The English Text of the Treaty of Waitangi by Ned Fletcher (Bridget Williams Books, 2022), 736pp, $69.99
Ned Fletcher’s The English Text of the Treaty of Waitangi had its genesis in his colossal law PhD thesis. By and large I did not find the resultant book, given gravitas by sheer bulk, the easiest prose to read. It is a lengthy work organised into four parts, seemingly intended as a general reference for academics.
The book begins with an overview of the British Empire and mentions Canada, Australia and other territories. The second part mainly covers the period from 1833 until the drafting of the Treaty in 1839–1840, and the third details the drawing up of the Treaty and the gathering of Māori signatures. The final part concerns some discussions about the meaning of the Treaty after 1840 and the treatment of it within the law. The book’s only illustrations are photocopies of some of the original English drafts of the Treaty inserted at the back as appendices.
Transforming a PhD into a book for the wider public will always be a challenging task. Doctoral theses are generally constructed in dry and factual academic prose. It takes particular skill for writers and editors to rework a thesis into an engaging narrative. This did not happen in this case, but in fairness, very few academic authors have been successful in achieving this. Those who do manage to publish their theses successfully are usually writing about an innovative topic, or the political and cultural forces within the community are so eager for the subject material that the PhD in the form of a book becomes an instant hit. This is what happened with Claudia Orange’s PhD when she published her book, The Treaty of Waitangi, in 1987. Orange’s publication coincided with the Fourth Labour Government’s policy moves towards recognising the Treaty of Waitangi in legislation and giving the Waitangi Tribunal more power to hear Māori Treaty grievances dating back to 1840. In that instance, the stars and moons aligned for Orange because New Zealanders in the mid-1980s genuinely wanted to know more about the somewhat mysterious Treaty of Waitangi and its connection with the Māori people.
We no longer have the societal conditions within New Zealand where people know nothing about the English text of the Treaty of Waitangi. That material is readily available through online sources. Ruth Ross’s Te Tiriti o Waitangi: Texts and Translations (1972), a work that focused academic attention for the first time on the differences between the English and Māori texts of the Treaty of Waitangi, is available through the New Zealand Journal of History’s online portal (although until recently it was behind a paywall because it generated so much money for the journal). There isn’t enough hunger or desire for more knowledge on the Treaty to overcome the pitfalls of Fletcher’s dense and rather plodding academic text.
Fletcher’s writing is typical of legal histories written through New Zealand’s university law schools, such as those by Peter Spiller, Richard Boast, Mark Hickford and David Williams (who was Fletcher’s PhD supervisor). The narrative is presented in a clinical or ‘matter-of-fact’ style. These types of legal histories are not particularly gripping. They more resemble chaff or dry fodder: pabulum by the shovelful. The reality is that artistic expression and mastery of tonal prose, with all its resonances, is usually drummed out of law students by the time they reach postgraduate study. Dry and dusty legalese is the desired norm, and potentially litigious subtleties are frowned upon. Taking these types of legal history PhDs and turning them into accessible and narrative-driven books for educated members of the public is an almost impossible task. This is the reason Fletcher’s book will not appeal to a wide audience.
However, the same is not true for academics from university history programmes; they tend to be more successful in taking their doctorates and developing them into rich stories. Angela Wanhalla’s Invisible Sight: The mixed descent families of Southern New Zealand (2009) and Melissa Matutina Williams’s Panguru and the City (2015) are fine examples. This sets academic historians apart from purely legal historians within New Zealand: their storytelling skills provide a narrational framework. Keith Sinclair’s classic A New Zealand History (1959) still reads well and engages readers. Academic history students have also been more successful at publishing books on the Treaty. The Treaty of Waitangi by Claudia Orange and The Treaty and its Times by Paul Moon and Peter Biggs are scholarly and educational but also beautifully told.
I now turn to the substance of Fletcher’s book where there are two fundamental issues. The first is his conclusion that the Māori and English texts of the Treaty reconcile. You simply cannot make this claim without providing a full analysis of the Māori text and engaging with the work of Ruth Ross and major Māori language academic Bruce Biggs, who both clearly point out the textual differences. In fact, Fletcher does not engage with the work of any Māori studies academics, from Ranginui Walker to Margaret Mutu, Moana Jackson, Jacinta Ruru and Carwyn Jones. Even if Fletcher did not agree with their arguments, some acknowledgement of their work was at least needed. If Fletcher had acknowledged their work, it would have been much harder for him to make his case that the texts appear to reconcile. It also seems very odd that Fletcher even strayed into observations about the Māori text when his focus is on the ‘English text’ of the Treaty.
The second fundamental issue is Fletcher’s major argument that British intervention in New Zealand was to establish government over the British settlers for the protection of Māori. This general argument was used by older historians such as Trevor Williams in the 1940s and Keith Sinclair in the 1960s. Fletcher is critical of later twentieth-century historians Peter Adams, Alan Ward, Claudia Orange and Richard Hill and their arguments that the Treaty was part of British imperialist efforts to take control of New Zealand and assimilate Māori. Fletcher bases his major conclusion on official instructions written by James Stephen, the Under-Secretary of the Colonial Office and given to William Hobson to establish a British colony in New Zealand. Hobson and the British Resident in New Zealand, James Busby, would eventually draft the Treaty of Waitangi based upon Stephen’s directives. Within those instructions, there was concern for the protection of Māori, and within the English text of the Treaty, the idea of protection was further noted.
