Myth v history: The uncomfortable truth about the Treaty of Waitangi

The notion that the Treaty of Waitangi was a righteous act that elevates New Zealand over Australia in its treatment of native peoples is confounded by an Oz-Kiwi historian’s groundbreaking research. By Bernard Lagan.

When, 40 years ago, Bain Attwood left New Zealand in his mid-twenties for Melbourne, it was with a melancholy familiar to many who seek a life beyond.

Born and mostly raised in Hamilton, he studied history at Waikato and Auckland universities, ending up with a master’s degree, a librarian’s job he loathed and a disquieting sense of being hidebound.

The origins of his disenchantment might include the doors that shut on a foreign service career and a dearth of encouragement to pursue the PhD that he suspected was within him, and which was later realised in Australia, along with several prize-winning books.

“It seemed that a small number of people get taken up and encouraged and get lots of airplay. And the rest of us, well, most of us, don’t get encouraged,” recalls Attwood, 64, of his final, thin years in New Zealand, which ended in 1981, the year Robert Muldoon cleaved the country by allowing South Africa’s rugby team to tour.

Yet, it would be wrong to think of him as alienated from his homeland. He embodies the long-ago forecast of expatriate scholar, writer and soldier John Mulgan, that those who leave New Zealand will forever be haunted by the land and people they knew when young.

It took a decade of gestation and writing, but Attwood, a professor of history at Melbourne’s Monash University, has produced a formidably researched work, Empire and the Making of Native Title, which casts light on the origins and stature of the Treaty of Waitangi/Te Tiriti o Waitangi with a distanced dispassion that other historians have struggled to reach.

Attwood, who has published extensively on Aboriginal history, has attempted an enlarged canvas comparing how the British won sovereignty and treated the native “landowners” in New Zealand and Australia. The result is a revelatory tale of artifice, avarice and the studied ambiguity – the protector with an eye to possession – that Whitehall trained upon the islands of New Zealand until well into the 1830s.

It will discomfort the generations of New Zealanders – raised on notions the Treaty was founded on higher legal and moral precepts – who see its birth as a righteous act that elevates New Zealand over Australia in the treatment of its first peoples.

Instead, Attwood argues, it was much more circumstance and happenstance than altruistic design that led Britain to seek sovereignty over New Zealand by means of the treaty. He suggests the overriding significance the British Crown attached to the Treaty was its worth as a diplomatic instrument to convince Māori chiefs to agree to cede their country.

As Attwood reminds his readers, just three months after the initial signing of the document at Waitangi, William Hobson, the first Governor of New Zealand, asserted sovereignty over the South Island on the same basis Britain had claimed Australia – on the grounds of Cook’s discovery. It was an act some scholars have cited as revealing the Treaty was little more than window dressing.

Hence, for Attwood, the portrayal of the signing as the foundational event for sovereignty and land title in New Zealand is overblown, even mythic. It was long preceded by an array of characters who cast the future well before the first Māori signed at Waitangi under canvas in 1840.

Plotters and scoundrels

Exploring this crowded cast and their parts – the chiefs, missionaries, traders, whalers, settlers, land-grabbing plotters and scoundrels in London and Sydney, or the altruistic servants within Whitehall’s Colonial Office – is much of the power of Attwood’s work.

We learn of James Stephens, the patrician Colonial Office chief, who retreated to communicating by reading and writing rather than any face-to-face confrontations with those he believed suffered from “a want of honour”, such as the devious William Wakefield of the land-grabbing family who promoted New Zealand’s colonisation. That, and Attwood’s use of his own emigration and the tools of comparative history to spotlight the differences as well as the similarities between Britain’s colonisation of its Australasian territories.

For instance, a common myth among many Australians is that the British signed the Treaty because Māori were fierce and presented a bigger threat than Aboriginal Australians – or, as one Australian Broadcasting Corporation interviewer put it to Attwood, Māori had bigger clubs.

It’s only partly right. As Attwood records, imperial governments were more likely to seek treaties with natives for cessation of sovereignty when they realised third parties were also establishing themselves and acquiring land. That was not the case in Australia, where the first governor of New South Wales was instructed he could ignore Aboriginal people, save to urge British settlers to treat them kindly.

In New Zealand, there were not only missionaries who had a foothold, but also the rapacious London-based New Zealand Company seeking to acquire vast tracts of land for on-sale. And there were hovering foreign powers, such as the French and the Americans.

It was within this early, informal colonisation that Europeans in the Far North bartered with Māori for land, creating a notion of native land title. Samuel Marsden, of the Church Missionary Society, drew up New Zealand’s first land deed in 1815, a quarter of a century before the Treaty was signed, when he purchased 200 acres (80ha) of land in the Bay of Islands from Ngāpuhi.

