NZ Centre for Political Research

Multiple Full and Final Settlements
1 November 2009

The Treaty of Waitangi was between ‘the Crown’ and Maori. I wrote last time of the disappearance of ‘the Crown’, as an entity above and distinct from the people of New Zealand. Now let us think about the disappearance of the other party to the Treaty.

In past years, when I was a regular correspondent to the Christchurch Press on Treaty affairs, I dwelt from time to time on the undoubted fact that some of the claims which are now being dealt with had actually already been settled at some past time. There had actually been a previous ‘full and final settlement’. Given that fact, I was inclined to consider that another settlement was uncalled for. I also doubted how long these latest full and final settlements would last, given that the previous ones ~ sometimes even more than one ~ had turned out not to be so full and final after all.

This point evoked several replies. One was this ~ that this argument was just an example of my own cultural bias and insensitivity, because, correspondents explained, binding future generations simply was not the Maori way. It was foolish and unreasonable of me to expect that one generation of Maori could bind another. Indeed, on several occasions people who might be expected to have some authority in Maoridom announced that there would be another Ngai Tahu claim a generation hence. Please note that. An agreement, carefully negotiated and solemnly entered into, an agreement declared to be full and final not just by the ratifying Act of Parliament but by the parties themselves, is already, the ink hardly dry on the page, considered by some, anyway, in Ngai Tahu, not to be binding at all. At least, as far as the ‘full and final’ clause goes. I daresay they consider the clauses presenting them with the public bounty to be binding.

I shall write on previous full and final settlements at some future time. I mention the matter now so that I might mention one of my replies. It was this: that if, as alleged, it is not the Maori way to bind future generations ~ if this was completely contrary to Maori customary usage (a point on which it might well be advisable for the Crown to conduct some research!) ~ why then, the same has to apply not just to present agreements but also to any agreement entered into in 1840. You cannot have it both ways. If future Maori are not bound by present promises that a certain settlement now is full and final ~ if present day Maori are not bound by the promise of a couple of generations ago that a settlement then was full and final ~ well then, by the same token the Maori who signed the Treaty had no power to bind their successors, and any moral validity which the Treaty may once have enjoyed vanished when the last of those signatories died.

That is the first point to make about the disappearance of the Maori party ~ that (by a present day Maori school of thought) that party disappeared when the generation of 1840 did. Several other points must be made.

For a start, there is no longer a distinct Maori race. This is a familiar argument, but still worth mentioning. There are no full-blooded Maori left. For two centuries, now, Maori and European have been marrying and cohabiting, and producing children of mixed blood. People speak, sometimes gleefully, of the ‘browning ‘of New Zealand. As I believe I have already observed, it would be just as accurate to speak of the gradual ‘whitening’ of New Zealand. Slowly but surely the two races are becoming one.

Some people who describe themselves as Maori are, with the greatest of respect, misdescribing themselves. I recall an article in the Press several years ago. It was written by a young woman who began ~ I am relying on my memory, but it is usually reliable ~ by writing something like ~ ‘I am a Maori. There. I’ve finally said it. I’ve finally been honest with myself, and accepted the truth I’ve denied for so long…&c. &c…..’

But reading on, we discovered that this lady was only one eighth Maori. One, only one, of her great-grandparents was Maori. Seven eighths of her was something else. So genetically ~ racially, if we may use such a term ~ she simply cannot be described as Maori. Nor was she culturally ~ she had not been brought up as a Maori. I cannot recall if she gave any details of her complexion, but I doubt she had suffered any of the racial discrimination which people of genuinely Maori appearance suffer from time to time.

Now it is a free country, and if this young lady ~ and there are plenty like her about ~ wish to describe themselves as something they are not, then they may. And in fairness, many of us of mixed ancestry ~ Scottish, English, Irish, for example ~ may well tend to concentrate on some part of our ancestry that we find particularly attractive or interesting. (We usually do so, however, without going to the extreme of denying the existence or influence of our other ancestors. It is surely not just strange, but positively weird and unhealthy, for someone to deny seven eighths of what he or she is ~ not just to concentrate on the one great grandparent, but to say that the others somehow do not exist or do not count or have contributed nothing.)

Nevertheless it is a free country. You are free to call yourself Maori even if by no reasonable stretch of the imagination can you really be considered one. But what you may NOT do is to take a further step, and claim that because you have now become Maori you have been hard done by, and your fellow-citizens are obliged to offer you a treaty settlement. You in your own life have almost certainly suffered no injustice. I have made this point before, and shall not go on about it again. But it was summed up nicely in a Garrick Tremain cartoon of some years back. A big Maori man was saying ‘Oh boy, I’ve got a grievance all right! The despicable way my Maori ancestors were diddled and hoodwinked….by my pakeha ancestors.’

I wonder, by the way, how we should label these people so keen to become Maori on the strength of just a little Maori blood. Born again Maori? European Maori? White Maori? Maori by choice? Bandwagon Maori?

As we are probably all aware, people are able, quite legally and even legitimately, to so describe themselves, because of a change in the legal definition of ‘Maori’. Not so long ago a minimum genetic requirement was necessary. The Electoral Act 1956, for example, defined a Maori as meaning ‘a person belonging to the aboriginal race of New Zealand; and includes a half-caste and a person intermediate in blood between half-castes and persons of pure descent from that race’. But that is now thought far too harsh. A Maori now includes ‘any descendant’ of a Maori. Anyone with one drop of Maori blood may claim to be ‘Maori’.

Perhaps the requirement in the 1956 Act was a little strict. But it is entirely reasonable that there should be some definition, and it should not be left solely to individuals themselves to make the choice. People coming within the definition, after all, enjoy special rights and public generosity. The Alaska Native Claims Settlement Act imposes a test of at least ‘one fourth degree or more Alaskan Indian, Eskimo or Aleut blood’, or, in the absence of proof of a minimum blood quantum, anyone ‘regarded as a native by the native village or group of which he claims to be a member and whose father or mother is….regarded as native’. So not all advanced countries shrink back from definition. And a definition would certainly be desirable in this country, to avoid the bandwagon effect.

But over and above these reasonably obvious matters, there are two other points to make in relation to the disappearance of the parties. One was brought to prominence in a paper entitled Maori Socio-Economic Disparity which Simon Chapple, a research analyst in the Department of Labour, produced in 2000. With an abundance of evidence he argued that ‘Maori ethnicity is a recent construct’, created in large part by ‘entrepreneurs of ethnicity’; that Maori shade imperceptibly into non-Maori, and that some surprising considerations determine whether or not people choose to describe themselves as Maori.

The other matter is this. In 1840, the Treaty was actually concluded with tribes, as it was signed by the chiefs of tribes. Yet tribes, although they have not entirely disappeared, are not a living reality for most Maori now. Tribes have effectively disappeared. So with whom should Treaty settlements be made?

These matters will have to wait until next time.

What is the "Crown"?

During the negotiations preceding the most recent full and final settlement of the Ngai Tahu claim in 1998, conservationists became concerned that the conservation estate might well be used as a cheap means of settling the claim. This fear was not unreasonable; the then Prime Minister, Jim Bolger, told Federated Mountain Clubs in 1992 that ‘the government will be looking to optimise benefits to Maori under the existing statutes’, and even after the 1994 Crown Proposals for the Settlement of Claims ~ the ‘fiscal envelope’ proposal ~ had declared that conservation land ‘was not readily available’ for settling claims, Mr Bolger wrote to Sir Hepi Te Heuheu that ‘the government can be flexible in some areas of the settlement policy, for example, on conservation estate issues’. Sir Tipene O’Regan, as he later became, said publicly that the Ngai Tahu settlement would have to include ‘at least one national park’.

Conservationists objected to this, and I have no doubt that in doing so they reflected overwhelming public sentiment. Our conservation lands are our great national treasure. They are the property of us all, of whatever race. All of us enjoy unimpeded access to them at any time. They are an important part of our culture and our understanding of ourselves. To give them away to one portion of the population would be, literally, like giving away the Crown Jewels; what was the heritage of the nation would become the private possession of one group; a group which would not thereby become any better loved.

Conservationists also pointed out that our conservation lands remain in their wild state precisely because they are remote, infertile or otherwise unsuitable for productive purposes. That is precisely why they have survived in their natural state until now; because humans have not wanted to use them. Biologists, indeed, often lament that low-altitude fertile country, far richer biologically, is under-represented in the conservation estate. Great amounts of conservation land are higher–altitude country and mountains ~ scenic, but biologically not particularly rich. For that very reason, present conservation lands were seldom centres of Maori population before 1840.

All this is a prelude to my point. Conservationists, considering quite rightly that they represented a very important and relevant aspect of the public interest, wanted to have some presence and input into that part of the negotiations concerning conservation land. Their requests to be involved were however firmly rebuffed by Ngai Tahu. The reason offered was that the Treaty was with the Crown, and conservationists were not the Crown, but subjects ~ just ordinary citizens.

Now in several senses, obviously, ordinary citizens are not the Crown. But let us ask ourselves exactly what the ‘Crown’ is. Walter Bagehot, the nineteenth century writer on the English constitution, warned us, as I recall ~ I cannot find the passage, but I think I remember sufficiently ~ that ‘the Crown sits in the Tower of London to be gazed at by the curious’. That is literally so; and so, obviously, the ‘Crown’ is a more complex and elusive creature than we might at first think Every day we speak of the Crown, and mean thereby the state or the whole apparatus of government. Criminals are prosecuted by the Crown. The Crown owns lands, and employs servants to do its will.

If the Crown is a human being, that human being is our monarch, Elizabeth II, the successor of Queen Victoria. In New Zealand, her representative is the Governor-General. But the Governor-General, as we know perfectly well, is a cipher. In all but the most exceptional cases he approves every proposal and law that is put in front of him by his Ministers. The Crown then, is advised, in fact directed, by these ministers, who are chosen from among Members of Parliament. They enjoy the support of a majority in the house, and are in fact the leaders of a parliamentary majority.

So the Crown is the Governor-General, who is for all practical purposes the instrument of his ministers ~ who are ministers because they enjoy the support of a majority in parliament ~ and parliament is of course elected by the people. In all this chain it is impossible at any point to draw any definite line. The Crown in the last resort cannot be distinguished from the people. The situation may be different when we are speaking of a criminal prosecution or some decision of the bureaucracy ~ but when we are speaking of the ‘Crown’ in Treaty negotiations, we are speaking of the popularly elected government negotiating with a Treaty claimant. In this situation the Crown represents and is the people, just as the Crown would represent the people in international negotiations.

After all, what assets are used in Treaty settlements? Are they the Queen’s own, some secret hoard of gold and jewels hidden in a castle somewhere in the United Kingdom? No, the assets used are our very own; they are our own public lands and public moneys. The fact that the Crown is using assets which are public property, and not the Queen’s own private property, is a further reminder of what nonsense it is for treaty claimants to speak of ‘the Crown’ as a distinct entity.

The ‘Crown’ now, then is entirely different from the Crown who, in the person of Captain Hobson, entered into the Treaty in 1840. That Crown was at that time a foreign monarch ~ before 1840, New Zealand was not one of Her Majesty’s dominions. Even after 1840, it was understandable for Maori, for a while, to speak of a relationship between Maori and the Queen, although that very soon came to be nothing more than rhetoric and wishful thinking. But the Treaty itself says that Maori are subjects like any others; and in an age of parliamentary government, when we can legitimately speak of the Crown having been ‘captured’ by parliament, no other conclusion is possible.

What is the point of this argument? Am I suggesting that all Treaty settlement negotiations should be conducted in the full glare of publicity? Of course not. But there will certainly often be a place for consideration of, and consultation with, the poor old taxpayers who are providing the wherewithal for settlements. Maori claims are not just a private matter between government officials and claimants. There is always another party with a valid interest, and that is the people of New Zealand, whose assets are being taken away from them and being given to some private group. ‘Justice’ is an often misused and misunderstood term. What is just depends on considering not only the group claiming something, but the group that will have to pay. All too often we find decisions being made, lands and money being given away ~ learned books being written, indeed ~ without any consideration of the just claims of the majority of the population. This often seems to be based on an assumption that the ordinary citizen is prejudiced and racist, and cannot be trusted to consider things properly. That is an unfair slur. Not only is it unfair; in a democracy it is a completely unacceptable argument. It is in fact an argument that democracy is undesirable and should be frustrated by an officialdom that knows best.

