Saturday 5 February 2011

Why not celebrate One-Law-For-All Day instead? [updated]

IT’S WAITANGI WEEKEND AGAIN. The time when, by long tradition,  blowhards and bludgers gather in the Bay of Islands to pontificate about this country’s history, and use what’s called its “founding document” as a club to beat each other around the head.

P I C   B Y   M O T E L L A A day that should be something to celebrate is instead a national embarrassment. And no wonder. The traditional celebrations often involve the widespread dissemination of pictures of the Prime Minister variously crying or holding Titewahai Harawira’s hand, or ducking as wet T-shirts and clumps of earth are flung at them.  [UPDATE: And it’s started again already this year.]

In recent years, the sport of watching Hone avoid his erstwhile colleagues, and stories of  journos bleating about having to pay to gain entry to the Te Tii Marae have both been added to the “celebrations,” all of which just conceal deeper rumblings underneath.

With the Maori Party is still in harness (almost) the usual arguments are (almost) still in quietus this year, but that doesn’t mean they’ve gone away. While most of the professional grievance industry can now be found inside the tent pissing out instead of outside the tent pissing in--as they used to—the eruption of Mt Harawira earlier this year is an early warning sign that stuff (beaches, land, “compensation”) isn’t being thrown into the laps of tribal leaders as quickly as the grievance industry would like.

And even if they were given all they wanted, like Oliver Twist they’ll still be back asking for more, sir.  Such is the culture to which modern Treatyism has delivered us: one of separatism and race-based welfare—one in which government is the referee in disputes between free individuals, but instead the great, all-encompassing deliverer of goodness. And the Browntable to whom the goodness is delivered (in the form of cash and goods and large tracts of the North and South Island) are sparing indeed when handing on the cash and goods and large tracts to those whom they claim to represent.

Which brings us back to the reason for this particularly fractious season. And we might ask ourselves, was it something in that simple document drawn up by Governor Hobson that has caused this annual and ongoing farce? Or something that’s been made up since?

It’s the latter, of course.

What the Treaty contained was just three simple clauses and a preamble written in haste by a moderately-educated British-Irish sea captain to bring British law to these islands. That it  has become one-hundred-and-seventy years later a charter for separatism and a regular income for a ‘Browntable’ aristocracy is a measure by which the meaning of those clauses has been distorted, and the ambit of the agreement stretched.  

What the Treaty actually promised was the introduction of good law and of equal rights before the law – in other words, good colour-blind law. In its new incarnation as a “living document,” however, it has become a charter for more nationalisation of land, of seabed or of foreshore—for demands from moochers for the unearned—for eternal grievance and the rise of ohanga-to-poka welfare and brown feudalism. 

But what was promised in that short document was, very simply, the introduction of British law to these islands—which at the time meant a legal system in which what we own is protected, in which real injustices could be proven swiftly and without great expense, and where justice can be done and be seen to be done.  That was what the Treaty actually made possible.

The disappointment is that the promise has not always been the reality.

Perhaps the greatest disappointment for the future, however, is to reflect that for all the time spent on Te Tiriti in New Zealand school rooms, there's so little understanding of what it means, and of the context in which it was signed.  Teaching real history is no longer fashionable.  Teaching myths is. Myths like . . .


Despite the fiction that has been put about in recent years to give Browntable leaders access to the trough, the Treaty did not promise 'partnership' of the form now espoused -- neither word nor concept appeared in the document. It was not a Treaty offering permanent welfare to moochers, nor a tax-paid gravy train for looters.

In three short articles it simply offered the introduction of British law, and the rights and protections that were then protected by British law.  That was it. 


The Treaty which was drawn up and signed talked neither about race nor culture.  Like British law itself at the time it was colour blind.  What it promised was not the politics of race but the same protection for everyone, regardless of race, creed or skin colour.

Would that today's law be so blind.

* * * * *

AT THE TIME IT WAS SIGNED, the context of British law really meant something.  By the middle of the nineteenth century, British law -- which included British common law -- was the best the world had yet seen.  It was what had made Britain rich, and what still makes the places where British law was introduced or emulated some of the most prosperous places in the world in which to live today.

From the perspective of one-hundred-and-seventy years later, however, when individual rights and property rights are taken for granted even as they're slowly expunged, it's easy to take the framework and protection of British law for granted.  Looked at in the context of the history of human affairs however it was a tremendous achievement: the first time in which individual rights and property rights were recognised in law, and protected in a relatively simple and accessible framework.  Perhaps history's first truly objective legal system

The introduction of British law to the residents of these Shaky Isles at the bottom of the South Pacific, which at the time were riven with inter-tribal warfare, was a boon -- and those who so eagerly signed up knew that.  The immediate perspective of all involved might have been short-term – of the British, to forestall a feared annexation by France; of the warring chiefs, to gain a foothold for trade and to secure territorial gains made in the most recent inter-tribal wars -- but there's no doubt that all had at least an inkling that life under British law promised greater peace in these isles than had previously enjoyed, and a much greater chance at prosperity.

