Was There a Treaty Of Waitangi?: Was It a Social Contract?

A revised version of ‘Was There a Treaty of Waitangi, and was it a Social Contract?’ Archifacts, April 1997, p.21-49.

Keywords: History of Ideas, Methodology & Philosophy; Maori; Political Economy & History;

This paper arose out of consideration of what at first seemed to be a very straightforward problem.[1] In 1989 I was working with the Maori claims in regard to the broadcasting reforms.[2] I have told much of that elsewhere,[3] but the matter led to an investigation of the origins of Te Tiriti o Waitangi, in order to understand the entitlements to the property rights of the radio frequency spectrum by the Maori and by the Crown.

This required rereading the Tiriti. The problem, not original, is this: the official English version of Te Tiriti o Waitangi says the Crown guaranteed to the Maori:

“the full, exclusive, and undisturbed possession of their lands and estates, forests, fisheries, and other properties …”

The Tiriti which was signed at Waitangi has the following expression at the equivalent point in its text:

“te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa.”

An early official translation of this phrase was provided by T.E. Young of the Native Department in 1869:

“full chieftainship [footnoted - `tino rangatiratanga'] of their lands, their settlements and all their other property.”[4]

More recently Hugh Kawharu translated it to

“the unqualified exercise of their chieftainship over their lands their villages and over their treasures all.” [5]

The two expressions are obviously not the same, even if we ignore the “forests, fisheries” in the first. “Full, exclusive, and undisturbed possession” is a more limited concept than “tino rangatiratanga” since even in narrow terms the latter involves much wider property rights (an important consideration in the case of the radio frequency spectrum). We might equate “estates” with “kainga”, one meaning of which in the Williams Dictionary of the Maori Language is “field of operation, scope of work”, although again the latter is a wider notion.[6] Meanwhile “other properties” seems a narrower concept than “taonga katoa”, since the latter could involve non-properties (such as the Maori language – and the radio frequency spectrum).

If there is any doubt about the magnitude of the difference, compare the translation of the relevant phrase from the English official text into Maori by T.E Young in 1869:

“te tino tuturutanga o o ratou whenua o o ratou motu ngaherehere o o ratou wahi hiinga ika, o era atu rawa e mau ana i a ratou katoa i ia tangata ranei o ratou mo te wa e hiahiatia ai e ratou ki puritia e ratou.”[7]

While it could be argued that the differences are a result of a very poor translation, that does not explain the omission of forests and fisheries however, and it does not explain why the Tiriti article is everywhere more encompassing in terms of the Maori rights than the English version.[8]

The Drafting of the Treaty

Hobson arrived in New Zealand in early 1840 with a set of instructions from Lord Normanby, the British Secretary of State for the Colonies. Despite the instructions to treat with the Maori, no draft treaty was included. This surprising omission gave Hobson considerable freedom.

The resulting Tiriti has a three part structure which is also evident in the earlier drafts: there is a preamble which describes the context in which the treaty arises written from the British perspective; a central portion of the three articles; concluding with an attestation for the Maori signatories.

There are four known separate texts of a draft treaty in English (and none in Maori): one is in the handwriting of James Freeman, Hobson’s secretary, which covers a preamble and three articles; a preamble in Hobson’s handwriting with amendments by Busby; and two versions (a copy and a cleaner version) of the three articles and the attestation in Busby’s handwriting. The texts are set out in the first four appendices in a form which facilitates comparisons.

My account of the drafting largely follows Ruth Ross’s 1972 article (which is also largely followed by Claudia Orange),[9] but there are some differences (or elaborations) of interpretation, especially as to what happened after the 4th of February, when the English draft was handed to the Williamses for translation. I see two important differences before then.

First it is clear from textual comparisons, even though Ross is more ambiguous about it (and the Facsimiles of the Treaty of Waitangi presentation order is incorrect, presumably because it follows the order which Hobson left the drafts in), that the Freeman draft precedes the Hobson draft.[10] Freeman’s is shorter, and much more primitive in its characterization of the existing situation of Maori politics. Hobson’s draft is a development from the Freeman draft’s preamble (and Busby’s draft elaborates the articles).

I have tried to reconstruct the historical sequence which lead to the writing of the Tiriti. The reconstruction is summarised in Appendix VI, whole Appendix VII lists the various documents which are involved, including some which are conjectured.

29 January (Wednesday)

Hobson arrives in Bay of Islands from Sydney. He sees Busby on this day. Over the next few days Hobson, Busby, and Freeman discuss the proposed assembly of chiefs.

30 January (Thursday)

Colenso prints invitation to assembly. Henry Williams visits Hobson. Hobson, Busby and Freeman (and Williams?) begin serious discussion on contents of the proposed treaty. The reason we cannot be certain about Williams involvement is that there is no precise record. of his involvement. The daily journal which is available frustratingly stops on 30 January 1840.[11] I shall assume – as most historians do – that Williams was intimately involved.

31 January & 1 February

Out of these discussions we assume Hobson directs Freeman to prepare a draft treaty, which he does over the next few days when Hobson visits Waimate and the Hokianga.

Freeman’s draft included a preamble, two articles (what was to be the third was a part of the preamble), and no attestation. Some alterations were made directly on the text. These included some changes to words, but the most important change was to reorganize Freeman’s text into a preamble and three articles.

2 February (Sunday)

Hobson, Freeman, Busby Freeman and Williams discuss Freeman’s draft Despite making alterations on it, they decide the text is still inadequate, and Hobson begins his own draft.

3 February (Monday)

However he only revises the preamble. He was not well and sent his officers to Busby with ‘some notes, which they had put together as the basis of Treaty’. Busby ‘stated that I should not consider the propositions contained in the notes as calculated to accomplish the objective’.[12] He wrote a fair copy of the first draft (which is in the Busby Papers), and gave it to Hobson. This second Busby draft is held in the National Archives.

