"It has sometimes been mentioned that the Chiefs did not have sovereignty to cede ... "

"A debate has recently begun between the Government and the Maoris regarding sovereignty ... That debate is incoherent and unnecessary and I will explain why. ...
    "Cede means 'give up (power or territory)' ('Oxford Concise Dictionary'), which entails that they must first have it. The Treaty itself says, the chiefs 'give absolutely to the Queen of England for ever the complete government [kawanatanga katoa] over their land' (trans. I.H. Kawharu). That does not require that they give up their chiefly power or territory. The problem with the debate is that it does not allow for an arrangement whereby both the Queen's power of sovereignty and the chiefs’ power of rangatiratanga could exist together.

    "It has sometimes been mentioned that the Chiefs did not have sovereignty to cede. ... '[N]ational sovereignty ... was absent from the Maori communities in the country,' [explains Paul Moon in his 2002 book The Path to the Treaty of Waitangi] 'so the British were essentially asking for permission to acquire a type of sovereign rule which Maori would not have to sacrifice, as they did not possess it. This is distinct from the superficial interpretation ... in which Maori arbitrarily surrendered all their sovereign rights and powers to the Crown.'

    "So, by Article 1 of the Treaty, the chiefs did not cede sovereignty but instead accepted sovereignty; that is, they agreed that they would be subject to the Crown. That does not necessarily mean that they relinquished their chieftainship (tino rangatiratanga). That suggests an arrangement similar to the Magna Carta in which the Barons are subject to King John. The Barons were still barons with the dignity and estate of a barony, but as such they are subject to the Crown. ...

"Maori chieftainship was not like British sovereignty. The sovereignty (kawanatanga katoa) referred to in Article 1 is with respect of all of New Zealand whereas chieftainship is with respect of an individual tribe. There were about 100,000 Maori at the time of the Treaty which about 500 chiefs signed and others did not, so the tribes were quite small and on average each comprised around only 200 people at most. Chieftainship therefore entailed much less authority over a much simpler social structure than the government (kawanatanga katoa) of the entire country that was proposed and subsequently implemented by the British. It is not just a matter of degree; they are categorically different and provide very different outcomes of evolutionary significance."

~ Barrie Davis from his article 'Seeding Sovereignty in the Spring'

Sovereignty

Cretin on a rope

MĀORI RANGATIRA NEVER CEDED SOVEREIGNTY say various parties including the Waitangi Tribunal, law professors at the University of Auckland and VUW, and the protestors who dangled in front of Te Papa's Treaty display yesterday and began defacing it.

Because of the difference between the Treaty and Tiriti, said protestors yesterday, Māori at the various Tiriti signings never agreed to what the English translation claimed. Protestors' spokesperson Haimana Hirini said "the English Treaty of Waitangi text was not a translation because it incorrectly stated that Māori ceded sovereignty."

Mr Hirini thinks he knows better than the many Māori who spoke at the various signings around the country in 1840, who were --apparently -- confused. As were the many who, at Kohimarama twenty years later, reaffirmed their decision to sign. Confused, all of them.

Including the rangatira Maihai who, at the Mangungu hui in the Hokianga, said (in opposing the signing) that he would be agreeing to "Kwini Wikitoria" being "the great chief here." [1] (Which was true.)

And the rangatira Raumati, who supported the signing, who told Hobson, "I say come, come now it is for you to direct us and keep us in order."[2]

Or at the Kaitaia signing, where Chief Nopera Panakareao said the new Kawana would be "a helmsman for our canoe." [3]

Or at Waitangi itself, the first signing, when the day began with opposition from several rangatira, including Tareha, of the Ngatirehia tribe, who objected: "We only are the chiefs, rulers. We will not be ruled over. ... Thou high, and I, Tareha, the great chief of the Ngapuhi tribes, low!" [4] He clearly understood the position proposed. And he signed.

And Kawiti, rangatira of the Ngatihine tribe, who objected initially on the understanding that the Kawana would have the power to regulate, saying in horror, "What! ... even I, Kawiti, must no paddle this way, nor paddle that way, because the Governor said 'No' ..." [5] (He signed.)

Or Te Kemara, a rangatira of the Ngatikawa, who clearly understood that agreement would mean the Kawana having police power: "If thou stayest as Governor, then, perhaps, Te Kemara will be judged and condemned. Yes, indeed, and more than that--even hung by the neck. No, no, no. ... Were all to be on an equality, then, perhaps, Te Kemara would say 'Yes'; but for the Governor to be up and Te Kemara down--Governor high up, up, up, and Te Kemara down low, small, a worm, a crawler--No, no, no." [6]  He too understood that, like Roman governor Pontius Pilate in the New Testament (which had been recently translated into te reo and was enormously popular -- with the word governor transliterated therein as "kawana") the kawanatanga to be exercise, and thus ceded by signatories in Te Tiriti, could mean the power of life and death. (He too signed, but not before confessing that Bishop Pompallier had told him "not to write upon the paper, for if he did he would be made a slave." [7])

But not one of the speakers in any of the meetings recorded, even speaking in opposition, used the term "partnership." And no assurance was given anywhere that chiefs would be "up high" with governor in authority, somehow sharing power. The positions were clear to all. Like Pilate's governorship, Hobson's kawanatanga would mean only the Kawana would be "up."

These rangatira were very far from confused, and several had already seen something of the world beyond these shores. Rewa, chief of the Ngaitawake tribe for example, who also initially object to signing saying that "we," the rangatira, "are the Governor--we, the chiefs in our fathers' land. ... What! this land to become like Port Jackson and all other lands seen [or found] by the English. No, no." [8] (He too signed, after saying that Bishop Pompallier "had striven hard with him not to sign" as well. [9])

It was Tamati Waka Nene who turned the day at that first signing on the morning of February 6th: he "rushed into the tent attended by chiefs and other followers" to give "an address to his countrymen in a strain of fervid and impassioned eloquence..." [10] After damning many of the misbehaving "strangers," "foreigners" and "grog-sellers" who covered the land around Korareka -- "even as the grass and herbage" -- Nene turned to Hobson and concluded: "Do not thou go away from us; remain for us--a father, a judge, a peacemaker. ... Stay though, our friend, our father, our Governor. ... Do not listen to what 'the chiefs of ] Ngapuhi say. Stay thou, our friend, our father, our Governor. "[11]

A friend. A father. A judge. A peacemaker. A Governor with elevated authority above the rangatira, with the power to rule, to regulate, to exercise police power -- with the very power of life and death if necessary.

Many of the speakers, it's true -- too many -- picked up on the idea of the Kawana being a "father." Which was certainly unfortunate, and was not corrected. But a judge. And a peacemaker. That was valuable.

