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Revue Juridique Polynésienne 265 "PRESERVED IN THE ARCHIVES OF THE COLONY": THE ENGLISH DRAFTS OF THE TREATY OF WAITANGI by Dr Phil Parkinson 266 11 RJP/NZACL YEARBOOK 2004 "PRESERVED IN THE ARCHIVES OF THE COLONY": THE ENGLISH DRAFTS OF THE TREATY OF WAITANGI by Dr Phil Parkinson RJP/NZACL CAHIER SPECIAL Editorial Note The present study of the preparation of the English and Māori texts of the Treaty of Waitangi and of the subsequent interpretation of those texts from 1840 to the present day draws on several new sources, as well as a forensic re-examination of evidence which appeared long after the investigations by Ruth Ross in the 1970s. The need for such a study became more apparent in the 1990s as the result of the discovery of the so-called "Littlewood Document" in 1992, a manuscript which has become an ongoing source of political controversy. This Cahier Special is a complement to the VUWLR monograph by Phil Parkinson: "The Māori Language and its Expression in New Zealand Law" and "Two Essays on the Use of Te Reo Māori in Government and in Parliament" (VUWLR/NZACL, Wellington, 2001). Acknowledgements This study of the English drafts of the Treaty of Waitangi and the translation of that document was a by-product of work on early printed texts in Māori, associated with Books in Māori 1815- 1900, published in 2004. This work was supported by a variety of agencies that facilitate research and made materials available for study, notably the Alexander Turnbull Library, Archives New Zealand, Auckland Central City Library and the Auckland Museum Library, and I thank them for permissions to quote from documents in their possession. I should also like to thank several individuals who read and commented on drafts of the work: Margaret Calder, Trevor Cobeldick, Thoron Hollard, Claudia Orange, and Philip Rainer. I thank the New Zealand Association for Comparative Law and the Révue Juridique Polynésienne, for again supporting a study of significant legal texts concerned with law and the Māori language. Dr Phil Parkinson (Librarian, Research Centre, Alexander Turnbull Library) CONTENTS INTRODUCTION........................................................................................................................ 1 1 'THE ARCHIVES OF THE COLONY' .................................................................................... 5 2 THE SCRIBES OF THE GOVERNOR .................................................................................... 9 I. George Cooper II. Willoughby Shortland III. James Stuart Freeman IV. Henry Tacy Kemp V. Samuel Edward Grimstone VI. James Busby VII. William Colenso VIII. Henry Williams 3 THE DRAFTS OF THE TREATY ......................................................................................... 19 I. Hobson's draft sheet (Archives New Zealand, IA 9/10) II. Freeman's draft sheet (Archives New Zealand, IA 9/10) III. Busby's first draft of the Treaty, 3 February 1840 IV. Busby's second draft V. The officials revised (third) English draft of the Treaty 4 HENRY WILLIAMS AND THE DRAFT TREATY ............................................................. 31 I. 'Wakaminenga' v 'huihuinga' II. 'Te tino rangatiratanga' 5 THE MEETING AT WAITANGI, 5 FEBRUARY 1840........................................................ 45 I. The first article II. The second article III. The third article IV. The attestation clause V. The speeches on 5 February 6 THE TOUGH MORSEL......................................................................................................... 55 7 JAMES CLENDON AND THE BACK-TRANSLATIONS OF THE TREATY.................... 59 I. The Littlewood document 8 THE REPRINTING AND TRANSLATION OF THE TREATY AFTER 1840..................... 65 9 CONCLUSION: THE UNFINISHED COVENANT.............................................................. 71 RJP/NZACL CAHIER SPECIAL APPENDIX................................................................................................................................ 79 The English-language drafts of the Treaty of Waitangi, and a selection of contemporary and subsequent English back-translations • Document 1. James Stuart Freeman's draft notes for the Treaty (undated, but ca 31 January 1840) • Document 2. James Busby's first draft of the Treaty of Waitangi (3 February 1840) • Document 3. Busby's 'second' draft of the Treaty (undated, 3 or 4 February) • Document 4. Freeman's English draft of the Treaty of Waitangi (3-4 February) • Document 5. Hobson's holograph preamble to the treaty, probably 4 February • Document 6. The English text dated 6 February 1840, and sent to Gipps ca 12 February • Document 7. Richard Davis's "A literal translation into English, made in New Zealand, of the Maori version of the Treaty" provided to J N Coleman • Document 8. Busby's back-translation