Mike Butler: Littlewood text appraisal reviewed

Nearly 21 years ago, a hand-written Treaty of Waitangi text was found, sparking a political uproar about the legitimacy of race-based policy. Lack of interest by historians, and years of neglect and stonewalling by National Archives stunned John Littlewood and sister Beryl Needham, who found the document, which is reproduced in Appendix 1 below, in a drawer while clearing out their mum’s house after she died.

Their forebear was Henry Littlewood, a solicitor who worked in the Bay of Islands and Auckland in the 1840s, and who did work for James Reddy Clendon, a Bay of Islands merchant who was also the United States consul in the area.

The official disinterest in details of the treaty coincided with top-level negotiations that were proceeding at that time, which resulted in the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. In that deal, the government allocated a cash settlement for Maori tribal corporations to buy a half share of Sealord, the countries largest fishing company, as well as 20 percent of the commercial quota share of new species introduces to the quota management system, and the equivalent of 20 percent of all marine farming space created around New Zealand coasts and harbours.

The claimed legitimacy of that settlement was detailed in the first clause of the preamble of the 1992 Act, which said: “By the Treaty of Waitangi the Crown confirms and guarantees to the Chiefs, tribes, and individual Maori full exclusive and undisturbed possession and te tino rangatiratanga of their fisheries.”

Now here’s the thing, neither the Maori version of the Treaty of Waitangi, nor the Littlewood text, have any reference to fisheries, or forests. What is more, the preamble of both texts is clear that the purpose of the treaty was for the protection of British subjects already in the country at that time, and who were constantly arriving, as well as for the protection of the natives. Lieutenant Governor William Hobson’s intention was as he said in Maori after the February 6, 1840, signing – He iwi tahi tatou” or “We are now one people”. The partnership concept was a much later creation.

Martin Doutré detailed the on-going ho-hum official reaction in his book “The Littlewood Treaty – The True English Text of the Treaty of Waitangi Found”. In short, the document was found in March 1989, and the Treaty of Waitangi Information Unit commissioned historian Donald Loveridge to do a full appraisal in 2006 – 17 years later, and only after significant public and political pressure.

Loveridge had issued a memo on the document, in 1993, in response to a request from the Treaty Issues Team at the Crown Law Office. In that memo he said the document "is virtually identical in all respects to the Clendon translation", and "assuming that J.R. Clendon was telling the truth about the origins of his English version of the Treaty . . . one can only conclude that Mr. Littlewood somehow came into possession of a mis-dated copy of this document. The substitution of “Done at Waitangi on the 4th Feb. 1840” (Littlewood), for “Done at Waitangi on the Sixth day of February in the year of our Lord One Thousand Eight Hundred & Forty” (Clendon), was in all probability due to a simple copying error."

That Busby was the author of the text had been confirmed in 2000, by Dr Phil Parkinson, a treaty researcher at National Archives.

I read about the Littlewood text in the December-January 2004 issue of Investigate magazine. The article, titled “End of the Golden Gravy Train”. It was around that time, on January 27, 2004, that the then National Party leader, Don Brash, delivered his first Orewa speech expressing opposition to perceived "Maori racial separatism" in New Zealand. National gained 17 percentage points in the February 2004 Colmar Brunton poll for Television New Zealand, taken shortly after the speech,

The Investigate report laid out the debate – that British Resident James Busby wrote the draft on February 4, 1840, since Hobson was ill aboard his ship, that he wrote on a single sheet of paper bearing an 1830s watermark – “W. Tucker 1833”, and included photographic comparisons of his handwriting, especially showing the mispelling of “sovreignty”. That final draft was translated into Maori and that was the text that was discussed at Waitangi on February 5, and signed on February 6.

No official English version of the treaty was produced. The printed Maori text remains the only official treaty document ever published. Once the treaty was signed, Clendon, in his capacity as U.S. Consul, had a duty to inform the U.S. State Department of developments, and provide copies of documents. He had been involved in some of the treaty drafting, so in the absence of an English final version, used his notes from February 4 to create what he called a “translation”, Doutré wrote.

One “royal style” composite version was put together by James Stuart Freeman from the rough draft notes and sent to the New South Wales Governor Sir George Gipps on February 8. He sent a further “certified copy” composite version, with three printed Maori copies, to Gipps on February 21. That version, with its grandiose language and inclusion of the words that includes the words “pre-emption”, “Lands and Estates”, “Forests”, and “Fisheries”, gradually supplanted the Maori text.

In the Investigate report, Doutré said that the version used to draft the 1975 Treaty of Waitangi Act was the “royal style” version based on Busby’s rejected February 3 draft, which omitted a reference in Article 2 to “all the people of New Zealand”, which effectively wrote all non-Maori New Zealanders out of the treaty, and added to Article 2 the words “the full exclusive and undisturbed possession of their Lands and Estates, Forests, Fisheries and other properties”, which created a treaty basis for claims to fishing resources and forestry.

