana” for governor and “Kawanatanga” for governorship or sovereignty. But the words “a captain in Her Majesty's Royal Navy” defied translation, as a glance at the passage will indicate.)

Ko Wikitoria te Kuini o Ingarani i tana mahara atawai ki nga Rangatira me nga Hapu o Nu Tirani i tana hiahia hoki kia tohungia ki a ratou o ratou rangatiratanga me to ratou wenua. a kia mau tonu hoki te Rongo ki a ratou me te Atanoho hoki kua wakaaro ia he mea tika kea tukua mai tetahi Rangatira – hei kai wakarite ki nga Tangata maori o Nu Tirani – kia wakaaetia e nga Rangatira maori te kawanatanga o te Kuini ki nga wahikatoa o te wenua nei me nga motu – na te mea hoki he tokomaha ke nga tangata o tona Iwi Kua noho ki tenei wenua, a e haere mai nei.

Na ko te Kuini e hiahia ana kia wakaritea te Kawanatanga kia kana ai nga kino e puta mai ki te tangata Maori ki te Pakeha e noho ture kore ana.

Na. kua pai te Kuini kia tukua a hau a Wiremu Hopihona he Kapitana i te Roiara Nawi hei Kawana mo nga wahi katoa o Nu Tirani e tukua aianei. amua atu ke te Kuini. e mea atu ana ia ki nga Rangatira o te wakaminenga o nga hapu o Nu Tirani me era Rangatira atu enei ture ka korerotia nei.

Ko te tuatahi

Ko. nga Rangatira o te wakaminenga me nga Rangatira katoa hoki ki hai i uru ki taua wakaminenga ka tuku rawa atu ki te Kuini o Ingarani ake tonu atu – te Kawanatanga katoa o o ratou wenua.

Ko te Tuarua

Ko te Kuini o Ingarani ka wakarite ka wakaae ki nga Rangatira ki nga hapu – ki nga tangata katoa o Nu Tirani te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa. Otiia ko nga Rangatira o te wakaminenga me nga Rangatira katoa atu ka tuku ki te Kuini te hokonga o era wahi wenua e pai ai te tangata nona te Wenua–ki te ritenga o te utu e wakaritea ai e ratou ko te kai hoko e meatia nei e te Kuini hei kai hoko mona.

Ko te Tuatoru

Hei wakaritenga mai hoki tenei mo te wakaaetanga ki te Kawanatanga o te Kuini – Ka tiakina e te Kuini o Ingarani nga tangata maori katoa o Nu Tirani ka tukua ki a ratou nga tikanga katoa rite tahi ki ana mea ki nga tangata o Ingarani.

(Signed) W. Hobson
Consul & Lieutenant Governor.

Na ko matou ko nga Rangatira o te Wakaminenga o nga hapu o Nu Tirani ka huihui nei ki Waitangi ko matou hoki ko nga Rangatira o Nu Tirani ka kite nei i te ritenga o enei kupu. ka tangohia ka wakaaetia katoatia e matou. koia ka tohungia ai o matou ingoa o matou tohu.

Ka meatia tenei ki Waitangi i te ono o nga ra o Pepueri i te tau kotahi mano, e waru rau e wa te kau o to tatou Ariki.

The Draft In English

(This English version of the treaty is not a translation of the Maori text. It must be regarded as the draft as finally approved by Hobson and thereupon “translated” into Maori. The punctuation has not been altered.)

HER MAJESTY VICTORIA Queen of the United Kingdom of Great Britain and Ireland regarding with Her Royal Favour the Native Chiefs and Tribes of New Zealand and anxious to protect their just Rights and Property and to secure to them the enjoyment of Peace and Good Order has deemed it necessary in consequence of the great number of Her Majesty's Subjects who have already settled in New Zealand and the rapid extension of Emigration both from Europe and Australia which is still in progress to constitute and appoint a functionary properly authorized to treat with the Aborigines of New Zealand for the recognition of Her Majesty's Sovereign authority over the whole or any part of those islands – Her Majesty therefore being desirous to establish a settled form of Civil Government with a view to avert the evil consequences which must result from the absence of the necessary Laws and Institutions alike to the native population and to Her subjects has been graciously pleased to empower and to authorize me William Hobson a Captain in Her Majesty's Royal Navy Consul and Lieutenant Governor of such parts of New Zealand as may be or hereafter shall be ceded to Her Majesty to invite the confederated and independent Chiefs of New Zealand to concur in the following Articles and Conditions.

