Something New

We feature each fortnight Nicholas Reid's reviews and comments on new and recent books.  

“A BLOODY DIFFICULT SUBJECT – Ruth Ross, te Tiriti o Waitangi and the Making of History” by Bain Attwood (Auckland University Press, hardback $NZ59:99)

            One of the subtitles of Professor Bain Attwood’s A Bloody Difficult Subject is “the Making of History”. This might confuse some readers. When we hear of something “making history” we assume it is referring to an event that is regarded as momentous and likely to be remembered in ages to come. But in this case “the making of history” refers to the way historians create and shape their versions of history after the event. In other words, it refers to historiography. And the historiography here examined is the historiography of the Treaty of Waitangi. Amazing as it now seems, right up to the late 1950s there were very few professional historians in New Zealand who took an interest in New Zealand history, and virtually none who saw the Treaty of Waitangi as anything other than an honourable document made with the best of intentions by British officials and ensuring harmony between Maori and Pakeha. The first person to challenge systematically this assumption was Ruth Ross (1920-1982), and for this reason it is Ruth Ross who takes up so much of A Bloody Difficult Subject  - her term for how difficult it was to pin down the real meaning and purpose of the Treaty.

            Born Ruth Guscott in Whanganui, she went to Victoria University College and was much influenced by J.C.Beaglehole, even if, like his colleagues, he saw New Zealand in terms of its British connections. Ruth Guscott was a good student, but didn’t complete the last part of her degree and became a research assistant in the Historical Branch. She married George Burnard, but her young husband died of a congenital disease in the first year of their marriage. She faltered as a budding historian and took up a menial filing job. She met Ian Ross, ten years her senior, who had just come back from the war. They married, moved to Auckland, and soon had two sons. She was thenceforth Ruth Ross. She was also, from this point on, tied to domestic life running a household and raising the two boys.

Beaglehole had directed her into examining the “Facsimiles” of the Treaty of Waitangi and related documents, but when she settled in Auckland she turned to young Keith Sinclair for advice. Her research led her to believe that the Maori-language version of the Treaty was the only legitimate version and she consulted Maori elders on this point. She also came to believe that the missionary Henry Williams and his son, who wrote the Maori version of the Treaty, had done a botched job, especially when they used the term kawanatanga (“governorship”), a term that she believed was made up by the missionaries. The term rangatiratanga would have been more appropriate. In her early stages of research, she referred to the Treaty as “this so-called treaty” and said it could never stand up as international law.

In 1950, she presented to the Victorian Historical Association a paper in which she posited (as Bain Attwood preface warns us) “That the Treaty was hastily and inexpertly drafted; that the English text was badly translated into te reo Maori; that the Treaty was so ambiguous and contradictory that it was taken to mean whatever anyone wanted it to mean; and that it could never provide the basis for any legal change that would give the help Maori desperately needed.” (p.xii) Further, in her perspective, “Hobson and the British government thought the Maori text meant the same as the English text and they regarded it as merely one of several devices to attach New Zealand to the British Crown  - and not a legally binding one at that . In keeping with this point, she argued that the Treaty meetings were probably staged for the sake of appearances. She observed that Hobson did not wait for all of them to take place before he issued his proclamation in May 1840 declaring British sovereignty over the whole of New Zealand, and she pointed out that while he had claimed the North Island by virtue of cession, he had simply claimed the southern islands on the grounds of the legal doctrine of discovery.” (p.21) Her paper was largely ignored by historians. Indeed so negative was the response of her audience that she became very sceptical of academic historians.

