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Gary Judd KC

Ruling Out Race-based Social Revolution

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Race-based social revolution is repugnant to human values, contrary to the rule of law and puts New Zealand in breach of international law: extravagant claims in the democracy now shared are ruled out.

New Zealand is a party to, and under international law is bound by the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), ratified by New Zealand in 1972.

CERD says racial discrimination means “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.” New Zealand, along with the other State parties, undertook to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law.

CERD’s preamble (explaining why countries were signing up to the Convention) refers to the Universal Declaration of Human Rights’ proclamation “that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set out therein, without distinction of any kind, in particular as to race, colour or national origin….”

It reflects a truth recognized in antiquity.

For by nature we all equally, both barbarians and Greeks, have an entirely similar origin: for it is fitting to fulfil the natural satisfactions which are necessary to all men: all have the ability to fulfil these in the same way, and in all this none of us is different either as barbarians or as Greek, for we all breathe into the air with mouth and nostrils.

This, from nearly 3000 years ago, is contained in a fifth-century BCE papyrus fragment, On Truth, attributed to Antiphon, an Athenian orator and thinker. It succinctly states why civilised societies make equality before the law a cardinal value:

Fast forward to today and hear Thomas Sowell. Born in poverty and segregation in 1930 into a family of black sharecroppers in North Carolina, he grew up in Harlem, graduating magna cum laude from Harvard at the age of 28, followed by a masters from Columbia and a doctorate from Chicago. He has had a stellar career as economist, historian and social theorist and is the Rose and Milton Friedman Senior Fellow at Stanford’s Hoover Institution. Noted for his down-to-earth approach, he says “Racism does not have a good track record. It’s been tried out for a long time and you’d think by now we’d want to put an end to it instead of putting it under new management.”

Regrettably, in today’s New Zealand there are people who, putting racism under new management and rejecting equality before the law, advance race-based co-governance as a serious proposition for New Zealand’s future. Now, public health, drinking water, sewage, storm water, local body governance, aspects of resource management and so on. Tomorrow, who knows?

If those areas may be subjected to race-based distinctions, why should any aspect of New Zealand life be exempt? What indeed will tomorrow bring?

The measures cannot be justified, for they deny human nature and the value of equality in human dignity and rights, which flow from our common nature and origin, as recognised by Antiphon so long ago. Proponents make no appeal to reason and principle to try to justify their position because it cannot be done.

Instead, they put up the smokescreen of Treaty obligation, and distort the Court of Appeal’s 1987 “lands” case where the Court, having been forced by Parliamentarians who would not do it themselves, to determine what was meant by “principles of the Treaty” drew on principles of partnership law to hold that Treaty principles required the Crown and Māori to act toward each other with good faith, fairly, reasonably and honourably when dealing with known or foreseeable Treaty claims.

Ideas of constitutional partnership or co-governance never featured in the case. Nor could they, for the Treaty is perfectly clear, in both the Māori and English texts. Governance was given to the Crown alone, and in exchange, the tribal leaders and the ordinary people of New Zealand were assured continuing ownership of their property (unless they chose to alienate to the Crown) and were guaranteed protection and equal status with the British settlers under British law. (It is worth noting that in 1840, maori meant, in relation to a person, ordinary, uncontaminated, straightforward: hence nga tangata maori o Nu Tirani – the ordinary people of New Zealand — in Article 3 of the Treaty. It was only later that Māori came to be used to describe a person of Māori descent.)

Th Court of Appeal would not suggest an absurd departure from the words of the Treaty, and did not do so. Just two years after the “lands” case, in Tainui Maori Trust Board v Attorney-General [1989] 2 NZLR 513, 527-528, Court of Appeal President, Sir Robin Cooke was emphatic:

The [Tainui] case shows that the principles of the Treaty of Waitangi, outlined in [the “lands” case], are taking effect only slowly but nevertheless surely. It is as well to stress also that they are of limited scope and do not require a social revolution…. It is obvious that, from the point of view of the future of our country, non-Maori have to adjust to an understanding that does not come easily to all: reparation has to be made to the Maori people for past and continuing breaches of the Treaty by which they agreed to yield government. Lip service disclaimers of racial prejudice and token acknowledgments that the Treaty has not been honoured cannot be enough. An obligation has to be seen to be honoured. On the Maori side it has to be understood that the Treaty gave the Queen government, Kawanatanga, and foresaw continuing immigration. The development of New Zealand as a nation has been largely due to that immigration. Maori must recognise that it flowed from the Treaty and that both the history and the economy of the nation rule out extravagant claims in the democracy now shared. Both partners should know that a narrow focus on the past is useless. The principles of the Treaty have to be applied to give fair results in today’s world.

It can’t be much plainer. The underlined phrases show it. The principles are of limited scope. They do not require a social revolution. By the Treaty, the tribal leaders yielded government. The Treaty gave government, Kawanatanga, to the Queen. Extravagant claims are ruled out. New Zealand is a democracy in which we all share.

Co-governance and a radical race-based agenda foisted on the nation, by social revolution, are incompatible with the Treaty and it is disingenuous to claim otherwise.

Equality under the law is a fundamental component of the rule of law. Policies which create inequalities under the law are repugnant to the rule of law. Racial discrimination, violating the norms of civilised society by denying that all New Zealanders are born free and equal in dignity and rights, is intolerable. Nor can a New Zealand professing adherence to a rules-based international order, defy its international law obligations under CERD.

The Treaty does not require violation of the rule of law. It requires allegiance to the rule of law, it recognises equality under the law, and it conferred equality under the law on all New Zealanders — those already here in February 1840 and those yet to come.

If members of Parliament do not eschew the use of the raw power of a Parliamentary majority to force a social revolution undermining equality and democracy, they must stand condemned not just for putting the future of our country in jeopardy but also for hypocrisy, duplicity, and dishonesty.