EMPIRE ON THE CHEAP:
CROWN POLICIES AND PURCHASES IN MURIWHENUA 1840-1850
A Historical Report commissioned by the waitanqi Tribunal
Barry Rigby 6 March 1992
/ EMPIRE ON THE CHEAP:
CROWN POLICIES AND PURCHASES IN MURIWHENUA 1840-1850
TABLE OF CONTENTS PAGE
I INTRODUCTION 4
(a) Purpose 4 (b) Thesis statement 5 (c) Outline 5
II ORIGINS OF THE TREATY 1837-1840 8
(a) Historiography 8 (b) Imperial Illusions 9 (c) Maori depopulation 16 (d) Vested interests 18
III HOBSON'S CHOICE 1840-1842 21
(a) strict economy 21 (b) Land in Treaty transactions 23 (c) Crown Mangonui Purchases 1840-1841 36 (d) Crown conceptions of Maori land rights 43 (e) The Crown/CMS Alliance 48
IV COLONIAL CRISIS 1842-1845 54
(a) Inadequate administration 54 (b) Land claims policy 57 (c) The Oruru conflict 62 (d) FitzRoy's choice 67
V COLONIAL AND IMPERIAL CONFLICT 1845-1847 71
(a) Disestablishment of the CMS 71 (b) Land and conflict 73 (c) Grey's Maori allies 76 (d) The Wasteland debate 78 (e) Grey, Panakareao and the CMS 80
VI CROWN CONTROL 1848-1850 85
(a) The Resident Magistrate system 85 (b) White and Maori 86 (c) The Mixed Economy 88 (d) Crown Autocracy 92 - 3 -
PAGE
VII CONCLUSION 95
(a) Issues arising from the evidence 95 (b) How cheap was justice? 96
VIII MAP
1840-1841 Crown Mangonui Purchases 41 - 4 -
I INTRODUCTION
(a) Purpose
This report presents an overview of Crown policies and purchases in Muriwhenua during the 1840s. It treats this subject more exhaustively than the "Preliminary Report on the Historical Report" filed in December 1989, or the subsequent Mangonui, Muriwhenua North and Oruru reports.
This report examines not only the Crown's actions in Muriwhenua, but the imperial and colonial policies governing those actions. Likewise, it examines not just the 1840 and 1841 Crown Mangonui purchases, but also the Crown's changing conception of Maori land rights both before and after the Treaty transactions at the beginning of the decade.
The purpose of including imperial and colonial policies wi thin the investigation is to locate Muriwhenua history within a larger context than was possible in previous reports. without consideration of the larger imperial and colonial context, Crown actions in Muriwhenua cannot be fully understood.
Since Margaret Mutu and Anne Salmond will examine the Maori context of those actions, this report deals largely with things Pakeha. Nonetheless, the history of the 1840s was one of dynamic interaction between Maori and Pakeha. Consequently, this report cannot ignore situations where Maor i clearly influenced, and were influenced by, Crown actions.
Although I've also avoided detailed examination of the Crown Land Claims commissions, the subject of Richard Boast's and other claimant research reports, I've not been able to avoid them entirely. Since the Godfrey commission reveals a great deal about the Crown's conception of Maori land rights in Muriwhenua, as does the debate about missionary land claims, both receive proper attention. - 5 -
(b) Thesis statement
The central thesis of this report is that the Crown's policies and purchases in both Muriwhenua and New Zealand during the 1840s attempted to get "empire on the cheap". Though historians such as McLintock, Wards and Adams detected this theme in Crown policies towards New Zealand, they haven't 1 considered the consequences of this for Maori •
In this report, I argue that to uphold Treaty obligations incurred in 1840, the Crown had to commit considerable resources. To protect Maori land rights effectively, it had to conduct a thorough investigation of Maori customs, for example.
I argue that not only did the Crown fail to commit sufficient resources to uphold its Treaty obligations, its policies invariably sacrificed justice in the interests of strict economy. By seeking "empire on the cheap", the Crown tried to buy justice cheaply. In this process, I maintain, the Crown short-changed Maori.
(c) Outline
In developing this thesis, I've organised the report into five main chapters, in addition to the introduction and conclusion. In Chapter II, Imperial origins of the Treaty, I'll begin by reviewing how historians have explained annexation by Treaty. I then examine some imperial illusions, and Maori depopulation, which preceded the Treaty. This leads me to further identify the vested interests of the Pakeha architects of the Treaty.
A H McLintock, Crown Colony Government in New Zealand (Wellington 1858); Ian Wards, The Shadow of the Land: A Study of British Policy and Racial Conflict in New Zealand 1832-1852 (Wellington 1968); Peter Adams, Fatal Necessity: British Intervention in New Zealand 1830-1847 (Auckland 1977). - 6 -
Chapter III, entitled Hobson's Choice, points out how the Crown's first executive officer in New Zealand had very few options left open to him by his superiors in London and Sydney. Hobson's superiors insisted that he operate on a shoe-string budget, while upholding Treaty obligations. The key Treaty transactions in Northern New Zealand focused on Maori land rights. I examine those transaction in considerable detail. The Kaitaia transaction, in particular, prepared the way for the 1840-1841 Mangonui purchases. In each of these transactions, CMS missionaries played a crucial role. I therefore examine what I refer to as the Crown/CMS alliance.
The strains of an under-resourced colonial administration plunged New Zealand into crisis between 1842 and 1845. This is the subject of Chapter III. The Crown Land Claims commissions, hampered by lack of funds and erratic policy shifts, reflected and contributed to a deepening of the crisis. In Muriwhenua the crisis contributed to the 1843 Oruru conflict. The crisis also produced a series of drastic measures by Governor FitzRoy which contributed to his recall during the Northern war of 1845.
In Chapter V, Colonial and Imperial conflict, I argue that Grey's arrived to replace FitzRoy signalled a major shift in Crown policy. Grey dissolved the Crown's alliance with the CMS while recruiting Maori allies (including Panakareao) during the Northern War. Imperial authorities contributed an added dimension to the conflict with the "waste-land" doctrine enunciated in 1846. The colonial and imperial conflict came to Muriwhenua in late 1847 with Nugent and Symonds' visit to Mangonui, Oruru and Kaitaia.
Although Grey refrained from implementing the imperial "waste land" doctrine, he established direct Crown control in predominantly Maori areas such as Muriwhenua through his Resident Magistrate system. I examine this system briefly in - 7 - Chapter VI, entitled Crown Control 1848-1850. Since Grey maintained that a thriving mixed economy underlay the extens ion of Crown control, I examine this phenomenon in Muriwhenua. Finally, I assess the impact on Maori rights of what Grey's biographer describes as Crown autocracy.
In conclusion, I suggest issues arising from the evidence and interpretation presented in this report. I also conclude on what can be learned of the consequences of "empire on the cheap" . - 8 -
II IMPERIAL ORIGINS OF THE TREATY
(a) Historiography
Historians explaining the origins of the Treaty of Waitangi normally fall into one of two schools. These may be described as the consensus school, and the conflict school.
Consensus historians normally emphasis the humanitarian ideals embodied in the Treaty. The younger Sinclair wrote in 1959 that the Treaty inaugurated a "new and noble experiment" in colonial history. Recently, Orange has continued this theme. Despite her criticism of the Crown for failing to honour the Treaty, she generally sees it as originating in humanitarian idealism and bicultural consensus2 •
Historians emphasising conflict between the humanitarian architects of the Treaty, and its detractors; and between Maori and Pakeha settler interests, include two former Official Historians, McLintock and Wards. In 1958 McLintock argued that misguided idealism embodied in the Treaty led the Crown to protect Maori interests at the expense of Pakeha interests3 • A decade later Wards argued that the Crown sought control over both Maori and Pakeha settler interests, and stumbled upon the Treaty as the most expedient way to achieve such control4. In assessing the imperial origins of the Treaty, Adams came to a similar conclusion in 1977. He argued that the "Treaty was intended to protect the Maoris only insofar as their rights were compatible with British
dominance .•• " 5 •
2 Keith Sinclair, Historv of New Zealand (Harmondsworth 1959) p71; Claudia Orange, The Treaty of Waitangi (Auckland 1987) pp38, 59.
3 McLintock, Crown Colony Government, pp70-1
4 Wards, Shadow of the Land, ppix-x, 28
5 Adams, Fatal Necessity, pp14-15.
I' - 9 -
Neither consensus nor conflict historians have probed the imperial origins of the Treaty very deeply. In embracing a view of imperial idealism, consensus historians have failed to consider that this idealism may have been .. based on a fundamental misunderstanding of the nature of Maori society during the 1830s. On the other hand, conflict historians oversimplify the divisions between Crown, humanitarian and vested interests. They also pay insufficient attention to how Maori actions could influence imperial and colonial outcomes.
(b) Imperial Illusions
During the late 1830s, Crown actions were influenced by four major illusions which historians usually ignore. Although the illusory nature of these assumptions may not be potently obvious, they were that:
1 Maori had alienated most of their land; 2 Land in Maori hands was virtually valueless; 3 Maori were almost all under missionary control; and; 4 Maori would meekly accept annexation to Britain.
The first illusion, that during the 1830s Maori alienated most of their land, arose partly from Busby and missionary reports, and partly from testimony before the House of Lords Select Committee on New Zealand in 1838. In mid 1837, James Busby, the British Resident in the Bay of Islands informed London that Maori had alienated most of Northern New Zealand to British settlers. He urged this as grounds for the establishment of a British Protectorate since Maori, he 6 argued, failed to protect themselves • Busby failed to disclose that he had participated in the so-called alienation of Maori land, as had Thomas McDonnell, briefly a British
6 Busby to Glenelg 16 June 1837, Busby Official Letters, pp28-35, Alexander Turnbull Library. - 10 -
Resident at Hokianga during the 1830s7 • The land speculation of British Residents before 1840 illustrates how humanitarian rhetoric could disguise vested interests.
Most of the evidence presented in 1838 to the House of Lords
Select committee on New Zealand supported Busby I s views. John Flatt, a former CMS farm labourer, stated that "the whole Northern Island will shortly be in the possession of Europeans " Likewise, Rev. F Wilkinson, who had visited New Zealand on a CMS errand, argued that unless the Crown prevented Maori from squandering their birthright "they would perish before the Europeans "8 Captain (later Governor) Robert FitzRoy questioned whether the alienations were absolute in the European sense, and several witnesses suggested they were inequitable. Whether or not they were absolute or inequitable, no witnesses challenged the assumption that Maori alienations were widespread9 •
In response to suggestions that Maori alienations may have been neither absolute, nor equitable, New Zealand CMS missionaries asserted both the validity of their own transactions, and the Crown's obligation to protect Maori from the consequences of dispossession. without distinguishing between purchases made on behalf of the CMS, and those made by missionaries on their own behalf, the Northern CMS Sub committee stated unequivocally:
All purchases we made with a full understanding that they do not revert again to the New Zealanders ... The
7 McDonnell told the 1844 House of Commons Select Committee on New Zealand that he "possessed" 150 square miles (or 96,000 acres at Hokianga. British Parliamentary Papers [BPP] 1844 (556) p2.
8 BPP 1837-8 (680) pp 54, 105
9 Ibid, pp173-4. Gipps, the Governor of New South Wales, later argued that no witnesses were prepared to defend the pre Treaty transactions as equitable contracts. Speech to NSW Legislative Council 9 July 1840, Ibid 1841 (311) pp76-8 - 11 - Bay of Islands and other important places are entirely in the possession of Europeans. The natives of the northern part of this island are only nominally the sovereigns of their own country ... It is only by the intervention of the British Government that the New Zealanders will maintain a portion of their country10.
Crown actions during 1839 contributed to triggering a New Zealand landrush. When NSW Governor Gipps raised the price of Crown land across the Tasman from 5/- to 12/- per acre in January 1839, he diverted the attention of Sydney-based land speculators to New Zealand11 . Furthermore, when the Crown extended Gipp' s extra-territorial jurisdiction to New Zealand on 15 June 1839, it sent a clear signal to speculators that annexation was in the offing12. Speculators concluded that if they wanted to buy cheap and sell dear, they would have to buy before annexation, and sell afterwards when the Crown secured property rights.
NZ Company activities also contributed to the late 1839 land rush. Although the Company concentrated its purchase activi ties in the Cook strait area, it repurchased land claimed by McDonnell in the Hokianga and Kaipara areas13. McDonnell's reports of his northern transactions convinced the Company that they could negotiate absolute and equitable alienations with missionary assistance14 . Despite its differences with the Company over who should control the
10 This Sub-committee included the notable humanitarians, Henry Williams (author of the Maori text of the Treaty) and George Clarke (later Protector of the Aborigines). Northern Sub committee's remarks on Parent Committee's 9 August 1838 letter, nd CMS Correspondence, New Zealand [CMS/CN] M11.
11 Edwin J Tapp, Earlv New Zealand: A Dependencv of New South Wales 1788-1841 (Melbourne 1958) pp 124-5
12 McLintock, Crown Colony Government, p59
13 BPP 1844 (556) pp8-10
14 New Zealand Company instructions to Colonel Wakefield nd end in Hutt to Normanby 29 April 1839, No.6, Ibid 1840 (238) pp22- 7. - 12 -
colonisation of New Zealand, the Crown shared its assumption that Maori alienated much of New Zealand to British subjects, an assumption shared also by the British Resident and CMS missionaries.
As early as July 1839, Treasury officers in London advised the Colonial Office on the steps Captain Hobson should follow in annexing New Zealand. They recommend that he should acquire with Maori consent "the sovereignty of such territories therein as may be possessed by British sUbjects ... or may be possessed by British subjects ... or may be acquired by [them after annexation] ... ". Earlier, the Crown informed the NZ Company that it would acquire private "proprietary rights" in 15 New Zealand in return for "equitable" compensation • Thus, Lord Normanby's August 1839 instructions to Hobson assumed that the Crown could acquire an extensive and profitable domain in New Zealand from "extensive cession of land ... " there prior to the Treaty. He believed such a domain would fund colonial administration without a charge upon the imper ial purse 16.
Upon arriving in Sydney to consult with Gipps, his immediate superior, Hobson revealed that in discussions with Normanby's predecessor in January 1839 the Crown already accepted the inevi tabili ty of annexation. Hobson told Gipps that the pri vate "acquisition of vast tracts of Land ... " made the annexation of the whole of New Zealand, not just parts of it, inevitable17 • Although Crown officers doubted the equitability of some pre-Treaty transactions, they apparently believed them to be absolute alienations in the European sense. Normanby stated in his instructions that the Crown would see to it that Maori "alienated" land by "fair and equal
15 Labour here to Hutt 1 May 1839, No.7, Ibid pp27-8.
16 Normanby to Hobson 14 August 1839, No. 16, Ibid, pp37,39.
17 Hobson to Gipps 24 December 1839, No. 1, Governor's series [G] 36/1a. - 13 -
contracts" , assuming that Maor i understood the full implications of absolute alienations18 .
While the question of whether Maori could have knowingly engaged in absolute and equitable alienations prior to the Treaty remains an open one in the investigation of the Muriwhenua land claim, the Crown in 1839 failed to address this question. Crown officers failed to consider the possibility that Maori may have viewed pre-Treaty transactions as gift exchanges or trust agreements rather than as alienations in the European sense. Their notion that Maori needed to be saved from themselves, saved from squandering their birthright, was founded upon the imperial illusion that Europeans alone defined the nature of pre-Treaty transactions, and that they defined them as absolute alienations.
The second imperial illusion that land in Maori hands was virtually valueless proceeded in part from the assumption that they engaged in a frenzy of self-dispossession before 1840. As expressed by Rev. S Hinds, the NZ Company's religious envoy, Maori deserved only a "trifling" price for their land, because this was "probably fully equivalent" to its value. Maori land, he believed, was "very nearly valueless, and must
be so till civilized Men give it a Value,,19. The Company I s 1839 instructions to Wakefield specified that since unoccupied Maori land acquired value only with the investment of Pakeha capital and labour, he need pay Maori no more than a nominal 20 purchase pr ice •
Normanby echoed these some sentiments in instructing Hobson. In the "fair and equal contracts" by which Maor i would
18 Normanby to Hobson 14 August 1839, No. 16, BPP 1840 (238) pp38-9.
19 BPP 1837-8 (68d) pl34.
20 Instructions nd end in Hutt to Normanby 29 April 1839, No.6, Ibid 1840 (238) pp24-5. - 14 -
alienate their unoccupied land to the Crown, a nominal purchase price didn't inflict "any real injustice" upon Maori because, without Pakeha capital and labour, their land "possesses scarcely an exchangeable value ... ,,2~. As Adams has pointed out, the Crown followed in the noble footsteps of Sydney land speculators and NZ Company agents in seeking to buy cheap and sell dear!ll
The assumption that only Pakeha land use practices, such as continuous cropping, could endow Maori land with value was an imperial illusion in the following sense. It rested on the essentially European capitalist notion that the only kind of value land could possess was that which could be realised in a market exchange. The Crown and NZ Company failed to acknowledge the fact that Maori endowed land with their own distinctive values. Maori valued land not just as a source of food (obtained in various way, but usually not by continuous cropping), but also for its beauty, its ancestral associations, and its spiritual significance. According to Firth, in his classic study of Maori economics, Maori did not value land as an impersonal commodity to be exchanged for 23 profit in a market place •.
The third imperial illusion that Maori were almost all under missionary control resulted from some wishful thinking in London. Missionary witnesses before the House of Commons Select Committee on Aborigines in 1836-1837 delivered excessivelY optimistic accounts of the conversion of Maori to Christianity. On the understanding that Maori could be considered docile members of a Christian flock, Crown humani tarians such as James Stephen (who ran the Colonial Office from 1836 to 1847) advocated that a benign Protector
21 Normanby to Hobson 14 August 1839, No. 16, Ibid p39.
22 Adams, Fatal Necessity, pp14-15.
23 Raymond Firth, The Economics of the New Zealand Maori (Wellington 1959), pp367-8. - 15 -
of Aborigines become their shepherd24 •
In mid 1837 Busby proposed using missionaries to establish a
British protectorate over Maori. He wanted to ~onstitute a Congress of Chiefs out of the signers of his 1835 Declarations of Independence. The rangatira would govern "in theory", while Busby, as "the representative of the protecting Power ... ", would govern "in reality ... ". To establish "an entire control over the population, it would only be necessary to establish a School in each considerable village ... " with missionary assistance. Busby assured London that the British could control Maori New Zealand at a cost of £1,000, and validate British land claims as an added bonus!!25
While missionaries exerted considerable influence within those Maori communities which accepted them during the 1830s, the Crown deluded itself in thinking that this amounted to missionary control of Maori. To demonstrate this, I need only refer to Colenso's abortive attempt to supervise the desecration of Te Rerenga wairua in 1839. After claiming the honour of being the first person to desecrate the rocks of
"Ngaromaki", Colenso sent '~Tarawero, a new convert from the Turanga-nui area, to desecrate the sacred Pohutukawa at Cape Reinga on Easter Sunday. Wareware, an Ahipara rangatira (the father of Te Morenga) denounced Colenso in no uncertain 26 terms • The fact that this attempted desecration failed, must have reinfoced the tapu nature of Te Rerenga Wairua. Most Muriwhenua people by 1839 had accepted a distinctively Maori form of Christianity, but in doing so they had not rejected their own conceptions of wairua and tapu. Thus, in one of most missionary influenced Maori areas, Maori continued
24 BPP 1837 (425) pp83-4; William P Morrell, British Colonial Policy in the Age of Peel and Russell (Oxford 1930) pp25- 6, 45-6.
