Tuesday, 6 February 2007

One country. One law. One constitution?

You'd think, in a country with as much to offer and as much to celebrate as New Zealand has that our National Day would be something to celebrate.

Not likely.

Even without a full moon, Waitangi Day always produces any number of people intent on misunderstanding whatever anyone says, no matter how simple and however straightforward; there's always a whole lot of people doing a whole lot of talking very loudly past each other. I expect no less this year. I expect another Waitangi Day with another set of protests, a new bunch of people loudly proclaiming that the state owes them a living, and more claims for even more legal privilege.

Another Waitangi Day in which the the usual parade of politicians and protestors confront and avoid each other, and in which the professional grievance industry discuss and issue their demands for the taxpayer to give even more.

Partnership? The Treaty was not about partnership. In three short articles it simply offered the introduction of British law, and the rights and protections that were then protected by British law. It was not a Treaty offering permanent welfare, or a tax-paid gravy train into perpetuity.

Frankly, we don't need another tax-paid gravy train or another grievance industry or yet another charter for separatism or a forum in which to demand it; we simply need good law -- good colourblind law. We don't need more nationalisation of land, of seabed or of foreshore; we simply need a legal system in which what we own is protected, in which real injustices can be proven swiftly and without great expense, and where justice can be done and be seen to be done.

'He iwi tahi tatou.' We are now one people. So said Governor Hobson to Maori chieftains as they signed the Treaty that is now the source of so much division. But are we really 'one people'? Not really. No more than our ancestors were then. But nor are we two, three or fifty-four peoples -- do you have a people? -- and nor does it matter. What Governor Hobson brought to New Zealand with the Treaty was British law, which then meant something, and Western Culture, which makes it possible to see each one another not as 'peoples,' not as part of a tribe or a race, but as sovereign individuals in our own right.

That was a good thing.

But unfortunately, we still don't see each other that way, do we? And the myth-making about 'partnership' and 'biculturalism' is just one way to avoid seeing it.

To be fair, the Treaty itself isn't much to see. What Hobson brought was not the founding document for a country, but a hastily written document intended to forestall French attempts at dominion (and the Frank imposition of croissants and string bikinis), and which brought to New Zealand for the first time the concept of individualism, and the protection of property rights and of an objective rule of law.

But the Treaty itself was short, spare and to the point. What it relied upon was the context of British law as it then existed. It is that context that is no longer with us, and the understanding of British law as it then was that is missing.

The Treaty signed one-hundred sixty-seven years ago today was not intended as the charter for separatism and grievance and the welfare gravy train that it has become - it was intended no more and no less than to bring the protection of British law and the rights and privileges of British citizens to the residents of these islands -- residents of all colours. That was the context that three simple clauses were intended to enunciate. And one-hundred and sixty-seven years ago, the rights and privileges of British citizens actually meant something -- this was not a promise of unlimited tribally-based welfare (which is what the modern myth of 'partnership' underpins), but a promise to protect individuals from each other, and to protect what individuals own, and what they produce by their own efforts. That the promise is sometimes seen in the breach than in practice is no reason to spurn the attempt.

The Treaty helped to make New Zealand a better place for everyone.

Life in New Zealand before this advent of the rule of law recognised neither right, nor privilege, nor even the concept of ownership. It was not the paradise of Rousseau's noble savage; force was the recognised rule du jour and the source of much barbarity (see for example 'Property Rights: A Blessing for Maori New Zealand') -- indeed just a few short years before the Treaty was signed, savage inter-tribal warfare reigned, and much of New Zealand was found to be unpopulated following the fleeing of tribes before the muskets and savagery and cannibalism of other tribes.

Property in this war of all against all was not truly owned; instead, it was just something that was grabbed and held by one tribe, until it was later grabbed and held by another. To be blunt, life was brutish and it was short, just as it was in pre-Industrial Revolution Europe, and - let's face it -- it was largely due to the local culture. As Thomas Sowell reminds us: "Cultures are not museum pieces. They are the working machinery of everyday life. Unlike objects of aesthetic contemplation, working machinery is judged by how well it works, compared to the alternatives." Pre-European local culture was not working well for those within that culture.

Let's be really blunt (and here I paraphrase from this article):

In the many years before the Treaty was signed, the scattered tribes occupying New Zealand lived in abject poverty, ignorance, and superstition -- not due to any racial inferiority, but because that is how all mankind starts out (Europeans included). The transfer of Western civilization to these islands was one of the great cultural gifts in recorded history, affording Maori almost effortless access to centuries of European accomplishments in philosophy, science, technology, and government. As a result, today's Maori enjoy a capacity for generating health, wealth, and happiness that their Stone Age ancestors could never have conceived.

Harsh, but true. And note those words before you hyperventilate: "not due to any racial inferiority, but because that is how all mankind starts out (Europeans included)." The boon of Western Civilisation was being offered here in New Zealand for just a mess of pottage, and in return for the right of Westerners to settle here too. As Sir Apirana Ngata stated, "if you think these things are wrong, then blame your ancestors when they gave away their rights when they were strong" - giving the clue that 'right' to Ngata's ancestors, equated to 'strong' more than it did to 'right.'

In any case, did Maori even "own" New Zealand in the sense of exercising ownersip of sovereignty over all of it? No, they didn't.