In 1953 she started working for School Publications and was able to write historical fictions for their bulletins, even if she was also preparing a bulletin on the Treaty of Waitangi. By this stage she and her husband had moved from Auckland to Motukiore on the Hokianga Harbour, where Ian Ross taught in a Maori school. There she came to know very well the Maori elders of the region, and they discussed with her not only local law but their own views of the Treaty of Waitangi. This reinforced her view that Maori in 1840 had understood the Treaty to mean that they retained possession of their land, with British officials being concerned only with ensuring the good behaviour of Pakeha settlers. Her bulletin on the Treaty was finally prepared in 1956 and she had the good fortune to have a helpful editor in James K. Baxter. The Maori of Hokianga to whom she showed her draft were very impressed, but she got into an intense quarrel with School Publications when they wanted to abridge it. At this point it’s worth noting (as Bain Attwood does) that sometimes Ruth Ross could be her own worst enemy. She had a habit of quarrelling with people who either challenged her findings or wanted to modify them. She was also aware, as a mother raising children, that she did not always have the time to pursue her historical studies as academic historians had. I must also add my astonishment that the bulletin on the Treaty which Ross wrote for primary schools was 12,000 words long. How many young children then (or now) would be able to read a bulletin 12,000 words long?... or was the bulletin presented to children by having a teacher reading it out loud to them?

From 1958 onwards, Ross expanded her views on the Treaty and continued her research. By the late 1960s there was more pressure from Maori to have the Treaty ratified as law. When Ross gave a seminar on the Treaty in Wellington, pointing out its many flaws, the misleading terms that Henry Williams had used in the text, and the fact that not all rangatira had signed it, Maori listeners were very hostile to what she said. Her finding did not fit their agenda. At about the same time, Ross was irked that the budding professional historian Judith Binney had referred to Ross as an “amateur”, even though Binney took material from an article by Ross and used it without adequate acknowledgement.

It was in 1971 that Ross’s most influential paper was accepted by the New Zealand Journal of History and published in 1972. Bain Attwood notes: “For some time now, Ross’s findings have become so familiar that it is difficult to appreciate how startlingly original they were when they finally saw the light of day in 1972, nearly twenty years after she had first formulated them. No one previously had taken the Maori text as seriously as she had or claimed that it differed from the official English texts in so many important respects. No one had previously argued so strongly that the Treaty was ambiguous and contradictory and so the parties to it were uncertain and divided about its meaning. No one had published such a ferocious assault on the myth of the Treaty as a sacred covenant and the Maori Magna Carta.” (p.87)

From 1972 onwards, Ross’s article was widely accepted by academic historians. They began to view the Treaty in her terms. Only then did her interpretation of the Treaty become known to the general public and articles in newspapers by Tony Simpson and Ranginui Walker. They embraced Ross’s idea that the Maori-language version of the Treaty should be regarded as the real Treaty, flawed though its language was. Lawyers began to argue either against or for the idea that the Treaty really was a valid treaty. But, under pressure, it was gradually agreed that both versions of the Treaty (Maori and Pakeha) had to be taken into account. And in 1975, the Waitangi Tribunal was set up. At about the same time, the younger historian Claudia Orange acknowledged her debt to Ruth Ross as she began her own work on the Treaty; but while Orange agreed that the Treaty was as poorly devised as Ross had said, Orange was more interested in how Maori understood the Treaty at the time.

The time came when it was necessary for the Treaty to become essential for policy and hence, though Ross’s findings had never been refuted,  there emerged the necessary myth of a mutually-understood Treaty. Maori activists who had once proclaimed “The Treaty is a Fraud” now began to say “Honour the Treaty” as they pushed for it to be ratified and written into law. The Treaty was now accepted with “pious respect” (p.115) and as a solemn contract. This was the view promoted especially by Eddie Durie when he led the Waitangi Tribunal. The tribunal accepted Ross’s minor argument – that the Maori text of the Treaty was the Treaty – but ignored Ross’s much-quoted major argument, that the Treaty was “hastily and inexpertly drawn up, ambiguous and contradictory in content, chaotic in execution”. In effect, the Waitangi Tribunal needed to have the Treaty represented as an authoritative document in order to facilitate what they wanted it to mean – a sacred contract. They began to speak of a nebulous wairua (“spirit”) of the Treaty rather than considering the historical reality in which the Treaty was devised.