This is the second point at which the historical evidence modifies Ross’s conclusions. She plays down the role of Busby in the drafting of the treaty, although it is unclear whether she means the English language draft, or the Tiriti.[13] A comparison of the ‘final’ English draft text, and the preceding ones show that Busby had a considerable input into the final English draft. He modified Hobson’s preamble (and it is likely that earlier he was involved in developing it), dramatically changed articles one and two, and appears to have been the sole writer of the attestation. Even the third article has a spelling correction made by Busby. One might also detect in the Busby version an account of New Zealand which is more sensitive – or even favourable – to his efforts as British Resident.[14] Hobson broadly agrees with this account, contradicting Ross insofar as she is referring to the English drafts. He wrote to Busby, ‘I beg further to add that through your disinterested and unbiased advice, and to your personal exertions, I may chiefly ascribe the ready adherence of the chiefs and other natives to the Treaty of Waitangi. …’ [15]

Busby says there was no alteration of the draft he submitted to Hobson other ‘than a transposition of certain sentences, which did not in any degree affect the sense.’[16] It is not obvious from the available documents what change he is referring to,[17] and it may well be that later in his life Busby’s recall of the detail is inaccurate, as is evident in some of his accounts of the events at Waitangi.[18] In the final Busby draft the word ‘severally’ in the second article is replaced by ‘individually’, possibly in Freeman’s writing, there is a ‘signature of the British plenipotentiary’ added after the third article, there is an addition which is crossed out at the beginning of the attestation, and there are a number of marks to indicate that a substantial content of Busby’s attestation was to be omitted.[19]

It is this omission, plus the claim that Busby’s articles ‘were in a large measure an expansion of those in Freeman’s notes’, which leads Ross to conclude that ‘Busby’s claim to have “drawn” the treaty is thus a considerable exaggeration even if applied to the various English versions.’[20] However, the differences between Freeman’s and Busby’s versions are greater than Ross implies.

4 February (Tuesday) – morning

The amended preamble and Busby’s clean copy are discussed by Hobson, Busby and Freeman (and Williams). The Busby draft is amended. Freeman writes a clean copy of the composite Hobson-Busby draft, probably in early afternoon, which has been lost.[21]

4 February – from 4pm

Henry Williams tells us that he was given a draft to translate about 4pm on the 4th. (His son Edward was also involved. We do not know about their respective contributions, and for simplicity of presentation the expression ‘Williams’ refers to father and/or son – unless there is an indication to the contrary.) At this point there are no further texts available until that of the Tiriti signed on the 6th.

5 February (Wednesday)

We know that on the 5th, the text in English was read to the gathering. It seems most unlikely that they would have read from the two pieces in different hand writing that are in National Archives. The likely read text was the lost Freeman draft. Then the Williams translation in Maori was also read. The Maori had various concerns. The accounts of the events, especially Colenso’s which is the most detailed, make little direct reference to the text of the treaty presented to the Maori.[22]

The Translation to the Tiriti

We must be careful, but let us try to construct what the Maori might have said had they directly addressed the text of the treaty presented to them on 5 February (noting we do not have that text). There would have been two areas of a literal translation of the Hobson-Busby draft to which they would have been particularly sensitive.

In the first article, and elsewhere, is the thorny issue of the translation of the term ‘sovereignty’. Young in 1869, and more recently Ann Salmon, have suggested that the best term for sovereignty would be ‘rangatiratanga’.[23] This presents two problems. First, in Maori the first article would have said that the rangatira would have ceded their rangatiratanga, which would have sounded a little odd, if not inflammatory. Second, we know at some stage, and certainly by the final one, the term ‘rangatiratanga’ is guaranteed in the second article – and it involves a very complicated story to transfer the term from the first article to the second. Thus I am inclined to the view that the Williams initial translation did not use the term ‘rangatiratanga’. What term might they have used for sovereignty? An obvious one was “mana”, given that the two words were equated in the 1835 Declaration of Independence. This could have been even more inflammatory. Did the Williams’ translation use ‘kingitanga’ at some stage, a term Salmon is attracted to. But why would it not have been used in the final draft? And then there is the simplest possibility that the term ‘kawanatanga’ was used from the beginning, although it suggests that Williams had some notion of sovereignty different from the absolute sovereignty of cessions.

A possible scenario is that the translation of ‘sovereignty’ was originally ‘mana’, and it was changed to ‘kawanatanga’ at a later stage, although whether that was before or after the hui on 5 February I cannot say.

The second problem is whether in the second article the phrase which guaranteed the Maori possessions was sufficiently encompassing. This is not to suggest that the Maori involved foresaw that one day the phrase should cover the Maori language (and certainly not the radio frequency spectrum), but it seems likely that they would want guarantees over everything they possessed or had chieftainship over. Again did the Williamses alter this in the course of the pre-hui discussion, or did they after?

These are obvious changes, but there may have been others, perhaps of a minor kind. One suspects that the Williams drafts of the translation of the Hobson-Busby draft were littered with many changes as father and son (and perhaps others), struggled with the issue of translating a complicated conceptual ideas into acceptable Maori – acceptable both linguistically and politically.

What we have been discussing here is how the Maori might have responded had they been confronted an accurate version of the translation of the Hobson-Busby text. Another question is how did the text get changed in the way that it did, apparently responding to potential or actual Maori concerns? Leaving aside accident, there appear to be two main explanations. The first is that Henry Williams and others saw the potential reaction of the Maori and modified the translation in response to those perceived concerns. The second is that the Maori responses in the hui of the 5th resulted in modifications to the text.

The most comprehensive account we have of the debate is Colenso’s. Compared to the six or so hours of the hui, even adjusting for the time taken in protocol and translation, Colenso’s account is a very brief summary of the discussion. Moreover his report is in English, and it seems likely that Colenso was not fully conversant with the contents of the treaty being presented to the Maori. The only group with a hard copy of the text was Hobson’s, so neither Colenso nor the Maori speakers could refer to a written text. Not surprisingly then, neither the Maori (nor Colenso) directly address the contents of the treaty verbally presented to them. However Colenso’s version of the speeches may be readily interpreted as addressing the first article (although not the second), and it is not difficult to envisage that alterations were deemed necessary. Possibly ,the alterations were described as improvements to the translation, to better capture the intentions in the Hobson-Busby draft (as understood by Williams).

