Mike Butler: Fudged treaty push, part 2

Here is one article that shows the meaning of the Maori text of the Treaty of Waitangi, the three exact differences between the Maori text and the so-called Littlewood Treaty as a document written by British Resident James Busby on February 4, 1840, has come to be known. By reading the official English text and the Kawharu redefined treaty, reproduced below, every reader of this article will be able to cut through a lot of the fog around the treaty.

The treaty is a three-paragraph agreement with a preamble and a post-script signed by Governor William Hobson on behalf of Queen Victoria of Great Britain and 512 chiefs at 34 locations around New Zealand between February 6 and May 21, 1840. All but 39 chiefs signed the Maori language text.

Busby February 4 document
The English-language text that is closest to the Maori-language version signed by most chiefs, is the Busby February document, that is held at National Archives in Wellington. An expert paid by the government to evaluate the text said it was either the missing final draft or a translation of the Maori text. It states:

Preamble
HER MAJESTY VICTORIA, Queen of England in her gracious consideration for the chiefs and people of New Zealand, and her desire to preserve 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 the Sovreignty [sic] of their country and of the islands adjacent to the Queen. Seeing that already 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 ceded to Her Majesty and proposes to the chiefs of the Confederation of 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 and the other chiefs who have not joined the confederation, cede to the Queen of England for ever the entire Sovreignty [sic] of their country.

Article second
The Queen of England confirms and guarantees to the chiefs and the 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 of United Tribes and the other chiefs grant to the Queen, the exclusive rights of purchasing such lands as the proprietors thereof may be disposed to sell at such prices as may be agreed upon between them and the person appointed by the Queen to purchase from them.

Article third
In return for the cession of their 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 will be granted to them. "Signed, William Hobson Consul and Lieut. Governor.

Now we the chiefs of the Confederation of United Tribes of New Zealand assembled at Waitangi, and we the other tribes 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 of February, 1840. (1)

Busby February 4 document versus Te Tiriti
There are four differences between Busby February 4 document and the Maori text of Te Tiriti o Waitangi, reproduced next. In the Preamble, the Busby document says "the people of New Zealand" and “desire to preserve them their land”, while Te Tiriti says "hapu o Nu Tirani" (hapu of New Zealand) and uses the word “rangatiratanga” in reference to ownership of land.

In Article 3, the Busby document says "the people of New Zealand", while Te Tiriti says "all Maori people of NZ" . In fact the Tiriti o Waitangi Preamble and Third Article states "tangata maori" not “tangata whenua”. There is no reference to “tangata whenua” in the treaty

Article 2 has no variation. Both the Busby February 4 document and Te Tiriti say “The Queen of England confirms and guarantees to the chiefs and the tribes and to all the people of New Zealand, the possession of their lands, dwellings and all their property”.

These refinements to Article 2 were made as a result of the influence of Englishman James Clendon who, as American consul, was concerned about protecting interests in 28 known onshore whaling stations, mostly owned by Americans, as well as interests in large tracts of land, businesses and investments owned by people other than Maori or British.

Te Tiriti o Waitangi
The treaty was drafted in English and translated into Maori. A draft of the treaty written by Busby on February 3 includes the phrases “Lands and Estates, Forests, Fisheries, and other properties”, plus “exclusive right of Preemption” in article 2, and guarantees property ownership to chiefs and tribes only and excludes everyone else.

This text resembles treaty versions used by New South Wales Governor Sir George Gipps in Australia in negotiation with South Island chiefs there on a land-sale mission. It appears Hobson brought such a draft with him that was modified to communicate best with Maori chiefs. None of these aspects appear in Te Tiriti. Hobson approved the final draft and missionary Henry Williams and his son carefully translated the text from English to Maori.

On February 5, 1840, at Waitangi, Hobson read the English language text of the treaty, missionary Henry Williams read the Maori text, and during the subsequent debate involving numerous people fluent in English and Maori, there was no clamour about gross discrepancies between the English and Maori texts. The English text signed by 39 chiefs at Waikato Heads and Manukau in April 1840 was used because a Maori text was not available.

