Ned Fletcher: battling entrenched views about the Treaty

An Ockham award-winning non-fiction book by law alumnus and historian Ned Fletcher concludes ‘sovereignty’ in the English draft of the Treaty of Waitangi means sovereignty solely over the British settlers.

Ned Fletcher in front of the Auckland High Court.
Dr Ned Fletcher overturns 50 years of assumptions about our nation’s founding documents in his book. Photo: William Chea

The English text of the Treaty of Waitangi, as drafted in 1840, clocks in at 562 words. In contrast, Ned Fletcher’s The English Text of the Treaty of Waitangi weighs in at an impressive 736 pages.

Dr Edwin Fletcher – ‘Ned’ to all – is surprised the doorstop adaptation of his doctoral thesis is the talk of the town.

“I thought it would sink without trace,” says the unassuming lawyer.

But after 15 years of preparation – including seven years’ doctoral study, and a fight with an aggressive cancer – Ned’s study of the development of the English-language Treaty text cannot be ignored. It has attracted weighty accolades: compliments on its cover by two former Waitangi Tribunal chairs (Sir Eddie Durie and Supreme Court justice Sir Joe Williams); a shortlisting for the 2023 Ernest Scott Prize for Australasian history; and the big win, general non-fiction book of the year at the 2023 Ockham New Zealand Book Awards.

All this, because, as New Zealand Journal of History reviewer Samuel Carpenter declared, Ned’s book is “one of the most significant works of scholarship on the Treaty of Waitangi ever published”. Ned saw a research gap hiding in plain sight, and filled it with meticulous research and brilliant analysis (supervised by Faculty of Law professors David V Williams and the late Mike Taggart, and Associate Professor of History Ruth Barton).

Surprisingly, nobody had ever dug deep into how the English-language draft of te Tiriti was prepared; it was commonly assumed it took just a few days. But Ned shows London and Sydney administrators recommended Treaty ideas and phrases long before February 1840. That was a surprise, even to Ned.

“Part of the reason the thesis took seven years was the joy of going down these research paths, finding out you don’t know anything,” says Ned. “I had no idea I was writing a history of ideas.”

He agrees with the orthodox position that te Tiriti o Waitangi in te reo Māori (the version signed by most rangatira) holds precedence over the English-language Treaty. But he disagrees that the two documents contradict one another. Instead, he daringly concludes ‘sovereignty’ in the English draft means sovereignty solely over British settlers, and therefore it is reconcilable with the promises to Māori of tino rangatiratanga.

The idea of one law for all runs contrary to our history and
to the Treaty.

Dr Ned Fletcher, MA History, PhD Law Author of 'The English Text of the Treaty of Waitangi'

In this, Ned overturns 50 years of assumptions about our nation’s founding documents, “battling some entrenched historical views”. In his view, the initial architects of the Treaty aimed to ensure British settlers did not trouble Māori. Although they failed spectacularly, “the Treaty was offered in good faith, it was a good foundation,” says Ned.

He finds this conclusion more hopeful than thinking the Treaty draft and te Tiriti are incompatible due to skulduggery, because that conclusion “bases the nation on rotten foundations”.

Ned hopes his work shows that the Treaty drafters did not think “sovereignty is absolute”.
“The idea of one law for all runs contrary to our history and to the Treaty,” he says.

That’s a statement of fact, but it is powerful, particularly as Ned is both a subject expert and a well-respected member of polite society. His statement offers establishment support to the aim of honouring te Tiriti, for the benefit of all.

He believes “if Māori had continued to be self-governing and retained control over their land and other taonga”, intergenerational deprivation would not have occurred – and therefore, as a prosecutor, he would not see Māori overrepresentation among victims or the accused.

Commentator Morgan Godfery suggests Ned’s book supports arguments for co-governance – does Ned agree? Ned stresses his work does not examine the past 183 years, but he does say, personally, he is not sure co-governance goes far enough. “The Treaty promise is of tino rangatiratanga and it’s one that has to be confronted in our own time … I hope we can be bolder and more imaginative.”

Part of the reason the thesis took seven years was the joy
of going down these research paths, finding out you don’t know anything.

Dr Ned Fletcher, author The English Text of the Treaty of Waitangi

Ned jokes that this whole writing a book enterprise is the fault of his mother, former Chief Justice Dame Sian Elias. She suggested his masters thesis topic: the coming of English law to New Zealand. Ned says he got “halfway decent at reading 19th-century handwriting” – the strongest self-praise his self-deprecating humour will allow – and a decade later, in 2007, his doctoral topic unfolded from this earlier research.

Both Ned’s parents have served on the University of Auckland Council, and his father, Hugh Fletcher, was the University Chancellor from 2004 to 2008.

“My parents were very proud graduates of the University of Auckland,” says Ned.

“They talk about the University a lot – they’re passionate about higher education and the state of our universities is something that concerns them. They were so encouraging, and now so happy someone in the family has a doctorate. They also had a huge measure of satisfaction from the warm reception to the book, after such a long process.”

The most difficult part in the book’s creation was nothing to do with the research. In December 2012, Ned received a shock leukaemia diagnosis.

“It was very much out of the blue. I had just been feeling a bit tired.”

He immediately downed tools on the thesis, for aggressive chemotherapy. Treatment went incredibly well in the “wonderful care” of Auckland Hospital, and it was all over by April the following year. The cancer has never returned. Ned rested and recovered for the rest of the year.

“I was at a point in the thesis where a little bit of a break was not a bad thing.”

Ned says it was a blip that never got so bad he had to face his own mortality, although he acknowledges there was “much more anxiety for my family – the children were young”.

The three children are now in their teens. Ned, his wife – Manukau Crown solicitor Natalie Walker – and their colleague Gareth Kayes run Kayes Fletcher Walker, employing more than 50 lawyers. Its solicitors are involved in University tutoring and judging moots. Several of the firm’s University graduates left this year on prestigious postgraduate study trips.

“It shows University of Auckland graduates are up with the world’s best,” says Ned, citing as examples Jimmy Toebes, a Fulbright Scholar at New York University, and Jessica Fenton, a New Zealand Law Foundation Ethel Benjamin Scholar at Yale.

Ned himself enjoyed his research days and has just started missing his beloved microfilm archives that were the heart of it. Perhaps there’ll be another literary bombshell in 15 years.

Story by Janet McAllister

This story appears in the Spring 2023 edition of Ingenio