The ultimate aim of justice must always be the welfare of the whole community. Indeed, the Waitangi Tribunal itself has observed that one injustice should not be remedied at the cost of creating another. Claimants, understandably, may not be particularly interested in the greater good, but we expect the Crown and public officials to be concerned. We expect the Geographic Board, for example, to think of the interests of all the citizens of Wanganui. There would be less opposition to Maori settlements ~ and indeed proposed settlements might be more acceptable ~ if the people of New Zealand were looked upon less as a narrow-minded impediment to justice, and more as a reasonable party with a valid interest who should, on appropriate occasions, be consulted and listened to.

REVIEW: Waitangi and Indigenous Rights - Revolution, Law & Legitimisaion
By F.M. (Jock) Brookfield, Auckland University Press, 1999; 253 pages.
3 October 2009

This is the review of the 'book of great foolishness' which David Round referred to in his previous column - see The "H" Battle: http://www.nzcpr.com/guest165.htm. It appeared originally in History Now, a now defunct publication of the University of Canterbury History Department. David regrets that he is forced to say such unkind things about such an intelligent, high-minded and good-hearted gentleman as Professor Brookfield, for whom he otherwise has a great deal of respect.

But the road to hell is paved with good intentions, and the ideas in Professor B's book are not only foolish but actually dangerous. David's remarks should be taken to refer not only to Professor B himself but to all the foolish high-minded persons who think along the same lines.

Constitutional law, like international law, is at the edge of the legal discipline – at that point where law ceases to be the orderly familiar discipline of rights and duties, wrongs and remedies, and begins to mingle with economics, politics and other brute facts.

All lawyers who stray too near that edge are in danger of falling into folly, and Professor Brookfield is a sobering example. At one point, speaking of the differences between the Maori and English versions of the Treaty of Waitangi, he modestly declares that these difficulties are ones he is not competent to pursue. He should not have pursued the entire subject at all. Waitangi & Indigenous Rights: Revolution, Law & Legitimation is neither history, nor law, nor political science; nor is it a study of justice. Rather it is just another moral and political tract. We have all occasionally met people whose heads are abuzz with plans for new constitutions and schemes of universal regeneration; and we know that such schemers often lack a sense of reality or of proportion. So it is in this strange book.

Professor B maintains that “the British Crown’s revolutionary seizure of power in Aotearoa New Zealand, legitimated only in part by the Treaty, … was otherwise … a large scale robbery”. He argues that New Zealand’s history has been one of revolution. The 1840 assertion of British sovereignty was a revolution; so were the various “counter-revolutions of Maori in their resistance to the Crown”, and so was the “revolutionary transformation of the indivisible Crown into distinct Crowns of the United Kingdom and New Zealand”. To speak of revolutions certainly catches the eye and headlines, but Professor B’s definition is a very strange one. He agrees that his definition is different from that offered by Charles Tilly, the one definition he quotes; it is certainly different from the working definition of historians and lawyers, who can find other satisfactory and less sensational ways of analysing the events mentioned above. Lawyers usually define revolutions as fundamental breaks in legal continuity. The overthrow of James VII & II in 1688, for example, is spoken of by historians and lawyers as a revolution. Yet Professor B declares that it was not, but was merely a non-revolutionary coup d’etat. This is difficult to understand, given that Professor B agrees that “a small revolution, even if it appears as a mere coup d’etat and does not have great social effects, comes within the definition if it includes constitutional change effected illegally …” But anyway, Professor B has his own very special definition of revolution, which includes the “conquest” of a collection of tribes by an organised state, and the establishment of an organised state where none existed before. This is by his own admission a novel definition, and one might at least have expected some authority to be offered to support it. But the definition is offered in two pages at the beginning of chapter 1 with no authority and very little discussion. Professor B’s discovery of a revolution in 1840 must, to put it politely, remain unproven.

But without an 1840 revolution his case entirely falls down. For his entire thesis is that this particular sort of revolution (as distinct from others – the French and Russian, for example, or the conquest of Maori by other Maori, all of which established entirely valid new constitutional orders without any problem) simply can never be more than partly legitimised. We can be thankful that, after 139 pages, Professor B does say, almost to our surprise, that New Zealand’s present government is lawful. But legitimacy is another matter. “In the course of colonisation by a Western imperialist state”, he tells us on page 37, special rules apply which do not apply to other revolutions. The one footnote offers no authority. In our case, if the Crown governs well since 1840, then there may be “partial” legitimation; but, despite the benefits of British rule – a matter touched on for ten pages or so – legitimation can never be more than partial, and so the Crown owes a duty to Maori – who are assumed, without any consideration of the question, to be still as racially unmixed and culturally untainted as they were in 1840 – to restore to them some rights of self-government.

The author’s attitude can be conveniently illustrated by a couple of sentences in his conclusion. After declaring, surely with some lack of logic, that “despite present public apathy” the change to a republic and a “constitutional settlement” with Maori “cannot be long delayed”, he goes on:

“But let us … recall …the basis for making those changes to provide for and protect Maori rights. Quite apart from the Treaty, Maori [in 1840] could have entertained a reasonable expectation that they would have under the Crown a qualified autonomy of some sort …”


There is the sum total of the argument. Because of what a certain number of Maori chiefs might have thought in 1840, this is what we have to do now. All other events and developments in the 160 years since then are irrelevant.

Three pages later the author quotes Mason Durie:

“The essential tasks are for Maori to reach agreement about decision-making within Maori society and for Maori and the Crown to agree on the most appropriate constitutional arrangements that will enhance the standing of both”.

And then he goes on to discuss agreement with “the Crown”. There is no indication that the Crown was captured by Parliament some time ago and now speaks through its Ministers, who enjoy a majority in Parliament and are therefore representative of a majority of the people. No – the existence of the majority of the population is as irrelevant as their wishes. An agreement made in 1840, even though of no legal validity, must be implemented. Even though in its terms it does no more than declare the sovereignty of the Crown and the status of Maori as British subjects, it is somehow taken to require significant constitutional changes. There is no recognition that the “principles” of the Treaty are modern inventions, which can take people wherever they want to go; no awareness that there is dispute as to what those principles are, and no explanation of how even the Court of Appeal’s list of “principles” required Maori autonomy.

What does Professor B think Treaty principles require? With no evidence, he announces that a “qualified autonomy” is necessary. But then having brought us to Maori autonomy, having arrived trembling on the brink of the ecstatic vision, the veil of seeing suddenly falls. This is mysterious. Given his brilliant and incisive insight, that our obligations to a certain section of our countrymen have to take a quantum leap forward, one might have thought that Professor B’s mighty mind would have some informed inside knowledge about the nature and details of those obligations. But he fails us at the $64,000 question: if everything that Maori have now, or seem likely to have the way things are going, is not enough, then what will be enough? Having told us that our present arrangements are very clearly wrong, then what is right? You would expect him to know. But amazingly, this matter of the greatest interest and importance, the net result of all his theorising, the grand aim of the entire intellectual design, is dealt with in a mere two pages, which suggest, with extreme tentativeness, that perhaps autonomy might encompass

- Maori reserves

- “limited self government for traditional communities”

- probably not a separate system of criminal law (but he openly declares, quite quite candidly, that he might be wrong on that one)

- some sort of Maori House of Parliament, perhaps only consultative, perhaps stronger

- perhaps the protection of Treaty principles and the Maori House and whatever independence there is all guaranteed and entrenched for ever in a written constitution

but all this is very general and tentative, and has little more detail than appears here. What help is this to the guilty liberal who needs details of what he has to do? Professor B has taken him out into the desert and left him there.

All development, it seems, will stop when this Maori autonomy arrives and Nirvana descends. Nowhere is there the slightest hint of consciousness of the possibility that Maori, having acquired that much, might not be satisfied and might want yet more. Professor B judges all others by the standards of his own trusting artless soul. Nor is there any suggestion of how a majority of the population might be won over to support such a proposal – practical politics are irrelevant to lofty moral questions, and the lawyerly line of thought which can still write throughout of the abstract “Crown” as a living entity evidently still imperiously ruling us removes the need for any consideration of practical politics. The “Crown” need only do something, and there is an end of it. Nowhere does Professor B ever consider the possibility that a house so very deliberately and carefully divided against itself might not be able to stand. It would have been highly instructive for him to consider the present predicament of the Anglican Church, whose enthusiasm for the brotherhood of man has led it to organise its own government into three “houses” – Maori, Pakeha and Polynesian. The result has been an increase in racism and antagonism in the church, a great increase in the difficulty of governance, and, mercifully, such confusion and paralysis that the Church’s intended campaign to extend its own vision of government to the constitution of the whole country has been thrown into the greatest of doubt. Professor B, in true lawyerly manner, is better able to destroy than to create; he is, in John Buchan’s phrase in his life of Augustus, “the minor intellectual, the man whose talent is for a cheap disintegration”.

It is not unavoidable logic that forces Professor B to urge Maori autonomy on us. There is no clear path from 1840 to Maori rights embedded in a written republican constitution. Professor B does inform us, however, that if we do not accept his modest proposals, then violence may well force more radical solutions upon us. Evidently resistance to Maori violence would be pointless.

Indeed, to speak of Professor B as following any sort of path at all from 1840 would be misleading. The years, events and people between 1840 and 2000 A.D. are ignored. This book is not a history book. Only the occasional event since 1840 – Parihaka, the Anglo-Maori wars, or “Land Wars” as Professor B continues to call them, – is actually mentioned, and the majority of New Zealand’s population go virtually unmentioned until the conclusion, when they appear merely as an inconvenient and narrow-minded possible impediment to what would otherwise evidently be an amicable and unanimous final settlement with the Crown. There is no acknowledgment that Maori have changed since 1840; the author assumes throughout that Maori are still an entirely distinct and separate people. He never even thinks to consider the possibility that such a distinct segregated minority – even if it existed – might not be a good thing for a state. Yet at the same time, even traditional Maori tribal divisions are virtually ignored. One would never guess, from reading this book that ‘Maori’ once spoke and thought of themselves in terms of iwi and hapu, and that many of Maori descent still look upon their tribal links and history as not only important but also distinctive. But to make any acknowledgement of tribal differences would at only destroy Professor B’s argument, which can survive only so long as “Maori” are seen, in 1840 and today, as a discrete entity. But they were not and are not. In 1840 they were organised in tribes. Now some are tribal – each tribe with its own history – some are urban. Most are, to one degree or another, of mixed ancestry and culture. The acknowledgement of diversity, however, would destroy the grand theory. Only in his conclusion does the author first acknowledge that Maori and European New Zealanders now live in the same area, but even then there is no acknowledgment that the races might actually have intermarried and the cultures actually blended or interacted with each other.

Professor B wrote before Simon Chapple presented his paper on Maori socio-economic disparity to a Ministry of Social Policy seminar in September 2000, and may be forgiven for being unaware of some of his conclusions. But Mr Chapple’s well-supported statement that Maori ethnicity is not a “rigid binary primordial dichotomy”, but rather “fluid, differing in degrees of interest and commitment, and constructed” (p.5), is surely obvious. Can we call any book scholarly, which operates throughout on the assumption that all those of Maori descent are identical in terms of Maori ancestry, tribal connexion, cultural attitudes and shared inherited disadvantage, unchanged, unchanging and totally separate since 1840? Whenever we hear anyone speak of “the proletariat” or “the masses”, we can practically predict an incorrect and self-serving political generalisation around the corner. An unthinking and undiscriminating use of the word “Maori” must lead to similar suspicions.

The book contains no contemplation of the greater good. It ignores practical political questions. It speaks of “justice” as if the legitimate interests of all other New Zealanders are irrelevant to the consideration of what Maori should receive.

Professor B speaks airily of a final settlement between Maori and the Crown, but offers no evidence to suggest that all, or most, Maori could ever agree on what that settlement might be. It is surely well known that many of Maori descent are, for one reason or another, more or less happy with things the way they are now. The interminable and unresolvable arguments over the fisheries settlement and the deep divisions they reveal between tribal and urban Maori surely indicate that whatever a new settlement might be it would displease much of Maoridom. Professor B agrees, in his conclusion, that, radical as his proposals may seem to us, they may well be too little for radical Maori. He offers no evidence that radical Maori will accept his settlement as final; and indeed, he repeatedly quotes a handful of people – Ranginui Walker, Moana Jackson and the non-Maori Jane Kelsey – as convenient spokesmen for several hundred thousand people. There is little indication anywhere of the wide diversity of views held by Maori people.