"He iwi tahi tatou"

'He iwi tahi tatou.' We are now one people. So said Governor Hobson to Maori chieftains as they signed the Treaty that has become 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 actually matter, since what Captain Hobson brought to New Zealand with the Treaty along with British law (which then meant something) was Western Culture—which, uniquely, makes it possible to see one another not as 'peoples,' not as part of a tribe or a race, but each of us as sovereign individuals in our own right.

That was A Good Thing. A Very Good Thing.

But unfortunately, despite the coming of western culture and the introduction (or at least the aspiration) of colour-blind law, we still don't see each other as sovereign individuals so much, do we?   The tribalism is still there (albeit the warring parti4s now hurl lawyers at each other instead of spears) and the myth-making about 'partnership' and 'biculturalism' is just one way to avoid seeing it.

A charter for objective law

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.

    “The Treaty of Waitangi should be commemorated [says Lindsay Perigo] because it bestowed upon Maori the rights of British subjects, thus introducing the notion of individual freedom within the rule of law to gangs of tribal savages who hitherto had been cannibalising and enslaving each other. But it has become a de facto constitution in the absence of a formal one, a brief for which it is woefully inadequate,” argues Perigo.
    “The five-paragraph, three-point Treaty is silent on many matters with which a constitution must deal. Moreover, there are ongoing arguments about what it really meant and which version is authentic. The best thing to do is scrap it and start over.”

The five-paragraph, three-point Treaty was short, spare and to the point. It was silent on many matters with which a constitution must deal because what it relied upon was the context of British law as it then existed.   The Treaty's three short clauses promised little in themselves -- as everyone understood, the intent was to point to the wider context of British common law and say 'We're having that here.' 

But that understanding is now clouded with invective, and the context of British law and common law as it once was is no longer with us. British law is not what it was, and there's a meal ticket now in fomenting misunderstanding of what it once promised.

The Treaty signed one-hundred-and-seventy years ago today was not intended as the charter for separatism and grievance and the welfare gravy train that it has become - to repeat, 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-seventy years ago, the rights and privileges of British citizens actually meant something -- this was not a promise to protect the prevailing culture of tribalism (which had dominated pre-European New Zealand history and underpinned generations of inter-tribal conflict, and which the modern myth of 'partnership' still underpins), but a promise to protect individuals from each other; a promise to see Maoris not as part of a tribe, but as individuals in their own right; a promise to protect what individuals own and what they produce by their own efforts. That the promise is sometimes seen more in the breach than in the observance is no reason to spurn the attempt.

The Treaty helped to make New Zealand a better place for everyone. Especially those native New Zealanders whom it liberated.

Liberation, and protection

Life in New Zealand before the 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 that favoured conquest over peace and prosperity. 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 civilisation 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)."   Some one-hundred and fifty years before, the same boon was offered to the savage, dirt-poor Scottish tribesmen who were living then much as pre-Waitangi Maori were.  Within one-hundred years following the embrace of Western civilisation, Scotland was transformed and had became one of the centres of the Enlightenment.  Such was the cultural gift being offered.

The boon of Western Civilisation was being offered here in New Zealand not after conquest but 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.'

Who 'owned' New Zealand?

It's said that Maori owned New Zealand before the Treaty was signed, and that while the 'shadow' of sovereignty was passed on, the substance remained.  This is nonsense.  Pre-European Maori never "owned" New Zealand in any sense, let alone in any meaningful sense of exercising either ownership or sovereignty over all of it. 

First of all, they had no concept at all of ownership by right; 'ownership' was not by right but  by force; it represented taonga that was taken by force and held by force -- just as long as they were able to be held (see again, for example' Property Rights: A Blessing for Maori New Zealand').  Witness for example the savage conflict over the prosperous lands of Tamaki Makaurau, over which generations of Kawerau, Nga Puhi, Ngati Whatua and others fought.  There was no recognition at any time that these lands were owned by a tribe by right -- they were only held as long as a tribe's might made holding them possible, and as long as the fighting necessary to retain them brought a greater benefit than it did to relinquish them (and by the early 1800s, with so much fighting to be done to hold them, all tribes gave up and left the land to bracken instead).

