Mike Butler: Is treaty confusion deliberate?

A stumble by incoming Prime Minister Chris Hipkins in response to a request from a reporter to name all three of the Treaty of Waitangi articles during his first press conference illustrates the confusion that extends to the highest level.

After an um and an ah, he said "We have Kawanatanga, Tino Rangatiratanga, and, actually no, I can't remember the other, sorry." (1)

Former Prime Minister Jacinda Ardern faced the same question in 2019 and could only say “kawanatanga”, and “tino rangatiratanga” after prompting from Labour MP Willie Jackson.

However, reciting the words “kawanatanga” and “tino rangatiratanga” like some kind of sacred mantra does not show any understanding of the treaty at all.

The reporter in the Newshub article gave the official explanation as posted on the Waitangi Tribunal website, which was that:

In the Māori text of article 1, Māori gave the British 'kawanatanga', the right of governance, whereas in the English text, Māori ceded 'sovereignty'.

In Article 2, the Māori version uses the word 'rangatiratanga' in promising to uphold the authority that tribes had always had over their lands and taonga. This choice of wording emphasised status and authority, the Waitangi Tribunal explains. Whereas in the English text, Māori were guaranteed the undisturbed possession of their properties, including their lands, forests, and fisheries, for as long as they wished to retain them. This text emphasises property and ownership rights. (1)

However, this explanation is contradicted by the actual words of the treaty, both in English and in Maori. I wondered when and how the meaning of the treaty was changed so I did some research. Some of that research was published in The Treaty- Basic Facts.(2)

The first treaty text I saw was more than 50 years ago, on the wall in the stairwell of the old Alexander Turnbull Library in Bowen St, Wellington.

All I recall noticing were the words “lands and estates forests fisheries” and “exclusive right of pre-emption”.

Back then, all we had was that text in English with its legalistic phrasing and the rat-eaten document in Maori bearing the chiefly marks of agreement.

At that time in Wellington, sporadic graffiti said “Honour the treaty”. A march from the Far North in 1975, declaring that "not one more acre of Maori land" would be sold, arrived in Wellington three days after a Labour government passed the Treaty of Waitangi Act.

This set up the Waitangi Tribunal to investigate and make recommendations about Maori grievances. That tribunal was foolishly given the sole authority to “interpret” the treaty.

And interpret they did. A reinterpretation that was promoted as a “translation” of Te Tiriti o Waitangi done by Waitangi Tribunal member Sir Hugh Kawharu was referred to in an Appeal Court judgement titled New Zealand Maori Council v Attorney General 1987.

That “translation” was when the treaty was changed from an agreement through which Britain annexed the territory of New Zealand, to the “kawanatanga” and “tino rangatiratanga” we see today.

To be clear, the Kawharu interpretation is a “what the chiefs might have understood” version of the treaty. That interpretation ignored substantial evidence that undermined his radical beliefs. That evidence was what the chiefs actually said during the treaty debate on February 5, 1840.

I have become accustomed to look closely at texts, courtesy of a BA in English Literature and a Diploma in Religious Education which involved reading and studying the entire Bible using the historical criticism approach.

To understand what was communicated between representatives of the British Crown and chiefs in 1840, a helpful first step is to put the source text, being the final draft in English, and the Maori text side, by side to see what translates what.

After all, the treaty was drafted in English and translated into Maori. In Article 1 of the treaty that was drafted and debated in 1840, the word “kawanatanga” was used to translate “sovereignty”.

In Article 2, the words “tino rangatiratanga” was used to translate “complete possession”.

Kawharu ignored that and declared that that the chiefs might have understood “kawanatanga” as meaning “government” and “tino rangatiratanga” as “ ‘unqualified exercise' of the chieftainship”.

Eleven footnotes expand on the words Kawharu’s used in his “translation” to create a treaty in which chiefs allegedly only agreed to a governor to govern settlers while chiefs could carry on being chiefs.

For instance, footnote seven, explains that “unqualified exercise' of the chieftainship would emphasise to a chief the Queen's intention to give them complete control according to their customs”.

Kawharu ignores the inconvenient fact that accounts of the treaty debate written by eye-witnesses much closer to the time of the debate that a number of chiefs vehemently disagreed with having a governor over them. (3)

That would indicate to a fair-minded reader that chiefs at the time understood very clearly the implications of ceding sovereignty.

In other words, while the benefits of the treaty would be protection, rights as British subjects, and access to all the benefits of the developed world, the cost would be that they would have a chief over them.

Considering that the governor and subsequent governments have controlled New Zealand since 1840, the “governor was to govern settlers only” view is nonsense.