Professor B considers the problem of the very recent conquest of the Chatham Island Morioris without ever wondering if a similar situation of recent conquest ever arose in mainland New Zealand. He criticises the Crown for not acting quickly enough to stamp out slavery and other undesirable practices in the Chathams even though his main thesis is that the Crown everywhere interfered more with Maori that the 1840 agreement entitled it to. Keen to contemplate limitations on Parliament’s sovereignty, he takes up Sir Robin Cooke’s suggestion, unsupported by authority, that Parliament simply could not make laws authorising the use of torture or transferring all its powers to the Crown so that the Crown could rule by decree. This latter example, however, is a strange one for him to offer, for the entire thrust of his book is undemocratic, ignoring completely the desires of a majority of the population and keen to take powers away from parliament and give them, by means of an entrenched written constitution, to a racial minority and unelected judges.

In fairness to Professor B, one would have to add that his contempt for democracy is a standard ingredient in the “liberal” thought of our time. No, contempt is too strong a word. Democracy is simply something beyond his ken – an irrelevance not even requiring consideration. He does not even agonise over the old problem of the tyranny of the majority. Democracy is yesterday’s idea, so vanquished by his own exciting new idea as to be forgotten in the rush, and not even meriting an entry in the index.

Although in several places Professor B’s book deals with strictly legal matters it is certainly not a legal textbook. Where he sticks to what he knows he is perfectly sensible, and indeed his description of the necessity principle has been quoted – briefly, but with approval – by the Fijian Court of Appeal (Republic of Fiji and Attorney-General of Fiji v Prasad, [2001] NZAR 257). But these little patches of sound law are lonely little islands, for he is clearly unwilling to follow the Fijian Court of Appeal’s advice that a court – or even, presumably, an author – “cannot be blind to reality, however unfair or unfortunate that reality may be”.

Nor is his book in any sense a study of justice, for it entirely ignores the legitimate claims, and even existence, of non-Maori New Zealanders who may have lived here for generations and whose labour, tools and technology, plants, animals and ideas are almost entirely responsible for transforming these islands from the war-torn wilderness they were two centuries ago into the peaceful, still-prosperous modern state we now inhabit. About a dozen pages in one chapter run over a few possible ‘partial legitimations’ of the 1840 ‘revolution’, but the subject is not explored with any great determination. The book is a moralistic tract, not afraid to spend pages discussing the rights and wrongs of the Norman Conquest or the great contention of Christendom and Islam in Spain. For all its scholarly disguise it is simply another political tract in support of radical Maori claims. Impartial scholarship does not force anyone to clamour for Maori autonomy.

Professor B admits that many of history’s conquests could be justified on the ground that the conquered peoples had themselves obtained their right to rule at the point of the spear, and therefore had not right to complain of the spears of another; and he agrees also that “until the right of conquest recognised in traditional international law came to an end after the First World War, the principle of prescription applie[d].” But somehow this does not apply to New Zealand. Why? The only brief answers Professor B gives are that European settlement here was “too close in time” to the present, even though it was well before the First World War, and that there has not been “full accommodation” of Maori “rights”. But every “conquest” by definition takes away some “rights” of the conquered. For Professor B to say that this “conquest” fails because it took away Maori rights is to say that this “conquest” fails simply because it is a “conquest”. That is a very contradictory argument.

Who will read this book? The fact that he speaks, for example, not of Vitoria but of “the sixteenth-century Spanish theologian Francisco de Vitoria “ might suggest that he hopes to appeal to the interested layman, but a pedantic style and too many mentions of Gramscian concepts and hegemonic discourse will keep it out of the hand of all but the insomniac. It would be nice to think that no one would read it, but, as the Tzarist censors learnt to their cost with Marx’s Capital, the most tedious of books can be the most dangerous. Almost inevitably this book will be read – or partly read – only by the discontented of little learning, who will use it as a quarry of convenient arguments as to why whatever they are given, by a majority increasingly wearied by Treatyist demands for more assets and more power, is never enough. A claim, however fantastic, that New Zealand was seized by Europeans in a revolution is going to do nothing but encourage “counter-revolution”.

Virtue and Tough Love
It is perhaps unfair to condemn a man for his virtues, but excessive virtue can be as dangerous as any vice. Professor B has a noble and generous nature, but it is his folly to be so trusting as to believe that all his fellow men share it. His assumption of paradise-just-around-the-corner-if-only-we-could-be-generous has that same air of unreality which hovers over all Locke’s descriptions of the behaviour of human beings in a state of nature. For not only the cynic can guess too well the inevitable consequence of the idea, the central idea of Waitangi and Indigenous Rights, that no matter how much we do for or give to Maori (under our present constitutional arrangements) it can never, ever, be enough.

Professor B, like this reviewer, is a lawyer. It is surprising how many writers on the Treaty are, and what respect they receive, for the entire question of the Treaty is not a legal one, and lawyers are trained only in the arts of disputation and vexation, obstruction, quibbling and ferocity. Lawyers are not philosophers or moral theologians – or even historians! – and in few other fields would anyone claim that a writer possesses special insights because of his legal training. This reviewer has argued, in his own book Truth or Treaty?, that to treat the Treaty as a legal document imposing legal obligations, and to regard the Treaty question as a legal one where law and lawyers have much part in the solution; is an enormous mistake.
Rightly or wrongly, the law is quite clear, and the Treaty is a legal nullity. The Treaty question is doubtless a moral question, but then every question is, inter alia, a moral question. It is, however, a moral question where there is room for more than one valid point of view. One can disapprove of the Treaty mania and believe that, for the greater good, bygones should often be left as bygones, without being an amoral sluggard. The question is, first and foremost a political question. It has been half-revived, half-manufactured by a strange mixture of discontented agitators and well-meaning fools in the last generation; but law and lawyers have no special part to play in the answer. They can, indeed, only make matters worse. Without the baleful influence of lawyers the English Civil War probably would not have happened.

Professor B is an industrious scribbler, and a century or two ago would have made a tolerable antiquarian. He is a gentleman, and something of a scholar. But in his attempts to correct the moral failings of history, his encouragement of racial division, his complete failure to recognise any changes since 1840 and the legitimate claims and even existence, of a majority of the population, and in his support for proposals which will inevitably encourage and release vicious disputes and hatreds and tear our country to pieces, he shows himself to be the enemy of the common good. One can only hope that in simple justice this foolish old man will be among the first to be loaded on to the tumbrils when the real and unpleasant revolution he is helping to foment begins to devour its own children.

Where Are We Going?
19 September 2009

I still remember some wise words I read, I cannot how remember many years ago, in Aldous Huxley’s Ends and Means. The gist of the whole book is that in the last resort it is impossible to separate ends and means; that the end we reach is actually determined, or at least very greatly influenced, by the means we use. As I recall he wrote one paragraph something like this:

‘The world is round, and so one can travel from Paris to Rouen via Shanghai. But history is flat, and so one cannot work towards a certain objective by walking off in completely the opposite direction. One cannot usher in a reign of peace and brotherhood with guns.

And he then goes on to consider the tragedy of violent revolution against an oppressive regime, which usually ends up in simply replacing one oppressive regime with another. The old regime may be appalling, but it will not want to go; violence will have to be used; the old regime will fight back; grim measures will have to be taken, temporarily of course….As someone else said, the tragedy of human life is that to overcome our enemies we must become like them.

One of the tragedies.

How true this is. I hesitate to introduce a controversial example, but I have always thought it either absurd or dishonest that people vigorously campaigning for abortion on demand should announce to their opponents that they (the pro-abortionists) were just as much opposed to abortion as were the anti-abortionists. (I distinctly remember this claim being made when abortion was a particularly controversial issue. It was just that, in the circumstances of the present time, abortions were necessary, until we reached some very vaguely defined perfect state where no-one would want them….) Surely as a matter of simple logic if one is opposed to something then one should work for its abolition, not its better and firmer establishment.

So where is Treatyism taking us? Has it ever occurred to you that we are heading in precisely the direction which the blacks of the southern United States have been striving to escape from? Up until the days when Rosa Parkes sat in the white section of that bus, the official policy in the south, endorsed by the United States Supreme Court, was of treatment that was ‘separate but equal’. (Of course, inevitably, it was not equal.) The official theory of apartheid in South Africa was the same. People of colour in those countries wanted integration. Liberation for them meant joining the greater society. But here official enlightened liberal policy is precisely the opposite. It aims not at integration but disintegration.

If we wish to usher in a reign of peace and brotherhood and blindness to skin colour, then, we are going about it in precisely the wrong way, for we are walking off in completely the opposite direction. We are emphasising racial origins on every occasion. The tribal affiliations of every Maori appointee are always carefully spelt out. Maoris have their own schools, their own clubs, sports teams, graduation ceremonies, television channels and funding bodies. This is a growing tendency. We hear complaints that it is improper of the news media to mention that a criminal, for example, is Maori or Polynesian; but if it is permissible and desirable to mention racial ancestry in nicer circumstances, why is it impermissible here? What is sauce for the goose…..Every day we are becoming a more racially conscious and divided society. And in doing this we are betraying Maori, for we are assisting and promoting their retreat from the greater world to the ghetto of the marae.

This disastrous policy is of course perfectly aligned with the ‘post-modern’ philosophy which is now fashionable in the universities. Post-modernism ~ a stupid name if ever there was one ~ claims to have made a complete break with the rational philosophies the West has followed since the Enlightenment of the eighteenth century (if not earlier), with their beliefs in objective truth and universal standards. That approach enabled us to look down on other cultures and beliefs as inferior to ours, and that was just so judgmental and unkind. Post-modernism believes that there is no objective truth ~ rather, there are truths. This is true for me ~ but something else is true for you. One is no better than the other. We are therefore unable to say that our culture is better than another’s.

This philosophy renders intelligent reasoned discussion impossible. We cannot criticise genital mutilation or honour killings or stoning women to death or executing homosexuals. That is just ‘their culture’. By the same token, we cannot criticise our own culture; although for all their lip-service to non-judgmentalism, these people generally do.

This is the philosophy of a civilisation in decline, a civilisation that has lost its self-confidence. It is the perfect philosophy for a society of minorities, such as flood into the headquarters of decaying empires from their former colonies, and who indeed are needed as we do not breed sufficiently or are prepared to dirty our hands doing the menial dirty tasks that always need to be done. But it is the philosophy of a disintegrating state. It should not be necessary here. It passes by such names as ‘diversity’ or ‘multiculturalism’. But by very definition no successful coherent society can be ‘multi-cultural’. We must be clear what culture is. As I have said before, culture is how we actually live, each and every day; it is not just the fancy dress which we don on special occasions. These historical reminiscences are charming and comforting reminders of where we came from, but they are not the core of our culture. We may wear kilts or shamrocks or grass skirts occasionally, but that does not make us Scotsmen or Irishmen or Maori tribesmen. Our culture is how we actually live and think and work, play and speak and dream every day; and by that standard, most New Zealanders, Maori, European, and even Asian, participate mostly in one general culture, which we could call Western-International. New New Zealanders, in particular, seem different, eating strange foods and reading strange alphabets; but underneath these superficialities they usually share our values. It would be disastrous if they did not. The drive to make our country more diverse, if successful, will spell our doom as a nation. Diversity is difference. That is, after all, what the word means. The more diversity there is, the more different we are; and therefore the less we have in common. A nation is a group of people who believe that they have more in common than divides them. Take that belief away, and the nation goes; all that are left are tribes with nothing in common, all happening to occupy the same piece of ground but all only seeking their own narrow tribal advantage.

Diversity is no foundation for a nation. A little diversity is an interesting and diverting thing; we all enjoy an ethnic restaurant. Variety is the spice of life. But a spice is not a staple; it is not the bread and butter of daily life. One cannot live on nutmeg alone.