25 Busby to Glenelg 16 June 1839, Busby Off. Ltrs pp28-35.
26 Memoranda of Journeys 30-31 March 1839, Colenso Miscellaneous Journals pp78-84. - 16 -
to respect their own distinctive traditions. They were definitely not under missionary control.
The Crown, however, assumed that they were, and then proceeded to assume that Maori would meekly accept annexation to Britain. In instructing Hobson to obtain Maori consent to annexation, Normanby told him that missionaries would be 27 "powerful auxiliaries" of the Crown • When Normanby stated that the Crown would protect Maori "observance of their own customs ... ", he probably assumed that missionaries had suppressed any Maori customs inconsistent with Christianity 28.
Normanby and other Crown officials failed to understand that pre-Treaty New Zealand was still a largely Maori world in which Maori ways and understandings prevailed. As the three major Treaty transactions in Northern New Zealand show, Maori did not concede total alienation, they did not concede that their land was valueless, they were not under missionary control, and they did not meekly accept British annexation. And yet, the imperial illusions referred to above continued
to influence· Crown actions t.owards Maori. c
(c) Maori depopulation
In one important respect Maori were at a considerable disadvantage in negotiating an acceptable relationship with the Crown. During the years both prior to and after the Treaty, Maori suffered disastrous depopulation. In Northern New Zealand, including Muriwhenua, Maori suffered earlier than elsewhere, because they lived in the area of the most intense
27 Normanby to Hobson 14 August 1839, No. 16, BPP 1840 (238) p38.
28 Ibid, pp39-42. - 17 -
transmission of European disease29 . Busby frequently reported depopulation in Northern New Zealand, as did Samuel Ford, the CMS surgeon30 . In December 1839 two of Ford's own children succumbed to "croup", leaving the entire missionary community "awe struck" in the realisation that Maori were not alone in their sufferin~1.
At one point in 1838 Muriwhenua missionary, Joseph Matthews contemplated that "it may be possible for the New Zealanders to cease to exist as a Nation"32. In reflecting upon this during 1839, Matthews recalled the biblical prophesy that "God shall enlarge Japeth and he shall dwell in the tents of Shem ... ". He predicted that "the tide of emigration flowing toward New Zealand will tend to obliterate their [Ma or i ] name from the earth ,,33
Matthews was much less alarmed at the impending demise of the Maori people than the CMS in London, and the Crown. Both CMS Secretary Danderson Coates, and Colonial Office stalwart James Stephen (who was also a CMS Director) deplored the depopulation in New Zealand and elsewhere34 . While depopulation -wasn't illusory, its effects reinforced other imperial illusions. conceivably, a "dying race" could willingly dispossess themselves. Disease certainly detracted from Maori food production, and therefore (according to Pakeha logic) lowered the value of their land. Missionaries made
29 Ian Pool, Te Iwi Maori: A New Zealand Population: Past, Present and Projected (Auckland 1991) pp58, 75-6, 91; Adams Fatal Necessity, pp39-44.
30 Busby to Glenelg 16 June 1837, Busby Off. Ltrs p28; Ford Report Dec. 1837-June 1838, CMSjCNjO.41.
31 13-15 Dec. 1839, Baker Journal, p6 ATL.
32 Matthews to CMS 15 Nov. 1838, CMSjCNjO.61.
33 Matthews to CMS 26, 28 Sept. 1839, Ibid.
34 Morrell, British Colonial Policy, pp25-6, 45-6; Adams, Fatal Necessity, pplll-15. - 18 -
many deathbed conversions, and the Crown could act as the "saviour" of a diseased people in proposing annexation. Despite depopulation, however, Maori maintained a high degree of social and political cohesion. They died, but they were not a dying race.
(d) Vested Interests
Most historians stress the protective intent of Normanby, Stephen, Gipps, Hobson, Busby and the missionaries in preparing the groundwork for the Treaty. They contrast this honourable intent with the avowedly commercial motives of the NZ Company, whose directors later scorned the Treaty as a device for amusing savages. Both consensus and conflict historians invariably fail to identify the vested interests of the architects of the Treaty.
Normanby, his successor Lord Russell, and Stephen all wanted empire on the cheap to avoid the need for Parliamentary consent and to avoid straining imperial resources in an era of expanding imperial responsibili ties35 • Empire on the cheap required a colony without troops, which, in turn, required both formal and sUbstantive Maori consent. Gipps gave Hobson direct responsibility for operating a "user pays" colony along lines of the strictest economy. To finance his operation Hobson had no choice but to try to generate local revenue from land.
Busby, the major author of the English Treaty text, had a clear vested interest in land. He used his position as British Resident to establish numerous land claims, and he'd even begun to sub-divide and sell off town lots at the mouth of the Waitangi River in late 1839 and early 1840~. Henry
35 Wards, Shadow of the Land, pp26-9i Adams, Fatal Necessity, p135.
36 1 Nov. 1839, Baker Journal p3; 11 Feb. 1840 PS in Colenso to CMS 24 Jan 1840, CMS/CN/M11. - 19 -
williams, the major author of the Maori Treaty text, later claimed over 11,000 acres for himself (as opposed to the CMS) . strangely enough few historians have identified his vested interest in the outcome of the Treaty37.
The land claims of Henry Williams, and missionaries in general, became a major political issue in both Britain and New Zealand during the 1830s and 40s. When the CMS opposed Edward Wakefield's application for a NZ Company charter in 1839, he retaliated by revealing the existence of extensive 38 missionary land claims in New Zealand • The CMS in London authorised its New Zealand missionaries to acquire only "a moderate extent" of land for their children, and it reserved 39 the right to disallow such transactions • The missionaries, however, failed to declare most private purchases, thus leaving Coates with the unenviable task of explaining to the 1838 House of Lords Select Committee the nature and extent of unreported transactions4o . Again, before the July 1840 House of Commons Select Committee, Coates had to answer the same sorts of questions about missionary transactions, but couldn't, because the missionaries had still failed to report them adequately41.
In late 1839, Coates instructed CMS missionaries in no uncertain terms that their failure to report pre-Treaty transactions adequately created "serious embarrassment" in London42 . In addition to NZ Company criticism, the CMS had to withstand a furious attack on the principles of its
37 Returns of Land Claims, BPP 1845 (378) pp5-8.
38 Coates testimony, BPP 1840 (582) p4.
39 BPP 1837-8 (680) pp257-8.
40 Ibid, pp260-1, 263.
41 Coates testimony, Ibid 1840 (582) pp79, 166-7, 177-8.
42 Coates to Cowper nd, 1 Jan. 1840, Williams CMS Corres. Vol. I, ppl-7, ATL. - 20 -
missionaries by NSW clergyman, John Dunmore Lang. He accused them of dispossessing Maori, while pretending to protect Maori 43 from dispossession • Thus, on the eve of the Treaty, CMS
missionaries had a direct interest in establishing the Crown I s authority. Not only was Crown authority the key to validating their land claims, but also to vindicating themselves in Britain and New Zealand. They believed that they established their land claims in an honourable attempt to support their families, and also to protect Maori against predatory Pakeha. This, of course, was a self-serving argument. It was, nonetheless, one heard on several occasions during the negotiation of the Treaty. It was also an argument which some Maori supported. It therefore cannot be dismissed as mere 44 rhetor ic •
43 J D Lang, New Zealand in 1839, or Four Letters to Durham (London 1840).
44 Most of the missionaries deplored land speculation. Clarke to CMS 20 Jan. 1840, Clarke Letters, ATL. - 21 -
III HOBSON'S CHOICE
(a) strict economy
Imperial authorities in prescribing Crown policy for New Zealand gave Hobson no choice. He had to do everything with the strictest economy. Normanby instructed Gipps to loan several thousand pounds from the NSW Treasury to establish Hobson's administration, on the understanding that New Zealand would promptly repay this amount45 • As commander of the HMS Rattlesnake, Hobson observed Maori warfare in the Bay of Islands during 1837. He therefore disliked the prospect of becoming, like Busby, a "man of war without guns". He fruitlessly tried to persuade Normanby to provide the military force that he believed was necessary to enforce the Crown's authority throughout New Zealand.
When Hobson arrived in Sydney in late 1839, he told Gipps that his instructions were "clear and comprehensive ... [but] the means of carrying them into effect are inadequate " In the "onerous task" of annexing New Zealand, and maintaining the Crown's authority there, Hobson regretted that he could expect "the smallest possible modicum of support 46 Gipps confirmed Normanby' s strictest economy principles. Like Normanby, Gipps believed that Hobson could generate ready revenue from "uncleared lands" apparently alienated by Maori to Pakeha speculators. Normanby believed that the Crown could virtually confiscate such land by
introducing a tax to force speculators to forfeit it47 •
Gipps and Hobson, however, complicated the Crown's claim to
45 Normanby to Hobson 14 Aug. 1839, No. 16, BPP 1840 (238) pp40-1.
46 Hobson to Gipps 24 Dec. 1839, No.1, G36/1a.
47 Normanby to Hobson 14 Aug. 1839, No. 16, BPP 1840 (238) p39. - 22 - "uncleared lands", because they came to believe that many of the speculator's claims were based on inequitable transactions. When Hobson met with Sydney-based land claimants on 10 January 1840, he told them that the Crown "would not acknowledge excessive claims" or inequitable ones. In response to claimant assertions of Maori alienation rights, Hobson declared that Maori
never were in a condition to treat with Europeans for the sale of their lands, any more than minor would be who knows not the consequences of his own Acts ... 48
This was Hobson's first departure from the imperial illusion that Maori alienated most of their land before the Treaty. If Maori were incapable of understanding the implications of pre-Treaty transactions, as Hobson indicated, how could any such transactions be deemed equitable and valid?
Gipps also agreed with Hobson that Maori were incapable of equitably alienating their land. Two of the three principles Gipps enunciated in presenting his New Zealand Land Bill in July 1840 were:
1 Maori entitlement to only "qualified dominion" or competence in pre-Treaty transactions; and, 2 The Crown's right to reclaim improperly alienated 49 areas for the public good •
Gipps apparently failed to realise that by according Maori qualified dominion or competence, he contradicted the Crown's right to reclaim improperly alienated land. If Maori land was improperly alienated, shouldn't the Crown return it to Maori, or at least hold it in trust for them? Gipps also apparently failed to realise how his principle of qualified Maori
48 Hobson to Gipps 16 Jan. 1840, No.4, G36/1.
49 Gipps speech to NSW Legislative Council 9 July 1840, and in Gipps to Russell 16 Aug. 1840, No. 28, BPP 1841 (311) pp62-8, 76-8. - 23 - dominion contradicted a fundamental principle of the Crown's understanding of the Treaty of Waitangi: that Maori were a sovereign people. If they were not a fully sovereign people, how could they properly cede their sovereignty to the Crown? Finally, if Maori hadn't equitablY alienated anything, how was the Crown to reclaim land in an effort to administer the colony without it becoming a charge upon the empire?
(b) Land in Treaty transactions
The three major Treaty transactions in Northern New Zealand revealed the contradictory nature of the Crown's conceptions of Maori rights. Since the Tribunal has commissioned Anne Salmond to examine the Maori context of those transactions, I'll confine my analysis to evidence of how Maori influenced, and were influenced by, the Crown and its CMS auxiliaries.
In his last official act as British Resident, Busby informed Hobson of how to assembly rangatira at Waitangi. Busby told Hobson that for this "he would require all the help the Missionaries could give him ... ,,50. Busby then prepared for
Hobson ~ Treaty draft including a preamble stating
We the Chiefs ... understanding ... our own weakness and inability to repress internal dissensions ... do fully and entirely cede ... the Sovereignty of our territories ... And we further yield to Her Majesty the exclusive right of pre-emption over all our Waste Lands ... 51.
Hobson chose to sUbstitute an English preamble which emphasised what the Crown giveth, rather than what the Crown proposed to take away. Accordingly, references to formal Maori sovereignty recognised in 1835, and Crown protection, replaced references to nominal sovereignty (ie "weakness and inabili ty") and "wastelands". Hobson then asked Henry
50 Busby to Colenso 29, 30 Jan. 1840, Colenso Journal IV: 57-8, 59, ATL.
51 Draft Treaty 3 Feb. 1840, Busby Documents ATL. - 24 -
Williams to translate this English text into Maori.
In addressing Maori outside Busby's Wai tangi residence on 5 February 1840, Hobson again stressed what the-- Crown would give Maori. He promised Maori the protection from predatory Pakeha they had "often asked for ... ". In establishing law and order, the Crown would encourage the emigration of responsible settlers. "You have sold them lands and encouraged them to come here ... " he said, but only the Crown 52 would protect the interests of both Maori and Pakeha • Such verbal assurances of equal protection under the law, and of giving New Zealand "good" settlers were probably more important to Maori than the written Treaty texts.
Nonetheless, Maori did not meekly accept Hobson's assurances at Waitangi. Colenso's contemporaneous account, as opposed to his slightly sanitised edited account published 50 years later, highlights the dramatic korero following Hobson's address.
Te Kemara opened the korero with a challenge. He rejected Hobson's claim to precedence over"'-the tangata whenua of Waitangi and his claim to rule over rangatira. He then challenged the authors of the two Treaty texts, Busby and Williams, to "return me my lands .•. [including] the land on which we stand this day .•. ,,53. Colenso' s published account differs from the contemporaneous one in the sequence of the korero. It also denigrates Te Kemara's challenge with an ex post facto footnote saying "it was all mere show ... ", apparently because Te Kemara later supported Busby and Williams's claims54 •
52 Hobson's Address 5 Feb. 1840, Colenso Journal I: 31-2.
53 Colenso Memorandum 5 Feb. 1840, Colenso papers ATL; William Colenso, The Authentic and Genuine History of the Signing of the Treaty of Waitangi (Wellington 1890) pp17-18. 54 Ibid. - 25 -
When Williams translated Te Kemara's challenge to Hobson, the latter responded immediately by saying "that all lands 55 unjustly held would be returned ... " to Maori • Hobson I s promise provoked Moka's endorsement translated hy Colenso as ,,- That's right - 0 Govr that's straight ,,56 Rewa then offered his support saying (in Maori): "Let my lands be returned to me, the lands" which he claimed the missionaries 57 Ito [avis?] and Clarke ... " had taken • Moka rejoined: "Let my lands be returned - all of them "including those claimed by another missionary, Baker58 •
At this point Hobson interrupted the korero to allow Baker to respond to Moka' s challenge in English. Addressing the Pakeha present, Baker refused to apologise for his land claims. He only regretted he hadn't claimed more land. Baker also claimed that all his purchases included Maori reserves
protected by "an inalienable deed of gift 59 Williams then defended his claims, addressing Pakeha in the same vein. He claimed that without missionaries, no Pakeha would "be in
pos[session] of any land in New Zealand ... II. He hoped "that all who held lands would be able to show as good and honest titles ... as the Mission[arie]s could do60 •
55 Colenso memo 5 Feb. 1840. The wording, but not the sequence, is repeated in the 1890 account. Colenso, Genuine History, pp18-19.
56 Colenso memo 5 Feb. 1840. I can't find this statement in the 1890 account.
57 Ibid.
58 Ibid. In the 1890 account this is when Colenso has Hobson promising to return to Maori "all lands unjustly held ... It Genuine History, p19.
59 Colenso memo 5 Feb. 1840. This statement is missing from Colenso's 1890 account. Instead he includes a Moka statement" The lands will not return to me", which is missing from the contemporaneous account. Genuine History, p19.
60 Colenso memo 5 Feb. 1840; Genuine History, pp20-1. - 26 -
After Williams's defence of missionary interests, a Kororareka peddlar named Jones apparently challenged the accuracy of Williams's translation. Maori voiced the same criticism later when the korero resumed. In both cases Colenso's .. 1840 account differs from his 1890 one. In his later but not his original 61 account, Colenso dismissed this criticism • Nonetheless, the translation question remains an important one because, during and after the Treaty, the Crown depended upon missionary translators in almost all its dealings with Maori.
Busby also justified his land claims to the Pakeha present. He rejected Te Kemara's attempt to reclaim the Waitangi land Busby resided on by stating that he held no land without Maori consent. He claimed to have generously rewarded Maori in these transactions, and he denied participating in any "extensive" transactions until he was "out of office ,,62
While Colenso criticised Te Kemara in his 1890 account, he failed to point out that Hobson relieved Busby of his office on 29 January 1840 and declared all subsequent private transactions null and void on the following day. Busby, who later claimed 9,585 acres, did not wait until he was "out of 63 office" to conduct his "extensive" transactions •
After Busby's defence of his interests, the korero resumed. Tamati Pukututu praised Hobson's promise to return Maor i land, and described Pakeha speculators as limpets and leeches (piritoka and piriawaawa) 64. Wai questioned Hobson about what he would do to prevent Pakeha traders from cheating Maori, a question Hobson apparently refrained from answering. Tareha then added his challenge by rejecting the authority of
61 Ibid. pp20, 23.
62 Colenso memo 5 Feb. 1840; Genuine History, p21.
63 Returns of Land Claims, BPP 1845 (378) p4.
64 Colenso memo 5 Feb. 1840; Genuine History, pp21-2. - 27 -
Hobson as incompatible with that of rangatira. Both Pukututu and Tareha were translated by Colenso as saying that at least some rangatira had sold all their land, but we do not know 65 what Maori word he translated as sold •
Hone Heke offered the first dramatic expressions of support for Hobson and the missionaries. He appealed to Hobson to "remain, [as] a father for us " He went on, "we are children, it's not for us, but for you, Fathers, Missionaries, for you to say, to choose,,66. This provoked a great commotion among Maori which made the only Te Rarawa speech, delivered by Hakitara, inaudible to Colenso. By the time Tamati Waka Nene stood up to speak, the commotion had died down. He eloquently punctuated the proceedings in the way that Panakareao was to do so at the subsequent Kaitaia Treaty transaction.
Waka Nene began by asking Maori what they would do if Hobson left them to their own devices.