When contentious matters about Maori land and ownership came to the Court of Appeal, says Bain Attwood, “In essence, what the Court of Appeal did was in line with the way the common law usually works. It brought down a judgement that created precise legal rights but made them appear as though they had been discovered in the agreement of 1840. This would have baffled Ross in one sense, given the difficulty she had comprehending the language of lawyers, but it would have struck her as familiar in another, given that she had believed that the Treaty meant to each New Zealander whatever they wanted it to mean.” (p.127)

As Bain Attwood acknowledges, Claudia Orange gradually became accepted as the historian of the Treaty of Waitangi, especially when her book The Treaty of Waitangi was published. Attwood rather waspishly notes (a.) that Orange managed to “forget” how much her thesis [before it was modified as a book] drew upon Ross’s work; and (b.) that Orange was now working in an environment where the Treaty had to be presented as an honourable agreement and the foundation of laws that were now being coined. Hence, says Attwood, in her published book Orange suppressed negative terms about the Treaty that she had used in her thesis [see p.129 for these statements].

When Orange justified the worth of the Treaty, Attwood says :  “This argument required a historical account that had several elements that differed from Ross’s. While it could account for some degree of confusion in the making of the Treaty, it had to represent that agreement as sufficiently coherent, rather than fundamentally ambiguous and contradictory, so that both parties could be said to have a mutual understanding of its terms and the Treaty could be thereby regarded as a binding contract. It also had to figure the Crown as a body that had generally acted in an honourable manner at the time the Treaty was made.” (p.130) In other words, it had to present the Treaty in terms that fitted the new narrative as accepted by the Waitangi Tribunal.

From this point on, A Bloody Difficult Subject moves away from the life and work of Ruth Ross and considers how different  historians and lawyers have subsequently interpreted the Treaty. Paul McHugh argued for the legitimacy of the Treaty as, in a very different way, did Keith Sorrenson. Andrew Sharp saw current ideas of the Treaty as serving present interests. “It was evident that the Tribunal’s reconstructions of the past were anachronistic; that it was attributing to the past concepts and categories that could never have existed at that time.” (p.145) Alan Ward, deeply concerned about the relativism of post-modernism, warned that having historians on the Tribunal corrupted historians as they often had to verify claims, acting as advocates rather than as impartial historians. [Nevertheless, as Bain Attwood notes, Alan Ward was later happy to write a three-volume “juridical history” of the Trbunal.] Paul McHugh, returning to the debate, saw juridical history as a “Whig” enterprise – that it, seeing the past only for present purposes; seeing the past only inasmuch as it led to present attitudes and norms. W.H.Oliver made a similar argument. The Tribunal was assuming there had been an equitable partnership which had been violated… but this was not history. From Britain, J.C.A. Pocock presented a convoluted argument advocating both Maori and British versions of the Treaty as being in conversation with each other. Michael Belgrave attempted to see the Tribunal’s work as based on history, though he was sceptical about the Treaty itself.

At this point, Attwood deals with what he calls “revisionist history”. D.F.McKenzie’s view was that the Treaty was essentially an oral Treaty as the Maori in 1840 regarded the verbal discussion as the Treaty, rather than the written document which some of them signed. Lyndsay Head was the first to mount a head-on critique of Ruth Ross’s work. She argued that, far from being incompetent, Henry Williams was very well-versed in the Maori language and that the terms used in the [Maori] Treaty were fully understood. She notes that “kawanatanga”, the term Ruth Ross had criticised as an unknown neologism, was a term familiar to Maori as it was already being used in the Maori translation of Bible before the Treaty was written. Lyndsay Head further argued that Maori in 1840 were interested in becoming “modern” in the sense of wanting to embrace British forms of governance and she suggested that Ross was relying on the Maori language as it had become rather than the language as it was in 1840. Michael Belgrave also argued that the Treaty was really about the British promise of “protection” and with the Maori hoping to be given a role in the British Empire – in other words, the Treaty was a thing of the moment dealing with immediate issues and not intended for future purposes.