Let us be quite clear where this modern Treaty-worship is leading us. Treatyism is not just the belief that past wrongs, historical injustices, should be righted. There would be few if any who would disagree in principle with that proposition (although there are significant practical issues which we shall consider in future). Nor is Treatyism just the belief that Maori language and culture should be protected. Again, few of us would disagree with that in principle, although we might be readier to see that language and many aspects of that culture as doomed to extinction, like many good aspects of our longstanding European culture, as time goes on. No, Treatyism is the claim that one particular racially-selected section of our population, (being those able to trace their descent from a Maori ancestor ~ it would be a travesty to say that all these people themselves actually are Maori) are entitled forever to special rights and privileges enjoyed by no-one else ~ simply because they happen to have an ancestor who came by canoe and not ship or aeroplane.

This is racism.

I have been called a racist a few times. It is the standard unthinking abuse, and is very widespread. When, for example, at the time of the Ngai Tahu settlement, the Ngai Tahu Maori Law Centre in Dunedin was daubed with slogans saying ‘Equal rights for all’, the television news described these slogans as racist. I am not defending the vandalism, but I am at a loss to understand how that slogan, or I, can be called racist. I am, after all, the one arguing that we should all be treated equally regardless of our skin colour or how long we have been here. That is surely a supremely non-racist approach. The racists are the ones arguing for racial distinction and special rights for one race and their descendants. Those are the Treaty worshippers.

So let us call things by their real names. Treatyism is racism. And the Maori Party is a racist party. Just ask yourself ~ what would we call a party of white people arguing for special privileges for white folk? Racist? I think so.

And where is Treatyism leading us? Aldous Huxley knew. In precisely the opposite direction from peace and brotherhood.

Special Maori Seats
6 September 20

A month or two ago I heard on the wireless an interview with a lady from Papua-New Guinea who was involved in agitation to have several special seats in Parliament allocated to women. The constitution evidently makes provision for a limited number of special appointments to supplement the elected members. The interviewer asked, among other things, why there should be special seats for appointed women at all. The lady was quite clear ~ the reason was that there were very few women in that Parliament now. And why was that? The problem, the lady explained, was that Papua-New Guinea women did not vote for women candidates. They tended to vote for men.

The interviewer, regrettably, did not pursue the point much further, but I found myself raising the point with the wireless, as we tend to do in our more mature years. Women have the vote in Papua-New Guinea, and are perfectly able to vote for female candidates. They choose instead to vote for male ones. That is surely their right. If women want men in Parliament, who is this particular lady to demand, in the name of human rights or female emancipation or some similar abstraction, that their decision should not be respected, but should rather be subverted by the appointment of extra Parliamentarians?

Such an argument is one ~ but only one ~ of the answers to the demand in this country for special Maori seats on the council of the new Auckland super-city and, after that, absolutely all elected councils. The Christchurch Press of the 29th of August, for example, reports Te Tai Tonga MP Rahui Katene complaining that ‘that she had seen capable Maori try to get elected on to South Island Councils, but they could never garner widespread support…..”People vote for people that they know and a lot of people don’t know Maori.” Maori candidates never make it into the mainstream media or mainstream meetings where they would gain name recognition.’

Ms Katene’s argument is, for several reasons, complete nonsense. In fact, many people who are elected to councils have pretty low profiles. They are not all high fliers and celebrities with great name recognition. In any case, even if their names do have the familiarity consequent on years of local public service, what is so unreasonable about the suggestion that Maori candidates should also get out there and acquire some name recognition? Many councillors elected do not actually get many votes; because of Christchurch’s ward system, for example, (which, admittedly, may not necessarily exist everywhere else in the country) most successful Christchurch city councillors may be elected by a grand total of only four or five thousand votes. A determined bloc of comparatively few voters could make a great deal of difference where majorities are often slim. A serious effort to galvanise Maori voters into voting for Maori candidates could easily make a great deal of difference.

The present mayor of Dunedin, Peter Chin, is of Chinese ancestry, and a previous mayor, Sukhi Turner, was Indian. Dear little Carterton elected Georgina Beyer, a Maori trans-sexual, as mayor. Carterton and Dunedin are not notorious as hotbeds of radical tendencies. We are not a racist country. Calls for Maori seats are calls for special privileges for people unwilling to do the undoubtedly hard work involved in getting elected by the usual democratic methods. Once more, they want what everyone else has to work for handed to them on a plate.

There is another awkward point which demands for special Maori seats attempt to avoid. Let us look at voting figures in general elections. In 2008 the total number of voters who actually turned out in any Maori seat to vote (for all candidates) was on average just a bit over 17,000. The biggest turn-out, in Ikaroa-Rawhiti, was 17,800. In general seats, however, the average number of voters who actually voted was about double that. Nine electorates had turn-outs of over 34,000; the very lowest turn-outs were in the Labour strongholds of Mangere (21,700), Manukau East (23,300) and Manurewa (22,400).

MPs for the Maori seats, then, are elected by far fewer votes than other MPs. Maori, it seems, are just not as interested in voting as the rest of us. If they were interested, they might well be able to elect Maori councillors to city, district and regional councils. But would-be Maori councillors, instead of working to get votes, put their efforts into gerrymandering the system so as to guarantee seats for themselves regardless of how many people they actually represent.

Democracy is generally taken to involve the idea, not only that everyone of a certain age may vote, but that all those votes are of more or less equal worth. We can be pretty certain that this would not be the case if Auckland adopted a new racial voting system; Maori votes would definitely be worth more.

It is time to do some profound thinking about the future shape of our democracy. There are high-minded dimwits about who have a wonderful vision of a future Aotearoa/New Zealand as a collection of tribes ~ ‘Ngati Maori, Ngati Pakeha, Ngati Pasifika, Ngati Asia’, doubtless even Ngati Muslim. I firmly believe that the establishment of such tribalism here would be an unutterably disastrous undoing of New Zealand. A nation is a group of people who believe that more unites them than divides them; that, despite the inevitable differences between them, they are nevertheless at base one people. The preoccupation of all nation-builders is to establish that common identity. Tribalism does the opposite. It divides the world into members of ones own tribe, and strangers outside. Tribalism is the enemy of nationhood.

Special seats on elected bodies for particular races is a significant advance towards that tribalism. The Maori party believes that all councils, not just Auckland, should have Maori seats. Granting Maori seats to Auckland is only a first step, a precedent for establishing the absolutely everywhere. Already the leaders of certain ‘ethnic communities’ in Auckland have argued that it is unfair that Maori alone should have special seats. They want them too. They will keep demanding them. And after all, if one race has them, why should not other races have them too? The establishment of Maori seats would be a distinct step towards the Balkanisation of our country.

Maori themselves, of course, might well object to other races enjoying a privilege they believe that only they are entitled to. Doubtless they would claim that they are in a special position as the country’s first settlers ~ ‘indigenous’ ~ and as the people with whom Queen Victoria signed a certain Treaty. European New Zealanders might be prepared to side with them on that, if only to avoid special seats for each and every race around the council table. But there is an immense danger here. If we were to accept that Maori are different, then we are acknowledging that Maori do indeed have a special status as first settlers, and that that is justly expressed in special seats and in fact a sharing of power. We are approaching the idea that Maori tribes are partners with the Crown in government, with poor old non-Maori in an inferior position below.

Maori seats, then, lead inexorably to one of two political positions ~ either special seats for every race, or a special position for Maori as superior to every other race. There is only one other option, and that is to have no special seats for any race at all. I favour that one.

***********************
There is only one other point to mention. Are these Maori councillors to be elected by, and to represent, everyone on the Maori roll regardless of their tribe, or should some special preference be given to members of the tribes that lived in this particular place before British settlement? (This is the ’mana whenua’ argument, the idea that those local tribes have some special link with the land and therefore special rights. The Treaty, after all, was signed with tribes, so tribal Maori insist, and so to ignore tribes now for a ’one Maori one vote’ system would be a breach of the Treaty!) We can imagine the arguments that would rage. Again, for the greater good, it might be better to avoid them altogether. Admittedly, if the worst came to the worst there might be something to be said for divide et impera…

Are Non-Maori Second Class Citizens?
23 August 2009

Before our recent excursions into the foreshore and seabed and judicial activism we were looking generally at the ‘principles’ of the Treaty. Various statutes require many officials and decision-makers to respect the principles (which are quite different from the terms) in certain situations.

The extraction of the principles from the terms of the Treaty is an entirely speculative and imaginative exercise. The terms of the Treaty are simple. Maori recognise the sovereignty of the Crown, and in return enjoy the rights of British subjects, including the possession of their property. To move from this very simple description of a legal order to ideas of partnership and special relationship is not done by remorseless and ineluctable logic but by imagination and invention. I must emphasise this. Treatyists like to give the impression that their radical interpretations of what the Treaty entitles them to are nothing more or less than plain simple straightforward law. Do not believe them. The entire business of extracting principles, let alone applying them, is a political and highly-charged exercise. Sir Geoffrey Palmer, for example, wrote as long ago as 1989 that ‘some of the scholarship surrounding [the Treaty] is highly suspect, fuelled as it is by political motivation rather than detached analysis’. In 1991 Paul McHugh, who has some very interesting views on the matter, wrote that ‘[n]o-one pretends that the language of partnership and fiduciary obligation was exchanged…at Waitangi in 1840. The courts have stressed their construction of what amounts to a contemporary mythology of the Treaty’. On the subject of partnership, of which more anon, the Ministry for the Environment, in a 1988 paper, thought that ‘[p]artnership has little or no intrinsic meaning and so can be made to mean whatever it is wished to mean. It is an empty box to be filled by whomever wields power on the day. The concept cannot be found in the words of the Treaty.’ (The italics are mine.)

That Treaty principles can lead one anywhere is shown by the multiplicity of views about what the principles actually are. There is a wide diversity of opinion. Some exponents of Maori sovereignty ~ Moana Jackson, for example ~ maintain that the Treaty means that Maori never ceded sovereignty to the Crown, and that non-Maori ‘are permitted to live in peace in this country under the mentor [sic] of Maori rule’. Some maintain it means separate homelands for each tribe. Some ~ the Anglican church, for example ~ believe that it requires separate legislative institutions for different races. In accordance with this interpretation, the Anglicans have already established three legislative chambers of their own on racial lines ~ Maori, European and Pacific Islander ~ and yet at the same time have condemned apartheid ~ in South Africa, anyway ~ as a heresy.

(Memorandum to readers: Are you a practising Anglican? If so, why do you support a church with such a strange notion of what Treaty principles require, one that institutionalises racism in its own constitutional arrangements and seeks to extend that profound racism to the structure of our entire government and society?)

The applicants/plaintiffs in 1987 proposed principles including the duty ‘to return land for land’ and ‘to protect the Maori way of life’. The Waitangi Tribunal, since its foundation in 1975, has developed its own list. (The list has continued to grow, and in the Radiospectrum Report, claiming rights to radio frequencies, recognised a ‘right to the development of taonga through technology that has subsequently become available’. This might be vaguely acceptable in the case of fisheries, but less so when ancient navigation by the light of the stars is used ~ I am not joking ~ as a justification for a claim to the radiospectrum.)

The Royal Commission on Social Policy of 1988 proposed three modest and sensible principles ~ equality of people, the treatment and protection of Maori as British subjects and mutual respect between equal peoples. In 1990 the Justice Department proposed five reasonably unexceptionable principles ‘for Crown action on the Treaty’.

Some years ago Professor Martin Devlin, of Massey University , compiled a list of Treaty principles. He did not claim that his list was exhaustive, and he certainly did not include any of the wilder-eyed radicals ~ even the Anglican church was not there ~ but even so he found thirteen quite different agencies or individuals of some standing who had produced lists of Treaty principles. Thirteen different entities, and thirteen different lists of principles. The number of principles ranged from two to twelve. Of those, only one list, the Court of Appeal’s, could be said to have any legal authority. But note ~ interpretations of Treaty principles range from having Maori as British subjects to the idea of them as a forever-superior ruling race. Clearly, the principles are a very biddable horse which will take any interpreter wherever he wants to go.

Another point. Here is a later brutal summary of the principles (as enunciated in the 1987 Maori Council case) by Sir Robin Cooke in a 1993 case, Te Runanga and Wharekauri Rekohu v Attorney-General [1993] 2 NZLR 301. The Treaty creates

an enduring relationship of a fiduciary nature akin to a partnership, each party accepting a positive duty to act in good faith, fairly, reasonably and honourably towards the other.