Second, even if the tribesmen and women had begun to develop the rudiments of the concept of ownership by right (the concept of ownership by right being relatively new even to 1840 Europeans) they didn't own all of the country -- they only 'owned' what they owned.  That is to say, what Maori possessed were the specific lands and fisheries and foreshore and seabed they occupied and farmed and fished and used.  This was never all of New Zealand, nor even most of New Zealand. The rest of it lay unowned, and unclaimed.  They only ‘owned’ what they owned

Third, prior to the arrival of Europeans, 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 muskets 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, nor even a collection of warring tribes.  Apart from the Confederacy of United Tribes -- an ad hoc group who clubbed together in 1835 in a bid to reject expected overtures from the French -- there was no single sovereignty over pre-European New Zealand, no sovereign entity to cede sovereignty, and no way a whole country could be ceded by those who had never yet even laid claim to it in its entirety.

Our 'Founding Document'?

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. For many and often differing reasons, that was what the chieftains signed up to.  To become British citizens, with all the rights and privileges thereof.

But as we’ve been at pains to day already, the Treaty itself was not a founding document. No, it wasn't. On its own, with just three simple articles and a brief introduction, there was just not enough there to make it a document that founds a nation. 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 power saw protection of British rights as its sworn duty. The result of this blessing of relatively secure individual rights was the palpable blessings 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 enormously, 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 and those who consume the Treaty's gravy to say it says something other than what is written in it.

The truly sad thing is that the Treaty relied on a context that no longer exists -- and the only way to restore that context, in my view, is with a new constitution that makes the original context explicit.  To restore the original 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 was barely put. And in doing so, of course, such a constitution would make the Treaty obsolete.

Thank goodness.

The Dream

Waitangi Day comes just two weeks after Martin Luther King Day. The contrast is spectacular. Perhaps we should remind ourselves of King's dream for the future of his own children:

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 that same dream down here -- not as a dream, but as reality.  Celebrating our national day not as a charter for grievance that continues to poison discussion, but instead with real joy.  Shaking off the gravy train of grievance, and celebrating that the colour of a man's skin is of no importance compared to the content of his character. 

Perhaps one day we will actually celebrate the birth of this great little country, instead of seeing its birthday as an annual source of conflict.

Wouldn't that be something to really 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
Education & the Racist Road to Barbarism - George Reisman
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


Dave Mann said...

Peter that was a great piece of writing.... not only because of the content (we all tend to love what we agree with) but also for the structure, the historical references and the way you present your arguments.

Dave Mann said...

Sorry I made a mistake on my mobile phone... the rest of my comment follows here. Is it possible to paste it together Peter?

This post should be required reading for anybody studying the subject of race relations in this country. I think it is spot on.... but more to the point it will dispel a lot of myths for anybody from overseas reading it on the web who hitherto might have had a cozy image of New Zealand as a peaceful little south pacific haven.

I think there is a volcano waiting to explode here and, as often is the case worldwide, the pressure is building up higher as the economy and the country's prospects continue to deteriorate.

Anonymous said...

Indeed, an outstanding piece PC. You've put the whole thing into its grand context and it's unanswerable.

Kiwiwit said...

I think you hit the nail on the head when you say Western Culture "makes it possible to see one another not as 'peoples,' not as part of a tribe or a race, but each of us as sovereign individuals in our own right."

This is the difference between the Western liberal tradition and tribalism, which is about brute strength of numbers.

Maori aspirations are all about tribalism, not about the self-actualisation of individual Maori.

I firmly believe tribalism is the root of most evil (in the non-religious sense of the word) in the world. Tribalism was responsible for the Holocaust and the more recent genocides in Rwanda and Bosnia and these horrors are its natural consequence.

Simon T said...

Unfortunately logical arguments don't really have much impact on angry beneficiaries who believe Maori settled here 3000 years ago.

Instead of being intimidated by the prospect of an unwashed army of protesters, politicians need the guts to scrap the treaty and respond to the fallout with as much tear gas and rubber bullets as necessary.

Anonymous said...

I note in local newspaper, little willie Jackson reckons Hone Harawira is against democracy because maori should be treated more specially. Thus Hone will not join a new (yawn - old) Left party ~ per willie.

peterquixote said...

Another good post

V said...

To what extent do you think the modern legal profession is even capable of drafting a succinct and meaningful constitution?

It seems we live in a world where healthcare bills and tax codes run into the thousands of pages, many of which can actually go unread by legislators.
Take the EU constitution - what a dogs breakfast - ~400 pages for consolidated version - whatever that means.

But it makes one shudder at the thought of what we would actually get as a constitution.

Jameson said...

Brilliant. Best argument I've heard in ages. Thanks, Pete.

Manolo said...

Excellent reading. Thank you, Peter.

Richard McGrath said...

Just read it this morning. Well put, PC.

Shane Pleasance said...

We already have the perfect constitution prepared - Peters last link in post above.