We know the Williams clean copy of the 5th was changed in the evening after the hui. As his son-in-law Hugh Carleton reported ‘an alteration was made while the draft was under consideration.’ [24] The revised draft was then handed to Richard Taylor who copied it out onto the parchment, which was signed on the 6th.[25] The signed Tiriti was by now a much revised translation of the text which Freeman gave the Williamses on the afternoon of 4 February.

Much of this is surmise. But it is plausible assumption, not wild conjecture. Unfortunately we do not have the documents which enable the hypothesis to be directly tested. Neither the English text the Williamses was asked to translate, nor draft translations in their handwriting have been found. Taylor mentions that he kept the copy from which he made the final version, but it is not in his papers. The remainder were once among the Williams papers, but again we do not know what happened to them.

Carleton says that there was ‘an alteration’, but we do not know what it was, nor whether there were more. As Ross asks ‘was the alteration of any consequence? Was there in fact only one alteration?’[26] The most plausible answer to the first question is a ‘yes’, and the second is a ‘no’, since Taylor describes the Williams ‘clean’ copy of the morning of the 5th as a ‘rough’ draft in the evening. The change of adjectives suggests there was more than a minor change in the text. We do not know whether Hobson appreciated there were major differences between the English draft and the actual agreement. (He may have known there were differences, but thought them unimportant on the advice of Williams.)

This discussion assumes that the Williams made as accurate translation of the Hobson-Busby draft treaty as they were competent to do so, and consistent with their understanding of the issues. There is a view that they deliberately modified the draft for personal gain. They might have, but it the assumption is unnecessary. Te Tiriti o Waitangi as we know it to day does not require dishonesty in the translation, and parsimony suggests that claims of deceit and mistranslation are unnecessary. Moreover, that an English version was read on the 5th as well as Maori text suggests that as far as Williams was concerned the latter was as honest a translation as he could do, since there was a danger that someone may have identified any differences.

As a final point, the conventional story of how the Treaty of Waitangi was created describes the argument being offered to the Maori who accepted it without any significant alteration to the text. Put so bluntly such a scenario seems unlikely. Indeed, the Maori account of the signing of the Tiriti emphasizes the central importance of the debate which took place on February the 5th. The difference between the likely Maori translation of the Hobson-Busby draft and the final Tiriti appears to be a documentary confirmation of that oral tradition.

Was There A Treaty of Waitangi?

6 February (Thursday)

Ruth Ross titled her 1972 paper ‘Te Tiriti o Waitangi’, arguing that ‘this much is clear: the drafts, in English or in Maori, were merely drafts; it is the Maori text which was signed at Waitangi.’[27] Indeed, it was the Maori text that was signed on all other occasions, except at the Waikato Heads and the Manukau Harbour, where the actual events and understandings are a mystery.[28] It is this Waikato Heads text which gives rise to the English version of the Tiriti which appears in legislation and elsewhere. Thus there is a firm ‘yes’ to whether there was a Treaty of Waikato Heads, but if by the Treaty of Waitangi is meant an English text of the Tiriti, there was no such document at Waitangi on 6 February. The closest was the Freeman clean copy of the Hobson-Busy, which was probably read on the 5th, but is not mentioned on the sixth, and in any case the Tiriti which was signed seems to have had some significant alterations from it.

After 6 February 1840

Subsequent events reinforce this conclusion. Hobson had only the Maori version printed by William Colenso. When James Clendon, the US Consul in the Bay of Islands, reported the events at Waitangi to the US Secretary of State in a letter of 20 February, he was unable to obtain an official translation, but sent a unofficial one.

I have included the Clendon-US translation of the Tiriti as Appendix V. It is the earliest translation of the Tiriti we have. Who translated it? It is in Clendon’s handwriting but he was not the translator. Nor does he say who did the translation. It seems likely he would first have gone to one of the Williamses. Perhaps it is their translation. Of all the translations I have seen it is the one closest to the Hobson-Busby draft. It translates ‘kawanatanga’ into ‘government’, ‘rangatiratanga’ into ‘possession’, ‘taonga’ into ‘property’, and omits ‘forests, fisheries’.

If it were argued that these parallels were the result of the translator referring to the Hobson-Busby draft, then consider who had access to it. Only the official party and the Williamses had copies. That the official party was not involved in the translation (Clendon said it was not ‘official’), points to the translation being a Williams one. Another piece of circumstantial evidence is that we do not have the draft translation from which Clendon copied. It could be with the other missing Williams papers. If Colenso or Richard Taylor – the other possible translators[30] – had done it, they would probably subsequently mentioned the exercise and, likely as not, given a different translation from the Hobson-Busby draft (which they are unlikely to have seen). In any case, the Clendon-US translation is not in their papers (although Taylor’s are incomplete because the translation he transcribed is not there either).

The circumstantial evidence that the Clendon-US translation is by Williams is tantalizing. It is not enough for the ‘beyond reasonable doubt’ of a criminal court. But in our current stage of knowledge the hypothesis meets the ‘balance of probabilities test’ of a civil case. Suppose it is a (or the) Williams translation, made not later than a fortnight after the actual signing at Waitangi. Then more than any other document it has the claim to be ‘the’ Treaty of Waitangi, the English text version of the Tiriti signed at Waitangi. If it is, it would be ironic that this document is held in the US National Archives.

Apparently Henry Williams did not think his translation markedly changed the meaning of the English text he had been given. The implication of his certification of the English version, forwarded to the Secretary of State in October 1840, was he thought he had made no major change.[31] If the Clendon-US text is a Williams translation of the Tiriti then Williams could reconcile the Tiriti with the Hobson-Busby draft as his certification suggests.