Preamble
Ko Wikitoria, te Kuini o Ingarani, i tana mahara atawai ki nga Rangatira me nga Hapu o Nu Tirani i tana hiahia hoki kia tohungia ki a ratou o ratou rangatiratanga, me to ratou wenua, a kia mau tonu hoki te Rongo ki a ratou me te Atanoho hoki kua wakaaro ia he mea tika kia tukua mai tetahi Rangatira hei kai wakarite ki nga Tangata maori o Nu Tirani-kia wakaaetia e nga Rangatira maori te Kawanatanga o te Kuini ki nga wahikatoa o te Wenua nei me nga Motu-na te mea hoki he tokomaha ke nga tangata o tona Iwi Kua noho ki tenei wenua, a e haere mai nei. Na ko te Kuini e hiahia ana kia wakaritea te Kawanatanga kia kaua ai nga kino e puta mai ki te tangata Maori ki te Pakeha e noho ture kore ana. Na, kua pai te Kuini kia tukua a hau a Wiremu Hopihona he Kapitana i te Roiara Nawi hei Kawana mo nga wahi katoa o Nu Tirani e tukua aianei, amua atu ki te Kuini e mea atu ana ia ki nga Rangatira o te wakaminenga o nga hapu o Nu Tirani me era Rangatira atu enei ture ka korerotia nei.

Ko te Tuatahi
Ko nga Rangatira o te Wakaminenga me nga Rangatira katoa hoki ki hai i uru ki taua wakaminenga ka tuku rawa atu ki te Kuini o Ingarani ake tonu atu-te Kawanatanga katoa o o ratou wenua.

Ko te Tuarua
Ko te Kuini o Ingarani ka wakarite ka wakaae ki nga Rangatira ki nga hapu-ki nga tangata katoa o Nu Tirani te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa. Otiia ko nga Rangatira o te Wakaminenga me nga Rangatira katoa atu ka tuku ki te Kuini te hokonga o era wahi wenua e pai ai te tangata nona te Wenua-ki te ritenga o te utu e wakaritea ai e ratou ko te kai hoko e meatia nei e te Kuini hei kai hoko mona.

Ko te Tuatoru
Hei wakaritenga mai hoki tenei mo te wakaaetanga ki te Kawanatanga o te Kuini-Ka tiakina e te Kuini o Ingarani nga tangata maori katoa o Nu Tirani ka tukua ki a ratou nga tikanga katoa rite tahi ki ana mea ki nga tangata o Ingarani. (Signed) William Hobson, Consul and Lieutenant-Governor.

Na ko matou ko nga Rangatira o te Wakaminenga o nga hapu o Nu Tirani ka huihui nei ki Waitangi ko matou hoki ko nga Rangatira o Nu Tirani ka kite nei i te ritenga o enei kupu, ka tangohia ka wakaaetia katoatia e matou, koia ka tohungia ai o matou ingoa o matou tohu. Ka meatia tenei ki Waiangi i te ono o nga ra o Pepueri i te tau kotahi mano, e waru rau e wa te kau o to tatou Ariki. Ko nga Rangatira o te wakaminenga. (2)

Official English text
In the days before photocopiers and email, all copying was done by hand and secretaries were chosen for the neatness of the writing. Possibly in the absence of clear direction and having an abundance of discarded drafts, Hobson's secretary James Stuart Freeman created a composite version, put together by from the rough draft notes, which he sent to Gipps on February 8. He sent a further “certified copy” composite version, with three printed Maori copies, to Gipps on February 21.

Preamble
HER MAJESTY VICTORIA Queen of the United Kingdom of Great Britain and Ireland regarding with Her Royal Favour the Native Chiefs and Tribes of New Zealand and anxious to protect their just Rights and Property and to secure to them the enjoyment of Peace and Good Order has deemed it necessary in consequence of the great number of Her Majesty's Subjects who have already settled in New Zealand and the rapid extension of Emigration both from Europe and Australia which is still in progress to constitute and appoint a functionary properly authorized to treat with the Aborigines of New Zealand for the recognition of Her Majesty's Sovereign authority over the whole or any part of those islands – Her Majesty therefore being desirous to establish a settled form of Civil Government with a view to avert the evil consequences which must result from the absence of the necessary Laws and Institutions alike to the native population and to Her subjects has been graciously pleased to empower and to authorize me William Hobson a Captain in Her Majesty's Royal Navy Consul and Lieutenant Governor of such parts of New Zealand as may be or hereafter shall be ceded to her Majesty to invite the confederated and independent Chiefs of New Zealand to concur in the following Articles and Conditions.

