NOTES. A Conflict of Interests--1
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NOTES
A CONFLICT OF INTERESTS--1
At issue were the terms of British settlement in New Zealand. Between the opposing principles contained in the Select Committee Report 1 and in Dandeson Coates' reply, 2 there was no possibility of a satisfactory synthesis--the expanding energy of British settlement on the one hand, inviolate native land rights on the other. Between the two points of view, Maori and European, there was an even deeper incomprehension: the European view of land was of private property to be used and improved; the Maori conception of land was of an indivisible communal inheritance to be named, known, and cherished-- 'pots and pipes are soon broken but the land remains'. 3 The missionaries' role increasingly became that of an interpreter, and it was not an easy one, by one party they were often regarded as deceivers, by the other, as traitors.
The 1844 Select Committee Report considered that the terms of the Treaty of Waitangi were 'ambiguous' and 'highly inconvenient', and that it had given the natives 'notions' of their having a proprietary title to land which they did not actually occupy. 4 Ghosting the Report was the hand of Edward Gibbon Wakefield, that land only derived value from the application of European labour and capital. This argument was bolstered by an appeal to the principles of colonial law and policy laid down by Sir George Gipps which stated that
the uncivilised inhabitants of any country have but a qualified dominion over it or the right of occupancy only; and that until they establish amongst themselves a settled form of government and subjugate the ground to their own use by the cultivation of it, they cannot grant to individual's not of their own tribe any portion of it, for the simple reason, that they have not themselves any individual property in it. 5
The upshot of this reasoning was a recommendation diametrically opposed to Article 2 of the Treaty of Waitangi, 6 that all the unoccupied
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territory or 'waste' land should be vested in the Crown by virtue of its sovereignty. As a passing reflection the Report also added that too much respect had been shown for native custom. As coercive measures in implementing this policy, the Report recommended that the Governor should have a greatly increased armed force at his disposal, including, oddly enough, native reserves, and that there should also be a land tax on 'waste' land.
This was the Report which filled William Williams with such gloomy forebodings. Equal misgivings had also been felt by Dandeson Coates, lay secretary of the C.M.S. in London, and he had already published his reply. He wrote that the Select Committee Report had excited 'very strong feelings of solicitude and alarm in the minds of those friends of Christian Missions', and that he considered its recommendations 'unjust and injurious to the Natives, with regard to their lands', and as involving a breach of the stipulations of the Treaty of Waitangi. 7 He then gave a resume of British policy towards New Zealand which had consistently, until then, regarded 'waste land' as owned by the natives, and only to be acquired by the Crown on cession by the Natives and by 'fair and equal contracts with them'. 8 If this policy was now to be reversed he concluded, the position of the missionaries would be rendered 'most difficult and painful'.
They have acquired the confidence of the Natives as their friends and benefactors. In virtue of that confidence the Chiefs were induced to sign the Treaty of Waitangi; understanding as the Missionaries also understood, that the proprietary rights to the whole lands of the Island, not alienated by themselves, were secured to them. How can the Missionaries remain among them under the imputation of having deceived and betrayed them? 9
With the Select Committee's recommendations and Dandeson Coates' criticism of them both before him, Lord Stanley, Secretary of State for the Colonies, temporized. His despatch to FitzRoy of 13 August 1844 10 stated that the Committee's recommendations would be difficult to carry out in New Zealand; not only were they opposed to FitzRoy's own ideas, but they were also repugnant to previous British policy. There was, nevertheless, a strong vein of pragmatism in Stanley's advice:
Personally, neither you not I are interested in considering whether this policy [indisputable native title to the land] were wise or unwise .... What you and I have to do is to administer the affairs of the Colony in reference to a state of things which we find, but did not create . . .
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upon declarations and concessions made in the name of the Sovereign of England. 11
The Select Committee had not recommended that the governor be 'peremptorily ordered' to assert the rights of the Crown, but 'to establish the title of the Crown to all unoccupied Land, as soon as this can be safely accomplished'. 12 For the moment Stanley was of the opinion that this title could not be established with safety, nor did he think that a land tax would be any easier to apply. FitzRoy, furthermore, could not expect any large increase in military force; 'There is no Army in the world which is called upon to perform such severe duties as ours in time of peace'. 13 Stanley concluded:
I rejoice to see that the Committee abstains from recommending that you should act on the principle which they lay down, and for my own part I cannot take on myself the responsibility of prescribing to you a course which I believe would neither be consistent with justice, good faith, humanity, or Policy. 14
William Williams would have equally rejoiced at this last sentiment, but it was very obvious from this despatch that 'these pernicious principles', as Williams described the Select Committee's recommendations were not opposed in principle by Stanley, but were simply shelved for the moment as impracticable.
When George Grey became Governor, 15 he had as it were, two sets of instructions. In his first despatch to Grey, 16 Stanley stated that Grey would have 'a sufficient Military force' stationed in New Zealand, but he also insisted that, 'You will honorably and scrupulously fulfil the Treaty of Waitangi.' But this instruction was going to be difficult to be scrupulous about in view of the Separate Despatch Stanley wrote to Grey two weeks later. 17 Article 2 of the Treaty had established Maori ownership of total land, except that which had been voluntarily ceded: the Separate Despatch went a stage further and changed the concept of 'land' into 'property'.
It would appear to follow as a natural consequence of the Treaty of Waitangi, which recognizes the title of the Native Tribes to their lands, that the limits of those lands should be distinctly recognized and set forth under the sanction of the Sovereign authority, with a view of preventing future dissensions between the Native Tribes, or between the Natives and British Settlers ... no property will be recognized in any land which shall not have been registered within a certain specified term--say two or three years. 18
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Registration would thus show the unoccupied land which could then be considered 'as at the disposal of the Crown'. Back also came the suggested Waste Land Tax of 2d per acre--Stanley saw no objection to such a tax applying to native and European settlers alike. Thus the Treaty of Waitangi was to be properly conveyanced: limits were to be set to waste land, ownership was to be defined and safeguarded. Finally Stanley urged Grey to hurry up the settlement of settlers' land claims. He wrote that it was 'far more necessary to take effectual steps for bringing these discussions to a final, and, if possible, a satisfactory conclusion, than to re-open questions of strict right, or carry on an unprofitable controversy'. 19
Lord Stanley's Separate Despatch outlined a land policy which in terms of settlers' interests was both practical and logical. It made the Treaty work. That it also involved, for the Maoris, a basic deception, was a theoretical principle in which Stanley had already shown he was not greatly interested. Ironically, although the irony would have been unintentional, Stanley concluded that he had hoped that the instructions he had given FitzRoy would have put the Company's settlers in 'undisturbed possession' of their land. In the Treaty of Waitangi it had been the Maoris who were to have had undisturbed possession.
