Writing a Treaty: An underestimated skill

Writing covers so many different disciplines. That may seem obvious, but the more I think about it the more I realise that even talented writers have different strengths.  I spent around 20 years writing a variety of things, from descriptions of self-catering holiday destinations to annual reports to newspaper articles about IVF. I wrote reports, briefs and proposals.  Now, somewhat later in life, I’ve embarked upon a course in creative writing.  But at no time have I ever been asked (and nor would I have wanted to be) to write a legally binding contract between nations. I’ve been wondering whether the training of British Royal Naval officers in the 19th century included guidelines for treaty writing.  If not, this seems to have been an oversight.  The signing of te tiriti o waitangi (the Treaty of Waitangi) with chiefs of the Maori tribes of Aotearoa-New Zealand in 1840 was the first such treaty made by the Crown with a Pacific nation, but the circumstances under which it happened are, by modern standards, quite bizarre.

'Maori Chiefs Recognise British Sovereignty by Signing the Treaty of Waitangi' by A.D. McCormick (1860-1943)

‘Maori Chiefs Recognise British Sovereignty by Signing the Treaty of Waitangi’ by A.D. McCormick (1860-1943)

The latter-day problem with the treaty centers around the use of the word Kawanatanga, which was the Maori word used where ‘Sovereignty’ appeared in the English version of the treaty.  Kawana is the Te Reo Maori way of saying of ‘Governor’. Thus, it appeared on the Maori version of the treaty that the chiefs were agreeing to British governorship of the country, whereas on the English version, they were ceding sovereignty of their land to Queen Victoria.

  It might be reasonably assumed that the Treaty of Waitangi was carefully drafted over several weeks, if not months, with many revisions, and final approval of the wording being granted by Buckingham Palace. The reality was very far from that. Captain William Hobson, with the acting title of Lieutenant Governor of New Zealand, had been despatched with some alacrity from England in 1839 with a brief from Lord Normanby at the Colonial Office “to treat with the aborigines of New Zealand in the recognition of Her Majesty’s sovereign authority over the whole or any part of those Islands which they may be willing to place under Her Majesty’s dominion.”   The problem was that New Zealand was becoming increasingly lawless. Escaped convicts from Australia, traders, seafarers who had deserted their ships, whalers and freed men from the penal colonies had all made their way here and were selling grog and muskets, brawling and whoring and bringing disease to the Maoris, who were busy warring with each other. A number of honest British settlers who were trying to make a living, along with the missionaries who had been coming out to the country since the early 1800s to convert and protect the Maoris, were constantly petitioning King William, and later Queen Victoria, to “do something.”

  At the same time, the French were talking of annexing New Zealand, while a New Zealand Company with serious financial backing had been formed in London and was sending ships to start a colony in what is now Wellington.

Capt. William Hobson, Lieutenant-Governor of New Zealand (image source: Wikipedia)

Capt. William Hobson, Lieutenant-Governor of New Zealand (image source: Wikipedia)

Captain Hobson had travelled to New Zealand in 1837 and held discussions with the British Resident James Busby, the missionaries, British settlers and local Maori chiefs in an effort to bring some order to the place. Unfortunately, in1840, he was was not at all well (only three weeks after the signing of the treaty, he suffered a stroke, dying three years later).  By the time his ship the Herald arrived in the Bay of Islands in 1840 he was having arguments with the captain, Joseph Nias, and had hardly made a start on drafting a treaty. He had himself rowed ashore on the 30th January and made a Proclamation in the Christian Missionary Society church at Kororareka (known as ‘the Hellhole of the Pacific’, now Russell – a picturesque coastal village). Thus it happened that James Busby decided that he had better take matters into his own hands as the chiefs had already been bidden to attend a meeting to meet the ‘Kawana’ in five days’ time.  Busby and Hobson’s secretary, James Freeman, cobbled the short, 3-clause treaty together, Hobson later looking over it and making some revisions.  The final draft seems, owning to the paper on which it was written, to have been made at the house of the (British!) US Consul, James Clendon, who probably offered his opinion as well. Then, the night before the hui (meeting with the Maori rangatira, or chiefs), the missionary Henry Williams and his son Edward, who had grown up among the Ngā Puhi, translated it into Maori. The local printer (also a missionary), William Colenso, was concerned that the treaty in its current wording would not be acceptable to the Maoris. Five years earlier, with the help of Busby, they had signed a ‘Declaration of Independence’, stating that they would never cede their lands, but thanking the King of England for recognizing their flag and saying they would recognize him as their protector from all attempts upon their country’s independence.  There was some discussion about this on the night of 4th February and it seems that a decision was reached to use the word Kawanatanga, as the main priority was deemed to be to get the Maoris to sign the treaty.