Article the First
The Chiefs of the Confederation of the United Tribes of New Zealand and the separate and independent Chiefs who have not become members of the Confederation cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty which the said Confederation or Individual Chiefs respectively exercise or possess, or may be supposed to exercise or to possess over their respective Territories as the sole Sovereigns thereof.

Article the Second
Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession; but the Chiefs of the United Tribes and the individual Chiefs yield to Her Majesty the exclusive right of Preemption over such lands as the proprietors thereof may be disposed to alienate at such prices as may be agreed upon between the respective Proprietors and persons appointed by Her Majesty to treat with them in that behalf.

Article the Third
In consideration thereof Her Majesty the Queen of England extends to the Natives of New Zealand Her royal protection and imparts to them all the Rights and Privileges of British Subjects. W HOBSON Lieutenant Governor.

Now therefore We the Chiefs of the Confederation of the United Tribes of New Zealand being assembled in Congress at Victoria in Waitangi and We the Separate and Independent Chiefs of New Zealand claiming authority over the Tribes and Territories which are specified after our respective names, having been made fully to understand the Provisions of the foregoing Treaty, accept and enter into the same in the full spirit and meaning thereof: in witness of which we have attached our signatures or marks at the places and the dates respectively specified.

Done at Waitangi this Sixth day of February in the year of Our Lord One thousand eight hundred and forty. (3)

What became of the final draft?
In the paper trail, has any evidence survived that would indicate that the Busby February 4 document was the missing draft? As U.S. Consul, Clendon, who was involved in drafting the treaty, was obliged to keep the U.S. Government informed of developments. Therefore, what versions of the treaty did he include in dispatches?

Surprisingly, on February 20, 1840, Clendon sent to the United States a transcription of the Busby February 4 draft, that he described as a “translation”, plus a copy of the treaty, in Maori, plus a covering letter. (4) The only difference from the Busby February 4 document is that the last line reads “Done at Waitangi on the Sixth day of February in the year of our Lord One Thousand Eight Hundred & Forty”, instead of the “Done at Waitangi on the 4th Feb. 1840”.

Treaty resurrected
The treaty became a relic of days gone by as New Zealand progressed from stone age to space age until bi-culturalists redefined two words in Te Tiriti – “kawanatanga” and “rangatiratanga” to create a treaty that confirms Maori sovereignty over all things Maori while giving to the Crown limited power to control new settlers.

That view was sufficiently known in 1989 among “social justice” proponents, when the Conference of the Methodist Church passed a “tino rangatiratanga” resolution. The resolution was in two parts. The first expressed "full and unqualified support for 'te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa' o nga iwi Maori as expressed in Article 2 of the Te Tiriti o Waitangi (Maori Version)". The second expressed the concern of the Conference at the continued erosion of te tino rangatiratanga by successive governments and the Courts since 1840. (5)

This Methodist committee argued "the Maori version of the Treaty of Waitangi clearly confirmed tino rangatiratanga or Maori sovereignty over all things Maori". The committee also argued that "in 1840 Maori had no desire and no need to give away their tino rangatiratanga. What they gave to the Crown was limited power, to control new settlers".

Cited in the bibliography of the Joint Methodist Presbyterian Public Questions Committee paper titled “Tino rangatiratanga” are papers by activist and wananga teacher Moana Jackson, who is currently involved in the Independent Iwi Constitutional Working Group, academic Jane Kelsey, activist singer Moana Maniopoto-Jackson, and Methodist minister Reverend John Salmon.

The people who formulated this argument failed to think that the Maori Te Tiriti was a translation of concepts drafted in English, as shown in the two texts reproduced below. They also failed to check to see that the word “kawanatanga” translated “sovereignty” and the word “rangatiratanga” translated “possession”.

Kawharu translation
The following translation of the Māori text of the Treaty was done by former Tribunal member Professor Sir Hugh Kawharu.

Preamble
Victoria, the Queen of England, in her concern to protect the chiefs and the subtribes of New Zealand and in her desire to preserve their chieftainship1 and their lands to them and to maintain peace2 and good order considers it just to appoint an administrator3one who will negotiate with the people of New Zealand to the end that their chiefs will agree to the Queen's Government being established over all parts of this land and (adjoining) islands4 and also because there are many of her subjects already living on this land and others yet to come. So the Queen desires to establish a government so that no evil will come to Māori and European living in a state of lawlessness. So the Queen has appointed ‘me, William Hobson a Captain’ in the Royal Navy to be Governor for all parts of New Zealand (both those) shortly to be received by the Queen and (those) to be received hereafter and presents5 to the chiefs of the Confederation chiefs of the subtribes of New Zealand and other chiefs these laws set out here.