Is not the land gone? Is it not covered with strangers, over" whom we have no power ... 0 Gov[ernor] remain for us a Father, - a judge - a peacemaker 67
Hobson described these words as those which turned the tide against his detractors. In Hobson's words, Waka Nene appealed to him personally
You must not allow us to become slaves. You must preserve our customs and never permit our lands to be 68 wrested from us •
65 Colenso memo. 5 Feb. 1840; Genuine History pp21-2, 23, 24-5.
66 Colenso memo. 5 Feb 1840; Genuine History, pp25-6.
67 Colenso memo. 5 Feb 1840; Genuine History, pp26-7.
68 Hobson to Gipps 5,6 Feb. 1840, BPP 1840 ( 560) pp9-10. - 28 -
Hobson believed that Waka Nene won the day for the Treaty. His highly personal appeal certainly influenced Hobson, and subsequent Crown actions towards Maori.
Although there is much in Colenso's record of the Waitangi korero of 5 February 1840 that suggests a Maori understanding of the Treaty as a dynamic reciprocal relationship, Hobson did not share this understanding. Since Colenso's account is full of Maori saying they had lost or sold their land, Hobson assumed that they had squandered their birthright, whether knowingly or not69 • Although Hobson promised to return to Maori "lands unjustly held", we do not know how Williams translated this into Maori. Without this information it is almost impossible to determine whether Maori understandings were even remotely related to those of the Crown.
Colenso certainly believed that Maori did not understand the Treaty as the Crown intended it to be understood, and he told Hobson this before the signing began on 6 February. Richard Taylor, the Muriwhenua North claimant, reminded Colenso that Heke believed the Treaty was beyond Maori comprehension, and that only trusted missionaries CQuld explain it to them. Colenso, however, insisted that for Maori signing the Treaty
sho[ul]d by their own act and deed - then in case of a reaction taking place, the Native co[ul]d not turn round on the Mis[sionar]y and say[:] You advised me to sign that paper but never told me what were the contents 70
In reporting the Treaty to the CMS in London, Colenso repeated his conviction that Maori "did not fully understand what they had signed". Hobson of course, denied that he had hidden anything from Maori, but Colenso believed that the land
69 Hobson to Normanby 20 Feb. 1840, No.7, Ibid (311) pp12- 13.
70 Colenso memo. 6 Feb. 1840; Orange, Treaty of Waitangi, p54. - 29 -
question was a time-bomb. He thanked the Lord who had "kept 71 me from becoming possessed of Land • In correctly concluding that Maori did not understand the Treaty as the Crown intended it to be understood, Colenso failed to consider alternative Maori understandings. Historians, too, have failed to consider these adequately.
The Mangungu (or Hokianga) Treaty transaction on 12 February followed a pattern very similar to that at Waitangi. After Hobson delivered the same kind of speech promising Maori protection from lawless Pakeha, either wi Tana Papahia or Mohi Tawhai challenged him72. One of the two accused Hobson of deceiving Maori. This provoked Hobson to demand the appearance of the Pakeha source of the information in the person of Frederick Maning (later a celebrated author and Nati ve Land Court Judge). Hobson denounced Maning as a troublemaker and warned Maori
if you listen to such counsel, and oppose me, you will be stripped of all your land by a worthless class of British subjects, who consult no interest but their own, and who care not how they trample on your rights. I am sent her~~ to control su~h people, and I ask from you the authority to do son.
The korero following this exchange became even more pointed than that at waitangi.
Taonui declared: "We will not give up our land ... The land is our father. The land is our chieftainship[,] we will not give it up". Kaitohe added "we have been cheated [out of
71 11 Feb. 1840 PS in Colenso to CMS 24 Jan. 1840, CMSjCNjM11.
72 According to Hobson it was Papahia, but according to Taylor it was Tawhai.
n Hobson to Normanby 17 Feb. 1840, BPP 1841 (311) pp10-12. - 30 -
land]. The pakehas are thieves74 • When Tawhai asked Hobson to "stop all the lands falling into the hands of the Pakehas", "Rangatira Moetara rebuffed him by saying that Maori sold their land by their "own free will ... " and therefore had to accept that "it is gone ,,75 Tawhai answered Moetara by proposing that Pakeha could keep land acquired "by fair purchases". But what about the land "stolen from us, will the Gov[ernor] enquire about it .. [?]. Hokianga Maori must have known of Hobson's 5 February promise to "return lands unjustly held". Taonui then suggested that the Crown should hold Maori land in trust "... there is my land ... you must take care of it; but I do not wish you sell it". He asked Hobson: "What of the land that is sold? Can my children sit down on it; can they, eh? 76
Maori raised the question of missionary land claims on at least two occasions during the Mangungu korero. Firstly, Ngaro supported them. The missionaries "came to the land; they bought and paid for it; else I would not have them,,77. La ter in the korero, Papahia asked Hobson "whether it was right for two men to have all the land from the North Cape to
Hokianga". H~ was probably referring to the Taylor Muriwhenua North and Ford Oruru claims which William Puckey then defended. Puckey told Hobson that
the land alluded to was held under a trust deed for the use of the natives[,] and that the mission would hand over that and all other Tracts held in a similar way from Gov[ernmen]t.
74 This is Taylor's translation of what they said in Maori. Taylor Notes 12 Feb. 1840 encl. in Taylor to CMS 20 Oct. 1840, Taylor papers, flO, ATL.
75 Ibid. This is, again, Taylor's translation. We do not know what Maori words be translated as "sold" and "free will".
76 Hokianga speeches encl. in Shortland to Stanley 18 Jan. 1845, No.1, BPP 1845 (108) pp10-11. Shortland's account differs only very slightly from Taylor's 12 February Notes, Taylor papers.
77 Hokianga speeches, BPP 1845 (108) p10. - 31 -
Puckey then asked Papahia if Maori could identify "any land that the Church Mission withheld from them". Papahia replied that he didn't know of any, but that the Crown might~.
The consensus which appears to have emerged from the Mangungu korero was that the Crown would exercise its protective responsibilities under the Treaty in several ways. It would investigate pre-Treaty transactions to identify those which were fair and unfair. In the case of unfair transactions, Maori must have assumed that either the Crown would return the land, or hold it in trust for them. In the case of missionary land claims, Puckey conceded that they, too, should be held in trust for Maori by the Crown.
The third major Treaty transaction in Northern New Zealand, one which began at Kaitaia on 28 April 1840, matched the other two in dramatic qualities. Because the consequences of the Kaitaia Treaty transaction dominated Muriwhenua history for generations, it requires detailed analysis.
The human geography of Kaitaia in 1840 forms an essential backdrop to the Treaty transaction there. It was a CMS missionary settlement built and occupied by both Maori and pakeha for about 7 years prior to the Treaty. According to Dr John Johnson, the most astute observer of the Kaitaia Treaty transaction, the settlement consisted of "five good wooden houses - a handsome church with a spire and a native village ... in the centre of a small valley ... ". apparently, Panakareao, as Maori host of the missionaries, lived in one of the European houses. Johnson described "verdant paddocks of grass and clover which together with the gardens around the Houses give a cheerful and civilised aspect to the whole scene,,79. In one of these houses, willoughby Short land
78 Taylor Notes 12 Feb. 1840, Taylor papers.
79 27 April 1840, Johnson Journal, Auckland Public Library [APL]. - 32 -
(acting for the incapacitated Hobson) met with Panakareao on the evening of 27 April.
Johnson records how, at this meeting, Panakareao questioned Puckey, who was translating for Shortland, "as to the nature of the Treaty he was about to sign and particularly as to the meaning of the word Sovereignty". without recording how Puckey explained this word, Johnson wrote "this was endeavoured to be made intelligible to him"80. Whatever the case, Panakareao managed to impress the Crown delegation, because they seated themselves beside him on the veranda of a missionary house during the Treaty proceedings on the following day.
Maori, other than Panakareao, seated themselves on the grass in front of the veranda as proceedings began. with Panakareao seated next to him, Short land spoke to Maori about how the Crown would protect them from lawless Pakeha, especially those who would cheat them out of their land. He denounced as liars those anti-Treaty Pakeha who had spread rumours that the Crown would dispossess and enslave Maori81 . Far from dispossessing Maori,the Crown "was ready to· purchase such [land] as they did not require" in order to resell it to responsible Pakeha settlers. Finally, Short land assured Maori that "the Queen would not interfere with their native laws nor customs ,,82
Land issues dominated the dramatic korero which followed. Reihana Teira Waero complained that he was unable to gather firewood because someone else claimed the land. Matiu was clearly concerned by anti-Treaty rumours and proclaimed his faith in the missionaries. Rawiri Tiro stated that he would
80 Ibid.
81 28 April 1840, Ibid; Shortland to Hobson 6 May 1840, C0209/7, p261.
82 28 April 1840, Johnson Journal. - 33 -
accept the Governor as a "shepherd", but he would not allow him "to take our I and" . Paori Mahanga answered that the Governor had taken "none of our land". It had "been taken before ... " Hobson arrived83 .
The theme of equity entered into the Kaitaia korero, just as it had at Mangungu and Waitangi. Taua asked how the Crown would prevent Pakeha traders from cheating Maori, the same unanswered question Wai has asked on 5 FebruaryM. According to Taylor, Panakareao stated in his climactic speech "we shall bring our produce for sale and receive a just and equitable price for it,,85.
At Kaitaia Maori also introduced a gifting theme. Toketau regretted that he had "no land to give [to] the Governor ,,86 Waratona Wero also regretted he had "no land for the Governor", adding that "Pakeha Maori have got it all ,,87 Johnson records that Panakareao not only supplied food for the assembled multitudes, but that he declined the Crown's offer to pay him for this, and, to top it all off, he sent a shipment of pork and potatoes to Hobson in the Bay of 88 Islands •
Panakareao, of course, provided the high point of the entire transaction with his memorable "Shadow of the Land" speech. Delivered while he paced back and forth across the missionary
83 Taylor Kaitaia Notes 28 May [sic] 1840 end in Taylor to CMS 20 Oct. 1840, Taylor papers flO; Kaitaia speeches end in Shortland to Stanley 18 Jan. 1845, No. 1 BPP 1845 (108) pp9-10.
M Taylor Kaitaia Notes, Taylor papers.
85 Ibid. Again, we do not know the Maori words Taylor translated as "just and equitable".
86 Kaitaia speeches, BPP 1845 (108) p9; 28 April 1840, Johnson Journal.
87 Taylor Kaitaia Notes, Taylor papers.
88 29 April 1840, Johnson Journal. - 34 -
veranda which he shared with the Crown's dignitaries, Panakareao summoned Maori to join with the Crown and speak with one voice. He declared
we now have a helmsman; before everyone wanted steer, and we never went straight 89
Panakareao deftly contrasted the loyalty of the good Christian Muriwhenua people with the troublesome Pakeha Maori and Ngapuhi who opposed the Treaty. He summoned his people to trust the Crown, asking
what wrong has the governor done? the shadow of the land goes to the Queen, but the SUbstance with us; the governor will not take our land; we will get payment as before ... 90
Johnson regarded these words as a "beautiful" metaphor for "sovereignty" which demonstrated that Panakareao "had ponder' d deeply on his conversation of the previous evening,,91.
Few historians have "ponder' d deeply" the meaning of these words. Wards use,d them in the title of his controversial book without elucidating their possible meaning92. The first writer to publish a general history of New Zealand thought Panakareao's words showed how "few natives rightly comprehended the nature of the treaty of Waitangi 93
89 Kaitaia speeches, BPP 1845 (108) p10. Panakareao' s Helmsman metaphor impressed Stephen and Russell in London. Wards, Shadow of the Land, p49.
90 Kaitaia speeches, BPP 1845 (108) p10. Shortland's and Johnson's accounts relief on Puckey's translation of Panakareao's words. Taylor's account has Maori receiving "just and equitable" payment for produce, rather than for land. Taylor Kaitaia Notes, Taylor papers.
91 28 April 1840, Johnson Journal.
92 Wards, Shadow of the Land, pp48-9.
93 As Thomson, The Story of New Zealand (London 1859) II: 22. - 35 -
More recently Richard Hill has employed part of Panakareao's metaphor to argue that the Crown used the Treaty as
a device both to defuse Maori resistance by .appearing to sanction their retention of 'the substance of the land', and to avoid providing settlers with representative institutions ... ~
The Kaitaia context of Panakareao's Shadow of the Land speech suggests an alternative explanation. The symbolism of the Treaty transaction clearly served to reinforce Panakareao's authority, as well as that of the Crown and its missionary "auxiliaries". Panakareao' s speech produced a resounding affirmation from the assembled Maori. significantly, Panakareao then "touched the pen with which Mr Puckey signed his name ... ". Missionaries would continue to mediate between Maori and the Crown95 •
with the signing and Maori festivities (all laid on by Panakareao) completed, Panakareao invited his distinguished Pakeha guests to his European house for tea. Johnson descr ibed Panakareao as conducting "himself at [the tea] table like a well-bred English gentleman". Over cups of tea, Panakareao informed his guests that Kawiti and Hokianga Maori had invited him to join an anti-Treaty alliance. He rejected these overtures, and pledged that "his Tribe would stand by 96 " the Governor •
The Kaitaia Treaty transaction gave both Maori and the Crown the taste of a genuinely co-operative relationship. The kind of shared, missionary-mediated, Sovereignty symbolised ln Kaitaia, offered the Crown a way of reconciling justice and economy. without imper ial resources, the Crown had to concede
~ Richard Hill, The History of Policing in New Zealand, (Wellington 1986) 1:90.
95 28 April 1840, Johnson Journal.
96 Ibid. - 36 -
to Maori a high degree of local autonomy. With reI iable allies like Panakareao, the Crown could continue to operate at a distance. Whether or not the relationship between Maori and the Crown remained a co-operative one, depended largely upon what the Crown would do about land. The Kaitaia Treaty transaction began on 28 April 1840, but it did not end on that date, because it was the beginning of a continuing relationship.
(c) Crown Mangonui Purchases 1840-1841
While Hobson recovered from his stroke in the Bay of Islands, questions of Maori land rights remained unanswered. Those Maori who had become dependent on goods generated by pre Treaty transactions, soon protested the Crown's failure to provide an alternative source of goods. Without land purchase funds at his disposal, Hobson reported that he had
hi therto put them off with promises, but they have become so urgent that I shall be obliged to make some purchases from them as an earnest of my good faith, and as proof that Government mean to maintain the pledge that \\las given them in the Treaty_97.
Hobson's first opportunity for a "good faith" purchase came soon after the Kaitaia Treaty signing. On 5 May Panakareao wrote him a letter offering the Crown Mangonui land in return for supporting Te Rarawa rights there. As translated by Colenso, Panakareao claimed that "the strange man" (probably Pororua Wharekauri) had "transferred wrongly" his Mangonui land to "the bad foreigner" (probably Pakeha claimants at Mangonui). He named two Pakeha, Himi Poto (James Berghan) and Kopiro as having "spoken evil of your Governorship", therefore deserving to be evicted. Panakareao named the land he wished to give to the Crown as Pikokite, Mapara, Maoritia and watu98 .
97 Hobson to Gipps 5 May 1840, No. 30, G36/1 pp76-7.
98 Panakareao to Hobson 5 May 1840, Hobson papers (also in Colenso Journal IV:74-5) , ATL. - 37 -
Colenso drafted Hobson's reply which stated at the outset: "The Governor will use his influence and power to restore to all men their lawful rights and property". Hobson expected Crown Land Claims Commissioners appointed _in NSW to investigate the situation. In the meantime, he invited Panakareao to visit him at Okiato, and he gratefully accepted 99 the Mangonui land which Panakareao offered the Crown • Panakareao apparently accepted Hobson's invitation on 15 May when "the chiefs of Kaitaia" again signed the Treaty, this time in the presence of the Governor at his Okiato residence 100.
The Kaitaia Treaty transaction continued when Hobson returned Panakareao 's visit in early June. Panakareao entertained Hobson just as he had entertained Shortland in April. Puckey recorded how Panakareao met all Hobson's expectations of a 101 loyal Maori chief •
While in Kaitaia as Panakareao's guests, Hobson and Protector of Aborigines George Clarke, negotiated with him the first major land purchase in New Zealand history, the so-called Mangonui purchase of 1840. While I've traversed the details of this highly questionable transaction in previous reports, I need to add that it was the logical outcome of financial stringency, Maori demands and the Crown's promises made during Treaty transactions 102. In previous reports I've argued that the Crown blundered in attempting to purchase undefined rights in an unsurveyed area from Maori whose rights remained uninvestigated. While remaining convinced that the Crown
99 Hobson to panakareao 13 May 1840, Colenso Journal IV: 76-7, 87.
100 Hobson to Sec. of State 25 May 1840, No. 11, BPP 1841 (311) ppI5-16.
101 Puckey to CMS 12 June 1840, CMS/CN/M12.
102 For the details of the 1840 Mangonui purchase, see Rigby/Koning, Preliminary Report, pp61-4; Mangonui Report, pp12- 14; and Oruru Report, pp23-6. 38 -
blundered in this way, I now understand more about why it blundered.
Firstly, the financial stringency London imposed upon Hobson meant that he simply could not meet Maori demands upon the Crown for replacing their pre-Treaty sources of goods. Not only was Hobson forced to put Maori off with empty promises, he also encountered a great deal of political discontent among Pakeha over the uncertainty surrounding their land claims. Crown purchases, as far as Hobson could see, were necessary to satisfy Maori hungry for goods and Pakeha hungry for secure land103 • Article II of the Treaty asserting the Crown's pre emptive right to purchase Maori land implied that the Crown would exercise this right with proper Maori consent. At Kaitaia, Shortland had gone even further by telling Maori that the Crown "was ready to purchase such [land] as they did not require ... ,,104
Although the 1840 Mangonui purchase was partly a reflection of "Hobson's Choice", the Crown compounded the difficulties inherent in the situation. In reporting the transaction, Hobson indicated fatal imprecision. It was only "a preliminary arrangement with ... [Panakareao] for the purchase of Mangonoui [sic] ... " for which he hadn't fixed "any precise amount to be paid ... the extent of land contained within his boundary not being clearly and accurately ascertained although well-defined ,,105 Just how boundaries could be "well defined" without "being clearly and accurately ascertained" beggars the imagination!
Hobson claimed that he negotiated the Mangonui purchase ln an
103 Hobson to Gipps 5 May 1840, No. 30, G36/1 pp76-7i Hobson to Gipps 5 May 1840 encl. in Gipps to Russell 15 June 1840, No. 22, BPP 1841 (311) pp57-8.
104 28 April 1840, Johnson Journal.