Article The First

The Chiefs of the Confederation of the United Tribes of New Zealand and the separate and independent Chiefs who have not become members of the Confederation cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty which the said Confederation or Individual Chiefs respectively exercise or possess, or may be supposed to exercise or to possess over their respective Territories as the sole Sovereigns thereof.

Article The Second

Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession; but the Chiefs of the United Tribes and the individual Chiefs yield to Her Majesty the exclusive right of Preemption over such lands as the proprietors thereof may be disposed to alienate at such prices as may be agreed upon between the respective Proprietors and persons appointed by Her Majesty to treat with them in that behalf.

Article The Third

In consideration thereof Her Majesty the Queen of England extends to the Natives of New Zealand Her royal protection and imparts to them all the Rights and Privileges of British Subjects.

W. HOBSON Lieutenant Governor.

Now therefore We the Chiefs of the Confederation of the United Tribes of New Zealand being assembled in Congress at Victoria in Waitangi and We the Separate and Independent Chiefs of New Zealand claiming authority over the Tribes and Territories which are specified after our respective names, having been made fully to understand the Provisions of the foregoing Treaty, accept and enter into the same in the full spirit and meaning thereof: in witness of which we have attached our signatures or marks at the places and the dates respectively specified.

Done at Waitangi this Sixth day of February in the year of Our Lord One thousand eight hundred and forty.

(Here follow signatures, dates, etc.)

A Translation of the Maori Text

Here's Victoria, Queen of England, in her gracious remembrance towards the chiefs and tribes of New Zealand, and in her desire that the chieftainships and their lands should be secured to them and that obedience also should be held by them, and the peaceful state also; has considered it as a just thing, to send here some chief to be a person to arrange with the native men of New Zealand, that the Governorship of the Queen may be assented to by the native chiefs in all places of the land, and of the islands. Because too many together are the men of her tribe who have sat down in this land and are coming hither.

Now it is the Queen who desires that the Governorship may be arranged that evils may not come to the native men, to the white who dwells lawless. There! Now the Queen has been good that I should be sent, William Hobson, a captain of the Royal Navy, a Governor for all the places in New Zealand that are yielded now or hereafter to the Queen. She says to the Chiefs of the Assemblage (Confederation) of the tribes of New Zealand, and other chiefs besides, these laws which shall be spoken now.

Here's the first: Here's the chief of the Assemblage, and all the chiefs also who have not joined the Assemblage mentioned, cede to the utmost to the Queen of England for ever continually to the utmost the whole Governorship of their lands.

Here's the second: Here's the Queen of England arranges and confirms to the chiefs, to all the men of New Zealand the entire chieftainship of their lands, their villages, and all their property.

But here's the chiefs of the Assemblage, and all the chiefs besides, yield to the Queen the buying of those places of land where the man whose land it is shall be good to the arrangement of the payment which the buyer shall arrange to them, who is told by the Queen to buy for her.

Here's the third: This, too, is an arrangement in return for the assent of the Governorship of the Queen. The Queen of England will protect all the native men of New Zealand. She yields to them all the rights, one and the same as her doings to the men of England.

(Signed) W. Hobson
Consul & Lieutenant Governor.

Now here's we: Here's the chiefs of the Assemblage of the tribes of New Zealand who are congregated at Waitangi. Here's we too. Here's the chiefs of New Zealand, who see the meaning of these words, we accept, we entirely agree to all. Truly we do mark our names and marks.