The first
The Chiefs of the Confederation and all the Chiefs who have not joined that Confederation give absolutely to the Queen of England for ever the complete government6 over their land.

The second
The Queen of England agrees to protect the chiefs, the subtribes and all the people of New Zealand in the unqualified exercise7 of their chieftainship over their lands, villages and all their treasures.8 But on the other hand the Chiefs of the Confederation and all the Chiefs will sell9 land to the Queen at a price agreed to by the person owning it and by the person buying it (the latter being) appointed by the Queen as her purchase agent.

The third
For this agreed arrangement therefore concerning the Government of the Queen, the Queen of England will protect all the ordinary people of New Zealand and will give them the same rights and duties10 of citizenship as the people of England.11 [signed] William Hobson Consul & Lieut Governor

So we, the Chiefs of the Confederation of the subtribes of New Zealand meeting here at Waitangi having seen the shape of these words which we accept and agree to record our names and our marks thus.

Was done at Waitangi on the sixth of February in the year of our Lord 1840.

Footnotes
1. ‘Chieftainship’: this concept has to be understood in the context of Mäori social and political organisation as at 1840. The accepted approximation today is ‘trusteeship’.↑
2. ‘Peace’: Māori ‘Rongo’, seemingly a missionary usage (rongo – to hear: ie, hear the ‘Word’ – the ‘message’ of peace and goodwill, etc).↑
3. Literally ‘Chief’ (‘Rangatira’) here is of course ambiguous. Clearly, a European could not be a Māori, but the word could well have implied a trustee-like role rather than that of a mere ‘functionary’. Māori speeches at Waitangi in 1840 refer to Hobson being or becoming a ‘father’ for the Māori people. Certainly this attitude has been held towards the person of the Crown down to the present day – hence the continued expectations and commitments entailed in the Treaty.↑
4. ‘Islands’: ie, coastal, not of the Pacific.↑
5. Literally ‘making’: ie, ‘offering’ or ‘saying’ – but not ‘inviting to concur’.↑
6. ‘Government’: ‘kawanatanga’. There could be no possibility of the Māori signatories having any understanding of government in the sense of ‘sovereignty’: ie, any understanding on the basis of experience or cultural precedent.↑
7. ‘Unqualified exercise’ of the chieftainship – would emphasise to a chief the Queen's intention to give them complete control according to their customs. ‘Tino’ has the connotation of ‘quintessential’.↑
8. ‘Treasures’: ‘taonga’. As submissions to the Waitangi Tribunal concerning the Māori language have made clear, ‘taonga’ refers to all dimensions of a tribal group's estate, material and non-material – heirlooms and wahi tapu (sacred places), ancestral lore and whakapapa (genealogies), etc.↑
9. Māori ‘hokonga’, literally ‘sale and purchase’. ‘Hoko’ means to buy or sell.↑
10. ‘Rights and duties’: Māori at Waitangi in 1840 refer to Hobson being or becoming a ‘father’ for the Māori people. Certainly, this attitude has been held towards the person of the Crown down to the present day – hence the continued expectations and commitments entailed in the Treaty.↑
11. There is, however, a more profound problem about ‘tikanga’. There is a real sense here of the Queen ‘protecting’ (ie, allowing the preservation of) the Māori people’s tikanga (ie, customs) since no Māori could have had any understanding whatever of British tikanga (ie, rights and duties of British subjects). This, then, reinforces the guarantees in article 2.↑ (6)

Churches push bicultural barrow
The Methodists were not alone in enthusiastic support of the great socialist scheme of taking from the rich (New Zealand taxpayer) and redistributing to the poor (tribal claimant). The Catholic Church has a well-developed “social justice” wing.

The Anglicans went a step further in dividing the New Zealand Anglican Church into three “tikanga” – Maori, Pacifika, and the rest. According to the revised Anglican constitution of 1992, each Anglican “tikanga” as the sub-groups are called, has its own language, church buildings, clergy and customs. This has led to triplication, such as three archbishops, and insufficient resources to cater for the three “tikanga”.

Maori self-determination specialist Whatarangi Winiata, a retired professor who was president of the Maori Party, designed this racially separate administrative set-up.

