A masterful exegesis … the quality of Dr Fletcher’s research and the power of his reasoning demands attention and respect. There will be those who differ; as I have said, contestation is the Treaty’s only consistent companion. –The Hon. Justice Sir Joe Williams (Former Supreme Court legal colleague of Ned’s Mum Sian Elias)

By Roger Childs

Confession is good for the soul

I must confess from the start that I haven’t waded my way all through Ned Fletcher’s massive “door stop” volume – 736 pages – which should keep your back gate open in a wind. However, I have had a brief browse through The English Text of the Treaty of Waitangi which a book club friend brought along to our meeting last month. Furthermore I have read several reviews and carefully taken in his lengthy comments made to Connie Buchanan “made possible by the Public Interest Journalism Fund”.

Unfortunately Fletcher has largely wasted his time because he was focusing on the fake Freeman Treaty.

James Freeman’s fake treaty

The arrogant and pompous Freeman was Hobson’s Secretary and in wanting to make a name for himself wrote his own unauthorised “Treaty” in February 1840. His version was in flowery language known as the “Royal Style”, and it had 88 more words than Te Tiriti. 

Crucially he excluded “all the people of New Zealand” from Article 2 and he added “Estates, Forests Fisheries” to the possessions list in the same article. 

Freeman could not speak Maori so his “treaty” was written in English. In bizarre circumstances a number of chiefs put their signatures on his document at Waikato Heads. The Reverend Maunsell, a fluent Maori speaker, read Te Tiriti o Watangi to the assembled chiefs, but his copy of the Treaty in Maori did not have enough space for all the signatures. Freeman’s “Treaty” was on hand with space for the extra names.

There is no way they wanted to sign his fraudulent version, but the signatures went down because it had room for them. They would have signed their names if the document was in Russian or German, simply because there was space and they were directed to do so. They had heard Te Tiriti read to them in Maori and their signatures were for acceptance of that document – the only valid Treaty of Waitangi. 

The delighted Waitangi Tribunal!

Fast forward to  the late 20th century and, incredibly,  Freeman’s Treaty is regarded as the English version by the Waitangi Tribunal, and because he had left out “all the people of New Zealand” in Article 2, descendants of settlers who were murdered, robbed, raped and had their property destroyed in breaches of the Treaty, cannot make claims for redress to the Tribunal. 

People who can’t make a claim, include descendants of–

  • the 70 men, women and children who were brutally slaughtered by Te Kooti and his tribesmen at Matawhero on the East Coast in a 1868 night-time raid
  • 164 farming families in Taranaki who had their properties looted and houses burnt to the ground from March 1860 to March 1861.

So under the 1975 Treaty of Waitangi Act only Maori can make claims because the Tribunal, incredibly, accepts Freeman’s fake treaty which no Maori signed in 1840.

Why didn’t the government in formulating the Act get a Maori scholar to do a word for word English translation of Te Tiriti o Waitangi? The result would have been an exact copy of the Littlewood Treaty.

The Littlewood Treaty: the true English draft for Te Tiriti

Fletcher didn’t study this document which is in fact the true English version and resides in National Archives in Wellington. His index has no entry for “Littlewood Treaty”. 

Henry Littlewood in 1840 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 for Northland chiefs to sign was written by Busby on February 4 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, 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”.
  • 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 and the Waitangi Tribunal do not recognize the Littlewood Treaty despite the certainty that it is the English version written by Busby on February 4 1840. 

 (A full account of the history of the Littlewood Treaty can be found in “The Littlewood Treaty The True English text of the Treaty of Waitangi Found” by Martin Doutré, De Danann Publishers 2005) 

Has Ned Fletcher wasted his time?

His book’s title The English Text of the Treaty of Waitangi and sadly he thinks Freeman’s fake is that text. Unfortunately so do many others, include the delighted Waitangi Tribunal. Consequently the Tribunal is racist as it will only accept Maori claims even thought there were hundreds of individual breaches of Te Tititi by Maori.

Fletcher refers to Historian Ruth Ross’s comparing the two version – Te Titiri and the Freeman document “… she did a comparison of the two versions. No doubt she had in mind the idea, which had been developed by then in law, that sovereignty was absolute. And so, it seemed apparent to her that the two texts were in disagreement and the only explanation could be mistranslation. That’s how we got the view that the Treaty was hastily and inexpertly drawn up, that it was ambiguous and contradictory, and a fraud. We have very much been locked into that view for 50 years.” 

Setting aside that Fletcher has written about the wrong English Treaty, he has clearly uncovered plenty of detail on the British parliament’s and government’s deliberations in the 1830s over whether to take on New Zealand as a colony and the desire of James Stephen in the Colonial Office, and others, to adopt a humanitarian approach to colonization. The meticulous and perceptive instructions to William Hobson on wording a Treaty for the New Zealanders, which went out in the name of Colonial Secretary Lord Normanby, were carefully crafted by James Stephen. 

Fletcher has discovered nothing new, but for future researchers the detail could be useful.

He does refer to some of the key players of the time contemplating “ongoing tribal self-government” and Governor George Grey supported this –.. so long as they only exercised their own customs upon themselves, and not to immediately in the presence of Europeans, they should be allowed to do so ..

Fletcher does also make reference to the 1835 Declaration of Independence and claims Busby supported the idea of chiefs and tribes retaining control of their own internal affairs, while banding together to bring into existence national powers of government to deal with issues that were beyond their individual capacities to address. The Declaration was only signed by chiefs north of Auckland and did not come onto effect. It did however give the British government something to react to by way of local sovereignty and helped smooth the path to the signing of Te Tiriti o Waitangi.

Fletcher also observes on the issue of sovereignty: The purpose of British sovereignty, then, was to control matters of foreign affairs, trade, and some areas of justice, such as interracial conflict. The application of English law to Māori for crimes among themselves was limited to only the most serious offences, such as murder, and then possibly only when those were committed in areas of British settlement or where a tribe relinquished control over the perpetrator.

Beyond those things, it may also have been expected that with the sovereign power came the right to raise revenue to defray the costs of government. But that still had to be done in a way that was consistent with tribal independence, meaning that its impact was most likely to fall on Māori who were participating in the settler economy. (“tribal independence” is not an accurate phrase to use in terms of Fletcher’s concept of sovereignty.) 

In summary, Ned Fletcher has spent seven years in research and not come up with anything new. Unfortunately he has the wrong “Treaty” in English  – the Freeman fraud. 

Fletcher comes across as someone who decided one day that he wanted to become an accepted historian and didn’t succeed. Given the title of his book, incredibly he says he did not look at the Maori wording of Te Tiriti!.