But perhaps it was intended, even so, that the Governor/Kawana only have sovereignty over settlers? Not so, Hobson corrected a rangatira at the Hokianga meeting, who had expressed that view, explaining calmly that "English laws could only be exercised on English soil."[12]

IT MIGHT STILL BE THOUGHT that, perhaps, rangatira remained confused, and were only signing because they thought the "strangers" and "foreigners" would remain in low numbers, and could be ignored. Yet, two decades later, at Kohimarama, while the Kingitanga in the Waikato were expressing violent opposition to the government, and after "tangata Tiriti" now outnumbered tangata whenua in these islands (this point was officially passed in 1858[13]), several of these same signatories were invited to reaffirm their support for Te Tiriti. Which they did, Tamati Waka Nene telling listeners why he had supported the signing so vehemently:

0 people listen: These are my words for ourselves to Speak about the Governor and about the Pakehas. I am not accepting the Pakeha for myself alone but for the whole of us. My desire when Governor Hobson arrived here was to take him as our Governor in order that we might have his protection. Who knows the mind of the Americans or that of the French? Therefore I say let us have the English to protect us. Therefore my friends, do I say, let this Governor be our Governor and this Queen our Queen. Let us accept this Governor, as a Governor for the whole of us. Let me tell you, ye assembled tribes, I have but one Governor. Let this Governor be a King to us. Listen again, ye people! When the Governor came here he brought with him the Word of God by which we live; and it is through the teaching of that Word that we are able to meet together this day under one roof. Therefore I say, I know no King but the Queen [i.e., he rejected the Māori king] and I never shall know any other. I am walking by the side of the Pakeha. Mr. McLean, this is all I have to say. People of the Runanga I have finished.[14]

The putative host for the hui, Paora Tuhaere of Ngati Whatua o Orakei agreed, saying:

Hearken, all ye people to my words! These were my words to the first Governor, to the second Governor and to the third Governor: I want the Laws of England. Hearken, ye people, two things commend themselves to my mind - the Governor and the Queen. For thereby do we, both Pakeha and Maori, reap good. This is my speech. The best riches for us are the Laws of England. [15]

"The Kohimarama Conference had begun with then Governor Gore Browne recalling to those assembled (including more than 100 rangatira from Nga Puhi in the north to Ngai Tahu in the south):

On assuming the Sovereignty of New Zealand Her Majesty extended to her Maori subjects her Royal protection, engaging to defend New Zealand and the Maori people from all aggressions by any foreign power, and imparting to them all the rights and privileges of British subjects; and she confirmed and guaranteed to the Chiefs and Tribes of New Zealand, and to the respective families and individuals thereof, the full, exclusive and undisturbed possession of their lands and estates, forests, fisheries, and other properties which they may collectively or individually possess, so long as it is their wish to retain the same in their possession.
    In return for these advantages the Chiefs who signed the Treaty of Waitangi ceded for themselves and their people to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty which they collectively or individually possessed or might be supposed to exercise or possess.

The astute reader will notice that these are almost exactly the words to which yesterday's protestors expressed such violent objection -- that is  to say, almost a recapitulation of the Treaty terms.

The Conference itself concluded on 10 August 1860 with rangatira gathered there giving unanimous agreement that:

the several Chiefs, members thereof, are pledged to each other to do nothing inconsistent with their declared recognition of the Queen's sovereignty and of the union of the two races ... [16]

It was Apirana Ngata six decades later who reminded Māori that 

The Government placed in the hands of the Queen of England, the sovereignty [mana] and the authority to make laws. ... it made the one law for the Maori and the Pakeha. If you think these things are wrong and bad then blame our ancestors who gave away their rights in the days when they were powerful.

Those ancestors were not stupid. They knew what they were about, and and had a pretty fair idea of what they were promised.

But perhaps they knew less about what they were agreeing to and signing than the geniuses who took power tools yesterday to Te Papa to make their argument.

NOTES:
1. Waitangi Tribunal 2014, p. 380
2. Waitangi Tribunal 2014, p. 383
3. Lindsay Buick, The Treaty of Waitangi, 1914, p. 150
4. W. Colenso, The Authentic and Genuine History of the Signing of the Treaty of Waitangi, 1890 facs., Government Printer, (reprint, 1971, by Caxton Press) p. 24
5. Colenso, p. 22
6. Colenso p. 17
7. Colenso, p. 34
8. Colenso, p. 19
9. Colenso, p. 34

10. Felton Mathew, The Founding of New Zealand: The Journals of Felton Mathew, ed. Rutherford, 1940, (AH & AW Reed for Auckland University College) p. 37
11. Colenso, p. 27
12. Waitangi Tribunal 2014, p. 380

13. "In 1858 [Māori] were estimated at 56,049, of whom 31,667 were males and 24,303 were females." History of New Zealand, Rusden, Vol II. ch. 12. Population of non-Maori was now 59,328. [Stats NZ]

14. Te Karere Maori, July 13th, 1860, p. 15

15. ibid

16. Claudia Orange, in her discussion of the Kohimarama Conference ("possibly the most important gathering of chiefs since Waitangi," p. 77), notes that "sovereignty" was translated in the proceedings as "mana." Ref: 'The Covenant of Kohimarama,' NZ Journal of History, July, 1980, pp74-75

17. Proceedings of the Kohimarama Conference, comprising Nos. 13 to 18 of The Maori Messenger. 

Why are some Māori protesting the new government? And what can we learn from it? [UPDATED]

 

SO LET'S FISK WHAT one of the Te Pati Māori (TPM) protest leaders said this morning, about why they've been out there trying to block traffic, because I think it's helpful to understand the protestors' objections to the new government's policies. And particularly revealing about a key difference on Te Tiriti.

Tureiti Moxon runs primary health provider Te Kōhao Health in Hamilton which is taxpayer-funded by Whānau Ora. She is against any rearrangement of Whānau Ora. She was also on the establishment board of the Māori Health Authority (Te Aka Whai Ora). Unsurprisingly, she is also against the new government's plan to bring Te Aka Whai Ora back into the mainstream health system. Before joining Te Kōhao Health, she worked for several years as a lawyer, working on Treaty claims. He has stood several times for Te Pāti Māori, and been their electoral chair for the Tainui electorate.

She is articulate, and seems representative both of those who've risen in protest against the policies of this government -- and those who've benefited from those of past governments. She told Corin Dann on Morning Report that the new government's policies are "anti-Māori" -- a "sweeping suite of policies" that are just, she says, "archaic."

THE "SUITE," SUMMARISED BY by interviewer Corin Dann, is what she claims to be an attack on Te Tiriti, on the Maori language, on the Maori health authority, and on a "smokefree" New Zealand. [her points are in italics]:

"[The new government] has been given sovereignty ... but what it doesn't have is the support of the people to whom a lot of those policies are aimed at."

Since her claim in about numbers: The number voting for TPM was in the thousands. The number out there this morning was in the hundreds. The number voting for the new governing parties is in the hundreds of thousands. But since Luxon has said he's going to govern for everyone, she has that point.

"In many ways we just feeling as if we're being attacked, every which way" she said, attacking the new government, "simply because a lot of their policies are ... anti-Māori policies."

Are they? Let's hear her argument.

"The worst of it is [the suite of policies is] taking us back a hundred years. It is taking us back to colonisation."

Really? Big claim. Still no argument.

"What we're saying is: No, we've ... worked too hard on our race relations [not just in] our organisations but in this country ... to bring about a better partnership in terms of Te Tiriti with the government and all those partners that we now have good relationships with."

The principle of partnership here is her key point. Which doesn't go back to colonisation, but only to Geoffrey Palmer and Richard Prebble -- and to Lord Cooke of Thorndon, whose Court of Appeal found, when asked by Palmer and Prebble to define (without offering any guidance from Parliament, as you'd expect from decenty-written law) what the principles of the Treaty might be, that it is "akin to a partnership." And which is, in fairness, what the new government says it will question via new legislation taken to a first reading in Parliament.

"They've decided to take back the power and control unto themselves" she says of that fairly tepid promise. "For a very long time ... iwi have been working very closely to bring about a partnership that actually has meaning, and is not just on paper.

But it's not even on paper. Cooke's Court only found something "akin" to a partnership, inviting further definition from lawmakers. 

In the meantime, "akin" is not "is."

Nonetheless, there's been significant momentum in the 36 years since to ignore that word "akin' and to cement in this idea of a full partnership -- as if that principle had been there since 1840, or had been enunciated in 1987 by the Court of Appeal.