That is the relationship which the Treaty creates between Maori and the Crown ~ and, as I’ve said before, we probably cannot find any fault with that general principle.

But this is surely also a description of the relationship which should exist between the Crown and all its subjects. When the courts say that the Treaty somehow imposes this duty on the Crown with regard to Maori, are they thereby implying that non-Maori are not entitled to the same degree of fair dealing? Are the courts saying that only Maori are entitled to fair dealing? To say that would be to recognise the ‘special relationship’ which, Maori often assert, exists between them and the Crown?

But any special relationship between the Crown and one class of citizens automatically puts all other citizens into a second and inferior class. If there is some special relationship, then at one blow the ancient principle of equality before the law is annihilated. At one blow, indeed, the Treaty’s third article, which declares that Maori have the rights and privileges of British subjects, is annihilated.

Here is the choice. Does the treaty require the Crown to behave better to Maori than to its non-Maori subjects? If the answer is yes, then the treaty must be interpreted as condemning non-Maori subjects to an inferior status as second-class citizens. But if, as we hope and believe, the answer is no, then the inevitable conclusion is that Maori have no special relationship or status, but are just plain old subjects like anyone else.

Judicial Activism - part 2

In 2003 judicial activism took the form of the Court of Appeal striking down its own perfectly good 1963 Ninety Mile Beach decision. But both here and elsewhere in the world, we see signs of greater judicial ambition. Sir Robin Cooke’s torture remark was, essentially, laying the foundation for some future judicial seizure of power. This is not hyperbole. For a judge to strike down an Act of Parliament would be as much a coup d’etat as if armed men were to enter the House and drive the Members out at gunpoint. It would be a revolution, and none the less a revolution because no blood was spilt at the time. (It might, of course, be spilt later; some people just have this unreasonable hatred of absolute rulers.) It would, of course, be the end of democracy. The people and their representatives could say what they liked, but the judges would decide what would be law and what would not be.

And Sir Robin has not been the only New Zealand judge to cherish such ambitions. Our present Chief Justice has argued on several occasions ~ in speeches and articles, fortunately not yet on the bench ~ that parliamentary supremacy is only a assumption ~ something the judges have been happy to go along with for centuries, but still only an assumption which judges allow, and which judges could just as easily deny. And by what standard would they judge and condemn Acts of the New Zealand Parliament? She has suggested two ~ one is international law, with all its baggage of human rights and impossible international obligations ~ and the other is ~ you will never guess ~ the Treaty! The Chief Justice cunningly observes that although Maori consented to the sovereignty of the Crown in 1840, the Treaty nowhere mentioned the sovereignty of Parliament, such as then prevailed in Great Britain . Therefore, she argues, Maori did not consent to parliamentary supremacy, and therefore that may not be part of our law ~ even though the Treaty itself is without legal standing, even though Acts of Parliament are, strictly speaking, Acts of the Queen in Parliament, and even though Victoria was herself a constitutional and parliamentary monarch, and Parliament had long been utterly integral to the government of Britain.

Our present Chief Justice, then, sworn to uphold the law, is prepared to contemplate striking down the laws made by our supreme lawmaker on the ground that they might not agree with her interpretation of what Treaty ‘principles’ require. And since, as we know, Treaty principles are the vaguest of platitudes, they would therefore justify her in a very wide-ranging interference with Acts of Parliament and the government of our country.

As I remarked several years ago in the Christchurch Press, we did not fight against kings for centuries, overthrowing some, executing others, even fighting a civil war, simply in order to replace their rule with that of Queen Sian Elias. Her belief that she somehow embodies the supreme public good is a delusion no less dangerous for its absurdity.

It is at times like this that one seriously regrets the loss of the Privy Council as our ultimate court of appeal. The Supreme Court Act 2003, which replaced it with our new Supreme Court, does indeed say that ‘[n]othing in this act affects New Zealand ’s continuing commitment to the rule of law and the sovereignty of parliament’, and that is good. But the same section also speaks of recognising New Zealand as an independent nation with its own history and traditions, and enabling legal matters concerning the Treaty to be resolved with an understanding of our conditions, history, and traditions. The commitment to parliamentary sovereignty not-withstanding, I could imagine some judges arguing that if Parliament is not actually supreme, then the statement in the Supreme Court Act that it is supreme does not make it so. The Act refers only to the continuation of the present situation ~ and so if the judges believed that the present situation is where judges could overrule acts of Parliament, then judges still can. Call me paranoid, perhaps, but even the most politically correct lawyers can use legal subtleties when they want to.

At an Australian conference some years ago I felt obliged to deplore the attitude of one speaker, Australia ’s only female part-Aborigine judge, who actually told us in so many words that she was prepared to ignore Acts of Parliament. ‘The law may say this,’ she said, ‘ but I would do that’. She and her female supporters told me that my views were very old-fashioned. I replied that if, say, a conservative white male judge were to ignore some progressive piece of legislation simply because he did not like it, they would be the first to scream an appeal to the rule of law and old-fashioned principles. If judges can ignore the law when they want to, then decisions will vary according to who the judge is, and there is an end of law. No-one can be certain of safety. Sooner or later, no matter who you are, your enemies will be in charge, and then there will be no laws to shelter behind.

In many other western countries, too, we find the same readiness of judges to strike down laws they do not like simply because they do not like them. Examples are numerous. The laws struck down may well be, to many people’s minds, perfectly reasonable, and in any case are usually, obviously, desired by a majority of the population. If there is a written constitution or bill of rights promising vague general rights to people, that is an excellent opportunity for such activism.

We should be very wary of any such documents, because their very existence converts political issues into legal ones. A bill of rights, let us say, promises citizens the ‘right to life’. That at once means that all sorts of thorny issues, where judges have absolutely no special expertise or insight, become ‘legal’ issues. Judges thereafter may make essentially political decisions on thorny issues such as abortion, euthanasia, capital punishment, even health care funding and hospital priorities. It does not matter what the people think ~ the constitution says ‘right to life’ and the judges have interpreted that in this or that way, and that’s the end of it. Written constitutional documents are desired by the politically correct because they remove contentious political decisions from the hands of the nasty dirty stupid common people and put them into the hands of liberal judges, who can be relied upon to do the politically correct thing.

I must emphasise that my strictures do not apply to many judges. Nevertheless they do apply to some, and some of those not the least influential. I do not necessarily suggest that judges’ motives have been consciously bad. They have, I daresay, had a mixture of motives; compassion, concern, a desire to feel virtuous, an over-optimistic view of human nature, a belief that their decisions will solve genuine problems and an excessive view of their ability to change things. But when Lord Acton wrote that power tends to corrupt, and absolute power to corrupt absolutely, he did not add a little rider to the effect that that principle did not apply to the judiciary. It applies to everyone, judges included. Judges should stick to their knitting.

Judicial Activism - part 1

Our Chief Justice, Dame Sian Elias, has been in the headlines recently because of her comments on penal policy. My task is to write about Maori and treaty issues, not penal policy, but a considerable part, anyway, of the Treaty mess has been brought about by judicial decisions which owe as much to political attitudes (in the wider sense) as they do to respect for the law. The Chief Justice’s headline-grabbing speech therefore seems to be a good occasion to think about the proper place of judges under our constitution.

Politics and law are two quite different things. Judges are ~ or at least, they should not be ~ politicians. They are appointed officials; a particular special class of official, but appointed officials nonetheless. They have no special training in mediation; nor should they have. They are there to declare the law, not to get everyone to hug each other. They have no power to conduct research, hold long inquiries, prepare reports and so on; and nor should they. They are obliged to consider the case before them, and not to draw up plans to reform the world at the poor litigants’ expense. They have no power to rewrite all our laws to set the world to rights; nor should they. They may have their views on what justice and the greater good require, but so do all of us, and the opinions of many of us are just as good as the judges’, if, indeed, not better.

Judges have no popular mandate. No-one elected them. They are answerable to no-one. We consider this unanswerableness ~ literally, this ‘irresponsibility’ ~ to be, on the whole, a good thing, because it means that judges are beyond the influence of politicians, or anyone else, who would pervert the course of justice. We may shudder delicately at the thorough political examination which nominees to the American Supreme Court, for example, must undergo; but, in the process of interpreting the American constitution, the Supreme Court makes highly political decisions, and so it is entirely reasonable that these political decision-makers ~ whose decisions, of course, are difficult or impossible to reverse ~ undergo public examination before appointment.

Of course we would not like to see such public examination here. Every law student learns about the ‘separation of powers’, a concept popularised by the eighteenth century French political philosopher Montesquieu. We believe that it is vitally important for the sake of justice and law that judges go about their business without any interference at all from politicians. And so it is. Parliament’s own rules take a very dim view of political observations on the judges.

Lawyers, however, tend to take a one-sided view of the separation of powers. In their simple world-view, it exists to protect judges (who are good) from politicians (who are evil!) But that is only half the story. The separation of powers, like many good things, is in the nature of a bargain. Politicians will forego criticism of judges and involvement in judicial matters; but at the same time, judges too must stick to their business and not interfere in politics.

That is where much of the problem lies. By and large, politicians are pretty scrupulous in respecting judicial independence. But there are judges who will not keep their side of the bargain. They want to be politicians, and enjoy the pleasures of power without paying the price ~ the hard work, consensus-building and ‘politicking’, in the best sense of the word ~ and the public scrutiny, even public unpopularity ~ that politicians pay. They want to meddle ~ and then leave it to others to clean up the mess caused by their noble pronouncements. Recognising that strict law will not solve these problems, they act not as lawyers but as politicians. But if they behave as politicians then all bets are off. They expose themselves to unkind criticism, and have no right to complain of it. The worst enemies of judicial independence are some of the judges.

For several centuries the settled rule of our constitution has been that Parliament makes laws, and judges apply them. In some countries, where there is a written constitution or bill of rights with the status of supreme law, judges are entitled to strike down particular laws which contravene the supreme law. But the principle of our constitution, established after centuries of struggle against our kings, is that Parliament is supreme. Nothing can override or stand against an Act of Parliament.

Certainly, if we go back well before the Revolution of 1688, which finally and firmly established the legal and political supremacy of Parliament in England, we can find several high-flown remarks ~ no more than several ~ on the power of judges to ignore Acts of Parliament in one way or another. The quotations are collected, and the matter discussed, in the chapter on legislation in Sir Carleton Kemp Allen’s Law In The Making. Sir Carleton concluded, however, by saying that ‘there is not, so far as I am aware, a single example in our books of the courts rejecting the plain and express provisions of a statute on the ground that it was contrary to any ethical principle’.

That did not prevent Sir Robin Cooke, however, from claiming a theoretical power to strike down an Act of Parliament. In Taylor v New Zealand Poultry Board [1994] 1 NZLR 394, for example, he suggested that a statute authorising torture could properly be declared invalid. Some common law rights, he said, lie so deep that even Parliament could not override them.

Torture, you will be relieved to hear, was not the actual matter in dispute in that case. I am sure none of us would like to see torture authorised in our country. But of course our Parliament would make such a law only in most extreme circumstances. If New Zealand were in such dire straits that a majority of Members of Parliament, doubtless after immense public discussion, agitation and lobbying, considered that the application of torture was occasionally necessary for the greater good, what right would judges have to sabotage the safety of the community?

(I might add that torture has existed in England in the past, and the common law then did not see its way to declaring it improper.).

This ‘judicial activism’ ~ the straying of judges beyond their proper territory, and taking on an improper political role ~ can take several forms. In relation to the Treaty, as we shall see in future weeks, it has usually taken the form of highly adventurous interpretations of statutes or of the implications of ‘Treaty principles’. In the 1987 case, of course, Sir Robin actually deliberately refused to interpret a statute in the way Parliament intended and which was perfectly consistent with the statute’s words. Sir Robin also remarked that the Treaty was ‘an embryo rather than a fully developed set of ideas’, thereby guaranteeing himself a highly creative role for the future. Displaying a generosity all too common where other people’s property is involved, he announced that the interpretation of the State-Owned Enterprises Act ‘should not be approached with the austerity of tabulated legalism’. Rather, a ‘broad, unquibbling and practical interpretation’ was desirable. It is debatable how practical his interpretation was; it was certainly broad and unquibbling; but law, of course, is quibbles. Little details may irritate us, but that is what law is. Once a judge abandons the silly little details and just goes for the big picture, he has abandoned the law itself, and can do absolutely anything he wants to. The way is open for political decisions. Sir Robin, indeed, spoke on various occasions of how the law should pursue ‘a middle way’. I suggest that the law should do no such thing. The law should pursue the law. The middle way is for politicians. The middle way may well be desirable in the end ~ but it is still a political course, which politicians make after judges have said what the law is. It is not for the judges to behave as politicians.