For further evidence of the low status of the various English versions after the signing of the Tiriti, consider the numerous translations made in the 1840s by those involved in land deals around Auckland. They are closer to the Maori Tiriti (presumably based on Colenso’s poster) than the one Clendon sent to the US.[32] If everyone was translating the Tiriti, then they are implying the official version in English was non-existent, unimportant, or irrelevant. In the 1840s the general view among settlers seems to have been there was no Treaty of Waitangi, but there was Te Tiriti o Waitangi which had to be translated into English.

Hobson’s behaviour adds support to the lower status of the English ‘version’. Ross reports on five versions which Hobson forwarded to his superiors in Sydney and London. There are differences between them. The main difference is that three have the Hobson-Busby preamble, two the Freeman one. (One omits ‘forests, fisheries’.[33]) A sixth version attributable to Hobson is in Clendon’s letter to the Secretary of State on 7 July, where the preamble is again Freeman’s (but ‘forests, fisheries’ are included).[34]

What are we to make of all this? Surely it is that there was no English text of the Tiriti at the time of signing, or shortly after, that Hobson cobbled together what they could after recognizing the lack.

Was The Treaty of Waitangi Intended to be a Social Contract?

The problem which began this quest – the discrepancy between the rangatiratanga/possession provisions in article two of the Tiriti and the official English version – has been largely settled, at least in my mind. The differences between the two phrases are real, and arise not from faulty translation, but because the first reasonably accurate translation of the phrase in the Hobson-Busby draft was modified, probably as a result of demands by the Maori at the (first) hui on 5 February for a more encompassing notion of their possessions which they would retain. The Tiriti version is what the Maori agreed to, and what Hobson signed up to, although he may not have been aware of the import of the differences between the Hobson-Busby draft and what he signed. This account involves some conjectures, but it is consistent with the evidence and involves the least implausible set of assumptions to cover the missing evidence.

The alterations were not merely mechanical drafting or translation changes. A comparison of the Freeman and Hobson/Busby drafts shows a shift in the underlying vision. Freeman’s is essentially a treaty of cession, as Normanby intended. By the time Busby and (probably) Williams had finished, the vision appears to have changed to something which is beginning to look like a social contract.

An indication of the magnitude of the shift is in the so-called ‘unsigned treaty’. Hobson had spent a month with Governor Gipps in Sydney before he sailed to New Zealand. They must have discussed the Treaty, and presumably ended up with some common understandings. Gipps presented the ‘unsigned treaty’ to a group of Maori in Sydney on 14 February 1840. (They refused to sign.) It was a treaty of cession with the crown having exclusive preemption right. It transfers sovereignty to the Crown and offers in return only the protection of the Crown with no reference to British rights and privileges.[35] By comparison, Freeman’s draft is more sensitive to Maori issues, and suggests that even at that early stage there had been input by Busby and Williams since the discussions with Gipps.

This is most evident in the articles. Article one does not change a lot. Its equivalent in the Gipps treaty says that ‘Queen Victoria, shall exercise absolute Sovereignty in and over the Native Chiefs, their tribes and country, in as full and ample a manner as Her said Majesty may exercise Her Sovereign authority over any of Her Majesty’s Dominions and subjects, with all the rights, powers, and privileges which appertain to the exercise of Sovereign authority.’[36] In the Freeman draft it is reduced to ‘cede to Her Majesty in full Sovereignty’, which might be treated as a condensed version of the Gipps expression. Busby elaborated it to ‘cede … absolutely and without reservation all the rights and powers of Sovereignty which the said Confederation or individual Chiefs respectively exercise or possess …’ The phrase in the Tiriti becomes (as translated by T.E. Young) ‘give up entirely to the Queen of England for ever all the government of their lands.’[37] The translation by Miriam Penfold and Anne Salmond is ‘… give completely to the Queen of England for ever – all the Governorship of their lands.’[38] The size of the change is dependent upon how one evaluates the meaning of kawanatanga.

(Incidentally, the Gipps ‘Treaty’ shows it would be wrong to attribute the idea of the full transfer of sovereignty being solely due to Busby and/or Williams. Clearly Hobson and Gipps had contemplated this before they were involved. [39])

We can begin to see a shift in article three. The version of the Gipps treaty offers no more than the Queen ‘does hereby engage to accept the said Native Chiefs and Tribes as her Majesty’s subjects, and to grant Her Royal protection to the[m] …, in as full and ample manner as Her Majesty is bound to afford to other of Her Majesty’s subjects and Dominions.’ Freeman’s drafts more consciously offers ‘Her Royal Protection and imparts to them all the Rights and Privileges of British Subjects’, a sentiment which is continued through the other versions.

The biggest shift is in article two which moderates article one (as does article three). The Gipps treaty offers ‘the express understanding that the said Chiefs and Tribes shall retain for their own exclusive use and benefit their comfortable maintenance and residence.’ The Freeman draft offers nothing additional to article three. The Busby draft places obligations on the Crown to guarantee ownership of land resources, and other possessions, while the Tiriti refers to rangatiratanga, and an even wider set of property (or possession) rights.

Also instructive is the section from the attestation, which was subsequently removed (perhaps by Hobson, more probably Williams), is a very Hobbesian account of a country in strife which needs a sovereign to provide law and order, with its references to ‘weaknesses and inability to repress dissensions’, and ‘the want of laws and authority to restrain and punish the evil disposed and criminal’.

Suppose one were to write a social contract in the context of Waitangi in 1840. It might consist of two or three clauses, one of which transferred some sort of governing power to a governor, and a second which preserved certain rights to those who had transferred that power. Those rights would be in two categories: general civil rights (although some modern social contract theory would tend to have the rights and privileges provisions prior to the articles, as occurred in the original Freeman draft), and specific rights which would include property rights. Add a preamble and attestation, and one has a social contract which would look like the Hobson-Busby draft or the Tiriti.