First of all, they had no concept of ownership by right; 'ownership' was ownership by force; it represented taonga taken by force and held by force, just as long as they could be held by force (see again, for example 'Property Rights: A Blessing for Maori New Zealand').

Second, even if they had begun to develop the rudiments of such a concept (the concept of ownership by right being relatively new even to 1840 Europeans) they didn't own all the country -- they only 'owned' what they owned: that is, the lands and fisheries that were being occupied, farmed, fished and used. But note that this did not encompass all of New Zealand, nor even most of New Zealand. The rest lay unclaimed by anyone.

Third, Maori did not even see themselves as 'one people'; the word 'Maori' simply meant 'normal,' as opposed to the somewhat abnormal outsiders who had now appeared with their crosses and swords and strange written incantations. The tangata whenua saw themselves not as a homogeneous whole, but as members of various tribes - this was not a nation, it was a collection of warring tribes -- and there was no way a whole country could be ceded by those who had never yet laid claim to it.

So the British came, and saw, and hung about a bit. The truth is that some of the best places in the world in which to live are those where the British once came, and saw and then buggered off -- leaving behind them their (once) magnificent legal system, and the rudiments of Western Culture. See for example, the USA, Canada, Australia, New Zealand, and of course (as noted in obituaries of former governor John Cowperthwaite) Hong Kong. We lucked out.

What the Treaty did do, for which we can all be thankful, was to bring British law to NZ at a time when British law was actually intended to protect the rights of British citizens, and it promised to extend that protection to all who lived here. That, for many and often differing reasons, was what the chieftains signed up to. But the Treaty itself was not a founding document. No, it wasn't. On its own, with just its three simple articles there was just not enough there to make it a founding document. As a document it simply pointed to the superstructure of British law as it then was and said, 'let's have that down here on these islands in the South Pacific.'

The treaty's greatest promise was really in its bringing to these islands those rights and privileges that British citizens enjoyed by virtue of their then superb legal system; the protection of Pax Britannia when those rights and that protection meant something, and when British law saw protection of rights as its sworn duty. The result of this blessing of relatively secure individual rights was the palpable blessing of relative peace, of increasing security, and of expanding prosperity.

Sadly, British jurisprudence no longer does see its duty that way, which means the legal context in which the Treaty was signed has changed, and the blessings themselves are sometimes difficult to see. Law, both in Britain and here in NZ, now places welfarism and need above individualism and rights. That's the changing context that has given steam and power to the treaty-based gravy train, and allowed the Treaty to say something other than what is written down.

The truly sad thing is that the Treaty relied on a context that no longer exists; that, in my view is the chief reason a new constitution is needed: to restore that legal context, and to improve upon it with a legal context that protects and reinforces an Objective rule of law -- as British law itself once did -- one that clarifies what in the Treaty was only vague or barely put. And in doing so, of course, such a constitution would make the Treaty obsolete. Thank goodness.

Waitangi Day comes just two weeks after Martin Luther King Day. It might be worthwhile to remind ourselves of King's dream:

"I have a dream that my four children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character..."
Perhaps we will one day celebrate the same dream? Perhaps we will one day celebrate our national day without the colour of a man's skin being more important than his character, and without what has become a charter for grievance continuing to poison discussion, and empower a gravy train of grievance.

Perhaps one day we will actually celebrate the birth of this great little country, instead of seeing this day as an annual source of conflict. Wouldn't that be something to celebrate?

Linked Articles: Unsure on foreshore: A Brash dismissal of Maori rights? - Not PC

Do you have a people? - Not PC

Property Rights: A Gift to Maori New Zealand - Peter Cresswell
What is Objective Law? - Harry Binswanger
No Apology to Indians - Thomas Bowden

Superseding the Treaty with something objective called "good law" - Not PC

All hail the Industrial Revolution - Not PC

Cue Card Libertarianism: Individualism - Not PC

Cue Card Libertarianism: Rights - Not PC

Cue Card Libertarianism: Need - Not PC

Cue Card Libertarianism: Welfarism - Not PC

Cue Card Libertarianism: Ethnicity - Not PC

Cue Card Libertarianism: Government - Not PC

Cue Card Libertarianism:Constitution - Not PC

Cue Card Libertarianism: Property - Not PC

A Constitution for New Freeland - The Free Radical

More from the Archives: Maoritanga, Racism, History, Law, Constitution


  1. Far out. I concur with berend - great article. That's why i read this blog.

    How about getting that into the Herald? Even a watered down version.

    Seriously, any chance at all? Stranger things have happened.

  2. I agree...that should be on the Heralds opinion page ASAP! Imagine the outrage from Maori inc...

  3. Peter, Often we take for granted your well written posts. However, on this occasion I have to stand and salute you for a magnificent piece of writing. Brilliant. Julian

  4. Yes, that was a great read. :-)

  5. Thanks everyone.

    But crikey, doesn't anyone disagree? Tim Selwyn sure did when I posted substantialy the same piece last year -- and if he hadn't been locked up for sedition no doubt he would be disagreeing again.

    Anyway, thanks everyone. Hope you all had a happy and historically correct Waitangi Day. :-)

  6. I agree, but I couldn't care less about it - or flag waving jingoism. I went to the pub.

    Botany Downs was packed out - NZers enjoying our most popular past-time - shopping.

    Nobody cares. Give it up.


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