A couple of years later, I came across a number of Busby’s letters at National Archives while researching the book The First Colonist, about resident magistrate Samuel Deighton. The Littlewood document was on display in the vault there so I checked for similarity in handwriting, since Busby was the purported author. It looked like, to my untrained eye, the same handwriting on the same paper.

The difference in wording between the official English version and the Maori version has posed a problem, especially since the Fourth Labour Government allowed investigation of alleged treaty breaches back to 1840. Historian Ruth Ross had noted, in her 1972 article “Te Tiriti o Waitangi: Texts and Translations”, that the English text used by Henry Williams as the starting-point for the creation of the Maori text “unfortunately ... does not appear to have survived”. Interest in the treaty escalated once the Bolger National Government put money on the table for settlements.

In his review, Loveridge enlarged upon his 1993 memo and concluded that Doutré did not provide conclusive evidence that the Littlewood document was the long-lost final English draft of the Treaty of Waitangi, or a copy of it.

Although he had noted the similarity with the Clendon text when he was first aware of the Littlewood document in 1992, he asserted there was more evidence that it was a back translation of the Maori text of the treaty, especially because Clendon said it was.

He said that Doutré had “not provided satisfactory explanations for the lack of any evidence that Governor Hobson, James Busby, Henry Williams or James R. Clendon ever stated or implied that the ‘official’ English text dated Feb. 6th, 1840, was not the one which provided the basis for the Maori text.”

Loveridge agreed with Parkinson’s proposal that these ‘Feb. 5th’ English texts, of which one was given to Clendon, which he passed on to the American Secretary of State describing it as “an official copy of the Translation of the Treaty with the Native Chiefs”, rather than being copying errors of some kind, actually incorporate the text of the final English draft, although he acknowledged that both the actual document sent to Henry Williams, as well as the official reference copy” have not survived.

Loveridge added that if Dr. Parkinson’s proposal concerning the “Feb. 5th” English texts was correct “then there is no longer any need to go looking for a ‘lost’ English draft of the Treaty. It has indeed been ‘preserved in the archives of the colony all along.”

Loveridge did point to a 1972 article by Ruth Ross, titled “Texts and Translations”, in which she noted the existence of “five English versions” which “Hobson forwarded ... to his superiors in Sydney or London”. One of these omits the words “Estates, Forests, Fisheries” from the second article. There is no indication any scholarship has been done to match that version to the official Maori text.

Loveridge's final point was that one could only concur that the Littlewood document “is of historical interest but is of no constitutional significance.”

Doutré responded that: “the limited scope of Dr. Loveridge's study, however, coupled with his lack of documented evidence and heavy reliance on "suppositions" to prove historical points, is insufficient to lead to his final conclusion.”

Loveridge’s claim that the Littlewood document was a back translation does not make sense, in my view, when compared with an actual back translation, reproduced in Appendix 2 below, that was made in 1869. The phrasing in the Littlewood document is more precise and lacks the awkward childishness and apparent grasping for appropriate words shown in the 1869 back translation.

Doutré’s main point, however, was not whether or not the Littlewood document was the lost final English-language draft of the treaty. His main point was that the legal treaty document is and always has been the Maori language version – which ihappens to be a perfect translation of the Littlewood text.

Is there constitutional significance? The answer is yes, in a sense. It refocuses attention on the Maori language legal Te Tiriti o Waitangi document, in which:
1. The preamble is clear that the purpose of the treaty is to cede sovereignty.
2. The preamble is also clear that the treaty is for the protection of British subjects living in New Zealand as well as for Maori inhabitants. It had to be that way otherwise it would have provoked vehement opposition from settler landowners.
3. Article 1 cedes forever the entire sovereignty of the country to the Queen.
4. Article 2 guarantees to “the chiefs and tribes and to all the people of New Zealand the possession of their lands, dwellings and all their property”.
5. In Article 2, the Chiefs grant the Queen the exclusive right of purchasing such land as the proprietors thereof may be disposed to sell at such prices as shall be agreed upon between them and the persons appointed by the Queen to purchase from them.
6. Article 3 states that in return for the cession of sovereignty to the Queen, the people of New Zealand shall be protected by the Queen of England and the rights and privileges of British subjects shall be granted to them.
7. There are no “forests”, “fisheries”, and the word “pre-emption” does not appear.

Of course there are the arguments over the use of the words “kawanatanga” and “tino rangitiratanga” in the Maori text to convey the word “sovereignty”, and there has been heavy debate on the extent of chiefly understanding as to what they were signing. These claimed difficulties quickly subside, however, if you take the time to read some of the large amount of material that was written at that time. The chiefs were neither ignorant nor simple. They knew exactly what they were doing and were looking ahead to a brighter future.

It took four years to get a brief professional opinion and 17 years to get an official evaluation of the document. Was the delay a result of professional historians being asleep on the job, or was there a policy of silence? It certainly would not have helped the beneficiaries of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 to have the fundamentals of the treaty discussed in open debate while the deal was being negotiated.