And we might also ask: a partnership between whom exactly? That is to say, between the Crown (which Moxon acknowledges as one of the parties) and which particular individuals? Because, notice that she seems to be talking about a collective effort here, as if Māori as a collective should be co-governors, with some special class of rangatira acting as power-brokers on their behalf.  This is important in understanding her objections. 

"... [that] includes Maori in decision making ..."

Individual Maori make decisions every day about their own work and wellbeing. They're perfectly capable people. Why do they need the patronisation of a government? There was nothing in Te Tiriti requiring that. Nothing requiring they be in government -- even though many are, on their own merits.

"... and in co-governance ..."

Why? Te Tiriti never called for co-governance (see below). And the previous government's covert push to implement it was only partially successful. (Which suggests her main objection is to the break in momentum that she thinks this government represents.)

"... and with a swipe of the pen they decide, 'Nah, we're not having that any more'...."

And yet that's what governments (in whom she seems to put her faith) do all the time. And she does agree that this one has sovereignty. So we're back to her simply saying "I don't support it."

"... without even thinking about the consequences of what that actually means in terms of Te Tiriti O Waitangi, which has the guarantee of tino rangatiratanga; and there's no guarantee of tino rangatiratanga in the policies [inaudible]."

She's implying here that tino rangatiratanga must equal respect for Te Tiriti and the Maori language, for the existence of a Maori health authority and "smokefree" legislation, and support for widespread co-governance. Big claims! Respect for the first two can be agreed with -- even as we can debate what form that takes. The next two have no basis therefrom -- and in any case the majority of the "smokefree" legislation remains in place, unfortunately. 

Her last point, really, is the point in question here, and the one from which everything else would flow, if the last half-century's momentum (which she celebrates) were to continue.

"The Waitangi Tribunal has been around for about fifty years, and they have been the ones who have been the experts in Te Tiriti ..."

Not exactly. The Tribunal is only asked to hear and to advise the government of the day on alleged breaches of the Treaty, its hearings being adversarial (rather than any kind of partnership, or investigation), its historians being funded largely to seek out and highlight these alleged breaches, their reports on these breaches becoming (by their sheer volume) becoming the locus of modern-day historical research. And so if  they as historians and it as an institution have become experts in anything, it is primarily as experts in the Treaty's alleged misapplications, rather than in its ideal.  

There is a difference,

Note too that the Tribunal's findings are not and never have been binding on the government of the day. Depite all its apparent lustre, it is an advisory body only.

"... and in the principles ..."

No, the Tribunal is not even empowered to rule on the so-called principles -- which have developed in other courts as they have struggled to make sense of what this phrase means that inserted so unthinkingly into most law since. The Tribunal is empowered only to hear and advise on breaches of promise of Te Tiriti, not on any of that other legislation.

"...and in the development of Te Tirity jurisprudence. And what we're saying is that after fifty years of all that institutional knowledge is that everybody knows more about it than them."

No, I don't think that's what the new government is saying at all. One of the coalition partners (an actual partner) is saying it was a mistake thirty-six years ago to insert into legislation the phrase "the principles of the Treaty of Waitangi" without first defining it in legislation  -- a mistake, because it invited the courts to do the lawmakers' job for them, which one of the coalition partners is now trying to do.

"A lot of New Zealanders unfortunately do not know a lot about it..."

And this is very true. 

"...and they'd like it to disappear, as this government is trying to do now. To make it invisible. Well, it's not invisible, it's the founding document of this country."

It looks as if Ms Moxon knows very little about what this government is trying to do. Or at least, what one coalition partner is trying to do. Which, in this context, is to call for the undefined principles (dreamed up in 1987 and on) to be well defined. As all objective law should be. And not at all to touch what she calls the founding document.

"Whānau Ora  .... is an example of what New Zealand can look like: Maori looking after ourselves ..."

As the head of a Whānau Ora practice herself, Moxon is (like the well-heeled TPM president John Tamihere) a beneficiary of the taxpayer's funding. To be cruel, one might say it's more an example of the taxpayer looking after a Māori elite, like Tamihere, who funnel the crumbs to those they claim to represent.

"...Maori having control over our own health ..."

She's conflating two people here. Individual Maori do have control over their own health. And always have, And did just as much before the creation of the separatist health organisation that has missed all its own agreed targets. (Waikato Tainui leader Parekawhi Maclean saying (very kindly): "its inability to put in place the necessary level of capability and capacity to progress its key functions had hampered performance.") 

What she means is that some Maori have control over other the health of other Maori. Why does shared ancestry make that necessary? How does that help an individual's health outcomes?

I am hardly an advocate myself for a government health system of any kind. But a separatist system seems the worst of both worlds, particularly for individual Maori concerned with their own health, and forced into this system, for whom results have been less than stellar. Suggesting that prioritising kaupapa over medicine is perhaps not the best idea.

"...Māori having a say in what we would like to see, and what is needed, in our own communities ..."

Individual Māori, qua individuals, have a say in their community just as much as the next individual. It's becoming apparent that what she's advocating for is for some Maori (those like her and Tamihere et al) to speak on behalf of and 

"...and when they take those things away from us [that] we have worked so hard to stand up and to put into legislation and to get that real kind of partnership that we believe is necessary for us to thrive in this country as equals...."

This is the crux: Who's this "we" here?

She's not calling for all New Zealanders to be equal as individuals -- i.e., each of us enjoying equal individual rights and privileges under law per the third Treaty clause.  What she's after instead -- what she and others in her elite strata have worked so hard for, to achieve that momentum -- is for Māori as a collective to be made equal in political power to the government. With a Māori elite distributing the spoils.

That, to her and to many others, is what "partnership" truly means. Political power. 

It's a patronising collectivist vision that looks to government for power and largesse, and to individuals of every ancestry to be milch cows. It's not one envisioned by either treaty.

One-hundred and eighty-three years ago, Te Tiriti emancipated Māori slaves, and put an end to the idea that the mass of men here had been born with saddles on their back, with a few rangatira booted and spurred to ride them. That was the effect of Te Tiriti: to free taurekareka.

"... and they made it [the Māori Health System] out to be race based ..."

Isn't it?

"...in actual fact it's something that is needed in our country."

An already-failing separatist system is needed? I'm not sure she's even made an argument for that, beyond the argument that the ancestry of here and those like her should bestow upon them political power.

There was a name for that in mediaeval Europe: it was called feudalism.

"The government has to hear [this] because as long as it keeps pushing that  kind of rhetoric [?] and that kind of belief system, that's what's divisive, that's what's pulling this country apart, because we have a special place in this country, and that's [inaudible], and it's important that they get it right now." 

It is important they get it right. And I think they think they might.

Ned Fletcher argues that English and Māori texts of the Treaty
agree, and that both promise Māori self-governance.

HERE'S THE MOST IMPORTANT point she made -- and there are many. But this one stands out: that she  is talking at all times of Māori as a collective rather than of individual Māori. This helps reconcile the two apparently competing views of two persuasive recent views on the Treaty, aired in Ned Fletcher's recent book The English Text of the Treaty of Waitangi (which Moxon cites approvingly), and in Ewen McQueen's 2020 book One Sun in the Sky.

 Both books argue persuasively that the English and Māori texts do reconcile (which overturns the scholarship of several decades, since Ruth Ross first raised the issue fifty years ago), and both argue that Māori did cede sovereignty (without which any "partnership" would be moot in any case). 