105 Hobson to Gipps 18 July 1840, No. 47, G36/1, ppI13-5. - 39 -
attempt to "restrain [Pakeha] settlers from making encroachments on the land, which has been and still is a cause of much annoyance to the Natives,,106. He failed to identify the source of the problem as over-lapping Maori and Pakeha claims, by simply assuming that Panakareao held exclusive rights in an undefined area. In notifying Pakeha settlers of its purchase of "the Lands of Mangonui" , the Crown identified no boundaries, and suggested that it had extinguished all Maori rights within that undefined area1~.
Nineteenth century observes invariably judged this purchase a blunder. Henry Williams described it as "Hobson's First Error" 108 . Walter Brodie and three other witnesses before the 1844 House of Commons Select Committee on New Zealand denounced the transaction109. Thomson argued that "the Queen of England had as much right to sell land in the US as Noble had at Mangonui 110. Finally, Busby believed that in the Mangonui purchase, Panakareao used the Crown to recover land rightfully claimed by Ngapuhi. "A more ill-omened " proceeding", he wrote, "could not hilve been contrived,,111.
While Hobson erred in assuming that Panakareao held exclusive rights at Mangonui, George Clarke avoided this error in prepar ing the deeds. Unlike Hobson, Clarke distinguished between Panakareao's interests in land at Mangonui, and the land itself. The English deeds Clarke drafted bear close examination.
106 Ibid.
107 Public Notice 24 June 1840, Surplus Land commission records, File G, p22a.
108 H Carleton, Life of Henry Williams (Auckland 1877) II: 62- 7.
109 BPP 1844 (556) pp23, 27-30, 136 and 223. The three other witnesses were McDonnell, Earp and Heale.
110 Thomson, Story of New Zealand II: 91-2.
111 James Busby, Our Colonial Empire (London 1866) pl17. - 40
PANAKAREAO MANGONUI PURCHASE DEEDS112
Th i s book sheweth that Nobl e Panakareao the This Book sheweth and saith that Nopera Panakareao Chief of Kaitaia on the twenty fourth day the Chief of Kaitaia, on the twenty-forth day of of June in the year of Our Lord one June in the year of Our Lord one thousand eighth thousand eight hundred and forty did sell hundred and forty, did sell to His excellency the to His excellency the Lieutenant Governor Governor, 1.Iill i am Hobson Esqui re Captain in Her Captain 1.Iilliam Hobson Esq. of Her Majesty's Royal Navy, his land his claims, his Majesty's Royal Navy, his possession and Chiefdoms in Mangonui and the places adjacent for interests in Mangonui and its vicinity the same, for ever and ever. The boundaries are bounded as follows, conmencing at Oweto (in these conmencing at "Oweto" going on the side of Doubtless Bay) continuing along the River the 1.Iai-iti of Paokotare, going from thence to the Paekotare from there cover to the Mouth of opening of "Kohumaru" to the water of which is Kohumaru along the waters of Puta Kaka over "Putakakahu" going over Hills and down Valleys till hi II and dale, unti l you come to Otangaroa, you come to "Otangaroa", and going over the side of returning by Muukia, from thence to "Otangarau" to "Muukia" and going from thence to 1.Iakapuku, from thence to Taemaro, the 1.Iatu "1.1akapuku l from thence to "Taemaro" going from and Oreti, over Rangitoto crossing to Rangi thence to the 11.1atoi" going to "Koekoea" going to Kapite, from thence to Koe Korea, the Kopu "Rupua". and Parore, continuing until it meets Oweto. The Payment for Noble's interest in The payment given for the said land is one hundred the said land given to him is 0100 One pounds of lawful money of England and agreed to by Hundred Pounds stirl ing, lawful money of Nopera Panakareao in the presence of his Tribe and the British Empire, given in the presence has also signed his name. of Noble Panakareao and his tribe in witness thereof he has duly signed this deed.
Maori apparently destroyed the original Maori text of these deeds as part of the 1843 Oruru truce, but the Maori words used for "sell" can be deduced from the term "Tukunga Kainga 113 a Nopera II in the subsequent Pororua deed • The second English deed referring to Hobson as Governor, rather than Lieutenant Governor, appears to be a subsequent one back-dated to 24 June 1840. The boundary description in both deeds is difficult to reconstruct due to the fact that several points (such as Te Whakapaku) are extensive areas rather than specific locations. The following map entitled 1840-1841 Crown Mangonui Purchases is therefore only a rough approximation of the area transacted.
112 Deeds of Sale 24 June 1840, IA 15/4.
113 Carleton, Life of Williams II: 63; Pororua deed 28 May 1841, Turton's Maori Deeds I: 1. - 41 - CROWN MANGONUI PURCHASES 1840-1841
TeWhakc paku
Otongeroo o Metol A
Otongeroo
Crown Mangonui Purchases 1840-1
5km
3mr Source: DOSLI pre-1865 transaction rna ps - 42 - The lack of precision in the 1840 Mangonui purchase was consistent with the extremely vague kind of alliance Hobson chose to form with Panakareao. When Hobson visited Kaitaia in June 1840, Matthews recorded that he and Clarke "were highly delighted with what they saw of Noble and the whole place". Matthews added
Our Chiefs have formed quite an alliance with the Governor and on any emergency have promised four hundred men. 114
without imperial troops, Hobson valued such Maori offers of military support for the Crown. Throughout 1840 and into 1841, Hobson frequently commented on Maori and Pakeha conspiracies against the Crown115 • All this suggests that the 1840 Mangonui purchase was politically motivated.
If the 1840 purchase was politically motivated, its 1841 sequel with Pororua was even more so. Pororua' s Ngapuhi connections won him Henry Williams's support for Crown recognition of his rights in the Mangonui area 116. The original Maori text of Pororua's deed has survived revealing the operative words "tuku i hoko", which Clarke translated as "sell and give up". Clarke again indicated that Pororua transferred his interests "and that of his Tribe" in Mangonui land to the Crown 117.
In defending these almost identical purchases after Brodie's attack on them in London, Clarke distinguished between individual or tribal interests in Mangonui land and exclusive possession. He argued that in 1840-1841 the Crown purchased
114 Matthews to CMS 29 June 1840, CMS/CN/0.61.
115 Hobson to Gipps 5 May 1840, BPP 1841 (311) p57; Hobson to Hobbs 22 Feb. 1841, Wesleyan Missionary society [WMS] records, reel 21.
116 See Rigby/Koning, Preliminary Report, pp62-3.
117 Pororua deed 28 May 1841, Turton's Maori Deeds I: 1. - 43 -
" (not the land, but) all the remaining interests of each chief
in the disputed terr i tory ... " 118 • While Clarke's approach was certainly more sophisticated than Hobson's, even he failed to define the "remaining [Maori] interests" at Mangonui. Did they include authority over kin groups living there? Did they include the rights of Ngati Kahu, for example? Did they include Panakareao and Pororua's rights to uphold pre-Treaty transactions with Pakeha such as William Butler and Berghan? In short, the Crown needed to formulate a coherent view of the nature of Maori land rights in places like Mangonui where they were evidently complex and overlapping. without such a coherent view, the 1840-1841 Mangonui purchases failed to achieve the necessary standard of a binding contract, that of being commonly understood by both parties.
(d) Crown conceptions of Maori land rights
While Clarke had not developed a coherent view of Maori land rights by 1841, at least he understood the complexity of the subject. In contrast, both Hobson and Gipps had earlier seized upon the contradictory view that Maori were "Minors" 119 incapable of participating in equitable contracts • This contrast typified the inconsistency in the Crown's changing conception of Maori land rights.
Testimony before the 1838, 1840 and 1844 Parliamentary committees on New Zealand influenced imperial thinking on this subject. Here, again, there was a great deal of contradictory interpretation. While Gipps maintained that none of the 1838 witnesses argued that pre-Treaty transactions were absolute and equitable contracts, in fact, several witnesses argued in
118 Clarke to Col. Sec. 1 Sept. 1845, BPP 1846 (337) p123.
119 Hobson to Gipps 16 Jan. 1840, No. 4 G30/1, pl0; Gipps speech 9 July 1840, BPP 1841 (311) pp63-4. - 44 -
that way120. All three Parliamentary committees heard a great deal of vague testimony on the collective nature of Maori land rights. In 1840 Edward Wakefield expressed the general consensus of witnesses that Maori land was tribal property and any purchases required tribal consent 121. Few witnesses, however, presented specific evidence of how Maori exercised their land rights.
Without specific evidence, the 1844 House of Commons Select Committee enthusiastically embraced the Hobson/Gipps view of Maori as incompetent "Minors,,122. The notable colonial reformer, Charles Buller, took this position to its logical conclusion in House of Commons debate the following year. As uncivilised "savages" and habitual "cannibals", he argued, Maori could neither own nor alienate land. It was ludicrous to even suggest that Maori could transfer either land or sovereign political rights in equitable contracts. Buller therefore rejected the legal validity of both pre-Treaty transactions, and the Treaty itself. In his powerfully expressed opinion, they both lacked "the first requisite of all contracts, that of being understood by both parties to it" 123 .
Such imperial thinking did influence Crown actions in New Zealand, even if it was only an indirect influence. The man who chaired the 1844 New Zealand Committee which rejected the Treaty as the keystone of Crown policy, became Secretary of State for the Colonies, the leading imperial official with responsibility for Crown actions in New Zealand between 1846
120 Ibid. pp76-8. witnesses who argued that Maori participated in absolute and equitable contracts included Flatt, Wilkinson, Polack and "Nayti".
121 BPP 1840 (582) p42.
122 Ibid. (556) pp3-7.
123 British Parliamentary Debates [GPD] (17 June 1845) Vol. 81, cols. 674, 686, 688. - 45 - and 1852124.
As early as January 1841, imperial instructions had begun to
diverge from the unqualified Maori land rights .~xpressed in Article II of the Treaty. In his supplemental instructions to Hobson, Secretary of State Russell demanded boundaries to Maori "territorial rights" within New Zealand. He asked Clarke, in association with the Surveyor General, to define and map land "that the natives should permanently retain ... ". He implied that Maori should retain only those areas currently occupied, and that they should consent to alienate their unoccupied land to the Crown125.
Imperial instructions like this required imperial resources to implement them. Because no such resources were forthcoming, the Surveyor General couldn't even begin the task of mapping Maori land, and without proper surveys Clarke couldn't identify unoccupied Maori land in effective purchase agreements. After the flawed Mangonui purchases of 1840-1841, Clarke successfully negotiated only a handful of other purchases (mostly in the Auckland area). Only after the Mangonui purchases came to grief in the 1843 Oruru conflict did Clarke return to the subject of defining Maori land rights raised in Russell's instructions two years earlier.
In the aftermath of Oruru, Clarke proposed a New Zealand Domesday Book, a full catalogue of Maori land rights mapped in accordance with Russell's instructions. In suggesting principles upon which the Crown could define Maori land rights, Clarke proposed that they were
founded upon occupancy and the sUbjugation of the Land
124 This man chaired the 1844 New Zealand Committee as Lord Howick, and became Secretary of State for the Colonies in 1846 as Earl Grey. Adams, Fatal Necessity, p187.
125 Russell to Hobson 28 Jan. 1841, No. 19, BPP 1841 (311) pp51-2. - 46 - to their use ... [C]onquest, unless it is followed by occupancy gives no title to land in New Zealand1U
He also proposed what became the Native Land Court's 1840 rule, that Maori could claim only those areas occupied in 1840. He suggested that the Surveyor General map the "grand divisions" of Maori land beginning with Te Rarawa in the North. These "grand" tribal boundaries he maintained, were stable and could be accurately mapped with distinct lines. He admitted that the boundaries of "constituent tribes" within the "grand divisions" were harder to fix, but he believed that conflicts, like the Oruru one, would continue until they were fixed. Clarke saw the resulting Domesday Book as something "from which all disputes might thenceforth be settled ... [in] Native Courts,,127.
The problems inherent in Clarke's Domesday proposal are amply illustrated by the Oruru report he enclosed it with. At Oruru Maori land rights could not be effectively defined by an 1840 occupancy rule. Different Maori groups had different rights in the same area. In some cases their rights proceeded from occupancy, in some from kinship, in some from special ancestral or spiritual associations, and in some from conquest. Maor i land use patterns also defied Clarke's definition. Since Maori practised shifting cultivation and seasonal hunting, fishing and gathering, they tended to use rather than occupy most of their land128 .
In sum, Clarke's Domesday proposal asserted an inappropriate rule of fixed, exclusive occupancy, whereas in reality Maori land rights were much more dynamic, complex and overlapping.
126 "Tribal Boundaries" in Clarke to Col. Sec. 1 June 1843, encl. in FitzRoy to Stanley 20 August 1845, No. 55, Ibid. 1846 (337) pp109-114.
127 Ibid.
128 Firth, Maori Economics, pp367-91. - 47 -
In Clarke's favour, however, it must be said that his views on the nature of Maori land rights evolved. As a private land claimant he advocated simple Maori alienation rights, but his 1840-1841 Mangonui purchase deeds recognised distinct (albeit undefined) tribal interests in land. As the Crown's chief land purchase officer in 1843, he finally carne to the conclusion that the Crown could not effectively extinguish Maori title to large areas of land because of the complexities involved.
In reporting his continued inability to purchase significant Maori land in late 1843, Clarke described the difficulties as insuperable. He pointed out that numerous hapu (his definition of a Tribe), whanau and chiefs possessed distinct but overlapping land rights. Each had to "substantiate some sort of title" by exercising these rights, but they normally would do so because "no people in the world are more particular than the natives on these subj ects ... ". This meant that all major purchases created the possibility of tribal conflict. He believed Maori could safely sell small areas but
in attempting to dispose of large tracts they are certain either to injure themselves or corne into collision with others ... The natives are not only not willing, but cannot by any means be induced to part with their paternal possessions, which are generally the best lands ... '29
Acting Governor Shortland supported Clarke's conclusions, and he informed London that lack of funds had prevented Clarke from pursuing "the pending examination of Titles to Land ... " essential to his Domesday proposal130 •
Unfortunately for Clarke, his New Zealand Domesday Book
'29 Clarke to Col. Sec. 17 Oct., 1 Nov. 1843, CO 209/33, pp356-60.
130 Short land to Sec. of State 30 Oct. 1843, No. 89, G25/1. - 48 - proposal suffered a withering ad hominem attack on the floor of the House of Commons in mid 1845. Charles Buller described Clarke as a land jobber purveying the noble savage myth for private gain. He sneered at Clarke's suggestion that Maori and traditions would sUbstantiate accurate and stable tribal boundaries. As uncivilised savages and predatory warriors, by Buller's imperial definition, Maori could not be bounded in the same way as Europeans. Buller announced that the House of Commons would not be deceived by
these monstrous fictions, which missionaries have invented for the sordid purpose of making out that the natives possessed and could convey to them a freehold tenure in their land. It can be of no advantage to the native race of New Zealand that we should compliment them by misunderstanding their social state 131
Buller's contempt for Maori should not negate the value of his observation that the Crown could not adequately protect Maori rights without understanding the nature of such rights. without an adequate understanding of Maori land rights, Crown policies towards them were bound to be ill-conceived.
(e) The Crown/CMS Alliance
Buller identified a major contradiction in Crown policies by pointing out that their implementation relied on the expertise of an interested party, missionary land claimants. This, too, was largely a matter of Hobson's choice. Normanby gave Gipps, not Hobson, the power of appointing Crown officials. since Gipps could spare few reliable officials from NSW, he delegated this power to Hobson. This meant that the Crown had to rely almost entirely on local Pakeha missionaries in dealing with Maori. Although it may have been possible to retain the services of some disinterested missionaries (Colenso and the Wesleyans, for example), the most readily
131 BPD (17 June 1845) Vol. 81, col. 673-5. - 49 -
a va i lab Ie group of candidates were CMS land cIa imants 132. The Crown apparently never considered the possibility of recruiting Maori as officials, probably considering even bilingual Maori too uncivilised, and interested parties in all dealings with their own people.
The Crown formed an alliance with the CMS even before annexing New Zealand. Normanby declared in his instruction his intention to establish the Church of England (progenitor of the CMS) in New Zealand133 . In early January 1840, Bishop Broughton of Australia instructed Henry Williams to induce "the chiefs attached to you ... to make the desired surrender of sovereignty to Her Majesty"134. Consequently CMS missionaries figured prominently in mediating between the Crown and Maori during the many Treaty transaction throughout New Zealand during 1840. Taylor even went so far as to say that the Crown annexed New Zealand "solely through the influence of the CMS servants here,,135. These CMS efforts on behalf of the Crown won the full approval of its parent body in London 136.
In annexing New Zealand, Hobson failed tO~"Tecognise CMS land claimants as interested parties. He evidently dismissed Maori criticism of them at Waitangi and Mangungu as inspired either by Catholics, or by Pakeha troublemakers like Maning. Either
1~ Colenso declined the posts of government printer, and translates for the Land Claims commission. Godfrey to Colenso 31 Dec. 1840, Colenso to Godfrey 9 Jan. 1841, Colenso Journal IV: 103, 107-8.
133 Normanby to Hobson 14 Aug. 1839, No. 16, BPP 1840 (238) pp41-2.
134 Broughton to Williams 10 Jan. 1840, CMS/CN/0.3.
135 Taylor to CMS 29 May 1841, Taylor papers f11; JMR Owens, I1Missionaries and the Treaty of Waitangi, Wesley Historical Society Proceedings (1986) Vol. 49, pp17-40.
136 Coates to Davis 13 Oct. 1840, Coates to NZ Dept. 8 Dec 1840, Williams CMS Corres. I: 41-3, 51-2. - 50 -
Hobson didn't know about how missionary land claims aroused a major debate in Britain, or he chose to ignore it.
This major debate forced the CMS in London to instruct New Zealand missionaries to cease and desist from all further private land transactions with Maori before news of the Treaty, with its prohibition of such transactions, reached Britain 137. When Hobson offered Clarke the position of Protector of Aborigines, he stated that it "bears a close affinity to the labours you are engaged in on their behalf under the Church Missionary Society ,,138 Hobson apparently believed what Puckey had said at Mangungu on 12 February 1840: that missionary land claims were based on trusteeship agreements, and that missionaries were prepared to resign as trustees in favour of the Crown139. Thus, both the CMS and the Crown would jointly protect Maori interests.
One of Clarke's first official duties as Protector of Aborigines was to catalogue these trusteeship agreements. He did so in 184 ° in a most unsatisfactory manner. The seventeen deeds of trust he listed included none between the North Cape and Hokianga, the area referred to by Papahia and Puckey at Mangungu. Furthermore, Clarke took no steps to ensure any deeds were transferred to the Crown. Instead, the Crown referred the list to Land Claims Commissioners with the request that they not allow the alienation of any trust land by "ordinary Claimants,,140.
