Roger Childs: A dishonest, inaccurate piece of legislation

The Compelling Need for a New Treaty Act

… the fastest legislature in the west. Geoffrey Palmer on the New Zealand Parliament

A classic example of what Palmer was referring to is the 1975 Treaty of Waitangi Act. The Act established the Waitangi Tribunal with powers to investigate and adjudicate on breaches of the 1840 Te Tiriti o Waitangi. However only Maori can make claims. A Maori is defined in the Act as “a person of the Maori race of New Zealand; and includes any descendant of such a person.”

But today scientists reject the concept of race – it is not a valid biological concept. All Maori New Zealanders are in fact part-Maori and the vast majority have more non-Maori blood than Polynesian.

The Treaty of Waitangi Act is inaccurate in many respects.  In the “Legislative Process” as set out in the New Zealand Parliamentary procedures, there are two tests for a bill which if passed and signed into law becomes an Act.

1.      Is the bill “fit for purpose”?

2.      Is it “deemed to be needed”?

One presumes that in deciding whether it is fit for purpose, the accuracy and honesty of what is intended is thoroughly checked by Crown legal experts and later dissected by legislators. However the lawyers and politicians have let the country down with the 1975 Treaty of Waitangi Act. For starters there is no reference to the actual 1840 Te Tiriti o Waitangi.

Consequently there is an urgent need to repeal the Act and replace it.

Many mistakes in the Treaty of Waitangi Act

You would think that the developers of the Act would have incorporated the only valid Treaty – the one first signed on 6 February 1840 and then later by over 500 Maori leaders around the country.

 This document had been translated into the Nga Puhi dialect by the expert Maori language scholars, missionaries Henry and Edward Williams, from James Busby’s English draft the night before local chiefs signed it at Waitangi. The Busby draft is the only valid “English version”, and is now known as the “Littlewood Treaty.

However the Waitangi Tribunal uses a different “treaty”, a variation of the unauthorised document devised in 1840 by James Freeman, William Hobson’s Secretary. He used flowery language in his version which he thought would be suitable for a Queen and produced a much longer document than the original. Freeman also made two crucial errors: he

·        added details that were not in Busby’s original draft

·        omitted or changed important references Busby had made.

Fortunately no Maori chiefs subsequently signed the “Freeman fraud.”

Errors in the Preamble of the Treaty of Waitangi Act wording

·        … a Treaty was entered into at Waitangi between Her late Majesty Queen Victoria and the Maori people of New Zealand.  There is no mention of “Maori people” in the original.

·       And whereas the text of the Treaty in the English language differs from the text of the Treaty in the Maori language … The texts are exactly the same. The English version (See the Littlewood Treaty section below), is Busby’s English draft which Henry and Edward Williams translated into the Nga Puhi dialect on 5 February 1840.

·       And whereas it is desirable that a Tribunal be established to make recommendations on claims relating to the practical application of the principles of the Treaty and, for that purpose, to determine its meaning and effect and whether certain matters are inconsistent with those principles. There were no principles in the original 1840 Treaty of Waitangi.

Mistakes in the wording of the Articles

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.

Freeman was very flowery and wordy here with more than twice the number of words of the original. The February 6 February Treaty simply said that the Chiefs “… cede to the Queen of England for ever the entire Sovereignty of their country.”

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;

The “Treaty” used by the Tribunal, based on Freeman’s document, omits in the second line from the original Treaty after “Chiefs and Tribes of New Zealand” and “to all the people of New Zealand”,  and substitutes to the respective families and individuals.

This dishonest omission has consequently allowed the Tribunal to rule out any claims non-Maori could have made: e.g. people such as the descendants of the 33 settlers murdered in 1868 by Te Kooti and his warriors at Matawhero, and the families of the 164 farmers who had their buildings burnt to the ground and livestock killed or taken.

Furthermore Freeman and the Tribunal added in Article 2 … Estates Forests Fisheries … property that was not included in the original Treaty.

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.

The phrase the Natives of New Zealand was not in the 1840 Treaty. The actual Article 3 stated that “… the people of New Zealand will be protected by the Queen of England and the rights and privileges of British subjects will be granted to them.”

 

Errors in the Waitangi Tribunal section of the 1975 Act

 

In considering the suitability of persons for appointment to the Tribunal, the Minister of Maori Affairs—

(a) shall have regard to the partnership between the 2 parties to the Treaty;

However “partnership” was not mentioned in the 1840 Treaty. The Treaty was between the British Crown and Chiefs and Tribes, and “all the people of New Zealand”

Jurisdiction of Tribunal to consider claims

(1) Where any Maori claims that he or she, or any group of Maoris of which he or she is a member, is or is likely to be prejudicially affected … 

This confirms that only Maori claims are considered.

Jurisdiction of Tribunal to consider proposed legislation

(1) The Tribunal shall examine any proposed legislation referred to it under subsection (2) and shall report whether, in its opinion, the provisions of the proposed legislation or any of them are contrary to the principles of the Treaty. 

But there were no principles in the 1840 Treaty.

The Littlewood Treaty: the true English draft for Te Tiriti

In 1840 Henry Littlewood was the lawyer for James Clendon, US Consul and a friend of James Busby and William Hobson. The draft for the Treaty which Henry and Edward Williams translated into the Nga Puhi dialect was written by Busby on 4 February, and the original of the draft somehow remained in Littlewood’s possession. Other previous notes and drafts had been discarded.

In 1989 members of the Littlewood family were sorting out the estate of their late mother and found it.

The Littlewood document has an impeccable and unimpeachable pedigree.

· It has the date February 4 on it.

· It has the exact wording in English of Te Tiriti o Waitangi.

· The paper has the watermark “W Tucker 1833”, a rare letterhead from James Clendon’s house, where the final draft was written.

· Phil Parkinson at New Zealand Archives testified in 2000 that in his view it was written by James Busby.

Clendon did his own copy and sent it to Washington DC and a second copy went back to the United States with Antarctic explorer Charles Wilkes.

The government, the Waitangi Tribunal and many historians do not recognize the Littlewood Treaty despite the certainty that it is the English version written by Busby on 4 February 1840.

ACT’s Treaty Principles Act

ACT says every child born in New Zealand, and everyone legal immigrant, has the same rights. Those are the rights of a citizen. Nobody should get an extra say because of who their great grandparents were. Nobody should have to be treated differently because of who they are. ACT leader, David Seymour

On 12 October 2023 the NZ Herald reported that a poll found that 60 percent of Kiwis backed ACT’s proposed principles for the Treaty of Waitangi, compared to just 18 percent opposed.

ACT believes the Treaty ought to be a document that unifies New Zealand. But in recent decades the courts and Waitangi Tribunal have used a twisted interpretation of the Treaty principles to push an agenda of co-governance and division.

ACT would bring a “Treaty Principles Act” to Parliament.

The Act would be short but decisive. It would define the Principles of the Treaty as:

1. All citizens of New Zealand have the same political rights and duties
2. All political authority comes from the people by democratic means including universal suffrage, regular and free elections with a secret ballot
3. New Zealand is a multi-ethnic liberal democracy where discrimination based on ethnicity is illegal.

The final wording of the Act may be a little different, but the emphasis will be on equality for all, true democracy and no discrimination on ethnic grounds.

If the majority support the ACT proposals in a referendum the Treaty Principles Act would become law, and subsequently the egregiously dishonest and inaccurate Treaty of Waitangi Act would need to be repealed and the racist Waitangi Tribunal phased out. These constitutional developments would end decades of injustice, dishonesty, division and inequality.

Roger Childs is a retired teacher who taught History, Social Studies and Geography for 40 years.