But Fletcher argues that Māori (as a collective, through their rangatira) were promised self-governance, leading to partnership; whereas McQueen (writing before Fletcher's book) argues this paradigm makes no sense:

Taken to its logical conclusion, this paradigm sees iwi not so much as loyal subjects of Her Majesty's Government but rather co-regents expressing their own sovereignty. Advocates of this position assert the Treaty merely granted the Crown a partial concession to exercise authority over incoming settlers, while at the same time preserving for iwi ultimate authority over all things Maori. In effect it is argued that the Treaty established a dual sovereignty in New Zealand.

However, such thinking ignores both the Treaty itself and the historical context in which it was signed.

Start with the Treaty text. Much is made of the differences between the English and Maori versions. But one thing is certain - the word partnership appears in neither. The Treaty articles do not even imply a partnership in a constitutional sense. Rather they establish the British Crown as the ultimate legal authority in return for protection of Maori interests. The latter include land and chieftainship (rangatiratanga). However, that chieftainship is guaranteed within the context of the overarching sovereignty of the Crown.

As the Waitangi Tribunal noted in its 1987 Muriwhenua report: "From the Treaty as a whole it is obvious that it does not purport to describe a continuing relationship between sovereign states. Its purpose and effect was the reverse - to provide for the relinquishment by Maori of their sovereign status and to guarantee their protection upon becoming subjects of the Crown."

The tribunal's reference to the Treaty 'as a whole' is key. The Article Two guarantee of rangatiratanga must be understood in the context of the whole document. Iwi signed up to the whole Treaty, not just the second article. Article One establishes Crown sovereignty. In it chiefs agreed to 'give absolutely to the Queen of England forever the complete government over their land.' That's Professor Sir Hugh Kawharu's translation of the Maori version. It doesn't leave much room for manoeuvre.

[Hugh] Kawharu's translation of Article Three is equally straightforward. Maori took on 'the same rights and duties of citizenship as the people of England.' The Court of Appeal reinforced this in a key 1987 judgment, stating 'For their part the Maori people have undertaken a duty of loyalty to the Queen, [and] full acceptance of her Government.' Ironically this judgment also introduced the Treaty partnership concept that is now so popular. Full acceptance of Crown sovereignty is less fashionable.

The key difference is that Fletcher, I think, sees the Clause Two promise or "rangatiratanga" as a collective one, to be exercised by chiefly rangatira; whereas McQueen more properly sees the promise as applying individually, as a property right that could be enjoyed individually.

Just as Magna Carta was an agreement between nobles and king that came to recognise and protect individual rights of all, even commoners, so too does the recognition and protection of rangatiranga when seen individually come to do the same thing -- protecting all individual rights equally:

The preamble to the 1840 Te Tiriti makes clear that its purpose was to create a settled form of government and to secure peace and good order.

Article One confers on the Crown sovereignty or kāwanatanga (the right to make laws and to govern).

Article Two protects property rights and is based on Magna Carta principles. Magna Carta aimed to protect the English nobilities’ property rights by limiting the Crown’s powers. It catalysed a dynamic relationship between property rights and political power that led to the emergence of the modern British democracy. It created a basis for human rights protection by linking it to property rights. Magna Carta established the principle that no one is above the law – it helped establish the rule of law.

In Te Tiriti Article Two Queen Victoria promises ‘te tino rangatiratanga’ of their properties not just for rangatira and hapū, but for ‘nga tangata katoa o Nu Tirani’, that is ‘all the inhabitants of New Zealand’.

Article Three made Māori subjects of the Crown. It gave Māori equal rights with other Crown subjects, not additional or superior rights.

To use Moxon's words, but with this understanding: to thrive in this country as equals we all (as individuals) must take off our collectivist lenses...

Ewen McQueen argues that English and Māori texts of the Treaty 
agree, and that neither promise Māori self-governance.

UPDATE:

Writing back in mid-November, Moana Maniapoto confirms that Māori activists are interpreting rights to be collective, rather than individual -- the effect of equal rights being to make a Māori elite equal in political power to the government -- a clear grab for political power based on an incorrect understanding of rights.

She begins her opinion piece by quite explicitly opposing David Seymour "pushing individual rights over collective rights." So when Seymour clarify the Treaty's third clause to mean "All New Zealanders are equal under the law, with the same rights and duties," she opposes this because, she says:

Act interpret this to focus on individual rights. Not the obligation to ensure that all who share this land under the Treaty have equal enjoyment of their respective collective rights and responsibilities....

The "Tiriti-centric constitutional model" she demands would require power-sharing between collectives -- "Māori, Pākehā and tangata Tiriti, joining the dots to solving practical problems around housing, health, schools, water, environmental degradation . . .  roads."

Ayn Rand points out the flaw, and the power grab:

Since only an individual man can possess rights, the expression “individual rights” is a redundancy (which one has to use for purposes of clarification in today’s intellectual chaos). But the expression “collective rights” is a contradiction in terms.

Any group or “collective,” large or small, is only a number of individuals. A group can have no rights other than the rights of its individual members. In a free society, the “rights” of any group are derived from the rights of its members through their voluntary, individual choice and contractual agreement, and are merely the application of these individual rights to a specific undertaking. Every legitimate group undertaking is based on the participants’ right of free association and free trade. (By “legitimate,” I mean: noncriminal and freely formed, that is, a group which no one was forced to join.)

For instance, the right of an industrial concern to engage in business is derived from the right of its owners to invest their money in a productive venture—from their right to hire employees—from the right of the employees to sell their services—from the right of all those involved to produce and to sell their products—from the right of the customers to buy (or not to buy) those products. Every link of this complex chain of contractual relationships rests on individual rights, individual choices, individual agreements. Every agreement is delimited, specified and subject to certain conditions, that is, dependent upon a mutual trade to mutual benefit.

This is true of all legitimate groups or associations in a free society: partnerships, business concerns, professional associations, labour unions (voluntary ones), political parties, etc. It applies also to all agency agreements: the right of one man to act for or represent another or others is derived from the rights of those he represents and is delegated to him by their voluntary choice, for a specific, delimited purpose—as in the case of a lawyer, a business representative, a labor union delegate, etc.

A group, as such, has no rights. A man can neither acquire new rights by joining a group nor lose the rights which he does possess. The principle of individual rights is the only moral base of all groups or associations.

Any group that does not recognise this principle is not an association, but a gang or a mob.

Any doctrine of group activities that does not recognise individual rights is a doctrine of mob rule or legalised lynching.

The notion of “collective rights” (the notion that rights belong to groups, not to individuals) means that “rights” belong to some men, but not to others—that some men have the “right” to dispose of others in any manner they please—and that the criterion of such privileged position consists of numerical superiority.

Nothing can ever justify or validate such a doctrine—and no one ever has. Like the altruist morality from which it is derived, this doctrine rests on mysticism: either on the old-fashioned mysticism of faith in supernatural edicts, like “The Divine Right of Kings”—or on the social mystique of modern collectivists who see society as a super-organism, as some supernatural entity apart from and superior to the sum of its individual members.

The amorality of that collectivist mystique is particularly obvious today ...

It’s those fantastical ‘Treaty of Waitangi Principles’ again

 

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:

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.

"Our teachers are not taught how to teach but what to teach" [updated]

"Teaching in New Zealand is a highly regulated profession. You need a four-year degree ... at least two years on the job with a mentor ... and demonstrate that [you] adhere to six standards. You will not be surprised to learn that the first standard is to 'Demonstrate commitment to tangata whenuatanga and Te Tiriti o Waitangi partnership in Aotearoa New Zealand.' ...
    "Why, you may wonder, is it necessary for someone who wishes to teach maths to teenagers to hold a politically correct interpretation of a document signed in 1840? The ideological capture of the profession is not limited to this most important of the six principles. ...
    "[A]nalysis shows a heavy focus [at teachers college] on social justice and related fields, and only a small emphasis on the science of teaching, and on science itself. ... The analysis makes it clear: our teachers are not taught how to teach but what to teach. The only consolation is that, thanks to the lack of focus on the science of education, they are not very good at it."