Clarke's failure to list Taylor's Muriwhenua North agreements in his list of trust deeds could have been based on personal
137 Coates to Clarke 18 Feb. 1840, Ibid I: 20-4.
138 Hobson to Clarke 4 April 1840, CMS/CN/M12.
139 Taylor Notes 12 Feb. 1840, Taylor papers flO.
140 Clarke to Col. Sec. 16 Nov. 1840 encl. in Thomson to Commissioners 2 June 1841, IA 1/1841/135. I am indebted to David Armstrong for this reference. - 51 - animosity. Earlier he told the CMS of how painful it was for him to report that Taylor claimed a vast area near the North Cape. He believed that the vastness of Taylor's claim had "given great cause to the enemy,,141. The enemy Clarke referred to were the critics of missionary land claims. since he and Taylor were neighbours at Waimate between 1840 and early 1843, Clarke must have known of the trusteeship provisions in the Mur iwhenua North agreements. Taylor certainly advertised these agreements as protecting the previously "vanquished" Te Aupouri people 142~ The key to Clarke's omission of Muriwhenua North from his list may have been a Waimate boundary dispute between himself and Taylor revealed by the CMS surveyor as the cause of personal animosi ty between the two143 .
Muriwhenua missionaries Matthews and Puckey remained warm supporters of the Crown/CMS alliance. While continuing to believe that Maori were a dying race, Matthews thought it "quite possible for the Government to prove a great blessing ... " to Maori, especially "where they have not previously disposed of their lands,,144. Although Puckey did not get formal Crown recognition for his propbsed transfer of trusteeship agreements, he continued to believe that the Crown supported CMS efforts to save Maori from dispossessing themselves 145.
Even during their honeymoon with the Crown, however, CMS land claimants had to defend themselves against a rising tide of criticism. When it appeared that the Parent committee would discharge missionaries who failed to report their claims,
141 Clarke to CMS 25 April 1840, Clarke papers, ATL.
142 Taylor to CMS 29 May 1841, Taylor papers f11.
143 Kempthorne to CMS 29 April 1843, Kempthorne papers ATL.
144 Matthews to CMS 29 June 1840, CMS/CN/0.61.
145 Puckey to CMS 8 May 1848, Puckey Journal I: 190-2. - 52 -
Henry Williams responded bitterly "The land will never injure the man", he wrote. Only neglect of spiritual duties could justify discharging a missionary146. When Broughton, the Bishop of Australia, investigated private missionary claims, he inflamed the situation further. He demanded that missionaries claim no more than the 2,560 acre grant limit set by Gipps in his New Zealand Act. He also demanded that they claim no personal property, but only on behalf of their children. "So shall you vindicate yourselves", he concluded "from the aspersions cast upon you " 147
Nonetheless, CMS claimants ignored Broughton's instructions and lodged claims for in excess of the 2,560 acre limit. Taylor claimed 50,000 acres at Muriwhenua North; William Fairburn 40,000 acres at Tamaki; Ford 8,409 acres at oruru/Okiore; Henry Williams 11,870; James Kemp 9,200; George Clarke 5,500 and Richard Davis 3,885 acres, in the Bay of Islands and adj acent areas 148. Furthermore, these missionaries invariably claimed this land for themselves rather than for their children.
Not all CMS missionaries claimed land. William Cblenso, who at Waitangi predicted that "interests" would "clash", studiously avoided compromising himself in this way. Having witnessed Maori challenges to missionary land claimants at Waitangi, he foresaw how Maori interests would clash with Pakeha property interests. Maori would then say, he wrote
You who profess to have come hither for our interest, have taken advantage of our ignorance _ 149
146 Williams to CMS 25 July 1840, CMS/CN/MI2.
147 Broughton to Williams 28 sept. 1840, Williams CMS Corres. I: 31-3.
148 Schedule of Land Claims encl. in Shortland to Stanely 15 June 1843, BPP 1845 (378) pp5-11; Notice 22-23 May 1844, Ibid (246) p7.
149 Colenso to CMS 15 Jan. 1841, Colenso Ltrs I: 59-65. - 53 -
Most of Colenso's CMS colleagues rejected his suggestion that their individual land claims involved a conflict of interests. Colenso also believed service to the Crown involved a conflict, which is why he declined offers of government positions. Clarke clearly rejected this posi tion. He returned to missionary duties as soon as he left the employment of the Crown in 1845.
By early 1841 the CMS consolidated its alliance with the Crown by establishing a Bishopric and Church of England in New Zealand. The CMS agreed to endow the Church of England with sufficient land (estimated at 4,000 acres) to yield an annual income of £1,200. As an established church, the Crown agreed to contribute half the new Bishop's salary or £600150 • This was a considerable charge on an under-resourced colonial treasury. When Normanby planned the establishment of the Church in 1839 he assumed that alienated Maori land forfeited to the Crown by a confiscatory "uncleared" land tax would endow New Zealand with a profitable public domain. Since this assumption proved to be unfounded, Hobson had to turn to the CMS to fund the Church of England, just as he had to turn to its missionaries for staffing his Protectorate Department.
150 Coates to NZ Dept. 30 April 1841, Williams CMS Corres. I:68-9. - 54 -
IV COLONIAL CRISIS 1842-1845
(a) Inadequate Administration
Imperial authorities saddled Hobson with an inadequate administration well before he set foot in New Zealand. Only "in the event of the failure of the anticipated cession " by Treaty, was London willing to consider financing Hobson's administration151. Normanby instructed Gipps to appoint Hobson's officials "with the utmost regard to frugality", and Hobson believed that the "means" at his disposal were "inadequate" for the task at hand152 •
Hobson believed that the vexed questions arising from control of land would inevitably provoke violence. In his first report from New Zealand sent directly to London, he saw the "mania for Land Jobbing" among both Maori and Pakeha as a time-bomb. He anticipated Pakeha bringing conflicting claims before the Crown commission, to be constituted by Gipps, and Maori rejection of its "awards that will be unfavourable to them ... ". In "fraudulent claims", Hobson was prepared to return the land to maori, but he feared they would feel cheated by cheap purchases, and would make many "unreasonable demands ... for restitution ... ". In this situation, Hobson called for military force to support his authority 153.
Neither London nor Sydney paid any heed to Hobson's call for imperial troops and the stationing of a warship permanently in New Zealand waters. Hobson reported Panakareao's information about the Kawiti/Hokianga "conspiracy" against the Crown. He heard that Pakeha troublemakers were telling Maori
151 Treasury Minute 19 July 1839, BPP 1839 (469) ppl-2.
152 Normanby to Hobson 14 Aug. 1839, No. 16, Ibid 1840 (238) p41; Hobson to Gipps 24 Dec. 1839, No.1, G36/1a.
153 Hobson to Normanby 20 Feb. 1840, No.7, BPP 1841 (311) pp12-13. - 55 -
the imperial troops would take "possession of all the Land ... [to] sell it irrespective of Native Claims,,154. By October 1840, Hobson was convinced that military conflict was inevitable, because Maori "habits are so inveterately opposed to those of civilised life ... ". While Clarke's Protectorate officials could resolve some disputes peacefully, Hobson had no confidence in mediation as a long-term solution155.
When Russell prepared new instructions for Hobson in December 1840, he defined "public health and safety" as the Crown's primary duty, but, again, failed to provide the means to attain these ends. He reminded Hobson that "frugality is one of the indispensable bases of all good government ... ". He stressed that the Crown should support "the permanent welfare" of Maori rather than "their supposed claim to the maintenance of their own laws and customs". Since Hobson lacked the resources to intervene in Maori affairs, Russell's retreat from Normanby' s instructions and the tino rangatiratanga guarantees of the Treaty had no immediate effect. Likewise, Russell's call for Hobson to survey all private and Maori land to ensure that the remainder became part of the public domain, meant very little in a colony with only one or two surveyors working for the Crown156.
Lack of funds virtually paralysed Hobson's administration during its first year of operation. It spent only £367 on the purchase of Maori (including £100 of the 1840 Mangonui purchase) . Meanwhile, Hobson's injudicious purchase of Clendon's uninvestigated Okiato claim as the first colonial
154 Hobson to Gipps 5 May 1840, Ibid. p57-8.
155 Hobson to Sec. of State 15 Oct. 1840, No. 38, Ibid ppl13- 4 ,. Wards, Shadow of the Land, pp32-7, 52-59, 69.
156 Russell to Hobson 9 Dec. 1840, 28 Jan. 1841, Nos. 17, 19, BPP 1841 (311) pp26-30, 51-2. - 56 -
157 capital in New Zealand, cost the Crown £15,000 • When New Zealand became independent of NSW in 1841, Hobson tried to speed up the investigation of Pakeha land claims in an attempt to boost colonial revenues. He told his Legislative Council that the "future prosperity of New Zealand" depended largely on "the successful settlement of ... " these claims. He even deluded himself into thinking that these claims covered "every 158 available tract of land" in New Zealand • In the imagined vastness of these claims, Hobson imagined a vast public domain yielding a lucrative income for the Crown through re-sale to new Pakeha settlers.
Nonetheless, by 1842 Hobson confided in Russell's successor, Stanley, that, without imperial financial support, his administration couldn't continue. Despite generating £20,000 in Auckland land speculation during the previous year, his administration continued to accumulate debts. During that period he had been able to spend only £541 on the purchase of 159 Maori land • Nonetheless, London failed to provide the necessary support, and thus indirectly contributed to the death of the care-worn Hobson in September 1842.
Shortland, who took over as Acting Governor and served in that capacity for over a year, found this situation intolerable. He told London that imperial illusions about a potentially vast public domain lay at the heart of New Zealand's fiscal crisis. He argued that imperial authorities had failed to acknowledge the fundamental fiscal differences between New Zealand and Australia. While the Crown claimed a vast revenue generating domain in Australia by right of discovery, it could not repeat this performance in New Zealand. Instead, all
157 statement of Receipts and Expenditure 1840, Ibid 1843 (134) ppl-2; McLintock, Crown Colony Government, p135.
158 Hobson's Address 14 Dec. 1841, BPP 1841 (569) p198.
159 Hobson to Stanley 15 Jan. 1842, No.2, BPP 1843 (134) ppl0-ll. - 57 -
Crown land policies
have been drawn up on the assumption that the Natives have alienated vast tracts of land and that the Crown is consequently in possession, through the land claims and other sources, of considerable disposable Demesne 160
By late 1843 Shortland believed Maori had not "alienated vast tracts of Land ... ". He based this conclusion on the reports of the Crown Land Claims Commissioners. Whether or not his analysis of the source of the crisis was accurate, no-one could deny the lack of a disposable public domain crippled colonial administration.
(b) Land claims policy
Although several claimant researchers will examine the Crown IS policy towards Pakeha land claims, this report cannot avoid the subject because it was so closely related to all other policies. Like the Crown's conceptions of Maori land rights, its land claims policy changed, but its goal was always to consolidate Crown control over the revenue derived from land.
Pakeha claimants, like Busby, believed that the Gipps New Zealand Land Bill of 1840 was a "bill of Spoliation ... " designed to create a public domain out of private property. By limiting Crown grants to 2,560 acres, Gipps ensured that the Crown could either return the balance of the land claimed by Pakeha, or declare it surplus land of the Crown. Busby confided in Colenso that the 2,560 acre limit meant
lOur own waitangi l is not longer ours - for'there can be no doubt that this clause was aimed at it161
In defending his bill, Gipps rejected Busby and William
160 Shortland to Sec. of State 30 Oct. 1843, No. 89, G25/1.
161 Busby to Colenso 4, 25 July 1840, Colenso Journal IV: 88-9, 95-8. - 58 -
Wentworth's contention that Maori exercised unqualified alienation rights in pre-Treaty transactions with Pakeha. Gipps repeated what Hobson had said to Sydney-based land claimants on 10 January 1840, that Maori were minors incapable of entering into equitable contracts1~. By this logic, the Crown should have returned all land claimed by Pakeha, not just surplus land, to Maori. Gipps, however, designed his bill to provide the Crown with maximum control over the disposition of New Zealand land.
While Gipps ruled out the possibility of equitable pre-Treaty transactions in his speech, in his bill he assigned Commissioners the task of discovering equitable transactions without providing them with a clear definition of what constituted equity. He therefore left to the Commissioner's discretion how they would define equity. While the bill recommended a 2,560 maximum grant, Gipps also allowed the Crown discretion to grant more. Even in specifying that a Protectorate official should attend all hearings, and all prospective grants be surveyed, Gipps increased rather than limited the Crown's discretion. Protectorate officials and surveyors served the Crown's interests, not those of Maori or Pakeha claimants 163. Finally, Gipps omitted any references to what Commissioners should recommend in cases of inequitable or fraudulent transactions. Hobson's 5 February promise to return to Maori all lands "unjustly held" was not incorporated in the first New Zealand Land Act passed in August 1840. Such an omission, while unjust to Maori, served to increase the Crown's discretion in its disposition of land.
The Crown Land Claims Commission in Northern New Zealand was an arm of Crown policy, rather than an independent
162 Gipps speech 9 July 1840 encl. in Gipps to Russell 16 Aug. 1840, No. 29 BPP 1841 (311) pp62-78i Hobson to Gipps 16 Jan. 1840, No.4, G36jl, pl0.
163 Instructions for the Commissioners ... 2 Oct. 1840, BPP 1841 (569) pp80-2. - 59 -
investigation of pre-Treaty transactions. It operated without the benefit of an independent analysis of Maori land rights, and without the benefit of the surveys specified in Gipp's instructions. George Clarke and Henry Tacy Kemp __ who advised it on Maori land rights both stood to gain from missionary land claims. Significantly, the report forms on which Commissioners had to make their recommendations defined transactions as "purchases" and "alienations". The Crown could conceive of no other kinds of pre-Treaty transactions. Thus Taylor's Muriwhenua North, and Southee's otaki claims, which were much closer to trusteeship or gifting agreements, had to be described as alienations1~.
operating one a shoe string budget without effective power to call witnesses, the Crown Commissioners, Edward Godfrey, and Matthew Richmond (both appointed by Gipps) spent most of the first year of their investigation in the Bay of Islands area. By March 1842 they had investigated only 229 out of the 872 Pakeha claims in Northern New Zealand. Hobson reported that their chief difficulty lay in overcoming "the indolence and mutual hostility of the Natives ... ". The Governor admitted
When it happens that the Claims occur on the land of friendly Natives, it is possible by bribing very highly to procure attendance [at hearings], but these instances are very rare 165
In an effort to speed up the Godfrey/Richmond investigation, Hobson chose to "wholly remodel" the Gipps Act. His 1842 Land Claims ordinance allowed Commissioners to operate independently of each other, and replaced Gipp' s sliding scale for converting declared purchase prices into acreage awards
164 Copy of Deed of North Cape 20 Jan. 1840, 16 Feb. 1841, Taylor papers, Miscellaneous Maori documents, APLi Southee Deed of Gift 1 June 1838, OLC1/875-7, pp68-9.
165 Hobson to Sec. of State 26 March 1842, No. 21, G25/1. For obvious reasons, imperial authorities chose not to publish this report. - 60 -
with a simple 5/- per acre formula1~. Not only did Hobson attempt to speed up the disposition of land, he also tried to concentrate Pakeha settlement with his 1842 Ordinance. Following Wakefield's theory of colonisation, he initially prescribed that claimants outside Hokianga, the Bay of Islands and Auckland receive scrip for their land redeemable only in those three areas. Missionaries were exempt from this requirement, and, in any case, a storm of Pakeha protest forced Hobson to jettison this part of the Ordinance 167.
The shift in Crown policy embodied in even the amended 1842 Ordinance caused confusion in Muriwhenua. When James Berghan sought Crown grants for his "half-caste" sons to whom Maori kin gifted Muritoki land, Shortland informed his agent that the Crown would not grant land to claimants who had paid less than 5/- an acre for it1~. Had such a rule applied to other Muriwhenua claims, Godfrey would have been required to invalidate almost all of them. As it was, Godfrey calculated his initial acreage awards using the 1842 5/- an acre formula. Then imperial authorities disallowed that Ordinance, and Muriwhenua claimants, like Brodie, had their awards (already gazetted) revised without knowing the reasons for -the revision169.
In only very few claims were Commissioners able to define boundaries with the benefit of reliable surveys. Nor were claimants anxious to retain the services of private surveyors. Sampson Kempthorne discovered this when he began to survey CMS properties in the North during 1843. He identified a number
1~ Hobson's Address 14 Dec. 1841, BPP 1841 (569) p198i Land Claims Ordinance 25 Feb. 1842, Ordinances of ... New Zealand 1841- 1853, ppl12-14.
167 Hobson's Address, 14 Dec. 1841, BPP 1841 (569) p199i McLintock, Crown Colony Government, p135.
168 Short land to Frederick Whitaker 6 May 1842, OLC1/1362 p7.
169 Brodie to G W Hope 15 Sept. 1844 encl. in Stanley to Grey 11 Aug. 1845, No. 15, G1/13. - 61 -
of boundary disputes raised by surveys of missionary land claims. He also reported to London that a number of missionaries obstructed his surveys, and that both Richmond and Chief Justice William Martin had privately criticised their claims170 . Among Muriwhenua claimants, only Brodie produced a survey to support his claim. The Crown dismissed this plan, since it was not accompanied by the surveyor's field book171. Since the Crown failed to survey its 1840- 1841 Mangonui purchases, and later failed to preserve surveyor's field books for its 1850-1865 purchases in Muriwhenua, Brodie could well feel aggrieved by this double standard.
Without accurate survey information at his disposal, Godfrey had no way of identifying boundary disputes in Muriwhenua. Clarke was unable to provide Godfrey with more than a written description of the Mangonui purchase boundaries, while admitting that they enclosed "several purchases claimed by Europeans " On the basis of this information, Godfrey wrote to Clarke "I think it will be a rather troublesome business to discern what claims interfere with the land you have purchased for the Government ... ,,172. Both Godfrey and Richmond assumed that they could make general award recommendations, but that claimants would have to produce accurate surveys before receiving Crown grants. They reported to the Colonial Secretary
that, owing to the inaccuracies of the description of the boundaries in the deeds exhibited to us, we have very seldom been able to point out, exactly, the actual situation and extent of the land claimed. The Native
170 Kempthorne to CMS 29 April, 3 Nov. 1843, Kempthorne papers, ATL.
171 Ligar to Col. Sec. 1 June 1846, OLC1/570, pp13-14. 172 Clarke to Commissioners 22 Aug. 1842, MA 4/1, p31; Godfrey to Clarke 13 Sept. 1842, OLC 8/1, p50. - 62 -
Sellers can alone shew the boundaries to the Surveyors 173
This explains the vagueness of most of Godfrey's Muriwhenua recommendations. For example, in Taylor's Muriwhenua North claim, he recommended that the Protector of Aborigines make unspecified reserve provisions for Maori 174. In the Warau/Matako claim, Godfrey told Richard Matthews that he had upheld Haunui' s protest against the inclusion of Tekekawa within Matthew's grant1~. By implication, Godfrey was telling Matthews to instruct his surveyor to exclude Tekekawa from the plan upon which Godfrey thought the Crown was base its grant.