A fragment of the Treaty of Waitangi

A fragment of the Treaty of Waitangi

Had Lord Normanby been present, things might have gone rather differently, for he had specifically stated in his brief that “All dealings with the natives for their lands must be conducted on the same principles of sincerity, justice and good faith as must govern your transactions with them for the recognition of Her Majesty’s sovereignty in the Islands. Nor is that all: they must not be permitted to enter into any contracts in which they might be ignorant and unintentional authors of injuries to themselves. You will not, for example, purchase from them any territory the retention of which by them would be essential or highly conducive to their own comfort, safety, or subsistence. The acquisition of land by the Crown for the future settlement of British subjects must be confined to such districts as the natives can alienate without distress or serious inconvenience to themselves. “ On the day of the hui, there was a great deal of resistance to the treaty and, in fact, for a while it seemed that the rangatira would not agree to sign it. But then three influential figures – Hone Heke, Patuone and his brother Tāmati Wāka Nene – spoke up, saying that the time for discussion was over: things had reached such a pass in New Zealand that if they did not sign this agreement with the English Queen then the French or the Americans would ‘have them’, which would be a worse fate.  The meeting then dispersed, with a terrible social gaffe on the part of the British who did not provide food for the assembled throng, giving them tobacco instead.  Many had travelled long distances and were inclined to go home, especially as the weather seemed to be on the turn.

This romanticized 1938 oil painting by Marcus King, 'The Treaty of Waitangi' purports to show Tamati Waka Nene signing the treaty (source: Te Ara Encyclopaedia of New Zealand)

This romanticized 1938 oil painting by Marcus King, ‘The Treaty of Waitangi’ purports to show Tamati Waka Nene signing the treaty (source: Te Ara Encyclopaedia of New Zealand)

The next morning, some of the rangatira arrived to sign the treaty, although the Governor had called a follow-up meeting for the day after (7th February).  Hobson had to be quickly summoned from his ship and, as his naval uniform was being cleaned, he came in his civilian clothes but brought his feathered naval hat in order to look suitably formal.  The French Bishop, Pompallier, turned up in his ‘full canonicals’, sweeping in and flashing his ring, insisting that a fourth clause be added to the treaty stating that Queen Victoria would protect all religious faiths practised in New Zealand, including Catholicism and Maori beliefs. About 40 rangatira signed the treaty that day. And thus was the Treaty of Waitangi, our country’s founding document, created.  In fact, there are nine copies in total.  The Bay of Islands being in the far north, copies had to be taken all around the country to gather the signatures of a further 500 chiefs who were not present at Waitangi; all but 39 signed the Maori version.  A number of chiefs chose not to sign.

  Today, we are still living with the ramifications of what happened in 1840. It has been debated whether, in fact, the treaty was valid at all under 19th century jurisprudence, as Aotearoa at that time hardly constituted a legally recognisable state, having no formal government.  We do now have the Waitangi Tribunal, established in 1975 as a permanent commission of enquiry into making recommendations on claims brought by Maori, relating to actions or omissions by the Crown as they relate to the terms of the treaty. Te Reo Maori is now an official language of New Zealand; Maoritanga (Maori culture) is respected and the Maori people recognised as the Tangata Whenua, the ‘People of the Land’ in what is no longer a bicultural, but now a multicultural, society.

As part of my Cultural Difference unit for the creative writing course that I’m currently doing, we had to write either a short story or a poem about the Treaty of Waitangi, with a few constraints. The title of the piece had to be When they Signed the Treaty and we were required to include at least three things from a list of five articles. I chose a magnifying glass, a bolt of linen and a child weeping on a beach.  I also drew on documented family history and the diary of my great-great-grandmother, who lived in Piti-one (now Petone), Wellington, in 1850 (when I set my poem) for small details:

When they Signed the Treaty

‘On the day they signed the treaty,
it was the end of all the worry,’ explains Mama.
The fire and lamps are lit, and they are safe from the gale
whipping along the Petone shore, tugging at the marigolds in the garden.
This afternoon, Lucy was crying from the cold,
hands blue as they struggled along the beach, their bonnets
tied on with handkerchiefs against the wind.