~ Damien Grant, from his column 'The failure of New Zealand's teachers'

UPDATE:

Adding a data point for you (NB: Stephen Hicks's academic field is philosophy):

What kind of 'Aotearoa' is emerging from 'New Zealand'?

"An extraordinary pre-figuring of the 'Aotearoa' that could emerge from 'New Zealand' occurred at last month’s opening of Te Matatini.
    "During the powhiri [at Orakei] to the nationwide kapa haka competition held at Eden Park, the tribe claiming mana whenua status in Auckland, Ngati Whatua, clashed with the sizeable contingent representing the people of Tainui – the Waikato tribal confederation still advancing historical claims to much of the Auckland region.
    "The degree of animosity on display was astonishing... The excellent coverage of the Ngati Whatua/Tainui stand-off provided by Moana Maniapoto for Maori Television’s Te Ao with Moana captured not only the injured dignity of the participants – and their rage – but the ... consternation at the naked hostility on display....
    "Astonished observers from the many other Iwi Maori participating in Te Matatini were united in their verdict: 'This isn’t over.'
    "Is this to be the way of things in these islands once the Crown has been transformed into the passive helpmeet of the independent tribes of Aotearoa, and such Pakeha as remain have learned to keep their mouths firmly shut? ...
    "Should Maori [tribal leaders] succeed in 'taking their country back' (which, in spite of all the promises of 'partnership and 'equity,' remains their unshakeable intention), it will not be as a unified people, but as a group of tribes no longer held together by their fierce antagonism to colonisation and all its works. In the 183 years since the signing of the Treaty, the claims of whanau, hapu and iwi have remained central to what it means to be Maori. Strike off the colonial fetters – cultural, economic and political – and what remains will be what was always there – long before James Cook’s Endeavour sailed out of the morning sun.
    "Proud tribes. Strong tribes. Deadly Tribes."

~ Chris Trotter, from his post 'The Tribal Stand-Off at Eden Park'

The Treaty's "Quiet Revolution"

“I think the general public is not aware that we are going through huge revolutionary changes in the country and in fact, we have taken that such a long way, there is no going back.”
    “It’s just a question now of how the public service works to implement the policies that come through from Government.”

~ historian Claudia Orange (whose 1987 book on the Treaty proved to be widely influential, especially on the myth of 'partnership') speaking approvingly last week on the radically-changed mainstream interpretation of the Treaty, and the government's implementation of co-governance -- quoted in Thomas Cranmer's 'Waitangi Day and the Quiet Revolution' [Hat tip Chris Trotter]

From "meaningless phrase" to "a string of 'principles of co-governance'"

Cartoon by Nick Kim, from The Free Radical

"The innocent words 'principles of the Treaty of Waitangi' were included in the State-Owned Enterprises Act only because [David] Lange’s then attorney-general (Geoffrey Palmer) assured the cabinet the phrase was meaningless. Thanks to some judicial musing, this initial phrase became loosely associated with 'partnership.'* About thirty years on, this link was subtly extended to the 'principles of partnership.' Then that meaningless phrase was gradually manipulated into a linkage with co-governance. Now we have He Puapua working on converting that link into a string of 'principles of co-governance'.”

          ~ Barry Brill, from his article 'Does “partnership” mean the same as “marriage”?'

* Cooke P held that "the Treaty created an enduring relationship of a fiduciary nature akin to a partnership, each party accepting a positive duty to act in good faith, fairly, reasonably and honourably towards the other.”

What is 'He Puapua'? [updated]

He Puapua is a report commissioned by the Ardern Government to carry out The Key Government's commitments after signing the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), a "legally non-binding resolution passed by the UN in 2007" without New Zealand's vote -- which was withheld by the Clark Government. Among other rights and pseudo-rights asserted in the Declaration are said to be "the indigenous peoples' right to [their] own type of governance." That is almost specifically the aim of the He Puapua report, which 

sets out a timeline for ... transformational constitutional change which will divide the polity into "'three streams: the Rangiratanga stream (for Maori), the Kawanatanga stream (for the Crown) and the Rite Tahi stream (for all New Zealanders).'

In the words of Elizabeth Rata, the report's commissioning and conclusions make it "clear [that] New Zealanders are at a crossroads." 

We will have to decide whether we want our future to be that of an ethno-nationalist state or a democratic-nationalist one.

The report itself makes its own aim abundantly clear: it "describes our future as an ethno-nation."

Delivered to the Ardern Government last year, and only released because it was leaked to the Opposition, the words "He Puapua" themselves translate as "a break," or "a separation."

While it’s usually used in reference to the ocean and a break in waves, in this case the expression centres on a 'breaking of the usual political and societal norms and approaches.’

Such a sundering is not a trivial thing. It brings to mind another famous Declaration, which recognised that "When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation."

Neither decency nor respect has impelled any such declaration in this case. Instead, as Rata says in an excellent take-down of the report:

Displaying an astonishing confidence, the authors claim that 'We consider Aotearoa has reached a maturity where it is ready to undertake the transformation to restructure governance to realise rangatiratanga Maori (self-determination).' I hope [says Rata] that this 'maturity' can accommodate the vigorous debate that is certainly needed if we are to abandon democracy - for what exactly? While each sentence of the Report deserves scrutiny I will confine myself to two points. The main one is the Report's premise of the political category as an ethnic one. The second concerns judicial activism in constitutional change.
    He Puapua envisages a system of constitutional categorisation based on ancestral membership criteria rather than the universal human who is democracy's foundational unit. Ancestral group membership is the key idea of 'ethnicity'.... The word entered common usage from the 1970s followed by 'indigenous' in the 1980s. 'Ethnicity' was an attempt to edit out the increasingly discredited 'race'. However changing a word does not change the idea. 

The report, in total, and the separate future it demands, is race-based. Explicitly. 

"When we politicise ethnicity by classifying, categorising and institutionalising people on the basis of ethnicity," warns Rata, "we establish the platform for ethno-nationalism. Contemporary and historical examples should make us very wary of a path that replaces the individual citizen with the ethnic person as the political subject." No such worries appear to occupy the report's authors.