Moreover the resulting structure of the final Hobson-Busby draft is elegant compared with, for instance, the Gipps unsigned treaty. The contrast is sufficient to suggest that there was at least one thoughtful and creative mind devising the treaty proposal. It could have been Busby or Williams, perhaps both.

A number of people have argued that the Tiriti is (or was) in fact a social contract.[42] There is a myth, which I recall first hearing in my adolescence, that the Tiriti was a Hobbesian social contract, something which I reported well before I had come to the conclusions discussed here.[43] Could it have been?

The idea of a social contract (or ‘social compact’, or ‘original contract’) was out of fashion in the middle of the nineteenth century. David Hume’s criticism that the notion was a theoretical construct and not an empirical reality seemed pretty compelling. However at Waitangi in 1840 there was a situation in which some sort of social contract could become a reality. Yet if an idea is unfashionable amongst the intellectual elite, the populist may still maintain the myth for generations – a phenomenon discussed further in the conclusion.

In any case we know that the notion of a social contract was discussed in the early part of the nineteenth century, if not among philosophers, then in sermons. Although the social contract is presented as a part of political philosophy, which it is, there is an older tradition of it in theology, deriving from the Old Testament covenant. We have a sermon of Richard Whately (who became Archbishop of Ireland) preached in 1821 in London, in which he discusses the social contract. While it is unlikely that Busby, Freeman, Hobson or Williams heard that particular sermon, they may have heard a similar one elsewhere.

This is conjecture, but we cannot rule out the possibility that Hobson and, more importantly, Busby and Williams intended their treaty to have the elements of a social contract as an integral part of the cession. Indeed, Busby was aware of the notion of a social contract, which he advocated for New Zealand. He wrote in September 1865, recalling a time after the 1835 Declaration of Independence:

“There were not wanting however among the chiefs some who had the sagacity enough to perceive that something more was necessary than the abstract assertion of rights of a Government, and the recognition of the parties in whom these rights are vested – ‘It was very well’ they said ‘for such of them as were well disposed – but how were those to be managed, who were disposed to rebel?’ ‘Such persons would pay no attention to the laws enacted by the chiefs, and who was to compel them?’ Here was an actual trial of what could be done by the ‘Social Compact’ and those who maintain that theory of the origin of governments rather than admit that ‘all power is God’ and that Governments are of his ordinance might take a lesson from the primitive ideas of the New Zealanders. They – that is the more sagacious amongst them – said, in effect, that God had denied to them the blessings of a Government and Legislature, and they had themselves no power to establish such Institutions.’”

This is the only reference to a social contract thus far found in Busby’s papers. It is no surprise that he was aware of the notion, since he was widely read. The focus of his last 30 years was the grievances he had with the Crown over land dealings, alas, and in this litigious process his interpretation of the Tiriti reads as if he was concerned with the Freeman draft version, with its emphasis on preemption in Article Two.

Nevertheless, even if this extract is not quite a smoking gun, on the balance of probabilities there was a conscious element of construction as a social contract in the Busby draft, given that Busby was favourably inclined to the notion.

It is even less conjectural – although I have not direct evidence – that because the treaty presented to the Maori was very evidently in the form of a social contract, the missionaries would have seized upon that interpretation, presenting it as a covenant between Crown and the Maori. The Maori appear to have readily accepted this interpretation, as down the years they have described the Tiriti as a ‘covenant’.

Henry Williams may have been crucial here, although there is no direct evidence that he ever contemplated a social contract. More work is required on teasing out the political theories of protestant missionaries, such as Williams, but it is tempting to assume that there was an element of the liberal social contract. Henry William’s contribution, if any, might be indicated by ‘kawanatanga’ as his choice for ‘sovereignty’, rather than ‘mana’, ‘rangatiratanga’, or ‘kingitanga’. This moderates the agreement in a minimalist direction. We would need to know more about Williams’ political thinking before we would be confident of this hypothesis.[14]

There is an interesting implication from the modifications to the various drafts. We described the Busby version as Hobbesian, and it certainly has a centralist ring to it. However as a result of the modifications the resulting social contract in the Tiriti is one of greater equality between the governor and the governed. So if the Tiriti is (or was) a social contract it is one of a liberal state where the powers of governance are the minimum necessary. Had this aspect of the Tiriti not been breached too, the path of New Zealand development would have been quite different.

Conclusions: Myths and the Treaties at Waitangi

The title of this paper asks two questions which can now be answered.

First, was there a Treaty of Waitangi? The answer is almost certainly no, if we mean that there was a document in English at the time of the signing of the Tiriti which was a parallel translation of the document that was signed. There was a Treaty of Waikato Heads which is what today we call the ‘Treaty of Waitangi’. However, the most likely candidate for the Treaty of Waitangi, the closest we have to a document which could be called a ‘Treaty of Waitangi’, is the translation of the Tiriti sent by James Clendon to the United States government a fortnight after the signing at Waitangi. Although we do not know for certain who did the translation, the most likely candidate was a Williams.

Second, was it a ‘social contract’? The answer is that the treaty which Hobson and Busby drafted had elements of a social contract including in the way it was structured. The circumstantial evidence suggests that at least the advice from Busby and probably the advice from Williams was influenced by some notion of a social contract. The subsequent modifications as the treaty was translated, subject to robust debate at the hui on February 5, and then altered again, strengthened the social contract element of the final form of the Tiriti, particularly towards it reflecting a more liberal arrangement in which political power was more dispersed, rather than concentrated in the sovereignty of the Crown.

The first conclusion is likely to be controversial because it contradicts the myth of the Treaty. Myths may be true or false. The myth of the Treaty of Waitangi is false, even though it is widely held. Despite Ross’s seminal article, 18 years later in 1990 the nation celebrated the sesqui-centenary of the signing of the Tiriti on the basis that there were two documents of equal historical status and validity, one in English and the other in Maori. A stronger form of this myth is that the English language Treaty is the superior or more relevant one.