As Attwood explains, it was an act of great importance that would eventually lead Māori to come to be regarded as the customary owners of land. It also fits with his thesis that what occurred is largely a story of unexpected events and unintended consequences – occasionally incoherent and frequently villainous – in contrast with the modern conception of the treaty as the foundational moral and legal beginning for New Zealand.

His case is persuasive. Even what are often considered the treaty’s most important words, part of its second article guaranteeing Māori undisturbed possession of their lands, forests and fisheries, came about by chance.

Two men were involved – Hobson and James Busby, London’s British Resident in New Zealand prior to Māori ceding sovereignty. The first draft, prepared by Hobson, likely while sailing from Sydney to the Bay of Islands, has been neglected in the treaty’s immense body of scholarship, Attwood believes.

The explicit guarantee to Māori of possession of their lands was absent; Hobson’s draft merely required Māori who signed the document to give the Crown first rights to acquire “waste land as the tribes may feel disposed to alienate”.

The 'happenstance'

A few days before the signing, Hobson, who caught yellow fever in the West Indies and suffered headaches for the rest of his life, fell ill. He asked Busby for help and it was Busby who inserted the guarantee, a result Attwood puts down to “happenstance” because Hobson was stricken at a crucial moment.

To Hobson, Attwood says, the inclusion of the guarantee had little or no legal significance. “Indeed, it seems very unlikely that such a possibility even occurred to him.”

In 1985, when the newly re-empowered Waitangi Tribunal issued a decision on despoliation of the Manukau Harbour and the loss of surrounding lands of the Manukau tribes, the Treaty’s guarantee was found to have enormous and continuing significance. It obliged the Crown not only to recognise the Māori interests specified in the Treaty, but also to actively provide ongoing protection.

A year later, claimants alleged that the Crown had failed to protect the Māori language, which, they said, was required under the same guarantee. The tribunal urged new laws to allow anybody to use te reo in courts and in dealings with government departments.

By late 2020, 90 Treaty deeds of settlement had been negotiated and more than $2.27 billion paid in financial compensation.

Attwood argues that the business of indigenous financial settlements in New Zealand and Australia (despite its paucity of settlements) has placed a premium on histories that assume or argue that particular legal concepts and moral precepts decided, or at least should have, how the British treated native sovereignty and land ownership.

Although these histories have been vastly influential in both the public and legal realms, Attwood writes, “therein has lain a problem, because many of these works have tended to resemble myth rather than history”.

History reinterpreted

Such works, he tells the Listener, may start with an understanding of the past, but their purpose is less to enlarge or deepen but instead to serve the needs of the present.

By way of example, he notes that the seminal works by the lauded historians, Dame Claudia Orange (New Zealand) and Henry Reynolds (Australia) – Orange’s The Treaty of Waitangi and Reynolds’ The Law of the Land – appeared in 1987, as Māori and Aboriginal people increasingly pursued legal claims relating to their dispossession.

As a result, Attwood says, both works leaned towards notions that legal principles underpinned the manner in which both countries were colonised.

“They assume that the British Government approached the question of sovereignty and rights and land in a way that’s determined by legal doctrines and legal principles. And I think that’s quite unsatisfying.”

But herein lies what Attwood acknowledges to be a tension: although it may not fit the fractious, uncalculated historical record he reveals, the Treaty’s less-sound legal and moral elevation by some historians fills the demand of its new centrality in New Zealand brought about by the Waitangi Tribunal settlement process.

“What’s required by the tribunal is a history that makes the Treaty absolutely central to everything that happened between Māori and Pākehā. Māori obviously have to present a case that there are breaches of the Treaty. And the lawyers and the historians have to approach the past, essentially, as a legal matter.”

That recasting means that the Treaty is now popularly portrayed as a solemn contract founded upon legal and moral precepts – a contract Pākehā failed to uphold until redress began after the 1000km Māori land march from the Far North to Parliament in 1975 and the establishment of the tribunal.

“So I think a lot of New Zealanders, in a similar way in Australia, have embraced this story, because they have come to feel they cannot rightfully belong in a country that was forged through the breaking of a contract, and therefore, acted in ways that were unjust.

“It’s a very, compelling story. It’s a very powerful story. It’s a very influential story.”

But is it the wrong story? And does it now matter? Attwood’s 10-year research and writing odyssey leads him to conclude that, at the very least, the story is “egregiously incomplete” and that for history to do effective work, it must be true to what he calls the messy complexity of the past. And that complexity, the scattershot of history, might have caused New Zealand, much more so than most realise, to end up like Australia, without a treaty upon which to seek redress.

It’s a discomforting view from a writer who believes leaving New Zealand has allowed him to see what others could not. “I still regard myself as a migrant,” he says of his four decades in Australia. “And so I write about both Australia and New Zealand in a way that is more objective than the way most New Zealand and Australian historians write about these two countries.”

As he notes in the book’s conclusion: “By more adequately recovering the past as it was, scholarly histories can provide us with more interesting accounts of the past as well as different horizons of understanding, not only of the past but the present and future as well.”

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