Substantial differences between the document referred to as the official English text and Te Tiriti prompted treaty scholars such as Ruth Ross to conclude that the original draft had gone missing. (4)

A handwritten treaty text was found in 1989 in a drawer in Pukekohe. (5)

This document has just one word that differs from Te Tiriti and that is the addition of the word “Maori” in Article 3 to clarify that the Maori people of New Zealand would be given protection and the rights of British subjects. Non-Maori people living in New Zealand at that time were mostly Brits who already benefitted from such rights and protection that being a British subject entitled them to.

The document which could be identified as the Busby February 4, 1840, draft or the Littlewood treaty (since it belonged to the Littlewood family), has been confirmed as being written by British Resident James Busby on paper that was used by US Consul James Reddy Clendon at the time.

I saw that document on display in the Constitution Room at the old National Archives building in Wellington in 2006 when I was going through a box of Busby’s papers while researching a book on my great grandfather titled The First Colonist.

The Littlewood Treaty was on display there until 2017 when a new “founding documents” exhibition was limited to nine signed sheets of Te Tiriti, the 1835 Declaration of Independence of the United Tribes of New Zealand, and the 1893 Women’s Suffrage Petition.

Since 2017, the Littlewood Treaty has been stored out of sight.

No one with any official capacity wanted to know anything about the Busby February 4 draft. The Treaty House ignored it in 1989, and National Archives had to be pushed to display it. Handwritinf wasn’t confirmed as Busby’s until 2000. The first official appraisal was in 2006.

When approached by the New Zealand Herald in 1992, the Minister of Internal Affairs, Graeme Lee, said “it does not change the Treaty of Waitangi” although he did say that “because it has the omission on Article 2 of the fisheries and forests it certainly becomes a little more significant”. (6)

The Littlewood Treaty has become a hot potato. The government employee who confirmed that Busby wrote it said it was a “back translation”, as did historian Claudia Orange.

Another Internal Affairs Minister used the “racist” word when some questioned why the Littlewood Treaty was left out of the He Tohu display.

Another inconvenient fact is that Clendon fulfilled his responsibilities as United States Consul by informing the US government of the treaty and in so doing sent transcriptions of the Busby February 4 draft (with February 6 written in as the signing date) both on February 20, 1840, and April 3 that year. (7)

At the end of the day, any assertion by a Prime Minister of New Zealand that one article of the treaty is “kawanatanga” and another is “tino rangatiratanga” shows more about their ignorance of the treaty.

If they want a soundbite version of the treaty, one was provided by Canterbury University law lecturer David Round, who wrote “all the Treaty actually says is that the Queen is sovereign and Maori are her subjects, with the rights of subjects, including possession of property. That is all, in both English and Maori versions. Since then, moreover, the Queen and her successors have exercised sovereignty for over one and a half centuries.” (8)

Incidentally, in the first version of the Newshub story, the reporter confused the treaty’s three articles with “treaty principles” of which I have seen 13 separate lists. (9) Although the story has since been cleaned up, proof of this confusion remains in the online identifier of the story.

With two different treaty meanings, it looks like we have have been talking past each other since the 1980s. Is this confusion a long-running saga of incompetence or has it been a deliberate strategy?

One clue may be to do with the amount of money that has changed hands under “treaty obligations”. Another clue may be to do with who has benefited most.

Here are the full texts of the Busby February 4 draft and Te Tiriti for you to brush up on your te reo and compare (although an online dictionary and common sense may suffice). You may also compare what you see with the Newshub reporter’s version of the official meaning of the treaty.

The Busby February 4, 1840, document
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.

Te Tiriti o Waitangi
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 Rangitira 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 Waitangi i te ono o nga ra o Pepueri i te tau kotahi mano, e waru rau e wa te kau o to tatou Ariki.

Sources
1. Chris Hipkins unable to name all three treaty of Waitangi principles. https://www.newshub.co.nz/home/politics/2023/01/chris-hipkins-unable-to-name-all-three-treaty-of-waitangi-principles-while-christopher-luxon-can.html?fbclid=IwAR0a1YTqXlu36WYoGl1pind9VHiKtEppcX3GqnXi8QxROuzskLio-1GbHvE
2. Butler, Mike. The Treaty – Basic Facts, Tross Publishing 2021. https://trosspublishing.co.nz/publication/the-treaty-basic-facts
3. Colenso, William, The Authentic and Genuine History of the Signing of the Treaty of Waitangi, https://waitangi.com/colenso/colhis1.html
4. Ross, Ruth. Te Tiriti Texts and Translations, 1972.
5. Doutre, Martin. The Littlewood Treaty, De Danann Publishers 2005.
6. Draft puzzles experts, NZ Herald, September 11, 1992.
7. Littlewood text appraisal reviewed. https://breakingviewsnz.blogspot.com/2010/05/mike-butler-lost-treaty-draft-and-race.html
8. Round, David. Truth or Treaty? Canterbury University Press, 1998.
9. Justice Robin Cooke elucidated a set of six treaty principles in NZ Maori Council v Attorney General 1987.