This conclusion even challenges the interpretation that when a treaty is agreed in two languages, in law the version in the native language is to be preferred, so that the Maori version of the Tiriti o Waitangi is superior. There were not two documents in different languages agreed at Waitangi. There was not a document in English that was agreed on: there was probably not even a document in the English language that could be treated as a translation of the document agreed to. Insofar as there was a document in English (the Hobson-Busby draft) it was only a draft, and there seems to have been sufficient changes in the translation to give it no more status than that at the signing. The myth of the Treaty of Waitangi is based on a misinterpretation of the historical facts.

Myths are an integral part of a community’s account of their perception of themselves. Their existence tells us much about those who hold them. The myth of the Treaty of Waitangi is a part of the European belief that the Maori signed away their sovereignty – that it was in essence the treaty of cessation which Gipps had in mind. The vast majority of Maori signatories agreed only to the Crown’s governance of the nation, and it may be that the chiefs at the Waikato Heads and Manukau who signed the English language Treaty of Waikato Heads, which is the official version of Tiriti in English, had that understanding too.

Thus the myth of the Tiriti being a social contract has an historical element of truth, even if the vision was not conscientiously pursued in later years. Its contemporary relevance of the is unclear. It may merely be a matter of historical accuracy, or perhaps of nostalgia for a path of constitutional development which New Zealand failed to realize. But following John Rawles’ Theory of Justice the notion of social contracts has become fashionable again. It may be that the myth of the Tiriti as a social contract has a significant contribution to the ongoing constitutional and political development of New Zealand. Those who advocate the Tiriti being the foundation document of New Zealand are implicitly arguing that New Zealand society is founded on a social contract.

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Endnotes
1. Earlier versions of this paper included ‘Was There a Treaty of Waitangi; and Was it a Social Contract?’, Archifacts, April 1997, p.21-49; a paper to ‘He Korero Tawhito, He Korero Hou: History Here and Now’, Conference, Wellington, 8-11 February, 1996; and ‘Contract, Covenant, Compact: The Social Foundations of New Zealand’, address to Spring Lecture Series of St Andrews Trust for the Study of Religion and Society, published in Socialist Politics, Issue 90/3,4.
This project involved many people, who while not responsible for the views or errors in this paper have contributed to its development in various ways. They include Whatarangi Winiata, Piripi Walker, and Martin Dawson who were involved in the broadcasting claim; participants at the vigorous but informal lunchtime seminars at the Stout Research Centre, especially Brad Patterson and Richard Hill; various librarians and archivists at the Alexander Turnbull Library, the Auckland Public Library and National Archives; Claudia Orange who has patiently responded to a curiosity which bordered on pestering; Barry Rigby of the Waitangi Tribunal; Melissa Bray who looked up some material in the Hocken Library for me; and Manuka Henare who has provided me with discussion and his copious annotated record of Busby’s papers. Although I never met her, this paper is in greatest debt to Ruth Ross.
2. B. H. Easton, A Pakeha Economist’s Perspective on the Maori Broadcasting Claim, Commissioned by the New Zealand Maori Council, Wellington, 1989.
3. B. H. Easton, Working with the Maori: Consultancy, Research, Friendship, seminar paper for NZIER, 2 August, 1995, Working Paper Economic And Social Trust On New Zealand, 95.44.
4. AJLC, 1869:69-71, reported in C. Orange, The Treaty of Waitangi, Wellington, 1987, p.263.
5. I. H. Kawharu, Waitangi: Maori and Pakeha Perspectives of the Treaty of Waitangi, Auckland, 1989, p.319.
6. H. W. Williams, Dictionary of the Maori Language, Wellington, 7 ed, 1971. p.86. Oddly the 1971 edition of the Williams dictionary does not give a meaning of kainga as ‘village’, which is the common interpretation today. The implication of Bruce Biggs, Complete English-Maori Dictionary, Auckland 1981, is that there is no word for village in the William’s dictionary which it reverses. The translation which Clendon sent to the US government translates ‘kainga’ as `dwellings’ (Appendix V).
7. C. Orange, op. cit., p.264.
8. B. Biggs, ‘Humpty-Dumpty and the Treaty of Waitangi’, in I. H. Kawharu, op. cit., graphically describes some of the translation difficulties.
9. R. M. Ross, ‘The Tiriti o Waitangi: Texts and Translations’, New Zealand Journal of History, VI, 2 p.129-57.
10. Facsimiles of the Declaration of Independence and the Treaty of Waitangi, 1877, reprinted Wellington, 1976.
11. Henry Williams reports first visiting Hobson on 30th. L.M. Rogers, The Early Journals of Henry Williams: 1826-1840, Christchurch, 1961, p.477.
12. Ross, op. cit., p.132.
13. ibid. p.139.
14. The reference to ‘Victoria at Waitangi’ may have been Busby the property developer, with an eye to publicizing the township he was promoting.
15. 1 Sept 1840, reported in J. Busby, Appendix to a paper read at the Meeting of the National Association for the Promotion of Social (sic) at York on the 23 Sept 1865 and Published with their Transactions, Busby Papers, MS 46, Box 2, F7, Auckland City Library, pp.92-3.
16. J. Busby, Remarks upon a Pamphlet entitled ‘The Taranaki Question, by Sir William Martin’, Auckland, 1860, pp.3-4.
17. The most obvious case of a transposition of sentences occurs in the Freeman draft, with the shift of what is now the third article.
18. J. Busby, op. cit., 1860, p.145.
19. Page 1 and 2 have a line down their side, as has page 4 after the place set down for the chief’s signatures. Most of the rest of page 4 is crossed out. There is a large cross on page 3, immediately after the date. The implication, which subsequent documents support, is that everything on page 3 from the cross to the witnessing was to be deleted. The deletion does not markedly alter the sense of the draft, but eliminates unnecessary or contentious justifications.
20. Ross, op. cit., p.145.
21. Hugh Carleton reports the making of the clean copy. The Life of Henry Williams: Archdeacon of Waimate, 1877, Wellington edition, 1948, p.313,. He is quoting a manuscript by Williams Early Recollections, which seems to have gone missing, with the Williams diary after January 1840, and other relevant papers which presumably included the early draft translations. It seems likely, that Carleton, Williams’ son-in-law was the last person to see the complete Williams’ papers.
22. W. Colenso, (1890) The Authentic and Genuine History of the Signing of the Treaty of Waitangi, Wellington, 1890.
23. A. Salmond, Submission for the Waitangi Tribunal – Muriwhenua Land Claim. Doc F19, 1995.
24. New Zealand Parliamentary Debates, 1864-2, p.292.
25.The grammatical and spelling errors that Biggs noted are probably transcription errors made by Taylor. Biggs, op. cit.
26. Ross, op. cit., p.133.
27. ibid , p.129.
28. ibid , p.136.
29. J.R. Clendon, Letter to Secretary of State, United States of America, 20 February, 1840, in Micro 2607, RG59: Despatches from US Consul in the Bay of Islands & Auckland, National Archives.
30. Taylor was away with Hobson to the Hokianga hui at the time Clendon was writing.
31. Ross, op. cit., p.135
32. In Clendon’s Papers in the Auckland Public Library, 1839-72, NZMS 705, Clendon House Papers, Box 1/1, there is one of the prologue and first two articles – probably the final page is lost – which is quite different from the one he sent to the US.
33. Ross, op. cit., p.134.
34. Clendon, ibid , 3 July 1840, op. cit.
35. E. Sweetman, The Unsigned New Zealand Treaty , Melbourne, 1939. A transcription of the Gipps treaty is in C. Orange op. cit ., pp.260-61.
36. ibid , p.64.
37. Orange, op. cit., p.265.
38. Salmond, op. cit., p.5.
39. In an earlier version of this paper I attributed this belief, as far as Williams, was concerned to Paul Moon, citing his The Path to the Treaty of Waitangi: Te Ara Ki Te Tiriti (2002). Paul tells me that this misrepresents his account, in which case I am happy to make this acknowledgement of my earlier error.
40. Sweetman, op. cit., p.64.
41. ibid . p.64.
42. e.g. B.H. Easton, ‘For Whom the Treaty Tolls’, Listener , February 5, 1990, p.116, and ‘Contract, Covenant, Compact: The Social Foundations of New Zealand’, op. cit.; R. E. Ewin, ‘The Treaty of Waitangi and Hobbes’s Condition of Mere Nature’, in G. Oddie & R. Perret (ed) Justice, Ethics and New Zealand Society , Auckland, 1992, pp.60-72; J. Tichy, & G. Oddie ‘Is the Treaty of Waitangi a Social Contract?’ in G. Oddie & R. Perret (ed) op. cit. pp.73-90; G. Fleming, The Treaty as Social Contract , paper to the New Zealand Political Studies Association, Conference, August 1995.
43. Easton Listener 1990, op. cit.
44. J. Busby, op. cit., 1865, pp.87-88. In the margin next to the paragraph is: ‘I confess it does not strike me in this light. It only appears to me that this “Social Compact” was asking to talk and deliberate, but not to go a step further and act.’ I am grateful to Manuka Henare for drawing my attention to this quotation.
45. Something of Williams’ political views will be found in Carleton, op. cit., pp.126-128. Moon op. cit. discusses the views of the evangelical missionaries to which Williams belonged.
46. Ross, op. cit., p.138. (It is very appropriate, that she should have the last word.)