Fletcher’s claims for Māori protection are advanced by his insistence that British intervention must be appraised using the era’s historical context. British intervention in the colonial territories and the currents of thought at the time must also be considered when analysing reasons for establishing government in New Zealand. Specifically, Fletcher placed great weight on the investigations, observations and findings of the Select Committee on Aborigines in the British House of Commons between 1835–1837. That Committee accepted Britain’s responsibility to protect and civilise aborigines of the Empire. For Fletcher, this is his way of contextualising the British motivations and the reasoning contained within Stephen’s instructions and the drafting of the Treaty of Waitangi.
Unfortunately, Fletcher has misread the societal context. And this is not entirely his fault. These are the types of legal histories that are produced within the law schools of New Zealand universities. During Keith Sinclair’s time in the 1960s as a historian at Auckland and in the other history departments in New Zealand universities, great weight was put into the literal interpretation of documents. This positivist trend remains a natural trait in law schools.
In the 1970s, however, thinking within academia began to change. Marxists, second-wave feminists and sociologists started to pose deeper questions, often around class, gender, race and the nature of power. Within the social sciences and humanities, new lines of thought and analysis started to solidify and emerge, influenced by the works of various critical thinkers, including Simone de Beauvoir, Frantz Fanon, E.P. Thompson, Edward Said and Michel Foucault. Their ideas led younger generations to look at the British Empire in a more critical, often troubling, light. The imperial notion of British culture and institutions being superior to others and the entitled actions of British society’s wealthy elite were increasingly put under the spotlight.
In overseas law schools, critical legal studies academics, such as Roberto Unger, influenced by trends in the social sciences and humanities, also built upon ideas from the legal realism movement of the 1920s and 1930s. They began to question all aspects of the nature and consequences of the law. By implication, they were questioning the basis and assumption of all British laws, the policies and the political institutions that created them. By the end of the twentieth century and into the new millennium, there were even further developments and changes within academia, initiated by postcolonial theorists such as Ranajit Guha, Priyamvada Gopal and Indigenous rights academics such as Peter Kulchyski and Noenoe Silva. These had the effect of bringing colonised peoples’ viewpoints to the fore. Where previously British dominant narratives viewed the imposition of British rule of law and British legal structures as a great improvement on the lives of native peoples, new narratives, such as those by Māori legal academic Moana Jackson, viewed them as elements of oppression. Unfortunately for New Zealand law schools, for various reasons, they were insulated from this evolution in ways of thinking about the legal process itself. And so, there is a divergence between legal history and academic history within universities.
Legal histories still largely cling to the older positivist styles and analytical approaches. They are written within a narrow context, without placing legal events, legal and political institutions, and written archival documents into a wider social, cultural and political context. This explains the divergence between Fletcher’s views and those of Peter Adams, Alan Ward, Claudia Orange, Richard Hill, and the Māori scholars mentioned earlier. The latter group of historians, who observed that the Treaty of Waitangi was part of British Imperialist efforts to assimilate Māori, were exposed to shifting developments in their academic fields in the later part of the twentieth century. Their disciplines posed different questions about Britain’s cultural power and impact, in which treaties with Indigenous peoples were seen to be based upon ideas of British racial and cultural superiority over native people. Treaties created power structures within society weighted towards British domination. These are just some of the contextual considerations that must be navigated nowadays when considering reasons for the Treaty of Waitangi. In this light, the Treaty of Waitangi emerges as a Trojan horse for British cultural superiority.
This is not to take away respect and acknowledgement for individual political figures associated with the Select Committee on Aborigines in the British House of Commons between 1835–1837 and people like James Stephen, who had genuine ideas of concern and protection for Māori. But in concentrating on the personal beliefs of those like Stephen, Fletcher fails to recognise what the British were actually doing in India, Africa, North America, the Atlantic and the Pacific (as well as in Ireland). And so, Fletcher’s other point, that the British envisaged Māori tribal government and custom continuing through the Treaty is not shown within the context and actions of the British Empire. British administrators, immigrants and proxies asserted British cultural superiority with hard or soft British power in the lands they wished to control. Just pick any of the territories for a case study—British involvement was always going to be on British terms, which resulted in land loss, political loss, and cultural loss for the Indigenous populations in those geographical areas. It did not matter what individuals holding colonial offices personally thought should happen in the colonies because the Empire nonetheless marched on. The British Empire was a machine that was assimilationist by its very nature.
If, as well as pondering and navigating latter-day Māori academics’ arguments about the Treaty of Waitangi, Fletcher had also considered wider developments in academic history from the 1970s onwards, his conclusions would have been far more nuanced than they are. As it stands, Fletcher’s conclusions seem anachronistic when placed in the larger context of what was happening in the British Empire. In the end, this book would have been best left as a PhD lodged at the University of Auckland as a factual source for academic reference rather than published as a path-finding book.
PAERAU WARBRICK is a senior lecturer in Te Tumu: School of Māori, Pacific and Indigenous Studies at the University of Otago. He lectures on the Treaty of Waitangi and colonialism. He is also a barrister who practises mainly in the fields of land and equity law.