The hopes of the British Government that the treaty would be an instrument of peace and conciliation were at the outset largely unfulfilled. Too much was expected from it. Even in terms of international law the treaty had little status, since in no sense could a covenant between the Crown and a number of savage tribes be construed into an agreement between sovereign states. Within New Zealand itself the situation was most unsatisfactory. Many of the chiefs who signed the treaty had little understanding of its implications. Of those who had refrained, it could be argued – as Swainson, the Attorney-General asserted – that they were exempt from its provisions and that the Queen's title to sovereignty was incomplete. But the British Government rightly maintained that the issue had been settled beyond question. Such academic pronouncements meant nothing to recalcitrant chiefs, and the trouble at Taranaki in the fifties was undoubtedly aggravated by the determination of Governor Gore Browne to make the issue of sovereignty a potent factor in the involved problem of land purchase.
The storm centre of the treaty was the second clause which reserved to the Crown the exclusive right of pre-emption over native lands. Unfortunately the operation of this clause acted harshly upon buyers and sellers alike. The Maoris soon realised that the purchase price paid by the Crown was pitiably low, no small wonder in view of the parlous state of the colony's finances. On the other hand, the principals of the New Zealand Company saw the treaty as an insuperable obstacle to their plans for land aggrandisement and fought hard to discredit it, cynically asserting that it was merely a praiseworthy device for amusing and pacifying savages. But the British Government would have none of that. “You will honourably and scrupulously fulfil the conditions of the treaty of Waitangi”, was the instruction given to Grey at the outset of his Government.
The third clause of the treaty was equally vexatious, for it dealt with a complex legal problem, the interpretation of the promise to confer on the Maori people “all the rights and privileges of British subjects”. It was certainly never the intention of the British Government that a legal code foreign to the Maori way of life should be imposed. Indeed, the intention was that, wherever the natives were numerous, special districts should be proclaimed wherein their customs would be given the force of law. But Grey had no sympathy with this viewpoint and was determined to substitute as speedily as possible the “civilised” code of the master race for the “barbaric” customs of the natives. Thus the treaty failed to unify the races, which slowly drifted apart, sharply divided by a barrier of speech, custom, and law.
This cleavage was widened by the growing belief that, as the natives were a doomed race, the improvement of their lot was so much wasted effort. It was not until the century was well advanced that a new spirit of goodwill between the races became evident, and it was then that the Treaty of Waitangi, so long overlooked or forgotten by the Maori people, came into its own.
The treaty is not a part of the statute law of New Zealand, but the statute law itself, especially where it refers specifically to the interests of the Maori people, rests on the three brief clauses of the treaty.
The treaty sheets had a narrow escape from destruction when the public offices at Auckland were destroyed by fire in 1841. The Clerk of Records, G. E. Elliott, arrived just in time to save the treaty and the seal of the colony. Subsequently the various sheets of the treaty were fastened together and deposited in the Colonial Secretary's office. At a later period the edges of the sheets were gnawed by rats and the surface stained by water. The “original” sheet of the treaty (dated 6 February 1840), together with the “duplicates”, is today in the Alexander Turnbull Library, Wellington.
by Alexander Hare McLintock, C.B.E., M.A., DIP.ED. (N.Z.), PH.D.(LOND.), Parliamentary Historian, Wellington.
- Crown Colony Government in New Zealand, McLintock, A. H. (1958)
- The Treaty of Waitangi, Buick T. Lindsay (1914)
- The Treaty of Waitangi and the Acquisition of British Sovereignty in New Zealand, 1840, Rutherford, J. (1949). For two interesting eyewitness accounts of the treaty signing, see N.Z.P.D., Vol. 67, pp. 389–92 (Hon. D. Pollen) and
- Journals of the Legislative Council, 1869, Appendix, pp. 67–78, Annotations on the Treaty of Waitangi, by William B. Baker.