The two versions
Most of us know that there are two versions of the Treaty of Waitangi, the English version and the Maori version.
There are several inexplicable differences between the versions, especially in relation to important issues. Some of these anomalies have given rise to many Maori grievances based on breaches of the Treaty and to an ever-increasing pressure for the meaning of the Treaty to be reassessed and for the constitution of New Zealand to be fundamentally changed.
There appears to be two explanations of why the English text is so different to the Maori text. The first is that the English text was mistakenly taken from James Freeman’s “Royal style” English text, which he created by taking bits and pieces from the early draft notes and stringing them together with linking text. This explains the flowery, more detailed content.
The other explanation is that the wrong English draft of James Busby was used as the official text. British Resident James Busby’s English draft of the Treaty on 3 February 1840 was superseded by his final draft on 4 February 1840. There were substantial, important alterations in the latter draft. The translation of the Treaty into Maori was based on Busby’s final draft of 4 February 1840.
In the mayhem surrounding the drafting, translation and signing of the Treaty the final English draft of 4 February 1840, on which the Maori version had been based, was mislaid. The earlier draft of the 3 February 1840 was mistaken for the final English draft and was adopted as the official English version. As a result the important amendments which were in the draft of 4 February 1840, and which were incorporated in the Maori version, were not part of the official English version. Hence the differences.
The final English draft of 4 February 1840, called the Littlewood draft, was not discovered until 1989. The whole saga of the Littlewood version of the Treaty can be found by googling here.
Not surprisingly, given the delay in discovering the document, the authenticity of the Littlewood English draft was challenged by the government on various grounds, namely that it was a back-translation of the Maori version of the Treaty, and that it was not signed by any Maori chiefs. On the other hand experts have stated that it is in the handwriting of James Busby and the water marks on the paper are consistent with the date of the document. It is also mirrors the Maori version.
As a postscript, the official English version was recognised in New Zealand law in the Treaty of Waitangi 1975, many years before the Littlewood version was discovered. The authenticity of the Littlewood version has not been accepted by the government, so it has no further relevance.
Which version prevails?
We are left with the English version and the Maori version, along with their fundamental differences.
There are persuasive arguments for suggesting that the official Maori version is the authentic version of the Treaty. From a practical point of view, reports at that time make it clear that Captain Hobson considered that the Maori version was the only authentic version. He considered the drafts in English were a means of refining the wording of the Treaty and that the final English draft was of no relevance once it had been translated into Maori.
It was standard practice for the words of Maori version to be read out and explained in Maori to the assembled chiefs before the Treaty - in Maori - was signed. The Maori version was signed by 52 chiefs at Waitangi, and by more than 500 overall throughout New Zealand.
The official English version of the Treaty, with all its anomalies, was signed by only 39 chiefs in the Waikato and Manukau, and only because, apparently, there was no Maori version available. It could therefore be argued that the English version was not fully signed by the Maori chiefs and therefore it was not a valid legal document.
The Lands case
These muddy waters are muddied even further by the fact that in the famous Lands case, New Zealand Maori Council v Attorney-General [1987] 1NZLR 641, (1987) 6 NZAR 353, the President of the Court of Appeal, Sir Robin Cooke, relied on a “reconstruction of the literal translation of the Maori text of the Treaty” by distinguished Maori scholar, Professor Hugh Kawharu, in reaching his conclusions.
What is the present situation?
So, which version of the Treaty is the authentic, lawful treaty? Clearly the Maori version is supported by most of the objective arguments and should prevail. However, some of the wording of the official English version is far more beneficial to Maori interests as it includes the word fisheries as part of the property rights being guaranteed. It is not in the Maori version. There is also the issue of whether the translation of the Maori version has been accurate in respect of such words and expressions as tino rangitiratanga, kawanatanga and taonga. The meanings of those words in their particular context have given rise to many of the Treaty claims and the demand for Maori co-governance.
Treaty of Waitangi Act 1975
The legal situation was finally resolved, if that is the appropriate word, by the Treaty of Waitangi Act 1975. It defined the Treaty as the Treaty of Waitangi as set out in English and in Maori in Schedule 1. Both versions are listed in the Schedule. So the authentic, legal Treaty is a combination of both versions. The Act also places the responsibility on the Waitangi Tribunal to reconcile the two versions and come up with a single meaning. Section 5(2) of the Act states:
5 (2) In exercising any of its functions under this section the Tribunal shall have regard to the 2 texts of the Treaty set out in Schedule 1 and, for the purposes of this Act, shall have exclusive authority to determine the meaning and effect of the Treaty as embodied in the 2 texts and to decide issues raised by the differences between them.
[Note that this "exclusive authority" is limited to the functions of the Tribunal in respect of claims under the Treaty of Waitangi Act only. Its decisions are not binding on the government, parliament, or the courts. See: The Waitangi Tribunal and the principles of the Treaty here.]
So, 135 years after the Treaty was signed the Fourth Labour Government under Bill Rowling enacted the Treaty of Waitangi Act 1975 and established the Waitangi Tribunal to deal with a mountain of claims for Treaty breaches. The problem was that for there to be breaches, the provisions of the Treaty had to be clearly stated. By adopting both versions of the Treaty jointly - despite the fundamental differences - that task became impossible.
It appears that the government of the day realised that reconciling the versions of the Treaty after 135 years was a bridge too far. The government therefore chose to go down another path that was fated to create even more problems. Rather than claims being based on breaches of the Treaty itself, namely the conflicting Articles of the Treaty, claims were to be based on acts inconsistent with what were to be called ‘the principles of the Treaty.” The only problem was that there were no “principles” in the Articles of the Treaty, attached to the Treaty, or set out in the legislation.
The post Treaty principles and the decisions of the courts (here) considers the views of the New Zealand courts on what constitute the principles of the Treaty
Waitangi Tribunal and section 5(2)
The Waitangi Tribunal has used its powers under section 5(2) in various claims and reached compromise interpretations of some of the important differences in the wording of the two Treaty versions.
The views of the Tribunal are only relevant for the claim before the Tribunal. Its reports on claims are only recommendations to the government. The conclusions of the Tribunal are not binding on the government and are not legally binding. However, they have acquired an importance because the views and conclusions emanating from the Tribunal’s reports have become the basis of many of the misunderstandings about the meaning of the Treaty.
For instance, the conclusions reached by the Tribunal on the interpretation of such words as kawanatanga and tino rangatiratanga have been the foundation of the fever sweeping New Zealand based on the premise that Maori did not cede sovereignty in the Treaty.
The interpretation of the word taonga to mean treasures rather than possessions has opened the gates for claims that go way beyond the reasonable interpretation of the words of the Treaty.
The Treaty versions are listed in the Facts archives in the right hand column. There is the official Maori version, the Kawharu “reconstruction” of the Maori version in English, the official English version, and finally the Littlewood version which many believe is the version that was used as a basis for the Maori translation. This will provide a ready reference to these versions when I refer to them in posts.
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