To be continued…

The United Nations Declaration on the Rights of Indigenous Peoples

There is a difference of opinion between the Prime Minister and the Minister of Maori Affairs, Mr Peter Sharples, over New Zealand’s possible endorsement of the United Nations Declaration on the Rights of Indigenous Peoples. Mr Sharples believes that we have agreed to sign the document; the Prime Minister, I am happy to say, says it is still too early to say that we will.

Long may it remain so. Our previous Labour government ~ no slouch when it came to making windy statements of concern over the plight of the wretched ~ declined to endorse the document when it came before the United Nations General Assembly in 2007. It would surely be a safe rule of thumb that where the hand-wringers of the Labour Party decline to go, no more thoughtful and reasonable party should venture. If even fools decline to rush in, surely angels should fear to tread. That we might even be thinking of signing should fill us with alarm. And the very fact that the issue is so close to Mr Sharples’ heart may suggest that he and the Maori Party see the Declaration as not just meaningless lip-service, as it is sometimes represented, but as a tool for possible future use.

What does the Declaration actually say? It has a preamble of two pages, & then forty-six articles on six pages more. It is windy ‘rights’ talk of the most egregious kind. Even offering a summary will cause your eyes to glaze over. Read it for yourselves. As well as all the rights and freedoms in the Universal Declaration of Human Rights ~ you might have thought there were enough there to keep anyone happy ~ indigenous people have rights to self-determination, autonomy and self-government, the protection of their culture, the maintenance of their traditions and customs, their own educational system, their own news media, the protection of their children, participation in decision-making, the improvement of their economic and social conditions, spiritual relationships with their lands, their cultural heritage. They have rights to maintain, protect and develop past, present and future manifestations of their cultures, including artefacts, ceremonies, technologies, visual and performing arts and literature, and the restoration of their cultural, intellectual, religious and spiritual property……

There is an enormous amount of repetition, but, underneath that, much of what is said is not all that unreasonable. (I shall come to the unreasonable bits in a second!) The cynic notes, however, quite a few attempts to have ones cake and eat it too. Indigenous peoples have the right to their traditional medicines and health practices ~ but they also have the right to all available health services, just in case! They have the right to maintain their traditional culture ~ but also the right to ‘development’ away from that culture. They have the right to own and manage their traditional lands, but also the right to demand that the state conserve and protect those lands. They have the right to equality, but also the rights to special measures to improve their social and economic conditions, including special treatment in employment, housing, health care and social security. All people are equal, but some are more equal than others.

The rights in the Declaration are ‘equally guaranteed to male and female indigenous persons’, and ‘particular attention shall be paid to the rights and needs of indigenous elders, women, youth, children and persons with disabilities…’. I will be interested to learn how it is possible to reconcile this with the undoubted inferior status of women and the disabled, for example, which prevails in many ‘traditional cultures’.

Leaving all that to one side, the Declaration may be appropriate to countries whose indigenous populations are large, or still comparatively discrete and distinct entities. But it is simply inappropriate to a country such as ours.

The Declaration’s very vague words could be used by malcontents to justify claims to everything under the sun. Any one of the rights mentioned above could become the basis of absurd but disruptive claims. But over and above that, the Labour government recognised that several articles in particular would be highly disruptive and destructive for our own country. Article 26, for example, states that indigenous peoples have a right to own, use, develop or control lands and territories they traditionally owned, occupied or used. This Article would, of course, cover all of New Zealand, and on the face of it would apply regardless of whether the land has another lawful owner now, and regardless of whether it was properly purchased or (if improperly obtained) had been the subject of a later final settlement. Article 28 deals with compensation for lands improperly taken, and says that compensation must be by other lands of equal quality and size, or by monetary compensation. Again, Labour Ministers argued that this provision would require financially impossible settlements; even though New Zealand has extensive and generous processes for redress and compensation, the Declaration would declare them inadequate. Articles 19 and 32 of the Declaration, in particular, also imply that indigenous people should have a right of veto over a democratic legislature and national resource management. In the words of the New Zealand Permanent Representative, ‘these Articles….imply different classes of citizenship, where indigenous have a right of veto that other groups or individuals do not have’.

Jeremy Bentham long ago warned us to be wary of ‘rights’ talk. Indeed, he considered the idea of ‘natural rights’ to be simple nonsense. To speak of rights is to speak of claims about which there can be no argument. I have a right ~ I am entitled to demand something from you. No questions may be asked. I have a right. That is the end of the matter. Give me my right. And give it to me now. ‘Rights’ cannot be a matter of negotiation or discussion. They are, in one sense, like the gun of the terrorist. They are demands that something be conceded or handed over, not as a matter of public good but simply because there is a ‘right’.

We might hesitate to go as far as Bentham and say that we have no ‘human rights’ at all. But without going that far we can easily see that much talk of ‘rights’ is simply the disguise of a political programme. The object of all sorts of interest groups is to have their particular claim acknowledged by their community as a ‘right’. Once it is accepted as a right, there is an end of the matter. You support euthanasia? Then always talk of your ‘right’ to it. If people eventually give up arguing with you, you have won. You support abortion on demand? Talk of a woman’s ‘right’ to one. You support greater political influence for indigenous peoples? Again, issue a charter giving them special rights. Get that through, and your opposition is history.

Most of us, as I say, would hesitate to deny that some human rights, anyway, do exist. But I have never heard any explanation as to why ones status as an ‘indigenous person’ means that one has more. If they have a right to their traditional culture, why do we have no right to ours? If they have a right to education appropriate to their needs, do the rest of us have no such right?

The Declaration contains one absolutely amazing omission. In just about every field of human endeavour we are urged to ‘define our terms’. Yet nowhere does the Declaration even attempt to define what or who an indigenous person is.

Oxford tells us that an indigenous person is one ‘born or produced naturally in a land or region; native to that soil, region, &c’. In that sense, all of us born here are indigenous. We may speak a language and have a culture that developed elsewhere; but then, so did the first Maori when they arrived from the Hawaiki they still remember.

If, on the other hand, ‘indigenous’ is used to refer to a people whose ancestors have lived in a place from time immemorial, then New Zealand has no indigenous inhabitants, for human settlement on these islands began only about 800 years ago.

These are the only two things ‘indigenous’ can mean; being born in a place, or having ancestors who have been there forever. The word does not mean merely ‘having ancestors who arrived in a place before someone else’s’. That is, however, the meaning given to the word by sundry spokespeople for the self-styled indigenous. We learn from websites that the only ‘indigenous’ people in Europe are the Lapps, or Sami as they are called these days. Other Europeans are not indigenous to lands they have inhabited for thousands of years. Not only are the Anglo-Saxons not indigenous; the Gaels, descendants of the ancient Britons (a Celtic people), are not either. In Japan only a few thousand Ainu, an ancient people, are said to be indigenous; other Japanese, despite 5,000 years of residence, are not.

But if Japanese and Britons, despite thousands of years of occupation, are not indigenous, how can Maori be indigenous after a mere 800 years in New Zealand?

The only possible explanation is that ‘indigenous’ is interpreted as meaning simply ‘being somewhere first’. Well, if simply being somewhere first gives one greater rights, then I look forward to European New Zealanders whose ancestors arrived here several generations ago having more rights than recent immigrants. Absurd? Put like that, yes. If a Cantabrian, say, were to claim special privileges in his province just because his ancestors arrived on the first four ships, we would laugh in his face at his pretension. So why, when we change the ship into a waka, does the argument become more convincing?

Let us by all means respect other races and cultures. The simplest and best way to do that, however, is by respecting basic principles of non-discrimination and agreed human rights, rather than by inventing special new rights for a completely undefined category of ‘indigenous’ persons.

For almost two centuries in this country Maori and European have occasionally fought but mostly lived and slept together. Inexorably we are becoming one people. Whatever may be the case overseas, the canoe and sailing ship arrivals here are not separate and distinct entities. Most certainly, tribes are the past. Many Maori, especially those at the bottom of the heap, have little connexion with them. Maori activists recognise this awkward fact. They have always been particularly evasive when faced with the entirely reasonable and obvious question of ‘who is a Maori?’. The popular Treatyist reply at present seems to be that Maoriness is not a matter of race at all but rather one of culture. But the only people entitled to demand compensation for ancient wrongs are the descendants of the wronged ones. ‘Culture’ is no valid base for historic grievances. You may not claim just because you choose to identify with a ‘culture’. Besides, if indigenousness is a matter of culture and not of race, then the distinctive ’pakeha culture’ in which we all participate has the effect of making us all indigenous.

The attempt to recast division in terms of culture and not race is, despite its intellectual dishonesty, nevertheless a welcome sign that the racial distinction between Maori and European is gradually becoming meaningless and unworkable. So, indeed, is the cultural distinction. Our culture is how we actually live every day, not just the fancy dress we put on when on a special occasion we go the marae or the opera. It is all the clothes we wear, not just the bone carving around our neck. It is the food and drink, work and play of every day. More and more we have these in common.

So then: an ‘indigenous’ Maori race is rot; an utterly separate and distinct Maori race, untainted by intermarriage, is rot; increasingly, a separate and distinct Maori culture is rot; and a political programme of special inalienable ‘rights’ for this mysterious people is also rot. Please, Prime Minister, do not sign the Declaration. We will only regret it.

The Foreshore and Seabed - part 2

Chris Trotter, whom I quoted last week speaking of the Court of Appeal’s 2003 Ngati Apa decision, may have overstated the case a little in saying that the judges ‘thrust a sword into the heart of the New Zealand state’s authority’. Nevertheless he was quite correct to liken the judgment to a ‘smouldering cigarette tossed into the tinder-dry margins of our society’.

Why are the foreshore and seabed an issue at all? Why are New Zealanders once again snarling at each other in a racial confrontation? Quite simply, five people are to blame. They are the Court of Appeal judges who overruled the 1963 Ninety Mile Beach case. That had been accepted as settled law for forty years. It was the basis on which all Acts of Parliament and legal arrangements had been made ever since. It was the well-considered decision of a strong court. The 2003 Court of Appeal was under no obligation to overturn it. Indeed, every law student learns in his or her first year of study that the New Zealand Court of Appeal is (allegedly) very reluctant to overturn its own decisions, and is prepared to do so only in several carefully defined situations. Only a fool would be unaware of how immensely controversial and politically charged the whole matter of race and the treaty is. Only a fool would be unaware of how dearly all New Zealanders love their precious coastline. In such a highly-charged area, more than any other, it is not for unelected judges to throw over established law and embark on political adventures of their own. The only possible responsible and acceptable course of action ~ indeed, the only course consistent with common prudence and common sense ~ would be to say: ‘This is the established law. It is not for us to alter it. That is for Parliament and people. We merely declare what is law now, satisfactory or unsatisfactory as that may be.’ But this court wasted no time considering the propriety of overruling its 1963 decision. It leapt in where it need not have gone at all. Rumour had it that one or two of the judges were initially inclined to find for the Crown. They should have followed their instincts. As it is, the then judges of the Court of Appeal have caused this crisis, and the discredit they have brought upon themselves is entirely deserved.

We must be clear, though, about exactly what the Court of Appeal decided. You may be under the impression that it declared that the foreshore and seabed were the property of Maori. It did not. That, at least, must be said in the Court’s defence. The Court merely declared that the Maori Land Court had jurisdiction to hear Maori claims to foreshore and seabed, and to determine the status of foreshore and seabed. You could be forgiven for not realising this. Most Maori do not realise it. Those protesting against Labour’s 2004 Foreshore and Seabed legislation ~ you remember the hikoi? ~ clearly seemed to believe that the Court of Appeal had said that Maori did own the foreshore and seabed, and they looked upon the bill as yet another theft of their property by a wicked colonial parliament. A grossly seditious ‘Hauraki Declaration’ asserted Maori ownership. The Court did, indeed, remark that the particular claim before it in this case was likely to fail, although they did not consider its merits, and that other claims might well be difficult to establish successfully. That does not, however, absolve the judges; given the heat racial issues generate, and given the persistent and wilful misunderstanding of the Court’s remarks about ‘partnership’ in the 1987 case, it must have been obvious that such misunderstandings would arise and indeed very possibly be encouraged for political purposes.

