Notes on Sir William Martin's Pamphlet Entitled the Taranaki Question
Page 9, 10
Page 9, 10.
"The rights which the Natives recognised."………
"This unknown thing."………
The interpretation here attempted to be put on the terms of the Treaty requires particular examination.
The fact of the Maori version of the Treaty being different from the English text, though perfectly well known for many years, has never been officially alluded to by former Governors; but it will not have escaped any one who has read the Papers presented to Parliament from 1840 downwards, what anxiety has been shown, especially by the missionaries and by Sir W. Martin himself in the year 1846, that the Treaty should be carried out in the sense in which it was explained to the Natives. Notwithstanding the controversy which existed as to what this sense really was, or what were the respective rights of the Crown and of the Natives, no practical difficulty ever arose about the interpretation of the Treaty by the Government of New Zealand; for every successive Governor page breakhas been willing, without a critical enquiry as to the Maori and English versions of the Treaty, to adopt the doctrine that it ought to be executed in the sense in which it was understood by the Natives. So long as every one agreed that the sense of both versions was really the same, and that the rights guaranteed to the Natives by the Maori version were substantially what the English text assured to them it was never worth while to enquire into the rather curious text of the difference between them. The matter becomes for the first time of importance, when an attempt is made to give an interpretation of the Maori version at variance with the English text; still more, when an interpretation is given to the Maori version inconsistent with itself.
It must be remembered that the Maori is a translation from the English, not the English a translation from the Maori. At the time the Treaty was in contemplation Governor Hobson was ill on board H.M.S. "Herald," and the Treaty was prepared by Mr. Busby, who for seven years before had been British Resident in New Zealand. Who it was who rendered the English into Maori has never, it is believed, been officially stated. However difficult it may have been to render correctly into the Maori language English expressions meaning things of which Maoris were absolutely ignorant, and which had therefore no Maori words to represent them, it is admitted that the two ideas which were the basis of the Treaty were such as could be made perfectly clear. One was, that the Maoris placed themselves under a new and paramount authority; the other that they retained whatever rights of property they had in their lands.
But while Sir William Martin so far correctly states what the well understood intention was, he falls into the error of wanting to prove too much; and in order to effect this, he omits material passages. In the first paragraph above quoted, he says, "We called them [the rights ceded to the Crown] 'sovereignty:' the Natives called them 'Kawanatanga,' (Governorship.)" In the second paragraph he says, "To themselves they retained what they understood full well, the 'tino ransatiratanga' (full chiefship) in respect of all their lands."
It is unfortunate that Sir W. Martin should have quoted only the words which were necessary to sustain the distinction he evidently meant to draw. Immediately after the word "Kawanatanga" are the words "o o ratoa whenua." The thing ceded in Article II. was "te Kawanatanga katoa o o ratou whenua," the whole Governorship of their lands: the thing retained in Article III was "te tino rangatiratanga o o ratou whenua," the full chiefship of their lands.
Whatever idea it was then, which was meant to be expressed by the words "Kawanatanga" (governorship), and "rangatiratanga" (chiefship) respectively, it is clear they both related to the same thing, "o ratou whenua," (their lands). Those persons who made the translation of the Treaty into Maori, chose, as they were of course bound to do, the words which gave in both Articles the nearest approach to the English meaning. That this meaning was not very clear to the Maoris, is not to be wondered at if the thing represented had no existence among themselves; but if the thing existed, they knew what they were surrendering or retaining. That there was an intention to insert anything in the Maori version expressing an idea contrary to the meaning of the English text, is an imputation on the good faith of the translators, which the Government at any rate will not make.
What then is the state of the matter as regards Articles II. and III. of the Treaty?
If the Chiefs ever possessed any right to exercise dominion over the other members of the tribe, any right such as is now claimed tinder the designation of "seignorial right" to forbid the sale of land by its rightful owners, then they surrendered it knowingly. If the words used did not surrender it, that is the best proof that it had no existence as a right.
In another part of the 3rd Article Sir W. Martin unfortunately omits the most material words in the Maori version, taking only those which suit the inference he desires to draw. He says, "To themselves they retained what they under page breakstood full well, the 'tino rangatiratanga' (full chiefship) in respect of all their lands.'
No one could fail to infer from this manner of quoting the Article, that this "full chiefship" was reserved to the Chiefs. Sir W. Martin does not say so, but the reader in England is left to infer it. This inference, however, would be quite untrue. The right is reserved "Ki nga Kangatira" (to the Chiefs), "Ki nga Hapu" (to the families), "Ki nga tangata katoa o Nui Tireni" (to all the men of New Zealand). The words "full chiefship" will thus be seen to have a meaning quite different from that which it is assumed they have. The words "tino rangatiratanga" were chosen, not in order to confer any right on the Chiefs which was not enjoyed by all the members of the tribe, but to express what the English text guaranteed, the "full, exclusive, and undisturbed possession" of their lands to all. If, then, no right existed in the Chiefs which was not also enjoyed by the people, the words of the treaty did not create it; if each Native had not the same proprietary rights in the tribal land as a Chief, those words could not have been used.
But the intention of the Maori version is further shown by the remaining words of Article 3, to which again Sir W. Martin avoids any allusion. The words relating to the Queen's pre-emption are "ka tuku ki a te Kuini te hokonga o era wahi whenua e pai ai te tangata nona te whenua," (yield to the Queen the buying of those pieces of land which it shall please the man to whom the land belongs to sell.) If there had been any intention to limit the right of sale to Chiefs or families, the use of the singular must have been avoided, and terms chosen quite different from any which so expressly recognize the right in separate individuals to separate pieces of land. If, then, separate rights of property really existed at that time, they were preserved: if the individual right of property was unknown, the words in the Maori version would not have been used.
That the view taken by Sir W. Martin of the Treaty does not coincide with that taken by others who were on the spot at the time and not less able to judge than even Sir W. Martin, is certain. Mr. Busby, in an address which he lately published to the Chiefs, said:
"When the Queen promised to every Maori that 'he should be as one of her own people, the law came: the law is the strength of the weak man, and that law says, Every man's land is his own, to sell to the Queen or keep; no one shall take it from him because he is weak; no one shall prevent his selling it if he wishes to sell it. If the Governor allowed Wiremu Kingi to overcome Teira, he would make the Queen false to the promise she made to every Maori man when she entered into the Treaty. The following evidence was given by Archdeacon Maunsell before the recent Select Committee of the House of Representatives on Waikato affairs: Did you deliver an address to that assembly in which you expressed your interpretation of the meaning of the terms of the Treaty which relate to their lands; and if so will you state to the Committee what you then said to the Natives on that subject? —I said that they ought to allow each man to do what he liked with his own land, that their right to their land was secured to them by the Treaty or Waitangi, and that no King ever interfered with his people when they wish to sell land."