of the Treaty of Waitangi, misdated 4 (ie 6) February 1840, and known as the "Littlewood document" • Document 9. Anonymous back-translation of the Preamble and Articles 1 and 2, supplied to J R Clendon ca 20 February 1840 • Document 10. Translation of Treaty of Waitangi by Gordon Brown1 (undated, on non- watermarked paper but apparently 1840), in Clendon papers AP NZMS 705 Box 1 Bundle 1 no. 8). • Document 11. Anonymous "Literal and true translation of Treaty of Waitangi" With notes, given by Samuel McD Martin. • Document 12. A particial translation of the Maori text, by Henry Williams, July1847. • Document 13. Purported 'Translation of the Maori Text' "As given by Buick" • Document 14. Translation "from the original Maori" by T E Young, Native Department, 1869, published in AJLC 1869, pp 70-71. • Document 15. "[Literal] Translation of Maori text by I H Kawharu" from Waitangi – Maori and Pakeha perspectives on the Treaty of Waitangi (1989) pp 319-320. • Document 16. A new synthesis of the back-translations of the Treaty, from contemporary sources listed above • Document 17. Memorandum, ca. 1860, about Māori attitudes to the Treaty of Waitangi BIBLIOGRAPHY .......................................................................................................................... 103 1 Gordon Brown, the trader of Sydney, was active in the timber trade at Mahurangi in the Hauraki Gulf ca 1835 and later at Mercury Bay. 1 INTRODUCTION While there has been much commentary on the history of the signing of the Treaty of Waitangi and some of the other foundation documents of New Zealand, little attention has been paid to the physical and scribal history of the documents, either as manuscripts or as printed texts.1 Most commentators have contented themselves with reference to the printed official texts, in the Great Britain Parliamentary Papers, in which the original texts were transcribed. Only Ruth Ross has attempted to identify the scribes responsible, with some success, but without a conclusion. When the so-called 'Littlewood document' was located in 1992, and suspected to be a possible draft of the Treaty of Waitangi, expert consultants were confounded, and the document has remained a focus of controversy.2 After the present work had been accepted by the publisher, Martin Doutré's work The Littlewood Treaty, the true English text of the Treaty of Waitangi, found was published in 2005. The present work, which has been in preparation since 1996, provides both an opportunity to rebut Doutré's central assertion that the Littlewood document is a draft of the English text of the Treaty of Waitangi, and also the opportunity to incorporate references to specimens of handwriting, usefully illustrated in Doutré's work. Doutré (drawing on assertions earlier made by Ross Baker of the One New Zealand Foundation), insists that the Littlewood document – which he persistently calls 'The Littlewood Treaty' – is "in fact the final English draft of the Treaty of Waitangi" (see footnote to the title-page of his book).3 In fact, however, the Littlewood document is no kind of draft of the Treaty, but, rather, merely a translation of the Māori text into English, made by James Busby for James 1 See for examples: C Orange, Treaty of Waitangi (1987), M Simpson, Ngā tohu o te Tiriti: making a mark (1990), M Simpson, Ngā whārangi o te Tiriti: a facsimile of the Treaty of Waitangi (1990), R Ross, 'Te Tiriti o Waitangi; texts and translations' New Zealand Journal of History vol 6 no 2 (October 1972) pp 129- 157, D F McKenzie, Oral culture, literacy & print in early New Zealand: the Treaty of Waitangi (1985), B Biggs, 'Humpty-Dumpty and the Treaty of Waitangi' in Waitangi Māori and Pākehā perspectives of the Treaty of Waitangi (1989), B Easton "Was there a Treaty of Waitangi, and was it a social contract?" Archifacts, April 1997 pp 21-49 and H H Turton, (ed) Fac-similes of the Declaration of Independence and the Treaty of Waitangi (1877) and the reprints (1892, etc). The printing history of the Treaty is described in P Parkinson and P Griffth, Books in Māori 1815-1900 ngā tānga reo Māori (2004) entries 83, 215 and 256 and footnote 1 to Chapter 8, herein. 2 Most recently with Ian Wishart, "Waitangi Treaty bombshell - The end of the golden gravy train" Investigate, (December 2003): 26-36 and ensuing correspondence in the February 2004 issue, pp 7-10. 3 Martin Doutré is best known for his beliefs about 'Celtic' influences in New Zealand, explained in his book Ancient Celtic New Zealand (1999), but discredited by historians and archaeologists (see K R Howe, The quest for origins: who first discovered and settled the Pacific islands (2003): "Doutré is a self-styled 'archaeo-astronomer' who argues that certain configurations of stones in the New Zealand landscape
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