This is done at Waitangi on the six of the days of February, in the year one thousand eight hundred and four tens of our Lord.

AFTERMATH

The hopes of the British Government that the treaty would be an instrument of peace and conciliation were at the outset largely unfulfilled. Too much was expected from it. Even in terms of international law the treaty had little status, since in no sense could a covenant between the Crown and a number of savage tribes be construed into an agreement between sovereign states. Within New Zealand itself the situation was most unsatisfactory. Many of the chiefs who signed the treaty had little understanding of its implications. Of those who had refrained, it could be argued – as Swainson, the Attorney-General asserted – that they were exempt from its provisions and that the Queen's title to sovereignty was incomplete. But the British Government rightly maintained that the issue had been settled beyond question. Such academic pronouncements meant nothing to recalcitrant chiefs, and the trouble at Taranaki in the fifties was undoubtedly aggravated by the determination of Governor Gore Browne to make the issue of sovereignty a potent factor in the involved problem of land purchase.

The storm centre of the treaty was the second clause which reserved to the Crown the exclusive right of pre-emption over native lands. Unfortunately the operation of this clause acted harshly upon buyers and sellers alike. The Maoris soon realised that the purchase price paid by the Crown was pitiably low, no small wonder in view of the parlous state of the colony's finances. On the other hand, the principals of the New Zealand Company saw the treaty as an insuperable obstacle to their plans for land aggrandisement and fought hard to discredit it, cynically asserting that it was merely a praiseworthy device for amusing and pacifying savages. But the British Government would have none of that. “You will honourably and scrupulously fulfil the conditions of the treaty of Waitangi”, was the instruction given to Grey at the outset of his Government.

The third clause of the treaty was equally vexatious, for it dealt with a complex legal problem, the interpretation of the promise to confer on the Maori people “all the rights and privileges of British subjects”. It was certainly never the intention of the British Government that a legal code foreign to the Maori way of life should be imposed. Indeed, the intention was that, wherever the natives were numerous, special districts should be proclaimed wherein their customs would be given the force of law. But Grey had no sympathy with this viewpoint and was determined to substitute as speedily as possible the “civilised” code of the master race for the “barbaric” customs of the natives. Thus the treaty failed to unify the races, which slowly drifted apart, sharply divided by a barrier of speech, custom, and law.

This cleavage was widened by the growing belief that, as the natives were a doomed race, the improvement of their lot was so much wasted effort. It was not until the century was well advanced that a new spirit of goodwill between the races became evident, and it was then that the Treaty of Waitangi, so long overlooked or forgotten by the Maori people, came into its own.

The treaty is not a part of the statute law of New Zealand, but the statute law itself, especially where it refers specifically to the interests of the Maori people, rests on the three brief clauses of the treaty.

The treaty sheets had a narrow escape from destruction when the public offices at Auckland were destroyed by fire in 1841. The Clerk of Records, G. E. Elliott, arrived just in time to save the treaty and the seal of the colony. Subsequently the various sheets of the treaty were fastened together and deposited in the Colonial Secretary's office. At a later period the edges of the sheets were gnawed by rats and the surface stained by water. The “original” sheet of the treaty (dated 6 February 1840), together with the “duplicates”, is today in the Alexander Turnbull Library, Wellington.

by Alexander Hare McLintock, C.B.E., M.A., DIP.ED. (N.Z.), PH.D.(LOND.), Parliamentary Historian, Wellington.

• Crown Colony Government in New Zealand, McLintock, A. H. (1958)
• The Treaty of Waitangi, Buick T. Lindsay (1914)
• The Treaty of Waitangi and the Acquisition of British Sovereignty in New Zealand, 1840, Rutherford, J. (1949). For two interesting eyewitness accounts of the treaty signing, see N.Z.P.D., Vol. 67, pp. 389–92 (Hon. D. Pollen) and
• Journals of the Legislative Council, 1869, Appendix, pp. 67–78, Annotations on the Treaty of Waitangi, by William B. Baker.