Littlewood treaty
A chance discovery of an envelope in a drawer in March 1989, the year the Methodists published their tino rangatiratanga statement, led to a challenge on the government’s revised orthodox views on treaty meaning.

John Littlewood and sister Beryl Needham found a hand-written Treaty of Waitangi text 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 Clendon, the U.S. consul mentioned above. This document became known as “the Littlewood treaty”. (7)

Beryl Needham took the document to her local MP Bill Birch, who suggested that she should take it to the Auckland Institute and Museum for analysis, which she did, where it stayed for a year. Treaty expert Claudia Orange looked at the document and provided information about Henry Littlewood.

Historian Donald Loveridge, who has worked for the Crown Forestry Rental Trust and treaty claimants, issued a memo on the document, in 1993, in response to a request from the Treaty Issues Team at the Crown Law Office, noting that the document "is virtually identical in all respects to the Clendon translation". (8)

That Busby was the author of the text had been confirmed in 2000, by Dr Phil Parkinson, a treaty researcher at National Archives. (9)

The Busby February 4 document, aka the Littlewood treaty, became the subject of an article titled “End of the Golden Gravy Train” in the December-January 2004 issue of Investigate magazine.

On January 27, 2004, National Party leader, Don Brash, delivered his first Orewa speech expressing opposition to perceived "Maori racial separatism" in New Zealand.

Loveridge appraisal
The Treaty of Waitangi Information Unit commissioned Loveridge to do a full appraisal in 2006 – 13 years after the document was found. The official disinterest in details of the treaty coincided with top-level negotiations that resulted in the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. (10)

In his appraisal, Loveridge re-stated his view the Busby February 4 document was a back translation of the Maori text of the treaty, especially because Clendon said it was.

He noted 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 that provided the basis for the Maori text. He asserted that there was no satisfactory explanation for absence of such evidence.

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.

But Loveridge also noted that "if Clendon’s description was not correct, however – for whatever reason – the possibility would remain that the date was used intentionally, and that the Littlewood document is in fact a copy of the missing draft”.

The other point to note, if the Busby February 4 document is a translation from the Maori Te Tiriti, it is by far the best translation, and if used, the need for “treaty principles” to reconcile differences would evaporate.

Conclusion
It is not my purpose to argue that the Busby February 4 document is the missing final draft. My purpose is to show the clear intent and meaning of the treaty in comparison with the two contradictory interpretations by presenting the Maori text and the closest English equivalent.

Do the discrepancies between the official English text and the Maori text pose a problem. The answer is yes! The “official” Freeman text is so problematic that the law lords of the Privy Council noted, in 2004, “even apart from translation difficulties, the English text of the Second Article could be recognised as likely to lead to disputes”. (11) We’ve seen enough of those disputes already.

Is this a big deal? Again, yes! The Waitangi Tribunal rates the “loss of rangatiratanga”, which includes the loss of resources, and the exclusion of Maori from the decision-making institutions, as the No. 1 grievance, ahead confiscations that rates No. 4 on a seven-point scale. This fabricated grievance has resulted in the payment of millions upon millions of dollars to happy claimants.

Am I over-stating the case? Not at all! Ask yourself, who wants a version of the Treaty of Waitangi that confirms Maori sovereignty over all things Maori while giving to the Crown limited power to control new settlers in a written constitution as superior law?

Sources

1. “End of the Golden Gravy Train” in the December-January 2004 issue of Investigate magazine.
2. Maori version of the Treaty of Waitangi, Waitangi Tribunal, http://www.waitangi-tribunal.govt.nz/treaty/maori.asp
3. English Version of the Treaty of Waitangi, Waitangi Tribunal, http://www.waitangi-tribunal.govt.nz/treaty/english.asp
4. Despatches from the US Consul in the Bay of Islands and Auckland, National Archives.
5. Tino Rangatiratanga, Joint Methodist Presbyterian Public Questions Committee, http://homepages.ihug.co.nz/~sai/Maori_tino.htm
6. Kawharu Translation, Waitangi Tribunal, http://www.waitangi-tribunal.govt.nz/treaty/kawharutranslation.asp
7. The end of the golden gravy train, Investigate Magazine, January 2004. http://www.investigatemagazine.com/jan4treaty.htm
8. 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
9. Ibid
10. Ibid
11. Crown Forestry Rental Trust Privy Council decision, February 25, 2004. http://www.raineycollins.co.nz/your-resources/articles/crown-forestry-rental-trust-privy-council-decision/