Since it's topical again (and will continue to be for some time), here's a re-post from wayback in 2012, changed only slightly to correct some typos and poor formulations...
Here we are again, having the same tired, washed-out old arguments:
YET AGAIN WE SEE all the political classes jumping into the trough for a mud wrestle over the so-called “Principles of the Treaty of Waitangi,” with the National Party wanting to diminish their impact in the partial sale of SOEs, the Maori Party wanting to use the bout to boost themselves, and Browntable iwi leaders hoping to further feather their nests.
The impossible-to-define "principles of the Treaty" were a late and pragmatic addition to law some twenty-five years ago [now thirty-five!]—and a leading lesson in the dangers of pragmatism in politics. As you might not know, the “the principles of the Treaty” are not part of the Treaty at all, just a recent accretion adding great confusion and a huge amount of expensive litigious activity. Not least because to this day they have still not been adequately defined.
FOR THOSE UNAWARE OF the history of these “Principles,”* you might be surprised to hear that were never there at the Treaty’s signing; they only emerged in recent times, and only because of the appalling political judgement of a former ACT Party luminary. A rushed addition to legislation that for the first time put the destructive ideas of “biculturalism” and race-based political “partnership” on the table, into the courts, and into the bank accounts of folk who saw the “Principles” as their main chance at piles of money.
So take a bow Richard Prebble while we tell the story of the birth of these “Principles” that have poisoned politics ever since.
Like Rodney Hide when he first got his feet under a ministerial table, Richard Prebble was so excited to “get things done” he didn’t care how he did them. So when, as Minister of State-Owned Enterprises in the Fourth Labour Government, he wanted to sell state-owned enterprises (a good thing, to help the country pay. its way), in order to quieten down the race-based dissent that started to affect Labour’s relations with its Maori voting base, he asked his colleague Geoffrey Palmer to insert a section in the new State-Owned Enterprises Act the phrase “principles of Treaty of Waitangi,” insisting that “decision-makers” must have regard to these "Principles." (A bad thing, and intended as no more than a sop.)
This is all their now infamous Section 9 said:
Had they ever been defined? No, they hadn’t.
Did these two clowns have any idea what they might have started? Not a bit of it.
So in order to get the sales under way, these two simply brought these "Principles" into being without ever defining what these "Principles" are.
RICHARD PREBBLE DIDN’T CARE. He just wanted to sell things. Geoffrey Palmer did care, because his life’s work was based around writing legislation so vague, so ambiguous, that it allowed the courts to define things any way they wanted to. This, said the Idiot Palmer, is how you make law “flexible”: by giving the courts bullets which they could elect to fire in any direction they wished.
So much for the legal acumen of Geoffrey Palmer and the political nous of Richard Prebble. Because in the time it takes to say Motunui, a huge number of claims based on these newly-fangled "Principles" were rapidly being manufactured and presented, and the courts were beginning to dream up all sorts of stuff to fill up Palmer’s empty vessel.
This is where the fictions of “biculturalism” and race-based political “partnership” were born. And this was the beginning of the deluge of claims based on these twin fictions—a deluge unseen by the twin geniuses who gave birth to the legislation (“In the course of a relatively few years,” said the woeful Palmer for example, “most of the outstanding issues in this area will be settled. Most of the claims now are known…” )
The result is that to this day no-one knows with any kind of clarity what these “principles” are supposed to be. They were a legal fiction waiting for courts to define and redefine, and for litigants to quarry in an attempt to make their fortune—which they did, in their droves.
And because, over time, they were inserted in all their vagueness in virtually every piece of quasi-constitutional legislation written since, they became a poison that soon infected every piece of legislation they touched.
What that poison did—as subsequent court cases quietly morphed these “principles” into something ever more lucrative for the lawyers who lived off them—was to transfer the Treaty’s clear and straightforward promise of legal protection [Clause 2] and the recognition of rights [Clause 3] into the sort of vague, indefinable mush that helps lawyers afford large launches.
