Monday, February 08, 2016

Ducking and debating

When I typed a short and hurried guest post for the popular blog YourNZ about the Treaty of Waitangi and the New Zealand Wars, I didn't know I was about to be hit by a volley of dozens of testy replies. I've been ducking for cover and debating here

[Posted by Scott Hamilton]


Anonymous Scott said...

To sum up: I’ve argued that most of the Maori chiefs who signed the Treaty did not intend to give away their sovereignty, that from the 1840s into the 1860s both British administrators and Pakeha settlers did not view the Treaty as incompatible with legal autonomy for Maori, and that, in the 1840s and ’50s, ‘one law for all’ did not exist in New Zealand.

My claim that Maori did not intend to give away their sovereignty when they signed the Treaty has been made in many other places by many other people, and was even recently endorsed by the Waitangi Tribunal. Whether people accept the argument or not, they can look elsewhere for arguments in its favour.

What is more controversial, I think, is the notion that both the British and most settlers believed that the Treaty did not preclude Maori making and enforcing their own laws on their own lands. I don’t deny that, unlike many Maori, virtually all British administrators and settlers believed that the Treaty of Waitangi gave the British Crown sovereignty over New Zealand. What I’m saying is that, for both groups, there seemed room, and indeed sometimes ample room, for Maori to exercise legal autonomy within British sovereignty.

I think there are five types of evidence that the British saw room for Maori legal autonomy.

The first type of evidence is the conversations that British administrators had amongst themselves. The exchanges in 1843 between local administrator William Swainson and two men attached to the Colonial Office in London, James Stephen and Lord Stanley, are instructive. Swainson had written to London to explain that many Maori were living outside the influence of British law, and to suggest that special ‘Native Districts’ could be set up so that these Maori could formally make and enforce their own laws.

Stephen and Stanley responded by stressing the sovereignty of Britain over New Zealand, and by pointing out that legislation establishing Native Districts had not been created. But both Stephen and Stanley separately said that there was no incompatibility between British sovereignty and Maori legal autonomy. Stanley pointed out that in many other parts of he British empire local peoples had continued making laws of their own. Stephen said that subjection to British sovereignty and subjection to English law were not ‘convertible terms’. I think this reaction is significant, because it suggests that, for administrators at the heart of the British empire, the third article of the Treaty of Waitangi did not extinguish the possibility of Maori legal autonomy.

The second type of evidence is the failure of British administrators to intervene in Maori disputes and dispute settlement in the first decade or so after the Treaty was signed. When Maori confronted each other, even to the point of violence, the British tended either to stand on the sidelines or to offer mediation. Decisive intervention tended to occur only when Maori disputed with Pakeha.

Of course, the resources of British administrators were small in the 1840s and ’50s, and they had little ability to intervene in many disputes. But the miserly amounts that Britain spent on its colony only showed that, in New Zealand as elsewhere, the British preferred to let its indigenous subjects sort out their own internal disputes. The method that Margery Perham would later call indirect rule was already present in many parts of the empire.

11:50 am  
Anonymous Scott said...

The third type of evidence is the legislation that Britain created to adapt the colony’s legal system to Maori. The Native Exemption Ordinance created by Governor Fitzroy in 1844 is an example of this sort of law. It was created because Maori abhorred imprisonment as a punishment, and allowed for Maori convicted of crimes to pay fines instead of going behind bars. Chiefs acted as guarantors of the fines.

The fourth category of evidence is the laws that the British and colonists created to give Maori the right to make and enforce laws in their tribal territories. The Constitution Act of 1852 provides for such laws, and the Native Districts Regulation Act and the Native Districts Circuit Courts Act of 1858 led to the creation of runanga that, in concert with Pakeha magistrates, made and enforced laws for a few years.

The fifth type of evidence is the communications that the British empire’s representatives had with both local British officials and settler leaders during the war-stricken decade of the 1860s. When Governor Gore Brown sided with settler opinion and talked about invading the territories of the Maori King in 1861, the Colonial Office urged him to consider alternatives to war, like the granting of legal autonomy to the King under the lines envisaged in the 1852 Constitution Act.

It is more difficult to argue about what the settlers thought of the Treaty, because their views could fluctuate, and because before 1854 they were without elected representatives. But the intense hostility toward the Treaty that was often expressed in the settler press and the denunciations of the document by the politicians who went to war against the King Movement and its Taranaki allies in the 1860s indicate that many settlers saw the Treaty as unacceptably pro-Maori and an obstacle to the imposition of one law over the colony.

11:50 am  
Blogger Unknown said...

It is more difficult to argue about what the settlers thought of the Treaty, because their views could fluctuate, and because before 1854 they were without elected representatives base camp trek

4:13 pm  
Anonymous Jono Carpenter said...

You are a braver man than I, dude. Funnily enough I did a small job back in the day for Alan W. He owns or did own a gallery or similar establishment in Russell undergoing some renovations. Afterwards I noticed his regular comments on Kiwiblog and made the connection.

Suffice to say the pakeha citizens of Russell, Paihia and Kerikeri are a funny old lot.

I totally agree with the thrust of your argument though. There isnt anyway you can read the sources for Northland without noting that the 58th Regiment garrison at Te Wahapu after the war did little but provide some peace of mind for the British inhabitants while local Maori ran their own show for years. Certainly in the south east BOI Maihi Paraone/Marsh Brown Kawiti's rununga house at Waiomio was the centre of arbitration and justice for local Maori affairs into the early 1880s.

12:42 pm  
Anonymous Scott Hamilton said...

Thanks for that, Jono. The discussions at Yournz have actually settled and become relatively amicable: a far cry from Kiwiblog, where madness seems to reign these days, especially when the dreaded word 'Maori' is mentioned. I believe that Alan Wilkinson used to be a co-leader of the Values Party!

12:18 pm  
Blogger Marty Mars said...

Kia ora Scott - I do admire your missions to kblog and now pete georges blog - I can't personally bring myself to go to those sites. Kia kaha in this mahi and I'll see you round the standard (which I do enjoy) - so much more fun educating lefties about stuff rather than righties imo - but I'd be interested in your thoughts on that.

4:22 pm  

Post a comment

<< Home