Godfrey assumed, therefore, that other Crown agencies would remedy the deficiencies of his admittedly inadequate investigation of Pakeha land claims. He assumed that the Protector of Aborigines would identify Maori rights within areas where he recommended Crown grants, and that surveyors would help identify boundary disputes prior to the issue of Crown grants. without sufficient information and resources, Godfrey cquldn't act more decisively than this. Furthermore,. he lacked the kind of police power the Crown believed was necessary to resolve major conflicts. The deficiencies of his investigation in this regard were nowhere more evidence than at Oruru.
(c) The Oruru conflict
I've related the details of the Oruru conflict in three previous reports 176. Rather than revisiting those details,
173 Godfrey & Richmond to Col. Sec. March 1843, Ibid pp61-2.
174 Summary of Godfrey's report 15 April 1843, OLC 3/12.
1~ Godfrey to R Matthews 10 Feb. 1843, OLC 8/1, p54.
176 Rigby /Koning, preliminary Report, pp67-72 i Mangonui report, pp17-8i Oruru report, pp30-1. - 63 -
the conflict needs to be seen in relation to broader Crown policies. I'll also review new evidence which I've located since filing my previous reports.
The Oruru conflict followed from the Crown's ill-defined Mangonui purchase of 1840-1841. The Crown's failure to understand the complexity of Maori land rights led it to negotiate those purchases, and then to misunderstand the nature of the conflict which followed. In attempting to resolve the conflict, Clarke seized upon a Ngapuhi proposal to use the Oruru River as a convenient boundary between the contending parties without acknowledging that the complexity of the rights involved would not permit such a simple solution. Prior to Clarke's mediation attempt, Godfrey had tried to separate consideration of Pakeha claims from consideration of Maori land rights, without acknowledging that each was bound up with the other. UI timately, Clarke acknowledged the complexity of the situation by recognising both Panakareao and Pororua's continuing rights in the area the Crown supposedly purchased in 1840-1841. The Crown, however, failed to act upon the settlement Clarke proposed in August 1843.
The new evidence worth considering comes mainly from missionary sources. contrary to my assessment in the Oruru report, the Wesleyans continued to visit the area after 177 1838 • In 1838 the Wesleyans baptised Pawau, a leading Te Patu or Ngati Kahu figure at Oruru, while he was a candidate for CMS baptism. Puckey condemned this as raiding CMS territory, but the Hokianga-based Wesleyans continued to visit 178 Oruru regularly until after the 1843 conflict • During the conflict, Wesleyan missionary, William Woon, repeatedly denounced Panakareao's claims at Oruru. Maori communities
177 Oruru report pp10-11.
178 Puckey to Turner nd., CMS/CN/0.7; Wesleyan Committee minutes 19 Jan. 1841, 15 Dec. 1841, 22 Aug. 1842, WMS records reels 4-5. - 64 - around Hokianga, particularly the Te Uriohau people from Waima, participated in the conflict, and Mohi Tawhai (a leading Waima rangatira) played a key mediating role179 .
Had Tawhai and Tamaiti Waka Nene failed in their mediation efforts, the conflict may well have spread throughout Northern New Zealand. Matthews reported that a group of envoys for the "Southern tribes" from "Rotorua &c" invited Panakareao to join an anti-Ngapuhi alliance in mid 1843. Panakareao initially favoured the proposal and predicted a major Maori war in the North. Matthews reported him as saying that as a result of this war "The land will be for Europeans". When Matthews asked him whether the Crown should intervene to prevent such a war, Panakareo said "Let not the English interfere with Natives nor Natives with the English". Matthews took the threat of Maori warfare very seriously. He told the CMS: "It would certainly be a mercy for a judicious government to be able to say: you shall not settle your disputes in this way,,180.
The Crown, however, lacked the power to demand anything of Muriwhenua Maori in 1843. This was brought home to Godfrey and Kemp when they met with "Kaitaia chiefs" at Kaitaia in early February. On the site of the 28 April 1840 Treaty signing, they heard "many violent and seditious speeches". Kemp reported these speeches as follows:
1. That they object to the Government assuming any authority over their possessions 2. That any surplus lands remaining after the surveys shall be completed of the lands they have sold to the Europeans will be resumed by the original proprietors.
A third Maori act of defiance concerned a Pakeha trading vessel "plundered" or "salvaged" on the beach at Ahipara.
179 Woon to WMS 31 March, 17 April, Ibid. reel 5.
180 Matthews to CMS 31 July 1843, CMSjCNjO.61. - 65 - Maori refused to compensate the owner, despite Panakareao's prior agreement to do so. Finally, according to Kemp, Maori lodged a strong "protest against any land being sold to the Government ... ". They rejected the 1840-18-42 Mangonui purchases "and declared that they shall exercise their rights and privileges as heretofore1~.
This ringing assertion of tino rangatiratanga did not amount to a complete rejection of kawanatanga. Although Maori vowed to sell no more land, they "acknowledged ... sales of land", in Godfrey's words, "around Kaitaia ... ". Although they rej ected Panakareao' s Ahiapara compensation agreement, and his 1840 "sale" of land at Mangonui, they were willing to compensate the Crown for the £100 it paid him. Finally, although they refused to allow the Crown to conduct further investigations of Muriwhenua land, Godfrey maintained that he "obtained their recognition of every claim in the District from the North Cape to Mangonui ,,1~
Although Kemp and Godfrey invariably described pre-Treaty transactions as sales, the prevalence of tuku in the surviving Maori deeds suggest that, for Maori, they were not sales in the European sense. If these were tuku transactions, Maori support for Pakeha claims indicates something quite different from an admission of alienation. Maori rejection of the 1840 Mangonui purchase was also understandable because during the interim, the Crown had negotiated a similar agreement with Pororua without consulting anyone at Kaitaia. Likewise Maori claims to surplus land were inconsistent with Hobson's promise to return all lands "unjustly held".
During the 1843 Oruru conflict, Clarke virtually nullified the terms of the 1840-1841 Mangonui purchases. Clarke's support
181 Kemp to Clarke 10 Feb. 1843, Godfrey to Col. Sec. 16 Feb. 1843, G30/3, pp743-7, 757-66.
182 Ibid. - 66 - of a Ngapuhi proposal to shift Panakareao's eastern boundary from Taemaro to the Oruru River (without consulting the Maori residents of these areas) made nonsense of the 1840 agreement 183. As previously stated, Clarke eventually saw how the Oruru River boundary line could not produce a satisfactory settlement. Instead, he proposed further £100 payments to both Panakareao and Pororua, together with a recognition of their continuing rights in the Oruru/Mangonui area1M • Clarke's last settlement proposal, therefore, significantly departed from the terms of the original 1840- 1841 Mangonui purchases. Even though the Crown failed to act upon this settlement proposal, Maori agreed to it and probably felt the Crown would honour it.
Crown actions towards Oruru after August 1843 were marked by a great deal of indecision. Apparently, following a suggestion by Shortland, Godfrey proposed scrip exchanges as a way of removing Pakeha claims from the area 185. Just as Hobson had failed to sustain the compulsory scrip exchange provisions of his initial 1842 Ordinance, Godfrey could not force claimants to accept scrip. Clement Partridge, an Auckland based land speculators, refused to accept the Crown's offer because Godfrey calculated the value of scrip without tripling the value of goods exchanged in the original 186 transactions • When Partridge called upon Godfrey to report his Mangonui claims in the normal way, the Commissioner temporised. He told Partridge that he couldn't report any Oruru/Mangonui claimants until the Crown "had formally 187 withdrawn "its 1840-1841 Mangonui purchases • To my
183 Terms of Settlement encl. in Clarke to Col. Sec. 1 June 1843, BPP 1846 (337) pl12.
184 Protector's report [August 1843], Ibid pp125-7.
185 Godfrey to Claimants 20 Jan. 1844; Godfrey to Col. Sec. 12 May 1844, OLC 8/1, pp77-8, 86-7.
186 Godfrey to Col. Sec. 3 Feb. 1844, Ibid pp80-1.
187 Partridge to Col. Sec. 15 March 1844, Ibid pp53-4. - 67 -
knowledge, the Crown never formally withdrew these purchases.
Godfrey believed that he could punish Muriwhenua Maori for putting the Oruru conflict ahead of peaceful Pakeha settlement. In removing Pakeha from the area, he thought he could persuade Maori "to settle similar disputes more amicably " in the future 188. He also considered the potentially adverse consequences of encouraging Maori "at other places to attack the settlers in the hope of similarly resuming their lands,,189. Godfrey, clearly believed that Maori would resume scrip land at Oruru and Mangonui. He did not bargain on the fact that most claimants would not accept his scrip offers. The Crown's authority in Muriwhenua was still very weak.
(d) FitzRoy's Choice
When FitzRoy arrived to assume the duties of Governor in December 1843, the Crown exercised little power outside the main centres of Pakeha settlement and the colony was virtually bankrupt. Nonetheless, imperial authorities persisted in their belief that the Crown could govern New Zealand without taxing the imper ial treasury. stanley had ignored Short land ' s warnings that the Crown could not reply upon revenues generated by surplus land to solve the colonial fiscal crisis. He also gave FitzRoy no guidance on his proposal (supported by Short land) to waive the Crown's pre-emptive rights in an effort to stimulate private purchases of Maori landl90 .
Without either imperial support or other means of stimulating a depressed economy, FitzRoy waived pre-emption almost as soon as he set foot on New Zealand soil. FitzRoy apparently
188 Godfrey to Col. Sec. 12 May 1844, Ibid pp86-7.
189 Godfrey, "Answer to Minute of 13th June 1843 ... " Ibid p69.
190 Stanley to FitZRoy 26 June 1843, No. 14, G1/9; Short land to Sec. of State 30 Oct. 1843, No. 89, G25/1. - 68 -
assumed that the Crown could ensure that private purchases of Maori land were equitable. At the waiver proclamation ceremony in Auckland, Te Matua asked FitzRoy what would happen where Maori accepted payment under false pretences, "the real owners not having been present". FitzRoy assured Te Matua that
after due consideration, justice will be done to parties who have real claims to such land, as far as may be practicable 191
FitzRoy also compounded the confusion over claims based on pre-Treaty transactions by dispensing with proper surveys of Crown grants. Surveyor General Ligar reported that few claimants were retaining the services of surveyors. Apparently claimants believed
that their titles to land, as derived from the natives, are equally as good as the title they would receive from the Crown
FitZRoy, therefore, told his Executive Council that it was necessary to replace surveys with written boundary descriptions and "eye sketches" to terminate "the long protracted subject of land claims ,,192 By dispensing with surveys in this way, FitzRoy did not terminate the subj ect of land claims. In fact, he only made it more protracted because lack of proper surveys compromised the legal validity of all Crown grants issued by him.
In an equally ill-advised resort to expediency, FitzRoy legalised retrospectively hundreds of post Treaty transactions between Pakeha land claimants. Many claimants treated their claims, not as alleged property rights, but as freely
191 Minutes of ... Meeting of Native Chiefs 26 March 1844, BPP 1845 (131) pp43-4.
192 Minutes of Executive Council 8 Jan. 1844, BPP 1845 (247), p96; Minutes of Legislative Council 9 Jan. 1844, Ibid p30. - 69 -
exchangeable commodities, prior to any investigation. Traders such as Butler, Gilbert Mair and William Powditch "acquired" numerous claims from Mangonui sawyers such as Ryan, Thomas and Phillips in this manner. With a stroke of his vice-regal pen FitzRoy legalised these post Treaty transactions. His Land Claimants' Estates Ordinance stated simply
it is expedient that the legal estate in all lands so granted ... shall be deemed to have been in such grantee from the date of purchase 193
Thus, the subsequent act of receiving a Crown grant endowed all sorts of questionable post Treaty transactions with retrospective legality.
The one area in which FitzRoy did not resort to expediency was surplus land. Stanley sanctioned the Crown's claim to surplus land in instructing FitzRoy before he left Britain194 • On arriving in New Zealand, FitzRoy discovered that Maori would not stand idly by and allow the Crown to claim areas it had not purchased. In particular, Maori resisted the Crown's claim to the surplus land within Fairburn's Tamaki claim195 • Since Stanley allowed him discretion in following all imperial instructions, FitzRoy decided against asserting the Crown's claim to surplus land. He reported that any
attempt to do so would have injured the character of the Queen's government very seriouslY, if not irretrievably; so tenacious are the natives in what they consider to be strict justic~%
FitzRoy evidently understood that Crown revenues derived from
193 Land Claimants' Estates Ordinance 17 July 1844, BPP 1845 (247) ppI31-2.
194 Stanley to FitzRoy 26 June 1843, No. 14, Gl/9.
195 Brodie's testimony 4, 6 June 1844, BPP (566) pp42, 57.
196 Fitzroy to Stanley 15 Oct. 1844, No.7, BPP 1845 (369) pp28-30. - 70 -
the resale of surplus land would not defray the expense of containing Maori resistance by force of arms.
Nonetheless, FitZRoy failed to contain Maori resistance in the Bay of Islands and Wellington areas. When it appeared that he had lost control of the situation, Stanley recalled him197 . In Britain FitzRoy had gained a reputation of vacillating in the face of Maori resistance, and of "showing too much respect for native customs in a manner inconsistent with good order and morality, and with the progress of civilisation,,198. Stanley criticised FitzRoy's failure to claim surplus land by instructing his successor to avoid FitzRoy's mistake of avoiding "a line of policy respecting land and revenue unacceptable to ... " Maori for fear of provoking their "resentment and insurrection ... ,,1~.
By 1845 Maori "resentment and insurrection" was so evident, that imperial authorities had to bow to the inevitable by sending troops to New Zealand. From that point on, empire became more expensive. Nonetheless, imperial authorities were loath to admit that they had produced the colonial crisis of 1842-1845 by clinging to the myth that New Zealand's colonial administration could be self-supporting. FitzRoy became the fall-guy for the general failure of imperial policy makers to come to terms with New Zealand realities. Just as it was Hobson's choice to rule New Zealand without adequate means, FitZROy was given the same choice.
197 Stanley to FitzRoy 30 April 1845, G1/13.
198 Report of House of Commons Select Committee on New Zealand, BPP 1844 (556) p10.
199 Stanley to Grey 13 June 1845, No. 25, BPP 1845 (337) pp69-70. - 71 -
V COLONIAL AND IMPERIAL CONFLICT 1845-1847
George Grey's arrival in New Zealand to replace FitzRoy during 1845 marked a major shift in Crown policy aw.ay from the str ictest economy, and towards direct assertion of Crown authori ty in Maori areas. In his last year of off ice, stanley instructed Grey to "honourably and scrupulously fulfil the conditions of the treaty of Waitangi". At the same time, he was require from Maori
an implicit sUbjection to the law, and you will enforce that submission by the use of all the powers, civil and military at your command200
stanley, and his successor Earl Grey, put substantially more resources at Grey's command than had been made available to either of his predecessors.
(a) Disestablishment of the CMS
One of the first assertions of Grey's power was in removing policy towards Maori from the control of the CMS dominated Protectorate Department. Grey had reason to be dissatisfied with the performances of Clarke and his subordinates. They had failed to negotiate any sizeable purchases of Maori land, and had failed to mediate successfully in any major Maori or 201 Maori/Pakeha conflicts • Clarke, however, was not one to bow out without a fight. Before leaving office he pointed out that the Crown had failed to provide his Department with the resources necessary to purchase Maor i land and act as an effective mediator. He also accused Grey of violating the spirit of the Treaty by pursuing military intervention as a
200 stanley to Grey 13 June 1845, No. 25, BPP 1845 (337) pp69-70.
201 Morrell, British Colonial Policy, pp129-31 i James Rutherford, Sir George Grey KCB 1812-1898: A Study in Colonial Government (London 1961) pp94-6. - 72 - course of first, rather than last, resort202 .
Clarke's defiance only served to strengthen Grey's determination to eliminate the Protectorate Department, and to attack the entire CMS establishment in New Zealand. In this attack Grey found a willing ally in Bishop Selwyn who, for reasons of his own, wanted to assert his power over missionaries such as Clarke and Henry Williams. For some time Selwyn had pursued his own episcopal agenda by criticising CMS missionaries where they were most vulnerable, on the subject of their extensive private land claims.
Selwyn's criticism of these land claims, later supported by Grey, had a direct impact on the position of Muriwhenua missionaries, Joseph Matthews and William Puckey. In 1844 Selwyn informed the CMS in London that he would not admit Matthews to full Priest's orders at Kaitaia because
he has acquired a large landed property [there] ... and has already shown its effect in perverting his better judgement, by taking measures to bring his own property into occupation, while not one acre of the Society's land is yielding any return2~.
In mid 1845 he informed both Matthews and Puckey that he would admit the former to Holy Orders only if he agreed to leave Kaitaia. Selwyn said he would not "license Clergymen to districts in which they have private landed property ... ,,204. While Selwyn failed to force Matthews to leave Kai taia, Muriwhenua missionaries smarted from this episcopal rebuke. It served as a standing reminder of Selwyn's power over them,
202 Clarke to Col. Sec. 30 March 1846, encl. in Grey to Stanley 12 June 1846, No.7, BPP 1847 (837) pp13-21.
203 Selwyn to Venn 10 April 1844, Williams CMS Corres. II: 151.
204 Selwyn to Matthews and Puckey 2 June 1845, Ibid pp172-3. Selwyn did not relent from this position until 1860. Selwyn to Venn 11 Aug 1860, Ibid 111:436-7. - 73 -
and it typified the process by which the Bishop had assisted the Governor in disestablishing the once powerful CMS in New Zealand.
(b) Land and Conflict
Historians haven't paid sufficient attention to the full implications of the Crown's attack on missionary land claims dur ing Grey's first governorship. McLintock argued that Grey honed in on these "extravagant" claims as a "flagrant aggressor", while Rutherford believed Grey never sUbstantiated his allegations that such claims caused the Northern War2~. Historians have failed to observe that in attacking missionary land claims and FitzRoy's extended grants resulting from them, Grey attacked the basis of Crown policy towards Maori land since the Treaty. The Crown took this attack to Muriwhenua in late 1847 when Grey's Private and Native Secretaries denounced missionary land claims in the presence of Panakareao.