Not only Maori opposed the 2004 legislation. The Business Roundtable and others also opposed it, on the ground that it deprived a class of subjects of the right to seek recognition and enforcement of their property rights before a court of justice. We must certainly always be wary of depriving citizens of lawful rights, especially ones as basic as the vindication of their own property rights. Nevertheless, the 2004 legislation was necessary and wise. The ‘right’ which it was taking away from Maori claimants was one they had only just been given by the previous year’s judgment. Rather than being a removal of a right, it would be better to look upon the legislation simply as the restoration of a status quo that had been accepted for forty years. Moreover, if the Act had not been made, the uncertainty and ill-will inevitably generated as claims were made to most of the coastline, and dragged on through the courts for years, would be immensely unpleasant and unsettling. The consequences for race relations would have been appalling.

I suspect also ~ though this is pure speculation ~ that another reason may have lurked at the back of the minds of some of our legislators. There may have been the thought that some, anyway, of our judges simply cannot be trusted to make proper decisions. I am not the only one who considers that the Court of Appeal in this case displayed more political radicalism than good judgment. As for the Maori Land Court, a contributor to the New Zealand Law Journal has written that ‘to describe the general impression of [its] judges and processes as idiosyncratic would be polite. [It] would not qualify as a court under the Australian and US constitutions….It cannot contribute in any positive way to the development of rural Maori without departing even further from what we expect of a court…’

The 2003 decision has itself been the subject of considerable criticism. But even leaving that to one side, if Parliament had not acted in 2004, but had left claims to be settled by the courts, the delay and division alone would have been socially most unfortunate, and the eventual decisions might not all have been entirely impartial. The Maori Land Court might have made strange decisions, and higher courts might have declined to overturn the Land Court’s findings on the facts.

But I cannot see what Maori are complaining about in the 2004 legislation. It gave Maori far more than it took away. (Not all Maori do object; Ngati Porou, for example, have taken advantage of the new law.) Maori can apply for ‘customary rights orders’, which allow for the recognition of longstanding customary activities. The protection of recognised customary activities was made a matter of national importance under the Resource Management Act. Changes to the RMA gave the holders of customary rights a powerful position which might well enable them to veto development proposals or charge a fee for their permission. ‘Ancestral connection orders’ could also be made, with consequences about which we can only speculate, for the Act does not describe them. Not even public access was guaranteed everywhere; the Crown could still restrict or prohibit it, and it would be surprising if the grounds for that exclusion did not include Maori ones. It seemed to me at the time that, in a perverse way, the government of 2004 might have welcomed Maori protests, for those protests may have misled other New Zealanders into believing that the legislation was acceptable to them; whereas in fact a good case could be made that under the 2004 law we were the ones being robbed.

Anyway: the Ministerial Review Panel, in its report just released, has put forward four options for the future. One is simply to repeal the 2004 Act and leave it to the Maori Land Court to decide on individual cases. There could be settlements with individual tribes. There could be a nationwide settlement. Or (the panel’s preferred option) there could be a ‘mixed model’, ‘combining a number of discrete components: a national settlement, allocation of rights and interests, local co-management, and an ability to gain more specific access and use rights’. This model starts off from the presumption that local Maori already have some form of customary or tikanga title ~ which is, of course, something never established in any court and indeed unlikely to be established in any half-decent court.

The course of events then is this. Before 2003 we were all New Zealanders enjoying equal rights to the use of the coastline. The 2003 Court of Appeal decision said that Maori could apply for declarations that they owned portions of the coastline. The 2004 legislation returned the ownership issue to the pre-2003 status, but gave Maori numerous rights. Now it is proposed to give Maori ownership ~ ‘customary or tikanga title’ ~ and a national settlement ~ that will probably involve money ~ and ‘local co-management’ ~ ah, what will that involve? ~ and ‘an ability to gain more specific access and use rights’. Maori talk of re-establishing their mana. There seems to be a lot more than mana involved here. Grant all of this, and non-Maori will be trespassers on their own beaches. How has all this happened? Where are we? I feel rather like Michael Douglas in the film Falling Down ~ a decent citizen in the morning, gunned down by the police as a villain in the afternoon. His last bewildered words were ’How did I get to be the bad guy?’ If Maori really want to establish their mana, they could best do so by some admittedly uncharacteristic act of generosity, such as renouncing their claims to our common heritage.

This, I think, may be crunch time. I know I was quietly hopeful a couple of weeks ago, but I had forgotten time bombs such as this. Chickens, to mix my metaphors, are returning to the roost. For two decades governments and holier-than-thou bureaucrats and academics have been laying the foundations of a divided society. The foreshore and seabed issue is surely proof even to the most dim-witted that treatyism is incompatible with democracy and racial equality. But there are none so blind as those who will not see. People who believe that one race should own the foreshore and seabed make the accusation of racism against those who believe it should belong to everyone!

I feel sympathy for the Prime Minister, who would like to stay on side with the Maori Party, but I am not prepared to sacrifice my birthright for anyone’s political calculations. Statements by the Minister of Treaty Settlements have, I regret to say, not been as firm as I would have hoped. In a helpful spirit I feel obliged to warn the government that if it sells us down the river on this one there will be hell to pay.

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The Foreshore and Seabed – part 1

We interrupt our usual programme for a special bulletin. We were, you remember, musing on the principles of the Treaty, but you are probably aware ~ you have not been living in New Zealand in the last week if you are not aware ~ that the foreshore and seabed issue has reared its ugly head again. In accordance with the National Party’s coalition agreement with the Maori Party a Ministerial Review Panel was commissioned to produce a report on the issue. This it has just done.

The members of the panel were Judge Eddie Durie, (long time judge of the Maori Land Court and chair of the Waitangi Tribunal), Hana O’Regan, (the daughter of Sir Tipene), and Dr Richard Boast, an academic and reasonably prolific writer on Treaty issues. In the official news release Judge Durie is merely described as a ‘former high court judge’ and Hana O’Regan is coyly described just as an ‘educationalist’. Do not think, though, that I am being unduly personal in mentioning their background. When they were appointed, the Minister of Maori Affairs, Dr Pita Sharples, was reported as ‘joking’ that if they did not come to the conclusions he desired he would appoint another panel that would. The official news release insists that the panel was ‘independent’. Doubtless they were free of interference from Dr Sharples & Co., but no interference was necessary. They may have been independent; they were not impartial. From the moment they were appointed the general tendency of their conclusions was entirely predictable.

The report recommends the repeal of Labour’s 2004 Foreshore and Seabed Act, and suggests a number of options for the way ahead. The option it prefers ‘takes as its starting point that entitled Maori (i.e. those hapu and iwi with traditional interests in the coastal marine area) have some form of customary or tikanga title to all of the foreshore and seabed and that the public also have interests in access and navigation….’ (page 9, Summary Report).The italics are mine. So this independent panel is recommending that ‘some form’ of Maori title ~ ownership might well be another word ~ be recognised over all of new Zealand’s foreshore and seabed ~ out to the twelve mile limit ~ while the public merely have ‘interests’ to be accommodated.

You may consider it outrageous at the best of times that caring people, doubtless vehemently opposed to racism and in favour of human rights, should propose handing a vast, precious and indeed valuable area of our country over to one racial group. Recall that Maori sea fisheries and aquaculture claims have already been settled, and that other uses of the coastal marine area ~ mining, submarine electricity generation and transport, harbours and commerce, marinas, recreation and tourism, oil and gas drilling ~ were unknown to pre-Treaty Maori. If any form of title were granted to Maori ~ or anyone else ~ then you may bet your bottom dollar that every user of the coastline will thereafter have to recognise that title by seeking permission and paying fees. The humblest surfing or surfcasting competition will have to grovel and pay. For all we know, we may not be allowed to take a few mussels from the rocks without some suitable monetary recognition of the authority of the local tribe. Any grant of title will result in a charge paid to the new landlords. This is as sure as eggs are eggs.

But this proposal is particularly outrageous in the light of what went before. Do not believe that it represents some form of moderate compromise. Nor is it even the restoration of some ancient status quo. It would give to iwi and hapu far more than they have had for a very long time, arguably ever. And who can say that even this generosity will be the end of the story? Is it not perfectly possible that a few years down the track it will be suggested that in the light of new developments, or some such excuse, blah blah blah, it has sadly become necessary to restrict even those rights of private access still left to the poor old New Zealand public? Since when did excessive generosity discourage people from asking for more?

So what went before? Here, I am afraid, a little historical explanation is necessary. It is not all that complicated; the essential points are very simple. Most essential points are. It often pays to be wary of people who, in relation to any matter, assure you that it is very complicated. That is often just a way of saying that you cannot hope to understand it, and you should therefore leave the matter to people like the speaker, who know better than you do. Trust them. Certainly, some matters are complicated. But often, after you have taken away the confusing detail, the bare bones are simple enough.

Very briefly: after the Crown acquired dominion over New Zealand, Maori remained in lawful possession of the lands they then occupied. They did not suddenly become propertyless just because of British sovereignty. The Treaty, of course, legally inefficacious as it was, recognised this by guaranteeing to the chiefs and tribes the possession of their lands, forests and fisheries. But this lawful possession did not derive from the Treaty. The Treaty was consistent with this continued Maori possession; but the possession itself arose from a well-established rule of the English common law, the principle of ‘aboriginal title’.

(This principle has nothing to do with the aboriginal inhabitants of Australia ~ to whom, indeed, the principle was long held not to apply. The word is the same, though; it comes from the Latin ab origine, meaning from the beginning, and here merely means that the Crown acquires its sovereignty, its ‘radical title’, subject to the possession of the land by the inhabitants there at the beginning of that sovereignty. )

This aboriginal title lasted until it was, in one way or another, lawfully ended. Purchase of such lands by the Crown would obviously be such an end. So would a statute of confiscation. So also would be an order of the Native Land Court. This court ~ now, of course, the Maori Land Court ~ was established in 1865 to ascertain and define the rights of Maori people to their land and then to assimilate those ascertained and defined rights as nearly as possible to the ownership of land under English law. Land held by aboriginal title is ‘Maori customary land’. Land held under a title issued by the Land Court is ‘Maori freehold land’. In 1840 virtually all of New Zealand was Maori customary land. Now there is virtually none. Perhaps an isolated pocket or two survive somewhere obscure and unnoticed; but virtually all land owned by Maori is now ‘Maori freehold land’, and of course a very great amount of land, whether owned by Maori or non-Maori, is ‘general land’ held under the Land Transfer Act.

Very well. There is virtually no customary Maori land left; no dry land, anyway. What, though, of the foreshore (the area between high and low tide) and the seabed (the area below the low tide mark)?

It will be enough for our purposes to say that this question was considered in the 1963 case In re the Ninety Mile Beach [1963] NZLR 461. After a careful consideration of the issue a very learned and solid Court of Appeal concluded that after the Maori Land Court had made an order turning customary land into Maori freehold land, then there was essentially an end of the matter. If the Land Court ordered that the low tide mark was the boundary of the Maori freehold land, then so it was; if the Land Court ordered that the high tide mark was the boundary, then no further claim could be made for land below that line. In neither case could the Land Court make any order respecting the seabed beyond the low tide mark. If any customary land still existed, the Harbours Act 1866 declared that the foreshore belonged to the Crown. But wherever land along the sea was Maori freehold land (or of course general land) then there was simply no further jurisdiction in the Maori Land Court to make an order.

