The most important difference between the Australian colonies and New Zealand is, of course, the signing of a treaty at Waitangi by an appointee of the British Crown and some but not all Māori chiefs in 1840. But Attwood says there is more. He argues that the key difference between New Zealand and New South Wales is that, in 1788, there were no international competitors plying Aboriginal people with guns in return for land and alliance. Thus, representatives of the British Crown had no need to sign a treaty. In contrast, Britain’s sixty-year delay in assuming government in New Zealand meant that some Britons (and others) had bought land from Māori and that, at various times (for strategic reasons), Britain (and others) had acknowledged Māori sovereignty. There was also the small matter of Britain’s decision to engage in consular relations with, rather than to colonise, other Pacific polities, but you will not find much discussion of that here.

The key point of the Australian examples (particularly debates about whether or not the South Australia Company should compensate Aboriginal people for land) is to show that the recognition of Indigenous title to land was extremely contingent. Likewise, Attwood argues that the complicated fate of Māori land title after the Treaty of Waitangi shows that the Treaty itself (and its subsequent interpretation) was the product of competing settler and imperial interests. In Attwood’s telling, Māori sovereignty and land rights were invoked to protect land speculation, to follow precedent, or out of confusion: the political context was always constitutive of the claims.

This is all very useful. Attwood’s book is, by and large, a carefully argued investigation of relevant policy debates about several closely interwoven but very different colonisation projects. Everyone in the field should read it.

Having said that, I have two interrelated issues with the book. The first is about tone, and the second is about violence. Attwood is determinedly revisionist. At many points in the text, he claims to be the only person who has read the sources properly. Henry Reynolds’s lifetime commitment to recovering evidence that recognising Aboriginal Australians’ sovereignty and land title was not only open to but incumbent on Britain and Britons comes in for particularly trenchant critique. This is fair enough. While historians are not Reynolds’s intended audience, Attwood rightly asks whether these sources should ever be presented without careful attention to their context.

As I read the book, I found myself wondering if some people had not been meeting Attwood’s high standards already. Damen Ward’s work on South Australia, for example, is nothing if not careful, complex, and nuanced in all of the ways Attwood invokes. Attwood himself concedes that Lindsay Head’s work on the Waitangi Treaty is of some use, though just a few pages before he claims that ‘most if not all’ historians have got the Treaty wrong. This careless dismissal of good history is irksome.

Further, Attwood’s revisionism occasionally leads him to commit small acts of violence to the archive. Attwood’s dealings with James Stephen Jr, the in-house lawyer who knew more about empire than anyone in this period, are exemplary here. In an advisory opinion written in 1830 in response to Robert Torrens’s request for jurisdiction enough to discipline wayward Britons in New Zealand, Stephen said that he thought Māori were ‘the owners and sovereigns of the soil’. This was so not least because Parliament had acknowledged that New Zealand was a foreign jurisdiction when, in 1823, it included the islands under the Murders Abroad Act 1817.

Atwood says that (unlike other misguided historians) we should not take Stephen at his word. Stephen, he says, ‘was inclined to make asides such as these, but there is little evidence to suggest that he attached any precise legal significance to them’. He does not elaborate. Our only evidence is Attwood’s say-so. However, in Attwood’s own telling, Stephen goes on to pen several similar opinions, some quite lengthy. Why should we not take Stephen seriously?

I think what Attwood means to say is that Stephen got it wrong in 1830, but this point is not quite right either. In a strained reading of the Murders Abroad Act, Attwood claims that the Act never really acknowledged anyone’s sovereignty. Instead, it was motivated by the desire to protect vulnerable people against rampaging Britons in places where Britain had latent claims to possession. The evidence for this is qualified at best. First, Britain had passed acts like this centuries before to extend jurisdiction over Britons visiting Europe. Second, the 1817 Act first asserted jurisdiction to try British subjects committing murder in Honduras (where British ex-pirates had lived since the seventeenth century, but which the British Empire had recently conceded fell within Spanish sovereignty) and Tahiti (a monarchy subject to ‘protection-talk’ but with which Britain had consular relations). Neither strongly supports Attwood’s argument. The jurisdictional claim in the Act was largely illusory anyway: in the Pacific in 1817, the nearest court that could try such crimes was in Ceylon; from 1824, it was in Sydney.

The basic problem is that ‘protection-talk’ is doing too much legal work in this book. This is a concept that Lauren Benton and Adam Clulow articulated together some years ago, and that I have used in my work with Benton since. In Attwood’s framing, the nebulous goal of protecting vulnerable Māori always amounted to a material derogation of any recognition of their sovereignty and land rights. I see it a little differently.

Peddlers of protection invoked Indigenous rights when it suited them, and, increasingly, it did not. By the end of the nineteenth century, they thought the best way to protect vulnerable ‘natives’ was to constrain their corporate and individual autonomy. So much is uncontroversial. It is also uncontroversial to say that the most avid supporters of strong claims to Indigenous sovereignty and land rights tended to be land speculators who had purchased land from Indigenous people on unjust terms.

Attwood’s problem is that he slips from reminding us that shifting protection-talk (and self-interest) produced inconsistent legal claims about Indigenous rights, into asserting that Indigenous rights claims in this period did not reflect ‘real’ law. So Stephen might write in plain words several times that Māori were sovereigns and therefore owned the soil on which they lived, but he is not allowed to mean it, or he is wrong.

Moments like these derogate from the point that this book makes so beautifully – namely that all of these utterances are part of a crowded and contradictory legal discourse structured by the vagaries of British politics and events on the ground. Attwood’s error here is to privilege some utterances over others, instead of leaving all to their fate as competing legal claims in a noisy field of argument. His more serious error (occasionally but jarringly) is to give more credit to the utterances that diminish strong, or even middling recognition of native title in land.

This is an excellent book. Bain Attwood’s careful work and his insistence on complexity help us to make sense of the mess of nineteenth-century imperial politics and practice. In the end, though, in 1840, a delegate of the Crown negotiated a treaty with Māori chiefs, accepting sovereignty on behalf of the British king and recognising Māori land rights. In doing so, he ensured that the words in that document would transcend the tangled circumstances of their production. The Treaty became a legal instrument for the ages, a timeless claim upon on the honour of the Crown.