KEY POINTS:
In a series of edited book extracts we present visions of how our history might have developed if key events had taken a different course. Giselle Byrnes looks at what would have been the outcome if the Treaty of Waitangi had not been signed on February 6, 1840.
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The story of the signing of the Treaty is now well known. However, it is less well recognised that Hobson had originally scheduled this first Treaty signing for Friday 7 February, having presented the Treaty to the assembled chiefs on Wednesday 4 February. According to contemporary accounts, by the morning of Thursday 6 February, the chiefs had reached the conclusion that the Treaty business should be dealt with immediately so that they might return home: besides, the food provided as hospitality to them had begun to run out.
At this point, Hobson was on the Herald, moored in the bay, and completely oblivious to this change of events. By mid-morning, there was no indication of life on board, and when a boat was quickly sent for Hobson, he apparently had "not the least notion" that a crowd had gathered. Alarmed by this turn of events, Hobson agreed to bring forward the day of the signing ceremony.
A stickler for proper procedure, he insisted the meeting on 6 February could not be seen as a "regular public meeting", since formal notification had not been given. Hobson thus suggested that the Friday meeting still be held for the purposes of discussion, but on the Thursday only signatures would be collected. As it happened, bad weather prevented any meeting from taking place on the Friday. The Treaty was duly signed, Maori left, and the rest, as they say, is history.
What might have happened if Hobson had kept to his original plans and not brought the signing of the Treaty a day forward? Quite probably, Maori would have left Waitangi, the Treaty would not have been signed, and Hobson would have returned to Britain empty-handed.
There are a number of possible alternate scenarios concerning what might have happened had Hobson not managed to get his act together. First, Maori might have remained in control of New Zealand as autonomous tribes and political entities. Second, the British might have invaded by force rather than use a treaty of cession. Third, New Zealand might have been claimed instead by the French or the Americans. And fourth, British colonisation would have proceeded over those areas where British settlers were resident, with Maori retaining their autonomy in other areas. It is also worth noting that in the absence of a treaty, Maori would have no special rights beyond that of common law rights.
The first outcome is possibly the most attractive to those who now champion the cause of Maori sovereignty. The existence of Maori as independent tribes and modern polities in their own right might well be the ultimate fantasy of many Maori nationalists.
However, the evidence suggests this situation would have been highly improbable. Why would Maori have been able to escape the web of empire, when its reaches were so vast? Why would they have been immune from colonisation? It is totally against the run of evidence and logic to assume that New Zealand, with its rich natural resources, would have been exempt from some form of external colonisation. After all, there had been successful trading relationships established between Europeans and Maori tribes from the late eighteenth century, and a good deal of missionary activity in the early nineteenth. On the whole, Maori had been eager to engage with Europe, its peoples and its technologies. Perhaps unwittingly, they had helped facilitate, or at least hasten, the processes of colonisation. For example, there is evidence that many tribes had, well before 1840, expressed a desire for British law and order and at the same time engaged in land transactions.
The second scenario is also historically problematic. While there is some debate about when the British crown decided to undermine Maori sovereignty, there is ample evidence that the crown did not want to and could simply not afford to invade New Zealand by force.
Trading with New Zealand and working the waters around the country was good business that Britain did not want to jeopardise. In addition, the stereotype of Maori as a "warlike race" still had immense currency in the popular imagination.
Similarly, the third probability, while perhaps appealing, is equally unlikely. While it is true that James Clendon was appointed American consul in 1838 in the Bay of Islands, and the French established the settlement at Akaroa in 1840, there is serious doubt over their ability (or desire) to expand a toehold into something larger.
The fourth suggestion, that a limited form of British colonisation could have proceeded, would have been the most likely outcome. The original plans for a British colony included a Maori New Zealand where settlers would be provided for. In fact, the formation of a Maori governing body, a confederation legislating for both Maori and settlers under British protection, was considered as an alternate, but colonial officials later thought the idea impractical. As early as 1837 Hobson had proposed the crown assume power over certain sites in New Zealand, in much the same way that the British had established "trading factories" in India.