"Interestingly," she continues, "those examples show the role of small well-educated elites in pushing through radical change." The report's authors are exactly as described. And as well-educated, well-heeled, and well-connected "culturalist intellectuals," their bios reveal them to be virtually all of one mind:

• Claire Charters, "(Ngāti Whakaue, Tainui, Ngāpuhi, Tūwharetoa) [and the Report's chair] gained her LLM from NYU in the US, and her PhD from Cambridge University. She is an associate professor at Auckland Law School, University of Auckland, and Director of the Aotearoa Centre for Indigenous Peoples and the Law. She has been an advisor to the UN President of the General Assembly on Indigenous Peoples’ participation at the UN (2016 – 2017); chair of the UN Voluntary Fund for Indigenous Peoples, Trustee (2014 -2020); chair of the cabinet-appointed working group to provide advice on the realisation of the UN Declaration on the Rights of Indigenous Peoples (2019-2020); co-chair of the New Zealand Human Rights Commission Kaiwhakatara Advisory Group on human rights, Te Tiriti rights, and Covid-19; and worked on the negotiations for the adoption of the UN Declaration of the Rights of Indigenous Peoples (1998 – 2007)."
• Canadian Kayla Kingdon-Bebb is "the current Director of Policy at Te Papa Atawhai / Department of Conservation. Previously she served for three years as Principal Advisor (and earlier, Private Secretary) to two successive Ministers of Conservation. Kayla has extensive experience in the machinery of government, and has led programmes of cross-agency and collaborative work on policy issues relevant to indigenous rights and interests... Kayla has a PhD and MPhil from the University of Cambridge. Her doctoral and master’s theses focused on Treaty law, indigenous customary law and legal pluralism in the context of natural resource management."
• Tamati Olsen is the "Chief Advisor Maori at Housing New Zealand Corporation" and "Director (Acting), Wellbeing, Policy Partnerships. Te Puni Kōkiri – New Zealand Ministry of Māori Development" formerly "Manager Cultural Wealth" at Te Puni Kōkiri"
• The 26-year-old Waimirirangi Ormsby "is project manager at Ka Awatea Services Ltd, developing Ka Awatea strategic vision document base on Mātauranga Māori principles." "Of Waikato, Ngātiwai and Te Arawa descent, [she] has foraged deep into her whakapapa to help environmental sustainability resonate more with her people. But for her the key is to live it herself every single day.... Together with her husband she created Pipiri Ki A Papatūānuku or PKP, which encourages a month of passive environmental action every year. People agree to a period of minimising their waste, tūkino free eating where they try to avoid industrially-farmed produce, begin composting or recycling and minimising plastic waste, or anything else they feel they can commit to.... Longer term, she has much grander ambitions for the recognition of traditional ways. “Te pae tawhiti, my vision for the future is, to be honest, one or two generations from now to have indigenous people leading the way and having indigenous knowledge systems be implemented into constitution, into law and policy, into the way that we live our lives, for everybody.” 
• Previously at the Office of Treaty Settlements, Emily Owen is "General Manager Policy, Department of Corrections NZ. She holds a Masters in History from Massey University."
• "Passionate about Te Tiriti o Waitangi and human rights," Judith Pryor holds "a PhD in Critical and Cultural Theory from Cardiff University in the UK (2005)." Her "doctoral research in constitutions - examining law, history, policy and practice from a theoretical perspective - was published in 2008 as Constitutions: Writing Nations, Reading Difference." "Since returning to Aotearoa in 2006 from the UK, I have predominantly worked in Te Tiriti or human rights-related areas, including at Te Kāhui Tika Tangata, the Human Rights Commission; the Waitangi Tribunal, and the former Office of Treaty Settlements." She "can advise and support you and your agency to develop a capability plan as now required under the Public Service Act 2020. I can also devise a training programme for you, and can deliver Te Tiriti analysis training. Drawing on my previous experience in Policy, my workshop is particularly aimed at policy practitioners, and can be adapted for other audiences. The training covers:​ What the role of the Crown is in the Te Tiriti relationship; Why Te Tiriti analysis is critical for developing sound policy; How to embed Te Tiriti at each stage of the policy process (including engagement); How to practically work through a policy problem using a Te Tiriti framework."
• Jacinta Ruru "is co-Director of Ngā Pae o te Māramatanga [New Zealand's Māori Centre of Research Excellence], and Professor of Law at the University of Otago." Her "research interests focus on exploring Indigenous peoples' legal rights to own, manage and govern land and water. Jacinta's PhD thesis (University of Victoria, Canada, 2012) is titled "Settling Indigenous Place: Reconciling Legal Fictions in Governing Canada and Aotearoa New Zealand's National Parks."
• Naomi Solomon has an LLB from VUW. She is Ngati Toa's "General Manager, Treaty and Strategic Relationships."
• Gary Williams is a "Disability Sector Leader ... [whose] particular interests are issues for disabled people and especially disabled Maori, leadership development and training, the rights of disabled people and effective organisational governance and management. [Formerly] CEO of DPA [Disabled Persons Assembly], he has extensive sector networks, both nationally and internationally, and networks within government agencies."

Rata herself is explicit that what begins in ethno-nationalism often ends in bloodshed. "In Rwanda the ethnic doctrine 'the Mahutu Manifesto' of 1953 was written and promulgated by eleven highly educated individuals identifying politically as Hutu. The raw material of the ethnic ideologies that fuelled the violence in Bosnia and Serbia was supplied by intellectuals. Pol Pot began his killing campaigns immediately on his return from study in Paris." In all these cases, the bad philosophy preceded the horrific outcome. In Rata's 2006 speech to the NZ Skeptics she said: 

In New Zealand we are obviously not far down the track towards ethno-nationalism. However we need to recognise that the ideas which fuel ethnic politics are well-established and naturalised in this country and that the politicisation of ethnicity is underway". Fifteen years later the He Puapua Report shows the progress towards ethno-nationalism. Why has this racial ideology become so accepted in a nation which prides itself on identifying and rejecting racism?

The answer, of course, is what the report's authors call their philosophies. PhDs in subjects like Critical and Cultural Theory* have a real-world impact that appear in documents such as these. As Rata concludes:

'He Puapua' means a break. It is used in the Report to mean 'the breaking of the usual political and social norms and approaches.' The transformation of New Zealand proposed by He Puapua is indeed a complete break with the past. For this reason it is imperative that we all read the Report then freely and openly discuss what type of nation do we want - ethno-nationalism or democratic nationalism?

* * * * * 

* Quick reminder that Critical Race Theory and the like are not merely “Let’s teach the bad parts of history too” -- it's more like "Let's teach that history is all bad. And racist." Richard Delgado, for example, founder of the critical race theory school of legal scholarship, noted for his 'scholarship' on hate speech, and for introducing storytelling into legal scholarship baldly asserts:

Unlike traditional civil rights [e.g., Martin Luther King’s approach], which embraces incrementalism and step-by-step progress, critical race theory questions the very foundations of the liberal order, including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law.

Also, Critical, Cultural Theory etc, its not a theory. 
"The critical race theory (CRT) movement [says Delgado in Movement, Activists, Transform, Power] is a collection of activists and scholars interested in studying and transforming the relationship among race, racism, and power."

So it's a "theory" only in the same sense that AntiFa is an idea.

Don't say you haven't been told. 

[Hat tip Stephen Hicks, Peter Renzland]

"Hate speech is whatever I say it is."

"If this thing you call 'hate speech' is banned, and it is you who effectively 

defines what this 'hate speech' is, then you may effectively ban whatever 

sort of speech and speakers you yourself dislike. It's a beautiful thing, 

censorship, when you're the one who's holding the whip."

And they're off, and the battle to be the one who defines so-called hate speech has begun.

If you're a censor, or would-be banner of speech or speakers that you don't like, if you want to instantly criminalise free expression, then the beauty of this anti-concept called 'hate speech' is precisely that it is so ill-defined, and undefinable. So as long as you get this thing into law, and you win the race to be the definer, then you have your whip hand on banning whoever and whatever you like. Or don't like. 

It is an incoherent concept that confuses more than it clarifies -- and of course for those riding this 'hate speech' horse, that is its real beauty. Instead of using the power of persuasion to fight people expressing unpopular ideas, they can use the power of the state's guns.

'Hate speech' will be whatever they say it is. And there's a lot of power-lusters eager to be on board.