Now, the little girls’ hands are busy with their paper theatre;
Treaty of Waitangi 10th Anniversary figures
have been purchased at Hornbrook’s of Lambton Quay.
The children cut them out, lay them on the table,
read the printed names below each figure on the sheet.
‘The trouble really started with the convicts,’ Mama continues.

‘Traders – rough types – whalers
sailing over from Australia to trouble settlers ―
selling grog, bringing sickness, brawling, trading muskets.
All most unsavoury. (And then, there were the French.)
The Church Missionary Society sent good pastors out from England
to build their mission stations, sow vegetables, drink tea.

They preached from their hearts and Bibles; bought up land,
had the Māoris wear aprons, wait at table, learn to read.’
― ‘They didn’t know about God?’
‘No, dear, they didn’t go to church.
The Māoris sold land willingly, so it seemed the proper thing to do
to found a British Colony: build cities, plant wheat,
raise sheep and cattle; ducks and geese.
Good, law-abiding people could live peaceably, and thrive.

The Oriental – the ship in which Papa first arrived –
anchored in Port Nicholson only days before
in the Bay of Islands, the Governor stepped ashore.
On February the fifth, in sunlight, many rangatira gathered:
it was a most impressive sight,
the wakas paddling into Waitangi and the chiefs striding
up the beach in their kahu kurī and bright woollen cloaks,
feathers in their hair and the cicadas chirping.

Some carried greenstone mere, carved patu, others taiaha;
they had come to hear ‘Kawana’ – many spoke against the treaty.
Blankets and tobacco – not kai – after the meeting,
a woeful breach of Manaakitanga, no pork,
(Mrs Busby served a most delicious luncheon for the English folk)
so the chiefs decided to go home; they felt that it would rain.

You know the Governor was caught unawares,
on the sixth, the day they signed the treaty?
He wasn’t feeling well when he was quickly summoned,
had no time to don his naval coat with its brass buttons,
so he wore his civilian clothes, but took his feathered hat
in order to impart the dignity of his position.

The proceedings took place in a marquee made of sails,
put up on the lawn before Mr Busby’s house.
Flags were strung about it; they kept the Union Jack –
spread red, white and blue upon the table where the official party sat:
Governor Hobson, Captain Nias of the Herald
(I’m afraid the Governor and he had quarrelled –
as I’ve said, poor Hobson wasn’t well); Mr Busby, the treaty’s author;
Richard Taylor; the Reverend Williams,
whose quill scratched the words in Maori just the night before—’

— ‘This Bishop’s very haughty! Who is he, Mama?’
‘You do not recognise Pompallier, dear?
A great Catholic, as you know, but a Frenchman.
He came, in all his finery, made them add words about the faiths.

Now let me see that figure which you hold,
the one with the magnifying glass – it must be Mr Colenso,
the naturalist and printer, an interesting fellow.
He was worried that the Māoris didn’t really understand
that they would sign away the sovereignty over all their land.’

— ‘But they did understand, did they not? Or else, Mama,
they never would have signed!’
‘Some understood. The troublemaker Johnny Heke, he was first to sign,
and Patuone – Edward Marsh now – and Tāmati Wāka Nene,
their words convinced the doubters, Rewa, Te Kēmara.
But others feared they would lose their whenua,
their mana, their taonga; that they’d be slaves and end
with their names all that they owned, breaking rocks upon the road.

They knew more Pakeha would sail here, a pale flood,
and spread across the land, cut down the Kauri and the fern.’
— ‘So they would no longer have their country, theirs to own?’
‘Just so. Your Papa has told me that there was
a small misunderstanding about Kawanatanga,
(which does not mean quite the same thing in English as in Te Reo.)

Mr Colenso said he was most uneasy
but the Reverend Williams and his son Edward,
who knew Ngāpuhi well, decided it would be
the best word to use; and I am sure they were correct.
Now, my lambs, please come and help me
with this bolt of Irish linen, it is quite a weight!
I think we must cut some of it to make a small marquee
for your treaty-signing scene – it will do very nicely.

Such a pity that the New Zealand harakeke
will not make fine linen; your poor Papa was cursing
after he bought all that flax land from old
Rangihaeata, who had not much choice,
(for I think he did not wish to sell, you know
and yet he was in no position to make noise.)
I hear he oversees the building, near his at Poroutawhao,
of a good, new metalled road.
The treaty has helped us all; we can sleep easy, now.’

Tanya Lunn 2015

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