Tuesday, 17 January 2006

Superseding the Treaty with something objective called "good law"

Waitangi Day is rushing down upon us, so it's worth re-posting Nick Kim's cartoon demonstrating what the mythical Treaty Principles are doing to our law (cartoon courtesy The Free Radical):

The cartoon also nicely accompanies a discussion about the Treaty in the comments section below following a question from Berlin Bear. As I say there, in my view the Treaty is insufficiently comprehensive to be a founding document of a nation and should be superseded and made an historical nullity by an objectively written constitution. The gravy train has to be derailed, and justice put back in its seat.

When palpable injustices have taken place then the Treaty of Waitingi is both unnecessary and unhelpful. If proveable injustice has taken place, then no matter the race of those involved the mainstream courts can deal with it under the principles established by that objectively written constitution. If there is no injustice, there is nothing that can be or should be done. If there truly is, then it should be dealt with justly, and seen to be dealt with justly. Further, the mainstream courts acting under an objective constition would be and should be colour-blind -- this cannot be said of the racist Waitangi Tribunal. If theft or injustice has truly taken place then the colour of the victim is irrelevant; you don't need the Treaty to repair the injustice. If theft has not taken place then the colour of the claimant is still irrelevant, and the Treaty serves only to obfuscate, and in fact to produce injustice.

The Treaty itself is now irrelevant, divisive, and a meal ticket for those riding its gravy train. It is also insufficiently comprehensive to be a true founding document of a country, and should be replaced with a constitution that is.

Linked Articles: Treaty Out, Constitution In - Lindsay Perigo
A Constitution for New Freeland - Libertarianz


Icehawk said...

Let get 100% clear on what you're saying.

You appear to be saying:

Some iwi signed a treaty (a contract). That contract guarantees them some property rights, in return for which they granted the crown some rights.

Now courts are weighing in and ruling enforcing the contract - saying things like "Hey, when the contract says they get their fishing rights, that means they get fishing rights" and "If this iwi's property rights included the foreshore, and the contract guarantees they keep it, then they keep it".

And now you're saying "parliament, legisilate to annul that contract, stop the courts doing that, and remove those property rights from those people, because I don't like the contract and I don't like them having those property rights".

Me, I'm not a libertarian. I see nothing sacred about contracts and nothing sacred about courts using common law. I see nothing wrong about parliament re-legislating later to fix bad contracts. I like many laws (such as union laws and tenancy laws) that over-ride bad contracts post-facto.

But you, you claim to be a libertarian. You claim to want to protect property rights from govt interference. You claim that common law and contract law should be paramount.

Except, it seems, when it's a contract you don't like. Then you want parliament to intervene and legislate it away, and get rid of those property rights that you personally find inconvenient.

Not a good look, PC.

Icehawk said...

Sorry about the typo - that "You appear to be saying:" sentence is misplaced above. I really should use that preview option...

Look, do you really mean what you say?

Or do you just mean "Stop pretending the Treay is a consitution, and stop giving Maori special treatment in ways the treaty didn't promise".

Because there's a big difference between that milder approach on the one hand, and attempting to annul the whole contract on the other. The Foreshore, for example: if the iwi really signed a treaty that promised them some of the Foreshore (as the courts ruled they did) then it seems somewhat odd for a libertarian to oppose that.

Bernard Darnton said...

Libertarianz recognises that the treaty permitted a change in sovereignty and guaranteed Maori the same rights as British subjects, specifically the protection of their property rights.
What we object to is the invention of "treaty principles" from thin air and the elevation of the treatry into areas where it has nothing to say.
I think people would be a lot happier with the treaty if the people who bang on about these "treaty principles" ever read the bloody thing. It says that the British Crown is sovereign, that Maori property rights are to be protected, and that Maori have the same rights as British subjects.
It doesn't mention anywhere that anyone conducting scientific research should have to take account of local witch-doctory or that building developers should have to preserve every rubbish dump full of old seashells.
It has nothing to say about allocation of radio spectrum or intellectual property rights over the genetic code of native plants.
The treaty is now well past its abuse-by date.
A decent constitution would supercede the treaty. It would be republican, and so change sovereignty arrangements again. This would supercede article 1 - British Crown sovereignty over New Zealand is an anachronism we can do without.
It would guarantee property rights for all. This is right in with the spirit of article 2 and would offer better protection to all property owners, regardless of race, than you get now. Vast swarms of local council busybodies armed with interfering district plans is hardly "exclusive and undisturbed possession".
It would guarantee the same rights for everyone - not just Maori and British, but Dutch, Algerian, and Korean, too - extending the protections of article 3.
A proper constitution would retire the treaty to the museum but it wouldn't be destructive of the rights it originally protected. It would, thankfully, consign all the crap that's been bolted on in the last few decades to the dustbin.
In the specific case of the foreshore and seabed, a constitution that protected property rights would never have permitted the confiscation of the country's entire coastline from its many true owners, whatever shade they might be. See our submission to the select committee.

Peter Cresswell said...

I can't improve on what Bernard said.

But I really am surprised, Icehawk, that from what I said above you thought I was saying this: "parliament, legisilate to annul that contract, stop the courts doing that, and remove those property rights from those people, because I don't like the contract and I don't like them having those property rights." I just can't understand where you would get that from what I said.