Grey's allegations of missionary land claims as a cause of the Northern War have been too easily dismissed by historians206 . In his infamous "blood and treasure" despatch of 25 June 1846, Grey argued that CMS had dominated Crown land policy especially under FitzRoy. He went on to argue that Clarke and Williams personally influenced FitzRoy to extend their grants to 5,500 and 11,000 acres respectively, and that Maori opposition to these extended grants led Heke, Kawiti and their followers to take up arms against the Crown. While Grey's simple causation sequence is clearly faulty, the case he presented against CMS domination of Crown land policy was a
205 McLintock, Crown Colony Government, pp2 00-1; rutherford, Grey, pp133-6. 206 I bid; L M Rog er s , .=.T..:::e=----W-,-,--",i""r,..."e;::,m:!!.u=-=.:_~A"----=:Bc=i'-'=o~g:l-:r"-'a""'p=h'_..ly'___"'oc:f'__H=e:..:.n~r:....L_y Williams (Christchurch 1973) pp243-9. """' 74 -
strong one207 .
Few contemporary observers disputed that Maori dissatisfaction over Crown land policy contributed to the war ... Even Grey's predecessor FitzRoy argued this. Instead of Maori hostility towards extended CMS grants causing the war, FitzRoy argued that the Crown's previous attempt to limit these grants to 2,560 acres provoked Maori resistance in defence of missionary land claims. FitzRoy believed that Maori sought to honour their pre-Treaty agreements with people like Clarke and Williams without Crown interference208 . There is some evidence to support this argument. In 1844 Colenso recorded a meeting between Heke' s followers, Clarke and FtizRoy at which Maori praised long-established missionaries and Busby, while criticising the "new Missionaries, the Bishop, and the Government, whom they always class together,,209. Maori evidently valued their relationships with missionaries who had served them for many years. In supporting their land claims, however, they weren't necessarily supporting their right the alienate vast areas of Maori land210 .
The major premise of FitzRoy's argument was that if Maori supported missionary land claims, they must have understood them fully, and they must have accepted them as equitable transactions. Grey identified this as an unsound premise by sending London one of Clarke's deeds. Even from the text of the English deed, Grey argued
207 The description of this despatch comes from its conclusion in which Grey argued that the Crown would have to expend much "blood and treasure II to protect these extended missionary grants from Maori hostility. Grey to Gladstone 25 June 1846, BPP 1848 (1002) p106.
208 Memo encl. in FitzRoy to Earl Grey 20 March 1847, BPP 1847 (837) pp73-8.
209 Colenso to CMS 19 Nov. 1844, Colenso Ltrs 1:114.
210 Philippa Wyatt, liThe Old Land Claims and the Concept of 'Sale': A Case Study". MA Thesis, Auckland, 1991 pp223-7. - 75 -
It is by no means clear that they [Maori] understood that they gave an absolute title to the land such as the Crown title conveys ... 211
Grey maintained that Maori continued to occupy areas'. granted to missionaries, even though it wasn't possible to identify the grant boundaries because most remained unsurveyed. Grey, finally, won Selwyn's support to reduce the grants to the original 2,560 acre limit and to return the balance of the land to Maori 212.
Grey struck at the heart of Crown land policies when he argued that FitzRoy's extended grants had violated Maori rights. At the very least, Grey argued, the Crown should have insisted on Maori reserves within these grants. In the case of the 11,000 acres granted to Henry Williams
the Crown clearly recognised the native rights of property in this land ... [It] had no power without any regard to the claims of the natives to grant absolutely to Archdeacon Williams that [land] which in no respect belonged to the Crown213
In other words, Grey believed that land occupied by Maori was ipso facto land they had not alienated, and to which the Crown had no rightful claim. This flew in the face of the logic of the previously expressed Crown position that everything transacted before the Treaty was ipso facto alienated, and therefore within the Crown's jurisdiction.
Grey's championing of Maori land rights was probably part of a campaign to wean Maori away from the missionaries. When his agents tried to do this in Muriwhenua, however, it apparently
211 Grey to Earl Grey 2 Aug. 1847, No.2, BPP (1002) pl10.
212 Ibid; Grey to Earl Grey 1 Sept. 1847, No.7, Ibid pp117- 20.
213 Grey to Earl Grey 10 Feb. 1849, No. 35, BPP 1849 (1120) pp73-4. - 76 -
had the opposite effect. Nonetheless, Grey was able to use Crown resources both to defy his missionary critics, and to support his Maori allies.
(c) Grey's Maori Allies
Even before he had disestablished the CMS, Grey had formed a political alliance with key Maori including Tamati Waka Nene and Panakareao. Waka Nene and Panakareao had old scores to settle with Heke and Kawiti. FitzRoy admitted that "Nopera's alliance with Waka Nene is the result of native animosity, rather than attachment to the Government ... ". Since Heke's warriors had killed several of Panakareao's at Oruru in 1843, these were probably the "death not yet avenged" which Panakareao identified as his casus belli 214. Grey, therefore, did not have to enlist Maori allies when he arrived at Ruapekapeka in December 1845. His Maori allies preceded him there.
According to Colonel Despard who commanded the operation, Panakareao, Mohi Tawhai and Waka Nene's warriors played a key role in the capture of Kawiti's pa at Ruapekapeka on 1 January 1846. since this was the main military success upon which Grey built his reputation as the conquering Governor, he had every reason to maintain the Maori alliance which produced the victory. Grey apparently rewarded Panakareao for his part in the victory with a schooner named "Maria", and a Pakeha named James smith to sail it. Panakareao, in turn, gifted land to smi th at the port of Awanui where he berthed the "Maria ,,215.
During the war CMS missionaries earned Grey's enmity by remaining neutral. Muriwhenua missionaries opposed Panakareao's involvement. Their Maori converts prevailed upon
214 Edward Shortland memo 30 Sept. 1845 encl. in FitzRoy to Despard 17 oct. 1845, BPP 1846 (337) pp146-7.
215 James smith to Grey 8 Jan. l863, OLC 1/1375, ppll-12. - 77 -
Te Morenga not to join him. According to Puckey, when his wounded warriors returned home, their relatives added insult to injury by jeering them, apparently because they had aided 216 a bad cause •
Grey's first personal visit to Muriwhenua in May 1846 probably took the edge off missionary and Maori criticism. After conferring with Grey, Matthews recorded that he believed Grey would "do all he could to benefit the Native race". Grey's means of transport, a steam propelled warship the HMS Driver, which he allowed Maori to board, was designed to impress his hosts. Grey also used the trip as a mineral prospecting expedition. He told Panakareao that his naval prospectors had discovered coal deposits at Butler's Point. Because Grey felt that the adjacent village of Mangonui would become a coal mining community, he urged Panakareao "and his Natives to plant at Oruru, in order to supply them, ie the miners with food". When Grey's warship left Mangonui, Maori climbed the Rangikapiti observation point to watch it steam into the distance. The plume of black smoke trailing it out to sea seemed to symbolise a continued alliance between Maori and the Crown based on coa I 217.
The imperial naval and military power placed at his disposal allowed Grey to impress Maori in a manner denied to his predecessors. As impressive as this power was to Maori, the Crown still had to hold up its end of the bargain. with Panakareao and other Maori, a schooner and the promise of a coal mining settlement at Mangonui weren't enough. The Crown had to deliver on its promise to protect long-term Maori interests. This became difficult when Grey's imperial overlord, Earl Grey, formulated principles affecting Maori land which were completely unacceptable to Maori.
216 Matthews to CMS 6 May 1846, CMSjCNjO.61i Puckey to CMS 11 Oct. 1846, Puckey Journal 1:154-5.
217 Matthews Journal 26-29 May 1846, CMSjCNjO.61. 78 - (d) The Wasteland debate
One of the most consistent themes in Crown land policy since 1839 had been the attempt to create a disposable public domain to both fund government and sustain settlement. Normanby thought an "uncleared" land tax could accomplish this, Russell thought the survey and registration of Maori and private land could, Stanley appeared to rely upon "surplus land", and, finally, Earl Grey prescribed "wasteland" as the key to creating a disposable public domain.
As Lord Howick, Earl Grey, chaired the 1844 Commons Select Cornrni ttee which asserted the Crown's claim to unoccupied Maori land. On preparing Royal Instructions for Governor Grey in late 1846, Earl Grey sent his subordinate several drafts to indicate the principles on which he would reformulate Crown land policy218. Although Earl Grey would cite the ideas of
a "Dr Arnold" as the source of his principles l they were really based on the same imperial illusions that had influenced the Crown's approach to Maori land ever since 1839. Earl Grey merely reasserted Gipps' s "qualified dominion" doctrine, again, based on the imperial view that only by continuous CUltivation and occupation could Maori create a property right. Since they had not "subdued the soil" in vast wasteland areas not used for CUltivation and occupation, they could not claim property rights there, and such land should become the Crown's disposable domain219 .
Earl Grey allowed his subordinate to choose how he would carry out these instructions. He acknowledged the possibility that Maori might resist the Crown's claims "to large tracts of wasteland which particular tribes have been taught to regard as their own". Nonetheless, the Governor to "avoid as much
218 Grey to Earl Grey 27, 31 Nov. 1846; Draft Instructions Nov. 1846, Grey papers, f35, 36, APL.
219 Royal Instructions encl. in Earl Grey to Grey 23 Dec. 1846, No. 43, BPP 1846 (763) pp68-9. - 79 - as possible any further surrender of the property of the Crown " He also reiterated Russell's 1840-1841 instruction to survey and register all Maori and private land with the remainder "declared to be the royal demesne". _Finally, he instructed the Governor to create "Aboriginal Districts" in predominantly Maori areas, each to be governed by rangatira in accordance with Maori customs220 .
So clearly did the wasteland section of these instructions appear to violate the protective guarantees of the Treaty, that even Governor Grey's ally, Bishop Selwyn protested publicly in association with Chief Justice Martin221 . The wasteland debate even extended to Britain where the Aborigines Protection Society declared the Crown's principles to be in violation of the Treaty222.
Earl Grey responded by maintaining that his critics simply misunderstood his wasteland principles. He could not" imagine what portion of these Instructions [could] be designated as a violation of the rights of the natives ,,223 To allow his subordinate in New Zealand to assure Maori that the Crown would not dispossess them, Earl Grey, like Stanley, called upon Governor Grey to "scrupulously and religiously" uphold the Treaty224.
The wasteland principles damaged Governor Grey's relations with his Maori allies. Te Wherowhero and other Tainui chiefs
220 Ibid pp69-71, 87.
221 W Martin, England and the New Zealanders (Auckland 1847) , pp29-30, 42-3, 53-4; Grey to Earl Grey 7 July 1847, No. 42, BPP 1847-8 (892) pp42-3, 81-2. 222 L A Chamerovzow, The New Zealand Question and the Rights of the Aborigines (London 1848) pp223-34.
223 Earl Grey to Grey 30 Nov. l847, No. 44, BPP 1848 (892) pp82-4.
224 Earl Grey to Grey 3 May 1848, No. 17, Ibid (l002) p144. - 80 - who supported the Crown during the Northern War petitioned the Queen to remove the wasteland pr inciples from her instructions225 • During August and September 1847 Grey had Commander Sotheby of HMS Racehorse using the·. services of Tamati Waka Nene to reassure his Northern allies that the Crown would not dispossess them226 • In the end, Governor Grey scrupulously avoided putting into practice Earl Grey's wasteland principles.
(e) Grey, Panakareao and the CMS
HMS Racehorse arrived in Mangonui the day after Auckland newspapers arrived announcing Earl Grey's principles. According to Sotheby, Panakareao had "been made very uneasy by the news •.. that the natives were to be deprived of all unoccupied land ... ". Sotheby and Waka Nene persuaded him that he had nothing to worry about. Panakareao complained, however, "that no Europeans came to dwell with them" and that Governor Grey hadn't visited him in person. puhipi te Ripi and Paori Mahanga expressed the same views to Sotheby at Ahipara. They too were alarmed by the wasteland news, and they too wanted to encourage Pakeha settlement227 •
Grey had raised Maori expectations with his prediction that a coal mining settlement at Mangonui would create a flourishing local market for Maori produce. Panakareao also believed in sustaining a person relationship with Grey. When Grey sent his Private Secretary captain Nugent, and his Native Secretary, John Symonds, to see Panakareao in November 1847, he complained bitterly to them. According to Matthews, Panakareao thought he deserved the same kind of pension awarded to Waka Nene for his service during the Northern War. Matthews sympathised with Panakareao' s complaint that the
225 Grey to Earl Grey 13 Nov. 1847, Ibid p15.
226 Sotheby to Maxwell 31 Aug. 1847, Ibid. (899) pp21-2.
227 Ibid. pp22-3. - 81 -
Crown's timber regulations apparently prohibited him from cutting kauri on his own land. Matthews wrote
A Native has a just right to be offended by such a measure .•. who can deny that their land is virtually stolen from them [7] The chiefs say now that the wicked Europeans have told them the truth. We hold our piece but hope that after all the good promises made by other Governors will yet be fulfilled2~
Nugent's account of this encounter with Panakareao differs markedly from Matthews' account. Nugent reported that James Berghan had translated for Panakareao a letter published in The New Zealander highly critical of Crown policies. From Berghan's translation of this letter, Panakareao believed "that the Queen was going to take away, first, the land of the missionaries, and then the lands of the natives". Nugent reassured him that the Crown had no intention of depriving Maori of their land, but,
with respect to the missionaries, that it was in contemplation to take away a portion of land from individuals who had procured ... larger quantities than they could use, to the exclusion of other Europeans, and reserve the portion taken away for the use of the natives
According to Nugent, Panakareao pronounced "this proposition ... to be perfectly just", but he also reminded Nugent that Grey "promised" him a Pakeha settlement at Mangonui, "and that he was tired of waiting,,2~.
Matthews was mortified by the Crown's insinuation that missionary land "unjustly held" would be returned to Maori. In his later report to the CMS he claimed that Muriwhenua missionaries held no land unjustly, and that it was the Governor who would "trample on truth and justice". Matthews
228 Matthews Journal 30 Nov. 1847, CMS/CN/0.61.
229 Nuget to Col. Sec. 2 Jan. 1848, encl. in Grey to Earl Grey 17 March 1848, No. 35, BPP 1847-8 (1002) pp99-100. - 82 - deplored the Crown's attempt to prejudice Maori against their faithful missionaries as an act of "Espionage", just as Grey had deplored missionary neutrality in the Northern War in similar terms. According to Matthews, Nugent
attempted to persuade Noble that we had driven away the natives from our neighbourhood!!! This appeared a wonderful piece of news to our chief who had known everything to the contrary for fifteen years!
Panakareao confirmed Nugent's observation that Maori cUltivated CMS Kaitaia land. Matthews recorded that Sotheby similarly observed "the many native plantations on the Society's ground ... " in August. Maori cultivated 35-40 acres of wheat and potatoes there. Moreover
the largest part of natives who plant at the mountain have a village and plantation here [at the Kaitaia mission station] ... This party, moreover, have lived with us in harmony for fourteen years!! Their plantations are altogether unmolested by our cattle or anything of ours. The two chiefs whom Noble just deputed to guard our settlement are living inside my fence and have done so ever since our station was formed230
Later Panakareao told Matthews that he would return to Kaitaia from Oruru. The CMS had disapproved of his 1846 departure eastward at Grey's suggestion, and refused to move the mission to Oruru. Matthews believed that continued Maori occupation and cuI tivation of CMS Kai taia land refuted the Crown's charges that missionaries held this land unjustly, and that it should be returned to Maori. He accused the Crown of putting "a lying word" in Panakareao's mouth to defame "his missionary teachers" who had taught him "to abhor a lie,,231.
The 1847 Sotheby and Nugent/ Symonds visits to Muriwhenua brought home several contradictory Crown policies towards
230 Matthews to CMS 13 April 1848, CMS/CN/M18.
231 Ibid. - 83 - Maori land. Matthews' belief that the Crown denied Panakareao's right to cut kauri on Maori land was probably confused. Crown kauri regulation applied only to timber on 232 Crown land • Panakareao apparently regarded the kauri stands around Mangonui and Oruru as on Maori land, while the Crown seems to have regarded this as theirs, either by virtue of the 1840-1841 Mangonui purchases, or by virtue of pre Treaty transactions supposedly extinguishing Maor i title. This would explain why Matthews believed that Maori land was "virtually stolen from them". Maori had disavowed the 1840- 1841 Mangonui purchases, and even Godfrey believed that Maori 233 would reclaim the Mangonui/Oruru area •
The 1847 Crown visits to Muriwhenua reminded Maori of all the promises of the past. That which was probably foremost in the Maori mind was Hobson's Wai tangi promise to return lands unjustly held. This contradicted wasteland principles, but not Grey's agreement with Selwyn to return "excess" and Maori occupied land from missionary grants. To have fulfilled this promise, the Crown should have returned all except 1,704 acres of Muriwhenua North, and those parts of the CMS land at Kaitaia occupied or cultivated by Maori.
Henry Williams, who visited Muriwhenua as soon as possible after Nugent and Symonds, reported that a determination to divert attention from wasteland principles drove the Crown to attack extended missionary grants. He believed that Maori supported the CMS, not the Crown, in this imper ia I and colonial conflict. Maori had told him, he wrote
True, the missionaries have only that portion of ground
232 In announcing the 1840 Mangonui purchase, the Crown prohibi ted kauri cutting within its unannounced boundaries. Public Notice 24 June 1840, SLC File G, p22a. The Crown purused a general policy of conserving kauri for strategic or naval purposes. Russell to Hobson 14 Feb. 1841, No.8, G1/1.
233 Matthews Journal 30 Nov. 1846, CMS/CN/0.61j Godfrey, "Answer to Minute of 13th June 1843 " Olc 8/1, p69. - 84 -
we gave for their families of New Zealand birth. They have not taken our ground as the Governor says. But though the missionaries were not sent to take our land, it appears that the Governor and others have come hither to take our land ... 234
Matthews had the consolation of knowing that local Maori stood by him in his hour of need. They refused to allow Selwyn to force him to leave Kaitaia, and he reported that they raised £500 worth of produce for the mission almost a year to the day 235 after Nugent and Symonds left • Nonetheless, the Crown left Matthews feeling dejected after the 1847 visits of its officials to Muriwhenua. He confided in his Journal:
As for myself, I never like to have word to say in government matters and am glad that I was not at home when the Treaty was signed at Kaitaia. All things are 236 ordered •
234 William to Col. Sec. 14 Feb. 1848 encl. in Grey to Earl Grey 22 March 1848, No.2, BPP 1849 (1120) pp5-6, 9-11.
235 Matthews to CMS 5 Dec. 1848, CMSjCNjO.61. Maori contributed this food at a time of sickness when their own nutritional needs were greatest.
236 Matthews Journal 30 Nov. 1847, CMSjCNjO.61. - 85 -
VI CROWN CONTROL 1848-1850
By 1848 Grey had consolidated his power by successfully turning a £10,000 imperial fund into major southern land purchases, which, in turn, created the means by which he could assert Crown control in Maori areas of Northern New zealandn7. Rather than relying on the indirect rule prescribed by Earl Grey in the "Aboriginal Districts" section of his 1846 instructions, the Governor chose to assert direct rule through the Resident Magistrate system.