It is possible the government does not want to shine too bright a light on two decades of inept treaty policy and official blundering.

Sometimes amateur historians come up with gems, a National Archives staff member once encouragingly told me. Martin Doutré has indeed done that. If you overlook the somewhat expressive typography of his book, he has assembled the relevant documents, constructed a timeline, presented an argument, and sparked a national debate that has yet to be resolved.

Sources
The Littlewood Treaty – The True English Text of the Treaty of Waitangi Found, Martin Doutre, De Danann Publishers, Auckland, 2005
The “Littlewood Treaty”: An Appraisal of Texts and Interpretations, Dr. Donald M. Loveridge, Wellington, 2006. http://www.victoria.ac.nz/stout-centre/research-units/towru/Publications/Loveridge-Littlewood-1May2006.pdf
MARTIN DOUTRE'S RESPONSE TO DR. DONALD LOVERIDGE'S ARTICLE
14th of July 2006.
The Treaty of Waitangi, Claudia Orange, Bridget Williams Books Ltd, Wellington, 1987

Appendix 1
The Littlewood text

Her Majesty Victoria, Queen of England in Her gracious consideration for the chiefs and people of New Zealand, and her desire to preserve to them their land and to maintain peace and order amongst them, has been pleased to appoint an officer to treat with them for the cession of Sovreignty (sic) of their country and of the islands adjacent to the Queen. Seeing that many of Her Majesty’s subjects have already settled in the country and are constantly arriving: And that it is desirable for their protection as well as the protection of the natives to establish a government amongst them.

Her Majesty has accordingly been pleased to appoint me William Hobson a captain in the Royal Navy to be Governor of such parts of New Zealand as may now or hereafter be ceided (sic) to Her Majesty and proposes to the chiefs of the Confederation of the United Tribes of New Zealand and the other chiefs to agree to the following articles.-

Article first
The chiefs of the Confederation of the United Tribes of New Zealand and the other chiefs who have not joined the confederation, cede to the Queen of England for ever the entire sovereignty (sic) of their country.

Article second
The Queen of England confirms and guarantees to the chiefs and tribes and to all the people of New Zealand the possession of their lands, dwellings and all their property. But the chiefs of the Confederation and the other chiefs grant to the chiefs (crossed out) Queen the exclusive right of purchasing such land as the proprietors thereof may be disposed to sell at such prices as shall be agreed upon between them and the persons appointed by the Queen to purchase from them.

Article third
In return for the cession of sovreignty (sic) to the Queen, the people of New Zealand shall be protected by the Queen of England and the rights and privileges of British subjects shall be granted to them.-

Signed,
William Hobson
Consul and Lieut. Governor

Now we the chiefs of the Confederation of the United Tribes of New Zealand being assembled at Waitangi, and we the other chiefs of New Zealand having understood the meaning of these articles, accept them and agree to them all.
In witness whereof our names or marks are affixed.
Done at Waitangi on the
4th Feb. 1840.-

Appendix 2
An 1869 translation from the original Maori by Mr T.E. Young of the Native Department.

Victoria, Queen of England, in her kind thoughtfulness to the Chiefs and Hapus of New Zealand, and her desire to preserve to them their chieftainship and their land, and that peace may always be kept with them and quietness, she has thought it a right thing that a chief should be sent here as a negotiator with the Maoris of New Zealand -- that the Maoris of New Zealand may consent to the Government of the Queen of all parts of this land and the islands, because there are many people of her tribe that have settled on this land and are coming hither.

Now the Queen is desirous to establish the Government, that evil may not come to the Maoris and the Europeans who are living here without law.

Now the Queen has been pleased to send me, William Hobson, a Captain of the Royal Navy, to be Governor to all the places of New Zealand which may be given up now or hereafter to the Queen, an he give forth to the Chiefs of the Assembly of the Hapus of New Zealand and other chiefs the laws spoken here.

The First
The Chiefs of the Assembly, and all Chiefs also who have not joined the Assembly, give up entirely to the Queen of England for ever all the Government of their lands.

The Second
The Queen of England arranges and agrees to give to the chiefs and Hapus and all the people of New Zealand, the full chieftainship of their lands, their settlements and their property. But the Chiefs of the Assembly and all the other Chiefs, gives to the Queen the purchase of those pieces of land which the proprietors may wish, for such payment as may be agreed upon by them and the purchaser who is appointed by the Queen to be her purchaser.

The Third
This is an arrangement for the consent to the Government of the Queen. The Queen of England will protect all the Maoris of New Zealand. All the rights will be given to them the same as her doings to the people of England.

William Hobson
Consul and Lieutenant Governor

Now we the Chiefs of the Assembly of the Hapus of New Zealand, now assembled at Waitangi. We also, the chiefs of New Zealand, see the meaning of these words: they are taken and consented to altogether by us. Therefore are affixed our names and marks.

This done at Waitangi, on the sixth day of February, in the year one thousand eight hundred and forty, of Our Lord.