THE NET RESULT OF evoking "principles" that didn’t exist was to to create a Treaty that had never existed at all, except in the wet dreams o lawyers and activists. And thus was a whole Gravy Train created to feed off this New Thing.
It’s been a hard Train to stop now it’s got rolling.
Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.What were these "Principles"? No one knew.
Had they ever been defined? No, they hadn’t.
Did these two clowns have any idea what they might have started? Not a bit of it.
So in order to get the sales under way, these two simply brought these "Principles" into being without ever defining what these "Principles" are.
RICHARD PREBBLE DIDN’T CARE. He just wanted to sell things. Geoffrey Palmer did care, because his life’s work was based around writing legislation so vague, so ambiguous, that it allowed the courts to define things any way they wanted to. This, said the Idiot Palmer, is how you make law “flexible”: by giving the courts bullets which they could elect to fire in any direction they wished.
So much for the legal acumen of Geoffrey Palmer and the political nous of Richard Prebble. Because in the time it takes to say Motunui, a huge number of claims based on these newly-fangled "Principles" were rapidly being manufactured and presented, and the courts were beginning to dream up all sorts of stuff to fill up Palmer’s empty vessel.
This is where the fictions of “biculturalism” and race-based political “partnership” were born. And this was the beginning of the deluge of claims based on these twin fictions—a deluge unseen by the twin geniuses who gave birth to the legislation (“In the course of a relatively few years,” said the woeful Palmer for example, “most of the outstanding issues in this area will be settled. Most of the claims now are known…” )
The result is that to this day no-one knows with any kind of clarity what these “principles” are supposed to be. They were a legal fiction waiting for courts to define and redefine, and for litigants to quarry in an attempt to make their fortune—which they did, in their droves.
And because, over time, they were inserted in all their vagueness in virtually every piece of quasi-constitutional legislation written since, they became a poison that soon infected every piece of legislation they touched.
What that poison did—as subsequent court cases quietly morphed these “principles” into something ever more lucrative for the lawyers who lived off them—was to transfer the Treaty’s clear and straightforward promise of legal protection [Clause 2] and the recognition of rights [Clause 3] into the sort of vague, indefinable mush that helps lawyers afford large launches.
THE NET RESULT OF evoking "principles" that didn’t exist was to to create a Treaty that had never existed at all, except in the wet dreams o lawyers and activists. And thus was a whole Gravy Train created to feed off this New Thing.
It’s been a hard Train to stop now it’s got rolling.
It allowed the then Minister of Injustice and for Treaty Negotiations Doug Graham to mellifluously opine a few years later that “The sooner we realise there are laws for one and laws for another, the better.”
And with that invitation it has set the platform for a whole generation of youngsters to join the Grievance Industry and become, as virtually their sole occupation, professional Maoris. Three of this ilk, ironically, are now propping up John Key’s National government and throwing a tantrum over this very issue. Many others simply see the tantrum as yet another opportunity for a lucrative dip into this trough.
That this piece of human excrement, Douglas Montrose Graham, is on this very day before the law courts for fraud—for which his defence has been to limit his dishonesty by talking up instead his incompetence—is perhaps an appropriate contemporary comment on the fraudulent “Principles” themselves.
* * * *
* "Principles" used in inverted commas here refers specifically to those "principles" invented by the courts in response to Palmer's invitation, especially those invented out of whole cloth such as "partnership" and "biculturalism." This is in contradistionctiin to the use of the word without inverted commas, wherein it refers simply to the word as defined in the dictionary. Every law develops principles around it (without inverted commas), and good objective law will be written around those principles, allowing courts to use those principles o flesh out how the law is to be applied in particular cases. In the Palmer/Prebble formulation however, it is the courts who have been asked to invent the "Principles": i..e, to say what the law is, which is (or should be) the job of the lawmakers themselves.
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