So what sort of ideas might be before the state's guns if such a regime were imposed? Just this morning we have three clear examples of what sort of ideas they would like to make unpopular: all of them the sort that would attract a 'pile-on' with the commentariat online, but probably a nod of quiet agreement further out around the traps:

• Australian rugby star Israel Folau had another religious-inspired online brain fart yesterday, telling his several thousand Instagram followers that gays, fornicators, idolators, and sundry others his Bible doesn't like will all be going to hell unless they repent. Rather than not following his Instagram feed however, thousands of whiners instead passed around his post in order that millions might be offended by it, and now it's gone viral his post is being "investigated" by "the Rugby Australia Integrity Unit" who, says the ARU, are now "engaged on the matter."
  Instead of ridicule of the ridiculous, a rugby player's posts are being "investigated" when of course there is nothing at all to investigate. (What's to investigate? He's just reading the Bible out loud.) But that's not the point: the investigation itself is meant to have a chilling effect upon anyone else expressing anything similarly fatuous. That's the real point of all of these inquisitions. Kneejerk reaction replaces righteous ridicule of his religiosity -- and meanwhile the window of what it's safe to talk about closes further.
• In the west these days it's still safe to ridicule most religions. The one religion however that may not be ridiculed is Islam. The word now commonly used to to describe opposition to Islamist idiocies is what liberal Muslim Maajid Nawaz calls "the deliberately vague misnomer 'Islamophobia,' Islamists [seizing] the opportunity that [Christchurch] presented to insist that any scrutiny of their reading of Islam, as opposed to hatred of Muslims, is cast as bigotry... They seek nothing but an opportunity to reintroduce a blasphemy taboo through the backdoor." "Neither the word, nor the definition are fit for purpose," says Nawaz. "It is merely a conflation of genuine anti-Muslim bigotry, with an attempt to shoehorn in and institutionalise a protection to shield Islamism and Conservative Islam from criticism."
  Why should they have such a shield, especially when there is so much in the religion to criticise. Or should we close the window even further.
• There is a local pseudo-religion however that is also already institutionally protected from criticism, which 'hate speech' laws would only make further immune. The story was puffed on Radio New Zealand this morning, who played several clips of people in Pt Chev said to be offended and hurt because they received a leaflet in their letterbox inviting them to consider the idea that colonisation was overall good for Maori, that the idea of a Treaty "partnership" is a fiction, that the Maori seats and Waitangi Tribunal should be abolished, and of course that New Zealand law should be colour blind. The pamphlets are said by the offendees to be "anti-Maori," and the ideas so hurtful and "racist" that they should be banned.
  And, after the banning of Don Brash, can anyone doubt that in any regime of 'hate speech' they would be -- political speech banned by politicians and political activists so that political ideas that are simply arguable (shouldn't we at least talk about those Maori seats?) are instead banned outright.
  The window is soon very firmly shut, and political expression made airtight.

And these are just three things plucked from this morning's news cycle, with (unusually) Golriz Ghahraman not even amongst them. [UPDATE: And right on cue, Ghahraman's mentor, co-leader and partner in 'hate speech' Marama Davidison saying on Twitter that Folau must be added to her list: "Israel Folau's bigoted comments about our rainbow whānau and our transgender community are the opposite of peace-building. Rugby Australia c'mon this is hate speech." She's got a little list.]

It is one thing to ridicule what someone says. It is another thing altogether to criminalise what they say.

The commentariat, the twitterati and the political elite have long had a problem with how the great unwashed talk and think and what they say when their betters aren't around. For that elite, the chilling effect is a feature, not a bug. Perhaps the key feature. Shut down what they can talk about, and (they hope) their thinking will soon follow. (And if a few free-expression martyrs are jailed along the way, then all the better._

It will still probably remain okay even under this regime to criticise old white men, 'one-percenters,' and Israel (both the place, and the person). These things after all are just sport. But after Christchurch, if things were to proceed with the same indecent haste with this as they have with anti-gun laws, then everything else could soon be off limits.

That seems to be the plan, these 'trial balloons' firming up into one all-encompassing fat drone policing what can be thought and said.

Free-speech campaigner Suzanne Nosell distinguishes between "hateful speech" which is a real thing," and so-called 'hate speech' which is just a muddle, this "incoherent concept that confuses more than it clarifies." The package deal of 'hate speech' wraps up three distinct things, she observes:

1. direct threats and incitements to violence;
2. garden-variety insults directed at a particular gender, race or religion; and
3. speech such as Holocaust denial.

If we recognise that in defamation truth is an absolute defence, then we can already see that 

these diverse phenomena cannot all be lumped together and, collectively, either permitted or prohibited. It does not make sense to have a single approach to Donald Trump’s proposals from the presidential campaign podium to discriminate against Muslims, pro-Trump messages written in chalk on university walkways, and the trolling of feminists on social media or anti-immigrant comments by Dutch politicians...

    [The] law has for decades recognised a category of speech – incitement to imminent violence – that is unlawful because of its potential to catalyse crime. But calls and steps to prohibit speech that is merely hateful yet still nonviolent broaden this definition considerably in ways that [the law] has until now consistently rejected.

In many parts of the world not so fortunate as to have inherited (or to have already thrown off) a tradition of speaking freely -- places as otherwise diverse as South Africa, Japan, Saudi Arabia, Iran, Canada and Russia -- Nosell observes that "the umbrella term 'hate speech' increasingly criminalises expression." Even in Britain, the former home of free speech.

In the name of all that is good and non-hateful, we should not be so eager ourselves to gag and to criminalise speakers here. If we have differences, isn't it better to just talk?

"In a shrinking world where it is ever more important both to be able to speak freely and to appreciate the subjective impact of speech on others," concludes Nosell, "the concept of hate speech is too malleable to be of help."

Unless of course you want to be in that elect group who want to exploit that malleability. Because it's that very malleability that gives you real power.

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Hobson’s Pledge: Racism?

 

The commentariat is all aflame attacking the “Hobson’s Pledge” movement, launched this week by Don Brash. Their vision for New Zealand, they say, “is a society in which all citizens are equal before the law, irrespective of when they or their ancestors arrived in this land.” Brash warns in particular of “iwi participation agreements” in proposed RMA amendments that “would virtually entrench co-governance and partnership obligations with some Maori into local government, creating an under-the-radar constitutional change”; and cites the ongoing farce of Maori seats in parliament and, increasingly, in local government that tribalises governance and decreases democracy and individual rights.

But “they’re racist!” says the commentariat in response. Which is odd, because the very foundation statement of the “Hobson’s Pledge” movement is that we should all be colour-blind before the law. (Hence, Hobson's Pledge, i.e., “He Iwi Tahi Tatou | We Are Now One People.”) And in calling the group things like "pale, male and stale," their opponents themselves reveal just a touch of the racism (and sexism) they claim to oppose.

So how do we resolve this apparent contradiction? Let’s start by looking at how several alleged luminaries justify their claim.

Writing for Stuff, Laura McQuillan doesn’t even try to. “Is Don Brash's new Hobson's Pledge the support group that white people need?” she asks rhetorically in a piece that bizarrely references “Black Lives Matter,” the National Front and some skinhead group called Right Wing Resistance before pulling out and quoting entirely unrelated comments on a piece of clickbait she’d written the week before asking “Which is New Zealand’s whitest region?” all garnished with a quote she’d simply made up herself from a fellow she claims to be “leader” of 1Law4All. (He’s not.) But I bet she thinks she’s not the racist – and that making up quotes is probably “justified corruption.”

Talking out of his arse, Hone Harawira also simply asserts the moot. "Come on, absolutely this is racism and it's time somebody called it out," he says, offering no argument for his claim Brash is “a redneck or a racist.” Neither does professional Maori Willie Jackson, who litters his “debate” with Brash will claims that he’s old, that he’s talking rubbish, that everyone is against Maori, and that so-called “urban Maori” need more privileges from the government. Jackson, of course, represents (or claims to) so-called “urban Maori.”