Hobson's plan envisaged that an agreement would need to be made with Maori in these areas and the remainder of the country would remain under direct Maori control. Even British Resident James Busby had suggested that a protectorate be declared over the entire country and that the crown simply manage affairs in trust for all residents.
Historian Paul Moon has argued that the crown never intended to "rule, preside over, or govern Maori, let alone usurp Maori sovereign right to self rule". Moreover, he contends that "the Treaty was intended by the Colonial Office to allow crown rule to apply solely to British settlers in the fledgling colony. Maori sovereignty would accordingly be left unaffected by British rule over British subjects in the country".
The idea that the British would have annexed only those areas that British settlers had occupied, leaving Maori with their autonomy intact, is borne out by the historical evidence.
Despite the vexed issues of authority and sovereignty, both language versions recognised the customary rights of Maori as the aboriginal inhabitants and thus guaranteed to Maori native title rights at British common law. Besides, the instructions from Lord Normanby, secretary of state for the colonies, to Hobson clearly recognised Maori autonomy.
The instructions Hobson was acting under were clear that the native title rights of Maori were not to be dispensed with for the sake of commercial opportunity. Hobson was thus charged with obtaining "the free and intelligent consent of the Natives", and the instructions made it clear that he emphasise to Maori they too would benefit from entering this arrangement - and would suffer if they did not.
"You will, therefore frankly and unreservedly explain to the natives, or their chiefs," the instructions continued, "the reasons which should urge them to acquiesce in the proposals you will make to them. Especially you will point out to them the dangers to which they may be exposed by the residence amongst them of settlers amenable to no laws or tribunals of their own; and the impossibility of Her Majesty's extending to them any effectual protection unless the Queen be acknowledged as the sovereign of their country ..."
As noted above, the early plans for a British colony in New Zealand envisaged a "Maori New Zealand" but by the time Hobson received Normanby's instructions in August 1839, both the tenor and substance of the plans had significantly shifted. What was now visualised was a "settler New Zealand" where Maori would be guaranteed a special position. By 1839, colonial office officials, while concerned that Britain should be responsible for both Maori and British subjects, accepted that colonisation was an "inevitable measure".
Clearly, the tide of British colonisation could not be contained forever. Yet we ought to recognise that while the British clearly had designs on settling in New Zealand, there was serious discussion as to how extensive British colonisation should be.
While Maori independence may well have been guaranteed in certain areas, it is a moot point as to how long this autonomy could have been maintained. It is quite possible, given the willingness of many tribes to enter into land transactions (paradoxically as a way of recognising and securing their title to land), that these rights would have been steadily, and perhaps rapidly, eroded.
This would have had major implications for the present. For if Maori were themselves the (albeit unwitting) authors of their own demise, rather than victims of deliberate crown actions and inactions, then they would be in a much weaker position today in terms of negotiating restitution for historical injustices. The status of Maori would be comparable to indigenous peoples in other jurisdictions who are "without treaty", most notably those in Canada and the United States.
The most pressing of these is that once we take away the Treaty, there is an immediate emphasis on what Andrew Sharp has called "legal constitutionalism": that is, the constitutional arrangements we have in New Zealand obtain their force by "transmission from the crown, not the consent of Maori or the agreement between crown and Maori". Here the Treaty becomes something of a side issue.
This also highlights the legal source of Maori rights, which is not the Treaty, but the statutory or common law means by which these rights have become part of the legal system in New Zealand.
Moreover, the absence of the Treaty of Waitangi confers upon the many hundreds of deeds of sale and individual land purchases a new status: that of individual "treaties". As Vincent O'Malley has argued, this would make the New Zealand historical experience similar to that of Canada, where there was not one but many "little treaties", both oral and written.
* This is an edited extract from New Zealand As It Might Have Been, 15 scenarios of alternate history edited by Stephen Levine and published by Victoria University Press.
* Giselle Byrnes is a senior lecturer in history at Victoria University.