APPENDICES OF DRAFTS OF THE TREATY

I Drafts of the Preamble – Freeman’s and Hobson’s * not included
II Drafts of the Articles – Freeman’s and Busby’s * not included
III Drafts of the Attestation – Busby’s *not included
IV The Sources of the Treaty not included
V The Clendon-US translation of the Tiriti.
VI The Genesis of the Tiriti

* Notes
The drafts come from the Facsimiles of the Treaty of Waitangi (1877), except Busby’s original draft is from Busby’s private papers. The Clendon-US translation of the Tiriti comes from Clendon, op. cit. 20 February, 1840. All were originally in handwriting, which is not always easy to read.

APPENDIX V: THE TRANSLATION SENT BY CLENDON TO THE US

Her Majesty Victoria Queen of England in her Gracious consideration the Chiefs and people of New Zealand and her desire to preserve to them their lands and to maintain peace and order amongst them, has been pleased to appoint an Officer to deal with them for the cession of their sovereignty of their country and the Islands adjacent to thereto(?) – and saving that many of her Majesty’s subjects have already settled in the country and more constantly arriving. And that it is desirable for their protection as well as the protection of the Natives to establish a Government amongst them. Her Majesty has accordingly been pleased to appoint me William Hobson a Captain in Her Majesty’s Royal Navy to be the Governor of such parts of New Zealand as may now or hereafter be ceded to Her Majesty. And proposes to Chiefs of the confederation of the United Tribes of New Zealand and the other chiefs to agree to the following Articles.

Article the First
The Chiefs of the Confederation of the United Tribes of New Zealand and the other Chiefs who have not joined the Confederation cede to the Queen of England for ever the entire Sovereignty of their country*
(*This is the correct text. An earlier version on the webiste was wrong. I am grateful to Martin Doutré for pointing this out. BHE. 15 May, 2004.)

Article the Second
Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes and to all the people of New Zealand the full possession of their Lands, dwellings, and all their property. But the Chiefs of the confederation Tribes and the other Chiefs grant to the Queen the exclusive right of purchasing such lands as the proprietors thereof may be disposed to sell at such prices as shall be agreed upon between them and the persons appointed by purchase from them.

Article the Third
In return for the cession of the sovereignty to the Queen of England the people of New Zealand will be protected by the Queen of England and the rights and privileges of British subjects will be granted to them.

signed William Hobson, Consul and Lieutenant Governor

Now we the Chiefs of the confederation of the United Tribes of new Zealand being gathered at Waitangi and we the other chiefs of New Zealand having understood the meaning of these Articles accept of them All.
In witness whereof our Names and Marks are affixed.
Done at Waitangi on the sixth day of February in the year of our Lord One Thousand and Eight Hundred and Forty.