That was the clear simple legal situation, on which all dealings with the foreshore and seabed, and all Acts of Parliament, were based, until another Court of Appeal, in the 2003 Ngati Apa case, decided to overturn its 1963 decision. Discussion of that must wait until next week. But read what a well-known commentator, in a piece that appeared in several newspapers, wrote at the time on the Ngati Apa decision:

‘When are we going to stop ignoring the 900 pound gorilla sitting in the corner of the national living room? How many judgments does the Court of Appeal have to toss, like smouldering cigarettes, into the tinder-dry margins of our society before we reach for a fire hose? …..The judiciary has thrust a sword into the heart of the New Zealand state’s authority….It seems to me that in the matter of the New Zealand foreshore, the Court of Appeal has utterly failed to discharge [its] duty [to protect and defend the core institutions of the colonial state from the unlawful claims of any who would challenge them], and its dereliction has forced on the executive and legislative arms of the state an unequivocal reassertion of its sovereign authority….’

To be continued…

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The Principles of the Treaty and the Big Case

The 1984 – 1990 Labour administration broke up the long-established Lands & Survey Department and Forest Service. The conservation aspects of these departments were transferred to the newly-created Department of Conservation, and their commercial operations were sold to state-owned enterprises (henceforward referred to as SOEs) established under the State-Owned Enterprises Act 1986 (the SOE Act).

The principal objective of these new enterprises was, as we all know, to operate as successful businesses. Crown assets, including Crown land, could be transferred to them by the Crown. Section 27 of the Act, inserted at the suggestion of the New Zealand Maori Council, dealt with the situation where land transferred to an SOE was already subject to a Treaty claim before the Waitangi Tribunal. Section 27 provided that in such a case the SOE could not later alienate (i.e. transfer) that land to another, and that if the Waitangi Tribunal later so recommended, the Crown could recover the land. (Usually, the Tribunal has power only to make recommendations, not binding orders; it is not a court of law.)But nowhere in the SOE Act, in section 27 or elsewhere, was there any provision dealing with claims lodged with the Waitangi Tribunal after the land in question had been transferred to an SOE.

It was only after the SOE Bill had been introduced into Parliament and was proceeding through the House that the Labour government inserted another new clause which eventually became section 9. This section says:

Nothing in this act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi

There can be little doubt that this section was intended to be no more than a pious and reasonably meaningless piece of lip-service. When the Maori Council brought its case, relying on section 9, there was actually consternation among the wise legislators and constitutional experts then in the Beehive. The Maori Council claimed that the Crown would be acting inconsistently with Treaty principles if it transferred to any land to an SOE without making provision for the recovery of that land should the Tribunal recommend that it be used in a Treaty settlement. Even though land might not be subject to a Treaty claim in 1987, it might be the subject of a claim at some future time; and even if a piece if land were never claimed, nevertheless its alienation from the Crown to an SOE would reduce the ‘land bank’ which the Crown could use in settling claims, in substitution for other land now unavailable for use in settlements. Therefore, the Maori Council claimed, any land transfers to an SOE without provision for later Crown recovery of that land would be a breach of section 9.

In response the Solicitor-General argued that if this were so, then the Act’s purpose would be frustrated. If SOE’s were not to own the land on which their operations took place, or if they were liable to have that land taken from them at any future time, then those enterprises would be able to operate only ‘in a withered and crippled way’. That could not have been Parliament’s intention ~ and after all, as any judge would eventually be forced to admit, Parliament’s intention (as expressed in the words Parliament uses) is paramount. The Solicitor-General argued also that, although Crown land was certainly the chief asset of interest, there was a range of assets other than Crown land to which section 9 could apply.

As far as land went, then, the Crown argued that section 27 was a complete code. It was intended by Parliament to cover the land issue completely. There is a sensible general rule of interpretation that ‘general words do not derogate from specific ones’. If a statute contain some general rule (e.g. in section 9) but also has some very detailed specific provisions (such as section 27) on one particular point, then the general words do not prevail in the situation covered by the specific detailed provisions. So section 27’s provisions should alone apply to land, and section 9 not to land at all but rather just everything else.

Nevertheless the Court of Appeal held that section 9 did apply to transfers of land, and the court made a declaration that land transfers from the Crown to SOEs would be in breach of Treaty principles and therefore unlawful unless some system acceptable to Maori were established for the satisfaction of later Treaty claims.

What were the principles? The entire judgment runs to seventy-nine pages in the New Zealand Law reports, and most of that concerns the principles. But there is no need for lengthy analysis here. The principles are all extremely vague, as we shall see, and have been often briskly summarised in later cases.

Suffice it to say that the Treaty was a ‘solemn compact’ The Crown (politically, if not legally, speaking) obtained sovereignty by it in return for promising protection to Maori. The parties to the Treaty must act towards each other reasonably and with the utmost good faith. The Treaty is a partnership between races. The Crown would behave honourably. A duly-elected government must be free to follow its chosen policies, and to make laws for the whole community. The Crown has a duty of active protection of Maori. The Crown should grant redress whenever the Waitangi Tribunal recommends it. ( The judges have since had second thoughts about this principle, which would essentially turn the Waitangi Tribunal’s non-binding ‘recommendations’ into binding orders, and that ‘principle’ has been firmly dropped.)Maori have a duty of loyalty to the Queen, full acceptance of her government, and reasonable co-operation. There may be a duty on the Crown to consult Maori.

Few of us could find fault with most items on that list. They are perfectly reasonable propositions. So where can the harm be?

A major part of the danger lies in that very fact ~ that this list of principles is so reasonable and so vague that it means everything and nothing. It could be used to justify any conclusion that a court of law ~ or anyone else ~ wanted to come to. From this list, the Court of Appeal in this case chose those items which led it to declare that that the Crown’s actions were unlawful. The Court could just as easily have chosen other items ~ the freedom of a government to follow its chosen policies, the duty of loyalty and co-operation which Maori owe to the Queen’s government ~ and come to exactly the opposite conclusion. A list of platitudes is not a helpful guide to anyone. No-one will never know, in any particular case, what Treaty principles require, until the issue has, at great expense and delay, been submitted to a judge who would be justified, by the list above, in coming to almost any decision he might want to.

This decision by the Court of Appeal was not, then, inevitable. If the Court had decided the other way, no lawyer could have declared that decision wrong. The decision could have been called conservative or unimaginative, perhaps, but nothing worse. It could also have been described as sensible and reasonable. We cannot blame the judges for considering Treaty principles ~ Parliament itself, in section 9, required that those principles be respected, while giving absolutely no guidance whatever as to what the principles actually were. The judges had to find the principles for themselves. Nevertheless, even on the principles they actually discovered they could have very reasonably decided in favour of the Crown. Sir Robin Cooke, the then president of the Court of Appeal, actually accepted that Parliament ‘thought the Act would have the effect now contended for by the Crown’, and that such an interpretation was a plausible one. Sir Robin, then, deliberately chose to ignore Parliament’s words and Parliament’s intention. He ignored an Act of Parliament in the pursuit of his own progressive political programme. That was an unconstitutional and disgraceful thing for a judge to do. Other judges may not have been so conscious of the context of their actions, but all the judges could quite properly have decided the case the other way. Even in 1987 the Treaty was a contentious topic. Our wise legal tradition says that judges should not meddle in politics. Any sensible court would have chosen the cautious path, and made it plain that radical moves were for legislators, not judges. The Court’s decision that the Maori Council should prevail was a political decision, not an inevitable one forced on the Court by the statute. The principles themselves are not unreasonable, but vagueness is always unsatisfactory in the law, and vagueness gives judges pursuing a progressive political programme a pretext for far-reaching political meddling with unfortunate consequences for our country.

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The Treaty of Waitangi, its terms & principles

The terms of a document are what it actually says; the ‘principles’ of a document may be quite another thing. The terms of the Treaty of Waitangi are the words first spread out in the Northland sun on the 6th of February 1840. But we do not hear much about the terms at all. Instead, the talk is all of the ‘principles’.

There are several reasons why this should be so. For one thing, it is still absolutely clear that the Treaty, in and of itself, has no legal standing in New Zealand law. Some people may talk loosely of it as our ‘founding constitutional document’, and in a broad political way that is true enough. But it is not part of our law. It was never anything more than a necessary political proceeding preliminary to the acquisition of British sovereignty, which, by the traditionally accepted view, arose from royal proclamation of the 21st of May 1840.

At the risk of insulting your intelligence, let me emphasise this point, for it does deserve emphasis. Many ordinary New Zealanders who know nothing of the law, but who hear Treaty activists going on all the time about their Treaty rights, have understandably acquired some vague belief that the Treaty does have some sort of independent standing in our law. This is not so. Not even the most activist of our activist judges has yet said that, although, as I shall explain at some future time, extra-judicial remarks by the present Chief Justice suggest that she would like to. The Treaty’s lack of legal force has been affirmed in numerous modern judgments. Even Te Puni Kokiri’s 156-page 2002 Guide to the Principles of the Treaty concedes that ‘the orthodox proposition remains that the Treaty is not directly enforceable in the absence of statutory incorporation’, while insisting that ‘the legal status of the Treaty is not the sole determinant of its constitutional significance’. The Treaty becomes part of our law when, and only when, and only to the extent that, some Act of Parliament refers to it and declares that for some purpose or other or on some occasion or other ~ usually, obviously, on matters concerning the subject matter of that statute ~ the Treaty must somehow be respected. The force of the Treaty in that situation therefore derives from the statute, not from the Treaty itself.

Over a dozen New Zealand statutes do contain clauses requiring some action in respect of the Treaty. But they all refer to the ‘principles’ of the treaty, not the ‘terms’. It is the ‘principles’, therefore, which must occasionally be considered as part of our law.

Just for a second, though, let us look at the terms. What does the Treaty actually say? It has three articles. By the first, the chiefs of New Zealand cede their sovereignty to Queen Victoria. By the third, the Queen imparts to Maori the rights and privileges of British subjects. These two articles of course mirror each other. It is only because the Queen is sovereign that Maori can be her subjects, with the rights and privileges of subjects. It is only because Maori are subjects that the Queen is able to extend her protection to them.

Between these two articles, the second article guarantees the chiefs and tribes the full, exclusive and undisturbed possession of their lands, forests, fisheries and other properties. (The article also promised the Crown an exclusive but soon-abandoned right of pre-emption.)

The Maori version, which is the one most chiefs actually signed, of course used Maori words whose meanings, it has been argued, do not exactly coincide with the meaning of the English version. The chiefs ceded ‘kawanatanga’ (literally, ‘governorship’ ~ ‘kawana’ is a Maori pronunciation of ‘governor’) to the Queen, and in the second article the Queen promised them the ‘rangatiratanga’ (literally, the exercise of their ‘chieftainship’, a rangatira being a chief) over their lands, villages and all their ‘taonga’ (lit, ‘treasures’). Exponents of ‘Maori sovereignty’ make much of alleged differences between the two versions, but they exaggerate. We shall return to these arguments at some future time.

Regardless of those niggles, that is all the Treaty contains. The first article declares that the Queen is sovereign; the third, that Maori are her subjects with the rights and privileges of subjects; and among those rights and privileges is (as per the second article) the security and enjoyment of ones own property.

That is all ~ a sovereign, subjects and basic property rights; a very very basic outline of the arrangements of most legal systems. It is impossible to ‘apply’ such terms. For a century and a half we have had a sovereign, subjects and property rights. In the strict sense, then, the Treaty ~ in its terms ~ is simply meaningless, and long has been. It merely describes a state’s basic organisation. Certainly, at times in the past guaranteed Maori property rights have not been respected as scrupulously as they could have been, and to that extent it is possible to speak of a ‘breach’ of the Treaty’s promises.
Such wrongs should, to the extent still possible, be righted. The days when such wrongs were committed are, however, well behind us. (We should also, incidentally, be careful not automatically to believe every claim of past wrongdoing.) Apart from the guarantee of property rights, though, nothing more can be extracted from the terms of the Treaty. They certainly cannot form the basis of ongoing agitation and claims to racial privilege or separation. They cannot even be the subject of legislative enforcement. If anything in the Treaty is nowadays to be applied, it cannot be the terms, but rather some indwelling spirit, some underlying inspiration, some useful genius which can go beyond the pragmatic and justify ~ well, just about anything the speaker wants, as shall see.

So we come to the ‘principles’ of the Treaty. Parliament first mentioned these when it established the Waitangi Tribunal by the Treaty of Waitangi Act 1975. No further statute mentioned them until the mid-1980s, when a high-minded Labour government began to insert Treaty clauses into various statutes. The first statute to be made with a Treaty clause was the State-Owned Enterprises Act 1986, and it is here that modern arguments over the treaty really begin.