According to Nugent, Panakareao invited the extension of this system to Muriwhenua. In November 1847 Panakareao complained that Maori regularly helped themselves to his pigs at Oruru, and that he could not bring them before a Magistrate to press charges. Nugent believed Panakareao regretted having "to take the-law into his own hands", by punishing the transgressors "according to native custom ... ". Though Nugent probably misinterpreted Panakareao' s intentions, Grey certainly saw his complaint as evidence that Maori wanted British law enforced in their own areas238 •
(a) The Resident Magistrate system
Grey's 1846 Resident Magistrates' Ordinance designed a system of local jurisdiction to instruct Maori in the benefits of British law. Since Grey believed Maori weren't sufficiently "advanced" to serve on juries, he empowered Pakeha Magistrates to dispense summary justice with the assistance of hand-picked Maori Assessors. The process of selecting Assessor would increase the Crown's" influence over the chiefs ... ", as would the Magistrate's wide-ranging powers. In addition to jUdicial duties, Magistrates were to act as general Crown agents,
237 Grey memo nd. Grey papers, f36 (16), APL; Morrell, British Colonial Policy, pp123, 321-2; Rutherford, Grey, pp163-6.
238 Nugent to Col. Sec. 2 Jan. 1848, encl. in Grey to Earl Grey 17 March 1848, No. 35, BPP 1847-8 (1002), p102. - 86 -
collecting revenue, supervising police and hospitals, and reporting on the "native population" under their control239.
After initially reminding his New Zealand subordinate that this ordinance violated Royal Instructions, Earl Grey let the measure receive imperial confirmation in July 1848. The most Earl Grey was prepared to demand of Governor Grey was that he use his system to reinforce chiefly authority in predominantly Maori areas. He maintained that Assessors should be given powers of trespass enforcement and arbitration in all matters in which Pakeha were not invol ved240 .
As Police historian Hill has pointed out, Grey's Resident Magistrate system was the first assertion of Crown control in predominantly Maori areas. The system was primarily intended to enforce the authority of the Crown. Seven out of the first eleven Resident Magistrates appointed by Grey were military or naval men without legal training241. The instruction of Maori in the administration of justice was secondary to this. The extent to which Maori were allowed to participate in the system was the extent to which they served the interests of the Crown.
(b) White and Maori
When William Bertram White arrived at Mangonui in April 1848, he did so as a police officer. Not until November of that year did he become a Resident Magistrate, and for several years he was paid as a police officer and general Crown agent, not as a Magistrate242 . For Panakareao, White's arrival at
239 Resident Magistrates' Courts Ordinance 7 Oct. 1846, encl. in Grey to Gladston 14 Nov. 1846, No. 29, BPP 1846 (837) pp79-85.
240 Earl Grey to Grey 7 July 1848, No. 29 Ibid. 1847-8 (1002) pp175-6 i Earl Grey to Grey 17 Dec. 1848, No. 97, G1/22.
241 Hill, Policing in New Zealand, I:267-8, 272-3.
242 Ibid. pp280-1. - 87 -
Mangonui must have been a poor sUbstitute for the coal mining settlement there Grey had predicted two years earlier. Panakareao must have obtained some consolation from the fact that the police presence there would stimulate trade and Pakeha settlement. Nonetheless, White was not Grey and when the new Resident Magistrate offered Panakareao an Assessor position, he apparently declined to accept it243 . Evidently, Panakareao believed that he would deal with the Governor, not his Resident Magistrate.
When Governor and Lady Grey finally visited Panakareao in October 1849, the leading Muriwhenua rangatira was still displeased. According to Matthews, Grey "talked seriously" to Panakareao. He
begged him to be more circumspect in his conduct and to return to his former state~4
While Matthews did not reveal the source of Panakareao' s displeasure, he may have felt insulted by Grey's decision to send a subordinate to rule over Maori. In asking Panakareao "to return to his former state", Grey may have been encouraging him to return to Kaitaia as the loyal chief who had led the Treaty signing there almost a decade earlier.
Panakareao's continued presence at Oruru must have embarrassed Grey who had failed to deliver on the promise that led Panakareao to move there in the first place. Panakareao continued to demand that the Crown facilitate Pakeha settlement. A few days before Grey's visit, White reported
The Natives are most anxious to have Europeans amongst them, and they say that the Government shall have as much land as it requires, as soon as they see a
243 Matthews to CMS 5 Dec. 1848, CMS/CN/O.61i White to Col. Sec. 28 Dec. 1848, IA 1/1849/124.
244 Matthews Journal 19 Oct. 1849, CMS/CN/O.61 - 88 -
possibility of the accomplishment of their wishes245
This does not mean Maori were willing to engage in a wholesale alienation of their land to stimulate Pakeha .. settlement. Maori willingness to co-operate with the Crown in making their land available for settlement was conditional upon the Crown serving long-term Maori interests. Pakeha settlement served Maori interests if it provided a reliable market for their produce, and a source of essential goods such as clothing, agricultural implements and medicines. The Crown, however, had to deliver on its promises. Maori would not engage in land transactions without tangible evidence that the Crown would hold up its end of the bargain.
(c) The Mixed Economy
Muriwhenua Maori sought health and security in a mixed economy during the 1840s. As early as 1837, the missionaries noted the effects of both disease and dependence on European goods on the 5,000 Maori then living in Muriwhenua246 . A period of relative health, and a buoyant market for Maori produce during 1840-1841 probably helped the Crown negotiate the Treaty and Mangonui purchases. When Taylor presided over a Kaitaia church gala in early 1841, Maori contributed the princely sum of £ 46/5/ - to the CMS247.
When Ernest Dieffenbach visited Muriwhenua North in 1841, he noted that even that relatively denuded area supported 60 people who appeared to be successfully trading pork and fish248 . He described Kaitaia as "a fine agricultural
245 white to Col. Sec. 4 Oct. 1849, OLC 1/403-7, pp32-3.
246 Puckey & Matthews to CMS 11 April 1837, CMS/CN/0.61. 247 Matthews/Puckey report 1 July 1840, Ibid; Kaitaia Church meeting 11 Feb. 1841, Ibid, M12.
248 E Dieffenbach, Travels in New Zealand (London 1843) I:211-2. - 89 -
district" featuring golden wheat fields where Maori were "most 249 advanced in the arts of civilisation • In contrast to Maori wheat fields at Kaitaia, Dieffenbach observed the wasteful burning of kauri forest near Mangonui by Pakeha land claimants there. He concluded that they had plundered the land because they were "doubtful of being able to maintain their claims to their immense purchases ... ,,250.
We know there was a high level of Pakeha commercial activity in the Mangonui area during the early 1840s. Prior to the Crown's enforcement of its restriction on cutting kauri (which apparently occurred after 1841), Partridge had invested £150 in constructing a sawmill. He also planned to establish a township at Ngawai before the Crown "threw discredit upon our titles". From the resale of Ngawai town lots he expected a profit of £500, and from the resale of his Otoha claim to an 251 American ship's captain he expected a £880 profit • While Maori did not benefit directly from this speculative commercial activity, it demonstrates that a flow-on affect from pre-Treaty transactions continued until at least 1841.
CMS missionaries disliked the effects of the brief post-Treaty boom. This only encouraged among Maori the "vagrant habits of working at distant places for Europeans". They discouraged Maori from working in the Hokianga and Mangonui timber trade, 252 and from planting potatoes at Oruru for sale to whalers • By 1842 the boom had ended. A combination of the consequences of the speculative bubble bursting, and Crown indecision in dealing with land claims and the proper regulation of trade
249 Ibid pp217-21. Dieffenbach's Te Rarawa population estimate of 8,000 probably included those living at Hokianga during the timber boom there.
250 Ibid. pp228-9.
251 Partridge, "statement of goods &C paid ... " nd., OLC 1/889-93, p6. The Crown awarded Partridge land credit or scrip to cover these "opportunity costs".
252 Matthews to CMS 30 Dec. 1841, 6 June 1842, CMS/CN/O.61. - 90 - led New Zealand into its first recession. The Wesleyans reported: "Hokianga is quiet. The timber trade is silent,,253. The Oruru conflict of the following year compounded the North's economic diff iculties. - For Maori, Matthews wrote, the conflict was "like a sharp frost on their valuable crops of potatoes,,254.
During the 1840s Maori depopulation continued, although the rate of depopulation in Muriwhenua may have slowed down. Matthews recorded that while 16.3% of Maori Christians died in 1839, between then and mid-1842, only 5.7% died255 . Clarke counted 4, 000 Maori in Muriwhenua a year after the Oruru conflict, a 20% decline from the 1837 MatthewsjPuckey estimate256 . The Oruru conflict took its toll on the Muriwhenua pakeha population which Clendon estimated at 51 in 1846257 . These population figures obviously did not portend a promising mixed economy.
The Kaitaia based missionaries were quite content to tend their diminishing flock. They encouraged Maori to grow wheat and run sheep rather than joining Panakareao at Ruapekapeka in 1845258 . They also discouraged Maori from following Panakareao to Oruru at Grey's behest in 1846. By deserting the wheat fields of Kai taia in favour of supplying the Mangonui provisioning trade, Matthews and Puckey believed Maori were forsaking God for Mammon. When Nugent visited Panakareao at Oruru, and Puhipi at Pukepoto in 1847, both
253 Woon to WMS 6 May 1842, WMS records reel 21.
254 Matthews to CMS 22 Oct. 1844, CMSjCNjO.61.
255 Matthews to CMS 6 June 1842, Ibid.
256 Clarke also estimated that 50% of Muriwhenua Maori were CMS Christians, 10% were Wesleyan, 7.5% were Catholic, and 32.5% "Pagan". Return of Native Population, BPP 1846 (337) p47.
257 Clendon's Census 27 May 1846, ATL.
258 Annual Report 30 June 1845, Puckey Journal I:88i Matthews to CMS 6 May 1846, CMSjCNjO.61. - 91 -
complained about the lack of trade and Pakeha settlers. Nugent, nonetheless, told them
no good Europeans will venture to come and live so far from protection on account of the late [Northern] war.
Nugent told Maori, with Matthews in full agreement, that only the children of missionaries were likely to settle in 259 Muriwhenua • Clearly, Maori weren't satisfied with this.
After 1841 Maori derived very little from commercial contact with Pakeha. Panakareao's schooner, given to him by Grey in return for his services at Ruapekapeka, was his only means of getting Maori produce to market. Grey's mining settlement didn't materialise and Butler undoubtedly controlled the 260 provisioning trade at Mangonui • Even if Maori got something out of the provisioning trade, we know that they got next to nothing out of the incipient kauri gum trade. In 1845 Puckey reported Maori received pathetic return in the form of cloth from the prodigious labour required to extract the gum and transport it to marketU1 • By 1848 Kaitaia Maori were growing 300 acres of wheat, but, in the absence of a local market, they had to transport it to Auckland for sale in competition with Australian wheat. This did not hold out the 262 promise of a good return • By the end of the 1840s the state of Maori health and welfare had, if anything, declined from what it was when they signed the Treaty.
259 Matthews to CMS 13 April 1848, Ibid. M18.
260 I hadn't considered Butler's role as a middleman between Maori producers and European trading and whaling vessels at Mangonui when I suggested that Maori directly benefitted from the provisioning trade in the Preliminary Report. Rigby /Koning, Preliminary Report, pl03.
261 Annual Report 1845, Puckey Journals I: 88, cited in Preliminary Report ppl03-4.
262 Matthews to CMS 13 April 1848, CMS/CN/MI8; Matthews to CMS 5 Dec. 1848, Ibid 0.61. - 92 - (d) Crown Autocracy
According to his admiring biographer, "Grey ruled New Zealand as a complete autocrat "by the end of his first term as Governor. He had
wonderfully transformed New Zealand in eight years from a weak, bankrupt, unproductive, ungoverned group of settlements in the face of Maori rebellion into a peaceful, prosperous, orderly community with a parliamentary constitutionU3
with implicit imperial support for almost everything he did, even when it departed from his instructions, Grey postponed the adoption of representative government until 1854. He was able to postpone colonial self-government, because he convinced London that this would allow settlers to deny Maori rights. He succeeded in doing this while denying Maori the right to effective representation at the local level. Instead of "Aboriginal Districts" in which Maori would observe their customary practices, Grey gave them Pakeha Magistrates like 264 Whi te • In this way, Grey was able to play Maori off against his pakeha opponents.
Grey did Maori a double disservice by defeating the self appointed CMS defenders of the Treaty without providing Maori any sUbstantive justice, all in the name of "native rights". On the one hand, Grey told the CMS that his case against the extended grants of missionaries was based on the fact that they included "lands which the Natives may now justly claim, or which may be required for the use of Natives " 265
263 Rutherford, Grey, pp283, 287. 264 Earl Grey to Grey, 26 Feb., 18 March, 9 June, 27 Nov., 12 Dec. 1848, 9 Jan., 7 Aug. 1851, 28 Feb. 1843, Grey papers f35, APL. In these private despatches, Earl Grey consistently encouraged his subordinate's repeated postponement of representative government.
265 Grey to CMs 6 Aug. 1847, Williams CMS Corres 11:4-5. - 93 -
Yet, instead of basing his legal challenge on these sUbstantive grounds, Grey challenged them on essentially technical grounds. He maintained that FitzRoy lacked the power to grant more than 2,560 acres, or to grant unsurveyed land266 .
Since the operative Land Claims Ordinance allowed the Crown maximum discretionary power, the New Zealand Supreme Court could easily reject Grey's case in Queen v Clarke. Even though the Judicial Committee of the Privy Council eventually overruled the Supreme Court and upheld Grey, by then he had conceded a blanket legality to all Pakeha grants267 .
In his 1849 New Ulster Quieting Titles Ordinance, Grey removed the stigma of questionable legality from all Pakeha grants, provided they were retrospectively surveyed and Maori hadn't disproved "full" extinguishment of "native ti tle,,268. In presenting the Crown's case for quieting titles, Attorney General William Swains on thought it unnecessary to remind the Legislative Council of the myriad "defects and irregularities" in FitzRoy's grants. He thought it necessary, though, to remind the Council that
Land Claims Ordinances did not require that the Commissioners should ascertain that the land claimed had been purchased from the true native owners.
Commissioners did not report who owned the land
but only that the claimants had made a bona fide purchase from certain [named] native chiefs
266 Grey to Earl Grey 10 Feb. 1849, No. 35, BPP 1849 (1120) pp72-84.
267 Supreme Court Judgement 16 July 1849, encl. in Grey to Earl Grey 24 July 1849, No.1, BPP (1280) pp3-14; Rutherford, Grey, ppI38-9.
268 New Ulster Quieting Titles Ordinance 25 Aug. 1849 encl. in Grey to Earl Grey 3 Oct. 1849, No. 16, Ibid, pp68-70. - 94 - Furthermore, the Crown did not grant "an absolute title as against all the world, but only against the Crown itself ... ". Therefore, the Attorney General, concluded, in cases where
it should subsequently be found that the natives ... had not the right to sell it, the true owner would be entitled to the aid of the Crown for the purpose of recovering the land which the Crown, having no title to it, had wrongfully disposed of269
Despite these high sounding phrases, the Ordinance offered Maori no sUbstantive justice because it placed the burden of proof on their shoulders. Instead of requiring the Crown or grantees to prove the full "extinguishment" of Maori land rights, the law required Maori to disprove it before a Supreme Court Judge in Auckland within three years. In proposing his Resident Magistrates' Ordinance, Grey admitted that Maori, wi thout proper legal counselor ease of travel, had no effective access to the Supreme Court. His Quieting Titles Ordinance, therefore, gave Maori a shadow, rather than the substance, of justice, just as his Resident Magistrate system gave Maori only minimal participation in the administration of justice to their own people in areas like Muriwhenua.
269 Crown Titles Bill, Second Reading nd., encl. in Ibid, pp70-3. - 95 -
VII CONCLUSION
The evidence presented here on the broad outlines of Crown policies and Purchases in Muriwhenua raises broader issues than those identified in my previous reports. My four proposed measures of the validity of pre-Treaty transactions could be applied to the entire relationship between Crown and Maori during this period. This relationship began with the Treaty transactions in Northern New Zealand. It continued wi th the successive Mangonui purchases, the Land claims investigation, the Oruru conflict, and the ongoing three cornered relationship between the Crown, Maori and the CMS. In these Treaty and post-Treaty transactions:
1 Did the Crown assure itself that all Maori with rights affected were properly represented? 2 Were the boundaries or limits of each clearly understood by all parties? 3 Were the costs as well as the benefits of each commonly understood? 4 Were the full, long-term, implications of each commonly understood?
With regard to Crown land policies during the 1840s, were they consistent with the provisions of the Treaty? More specifically, were the Crown's principles of "qualified dominion", "surplus land" and "wasteland" consistent with such provisions?
In Muriwhenua, did Crown officers understand the nature of Maori land rights sufficiently to either protect or purchase them in a manner consistent with the provisions of the Treaty? More particularly, did Clarke or White ever understand sufficiently
1 Who would claim customary land rights in Maori society? 2 What were the limits of such rights? 3 What social obligations accompanied such rights? 4 What were the proper customary ways of transferring such rights? - 96 -
(b) How cheap was justice?
To return to the thesis of "empire on the cheap", it's clear that, after the predictable colonial crisis of 1842-1845, empire became more expensive. Yet a few hundred imperial troops, more frequent naval visits, presents and annuities to hand-picked chiefs and a £10,000 land purchase fund was not expensive in the imperial scale of things. The Resident Magistrate system in Muriwhenua was virtually self-supporting, and Kemp's purchase of two-thirds of the South Island cost the Crown only £2,000. After an initial investment in defeating Maori insurgency and in rushing through southern purchases, Grey was able to assert Crown control quite cheaply.
The essence of empire is control, but what was the relationship between control and justice? I'll not attempt to answer this question. Instead, I'll allow Grey's Attorney General Swainson to begin to answer it. Remarkably, Swainson believed that contracts were more equitably enforced under Maori customary law before the Treaty than afterwards. The man, who in 1849 offered Maori scant access to the Supreme Court to uphold their land rights, stated in 1859
Our Courts of Law, it is true, were open to all, without distinction of race; but what remedy was practically open to the New Zealander? He was unacquainted with our mode of procedure, living, it might be, at a distance of 50 miles from any of our settlements; unable probably to procure the attendance of witnesses, and without the means of paying the fees of court270
Perhaps justice was cheap during the 1840s, but injustice normally proves costly in the long run.
270 William Swainson, New Zealand and its Colonisation (London 1859) pp176-7.