The following note was appended
Item: This translation is from the Native document and [is] not a Copy of the Official document in English from which the Native one is made and although the words may be different from what they are in the Original(?) I think the sense is much the same but on the return of Captn Hobson from the ? I shall apply officially to him for a copy and translation of the Treaty for the purposes of sending it to the Government of the United States
James R Clendon (signed)
US Consul

VI: THE GENESIS OF THE TIRITI

The following is the scenario developed in the text. Where possible, the chronology follows that in Orange (1987).

Actual or conjectured texts are labelled with two letters (and sometimes a number). On the first occasion it is mention the symbol is emboldened. An asterisk indicates the text is in Maori. The various texts are summarized at the end.

1839

14,15 August: Normanby’s Instructions to Hobson – do not contain a draft or model treaty.

27 December: Hobson arrives in Sydney, where he stays until 18 January. He spends much time with Gipps. Presumably they discuss the contents of Normanby’s instructions, and the treaty which they imply. It is conjectured that the notion of the treaty they discuss is captured in the “unsigned treaty”, which Gipps offers to some Maori on 14 February (GT).

1840

29 January: Hobson arrives in Bay of Islands. He sees Busby on this day. Over the next few days Hobson, Busby, and Freeman discuss the proposed assembly of chiefs.

30 January: Colenso prints invitation to assembly. Henry Williams visits Hobson. Hobson, Busby and Freeman (and Williams?) begin serious discussion on contents of the proposed treaty. (about) Hobson directs Freeman to prepare a draft treaty based on the previous discussions.

31 January: Hobson goes to Waimate and Hokianga.

1 February: Hobson returns from Hokianga.

2 February: Sunday. Hobson and Busby (also Freeman and Williams?) discuss Freeman’s draft (FD). Make alterations on it, but decide it is still unsatisfactory. Hobson begins own draft (HD).

3 February: Hobson is too ill to complete draft. He sends his draft preamble, and the Freeman draft to Busby. Busby amends Hobson’s draft preamble, and writes down his own articles and attestation. (BD1) He then rewrites the latter into a clean copy. (BD2)

4 February (morning): The amended preamble and Busby’s clean copy are discussed by Hobson, Busby and Freeman (and Williams?). Busby’s draft is amended. Freeman writes a clean copy of the composite Hobson-Busby draft (HB), probably in early afternoon.

4 February (from 4pm): Henry and Edward Williams are given the Hobson-Busby draft to translate. They do this in the evening (W1*). Williams prepares clean copy for hui (W2*).

5 February (9am-10am): The Williams translation is looked at by Busby and Hobson. Busby suggests one amendment ‘whakaminenga’ for ‘huihuinga’.

5 February (10am onwards): The Maori and others gather. Hobson reads an English text (i.e. HB). Henry Williams reads his (amended) translation of the Hobson-Busby draft (i.e. W2*). There is considerable dissatisfaction among the Maori.

5 February (from about 4pm): Meeting breaks up. Henry and Edward Williams further amend the text in the light of the discussion that day. The text (i.e. W2*, but now a ‘rough’ copy because of alterations) is given to Taylor, who writes it out on parchment (making a couple of transcription errors) that evening. This is the Tiriti o Waitangi (TW*).

6 February: At the second meeting the Maori sign the Tiriti o Waitangi (TW*).

8-17 February: Colenso prints copy of the Tiriti (CT*).

9-18 February (i.e. afterwards): Clendon obtains copy of Tiriti, but is unable to obtain copy of English translation. Goes to one of the Williams (Henry?).

10-19 February (i.e. afterwards) Williams provides Clendon with a translation of Tiriti (W3).

20 February: Clendon transcribes the Williams(?) translation which he sends to US Secretary of State (CU), with copy of Tiriti printed by Colenso.

Summary Table

NAME DESCRIPTION DRAFTER/ SOURCE WRITER DATE DRAFTED DATE AMENDED STATUS CURRENT LOCATION
GT Gipps Treaty; ‘Unsigned Treaty’ Treaty submitted to Maori in Sydney Gipps? ?  ExistingMitchell Library, Sydney.
FD Freeman’s Draft Preamble & Articles Dictated by Hobson? Freeman 31 Jan? 1 Feb? Existing National Archives
HD Hobson’s Draft Preamble Hobson Hobson 1 Feb? 3 Feb by Busby? Existing National Archives
BD1 Busby’s First Draft Articles & Attestation Busby Busby 3 Feb Existing Busby Papers, Auckland Institute & Museum Library
BD2 Busby’s Clean Copy Article & Attestation Busby Busby 3 Feb 4 Feb (morning) by Hobson Existing National Archives
HB Hobson-Busby Clean copy of HD & BD2 HD & BD2 Freeman? 4 Feb (afternoon) Reported Lost – in Williams papers?
W1* Williams’ First Draft Translation of HB HB Translated by the Williamses One of the Williams 4 Feb (evening) 5 Feb (morning) by Busby Conjectured Likely to have been in the Williams Papers
W2* Williams’ Second Draft Clean copy of W1* presented to Maori on 5 Feb W1* One of the Williams 5 Feb (morning) 5 Feb (evening) Reported Likely to have been in the Taylor Papers
TW* Tiriti o Waitangi Parchment, signed on 6 Feb W2* Taylor 5 Feb (evening) Existing National Archives
CT* Printed Tiriti Printed Version of Tiriti TW* Printed by Colenso Between 8 & 17 Feb Existing Numerous locations
W3 Williams’ (?) Translation Unofficial Translation of Tiriti for Clendon TW* translation by Williams? Williams? After CT* Conjectured Likely to have been in the Williams Papers
CU Clendon-US W3 in Clendon’s handwriting W3 Clendon After W3, by 20 Feb Existing US National Archives

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