Having examined the work of these and other historians, Bain Attwood turns to “post-foundational” history, viz. history that no longer accepts the Treaty as the foundational document that shaped the whole of New Zealand. He notes that the Treaty was of its time, and dealt primarily with the far north of the country, where Maori were accustomed to Pakeha. He also notes that one of the chief difficulties in accounting for the Treaty of Waitangi is the minimal accounts we have of how it was accepted by Maori at the time: “Many historians have assumed or even asserted that the record of the Treaty meetings is much better than it is (though Ross cautioned against this) and they have projected their findings about one of the areas – the far north – in which the indigenous people had become most familiar with European newcomers onto areas where they had barely met them. They have also played down the difficulties that arise because all the written record of these meetings were created by British or Pakeha players rather than Maori, and the longest account (Colenso’s) was only produced many years later.” (p.194)

Giving his last chapter the title “The Advantages and Disadvantages of History”, Attwood gives a long argument for using the Treaty in the betterment of society and fixing grievances… but always being aware that appeals to the Treaty are based on much historical uncertainty.

He also offers a stern warning: “…historians must try to ensure that they do not cross over the razor-thin line that separates historical scholarship from political advocacy. Doing this requires self-control (though not self-immolation) so that they are both able and willing to abandon wishful thinking, accept findings that do not serve the cause they support, and discard pleasing interpretations that do not pass elementary tests of logic and evidence. This would mean, for example, that New Zealand historians would not assert, as several have done in recent years, that in 1840 some of the British players who were party to drawing up the Treaty understood it as an agreement in which the sovereignty of the chiefs had been guaranteed in a comprehensive sense. Nor would any historian argue that Maori never knowingly engaged in transfers of land that they knew amounted to sales, as several historians have done, or that the British Crown undertook to protect Maori in the possession of all their lands, as most historians have done.” (p.203)

            What, more than anything, do I take away from this book?

First and foremost, that the Treaty of Waitangi has been fetishized and mythologised in order to fit with currently-acceptable ideologies and beliefs. I do not question the necessity for the Waitangi Tribunal.  It is important that Maori grievances are addressed, that land stolen from iwi be returned or some other form of compensation be found, and that conflicts be settled. But to claim that these actions are based on the (historical) Treaty of Waitangi is simply untrue. Invoking the nebulous “spirit” of the Treaty, no matter how well-meaning and useful this may be, is avoiding the reality of what the Treaty was in 1840. Claiming that the Treaty of Waitangi was a mutual agreement fully understood in the same way by both Maori and Pakeha, is myth… but perhaps it could be called a necessary myth, now contributing to the general wellbeing of New Zealand.

Second, this book nowhere suggests that Ruth Ross’s ground-breaking research and articles were the last word on the Treaty. In the 50-plus years since her most influential essay was published, many historians have credibly refuted or challenged some of her conclusions. Nevertheless, this book honours her for being the first to open the can of worms, to really question the nature of the Treaty, point out its flaws and shortcomings, and puncture the unrealistic notion of the Treaty as “the Maori Magna Carta”. Before she went to work, it was more-or-less taken for granted that the Treaty was a nice, civil agreement showing the best of British law and ushering in the “best race relations in the world”. In this book, Ross is rightly being honoured as the pioneer who was the first to give real and penetrating scrutiny to the Treaty, warts and all.

Personal Footnote: When I was preparing my doctorate in history in the History Department of the University of Auckland, my chief supervisor was the late Professor Hugh Laracy. (My deputy supervisor was Professor Linda Bryder. They were both excellent supervisors and good company.) Often Prof. Laracy would invoke the name of Ruth Ross, who had already died. He regarded her as the model of original research. Apparently Laracy and Ross got on very well together – in fact he was one of the few academics Ross never quarrelled with and apparently one of the few academic historians who took her work seriously. I’m pleased to see that there is a passing reference to Laracy on p.109 of Attwood’s book.