Jackson, Harawira, Susan Devoy and others talk about the bad “outcomes” that confront Maori, young and old, but none bother to address the claim that the law is not colour-blind and should be, nor show that these bad outcomes can in any way be attributed to racism. (Indeed, a strong argument exists that it is Maori over-reliance on welfare and legal privilege that has all but guaranteed the bad outcomes they cite.)

But there’s more. Media darling Toby Manhire takes on the important topic of logos and where the Hobson’s Pledge website got that picture above. Answer: like most media pics these days (including those the luminaries themselves use, it’s from an American photo library.)

Tim Watkin too conflates the issue of privilege and legal privilege, as if they were one and the same. (No, Tim, they’re not.) But he at least acknowledges the existence of so-called “affirmative action,”  while asserting its effects have been positive – “what Brash calls 'Maori privilege.'” he says, “others call redressing the wrongs of history… an effort to tackle 150 years of race-based privilege [that] is helping avoid more unrest in this country.” (How Maori seats, Maori scholarships, Maori welfare, Maori educational tokenism, and iwi co-governance in local government “avoids unrest” we are not told however.) And he is big enough too to acknowledge “there are valid issues lurking among [what he calls] nonsense -

for example, the fact that settlements are based on where tribes happened to sit in a moment of history (1840), how far respect for Maori spirituality goes and how we manage Maori representation in local government. But it's all based on an intellectual foundation made of rubble and rubbish. The profound wisdom that we should all be equal before the law is twisted and imprisoned in what becomes an argument for privilege to be entrenched with a certain people (Pakeha) at a certain time in history (today).

If you can make sense of that last sentence, by the way, then you’re a better parser of sentences than I.

He argues constitutional law, and gets it wrong, saying:

They [the Hobson’s Pledge movement] show their failure to understand the most basic ideas of a constitution, by on one hand saying "The Treaty of Waitangi is not in any meaningful sense New Zealand’s constitution" and yet in the very next line saying that the Treaty did cede sovereignty, protect property rights and establish Maori as British subjects.
    Even given that slanted interpretation, it clearly acknowledges that the treaty deals with rights and power, which is, er, what a constitution is all about.

It’s certainly true that ceding sovereignty, protecting property rights, and establishing Maori as British subjects with all the rights and privileges thereof are the foundations for something that might become a constitution – something, importantly, that would elucidate what those rights and privileges are, and how a government would be constituted to protect them. That something would be a constitution. But it would need something much more comprehensive than the Treaty’s three spare clauses to become one.

And it would need much else excised from modern law …

I’ve been saving the best for last. In recent years Mihinirangi Forbes has become almost the patron saint of media types. Posted at the taxpayer-funded ivory tower of Radio NZ under the title of “Analysis,” RNZ’s “Māori Issues Correspondent” asks of Brash and co right off the bat ‘How Pākehā are you?’ It’s worth some fisking because it captures so many of the criticisms.

The group's website is emblazoned with the saying "He iwi tahi tātou - One People" - a phrase famously used by Governor William Hobson as he greeted Māori chiefs as they arrived to sign the Treaty of Waitangi, the country's founding document.
    It's a document guaranteeing iwi full, exclusive and undisturbed possession of their lands, forests and fisheries. That's not promoted on the lobby group's website.

Well, yes it is. Unfortunately, however, it’s promoted under the aegis of the conspiratorial “Littlewood Treaty” nonsense that talks about pieces of paper being discovered years later in drawers that, say the claimants, just happen to be the real Treaty.

The group nonetheless do acknowledge, and on the group’s very front page, that the Treaty did in fact guarantee to protect the property rights of all New Zealanders – those being the rights of both non-Maori and Maori over property they wish and desire to retain in their possession, to recognise all the relevant words of the document in question. And it’’s worth noting that Forbes and others fail themselves to promote the document’s guarantee that sovereignty was in fact ceded by the signatories.

Important point that.

Forbes continues:

It's also a document which grants Māori the same rights and privileges as Pākehā, but it's the word privilege which appears to have Hobson's Pledge members concerned. [Emphasis in the original.]

Forbes equivocation over the word “privilege” is of a piece with Watkins’s. The Treaty guaranteed all the rights and privileges of British citizens. Not more rights, or greater privileges. Not affirmative action or co-governance.

She continues, citing (as dishonest hacks will) the weaker arguments she can find from protagonists, before summing up in he r words the aim of the group:

Hobson's Pledgers are calling for a colourblind New Zealand, but one group featured prominently in spokesperson Dr Brash's interviews: Māori.
    Other members thought it important to question how Māori some Māori actually were.

A lot buried in two sentences.

Yes, Hobson's Pledgers are calling for a colourblind New Zealand. That this means they are arguing against the committed programme of affirmative action in favour or Maori means that the ongoing programme of affirmative action in favour or Maori be mentioned. No mystery there.

Yet she’s right to note that an organisation talking about being colourblind needs to be rigorous in its own ocular hygiene, and how Maori some Maori actually are is and always should be wholly irrelevant to anyone truly colourblind. So she has a point.

Mr McVicker, Mike Butler and Mr Oakley seemed offended when asked how Pākehā they were. They all said the question was irrelevant, with Mr Butler calling it a "race-based question."
    But they had no difficulty talking about the percentage of Māori blood people might have, including myself [says Forbes].

She has a point. A point I’ve made to many of these people before, and one that Forbes to her credit has recognised that Brash avoids.

But she concludes with the same equivocation as many others, between legal and economic privilege.

What did the human beings think of Māori inequalities in health, education, life expectancy or incarceration?
    Mr Shirtcliffe offered a quick reply:
        "We are a very simple, single focused movement relating to the issue of equality in governance and
        property rights; other issues are not for us."

Almost the right response. But that issue must be “for them,” because if that equivocation remains unchallenged, this ship called Hobson’s Pledge will take on water as every other similar project has.

And it will only fuel the cries of “racism,” even where it doesn’t exist.

So how do the critics of the group defend their claim that the group is racist? Simple: they don’t try to. They don’t even define what they mean by it, since of course that would make their job harder: Racism being:

Assessing the worth of a person by his skin colour and ancestry. The lowest form of collectivism -- what author Ayn Rand calls a "barnyard" form of collectivism.

The Pledgers don’t help themselves with ridiculous talk of bloodlines in a discussion that’s supposed to be about being colourblind, but the commentators don’t even try to properly justify what should be a serious claim, because they’re never, ever called on their dysphasia  by their media colleagues, and nor do they expect to. They publish in the full expaction of being able to write nonsense because they’ve all been taught the doctrine of “multiculturalism”: that all races are equal except for the one they think is “in power.” (Racism, to the Marxist/multiculturalist not at all being about colourblind individualism but about “power structures” and who inhabits them. Racism in this sense then being very much about not being colourblind, but about being able to skewer the “pale,male and stale” wherever you may find them.) 

This is how the likes of McQuillan can write lightweight fluff and Jackson can rely on nothing more than barroom bluster – and Forbes as can ask “how pakeha are you?” without being racist -- because they can all be confident that (to paraphrase Saul Alinsky) any means are justified in carrying out a social-justice warrior’s ends.

It’s how they can acknowledge all the affirmative action in favour of a race, can watch a race-based party form and exploit race-based seats, can sit back and say nothing as a race-based elite lord it over the peons they claim to represent,  all because in their minds these people are not “part of the power structure” – yet will write up a hyperbolic fervour should anyone have the temerity to call for one law for all.

They’re out of their minds.

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