Post by Kiwi Frontline on May 29, 2016 5:32:43 GMT 12
NO PARTNERSHIP OR PRINICIPLES (By Reuben P Chapple)
NZ's "true and only" Treaty is the Te Reo version. This was what was presented orally to the chiefs, and this is what they agreed to. There is no English version. The Treaty of Waitangi 1840 does not contain the words "partnership" and "principles."
First open challenge to Treatyists: point to the words “partnership” and “principles" in Te Tiriti.
'Treaty of Wellington 1986'
This nonsense is of recent invention, and originated in what we might call "The Treaty of Wellington (aka Section 9 of the State Owned Enterprises Act) 1986.” Activist judges on the Court of Appeal hearing a 1987 case involving the NZ Maori Council then took Section 9’s unclarified in the statute reference to “the principles of the Treaty of Waitangi” to concoct “partnership” and "principles" out of thin air.
Everything the chiefs said on the lawn at Waitangi and elsewhere, as well as the words of those who refused to sign it, make it abundantly clear they were well-aware that by signing the Treaty this would place Captain Hobson in authority over them, and that behind Hobson was Queen Victoria. Reiterated at the Kohimarama Conference of 1860.
Second open challenge to all Treatyists: produce a single primary source account recording the words of a chief who thought he was going into "partnership" or some kind of sovereignty-sharing arrangement with the Crown.
My evidence is set out below. Where’s yours?
The words of the chiefs themselves display a full awareness that their acceptance of Captain Hobson as Governor would place him in authority over them, and that behind Hobson stood Queen Victoria. Eyewitness accounts of the pre-Treaty debates make it clear that none of the chiefs who signed it thought they were going into “partnership” with the Crown. Those who spoke up for Hobson also leave no doubt that they expected British sovereignty to bring lasting peace to the land, as well as protecting them from less benevolently inclined foreign powers, such as the French.
On 5 February 1840, the Treaty was first debated at Waitangi by Ngapuhi chiefs assembled there for that purpose.
Chiefs debate speeches
Te Kemara (Ngati Kawa) spoke first, observing that the effect of signing the Treaty would be for “the Governor to be up, and Te Kemara down.” Under the Governor, he could be “tried and condemned” and even “hung by the neck” should he behave badly enough.
Rewa (Ngati Taweke) spoke next, saying: “This country is ours … we are the Governor.” Like Te Kemara, Rewa saw that chiefly authority would be trumped by that of Hobson: “[Authority over] Your land will be taken from you and your dignity as chiefs will be destroyed.”
Moka (Patukeha) then stood up. “Let the governor return to his own country. Let us remain where we are [as ruling powers in the land].”
Tamati Pukututu (Te Uri-o-Te-Hawato) was the first to speak up for Hobson: “Sit, Governor, sit, for me, for us. Remain here, a father for us.”
Matiu (Uri-o-Ngongo) stood next, reiterating what the previous speaker had said: “Do not go back, but sit here, a Governor, a father for us.”
Kawiti (Ngati Hine) was another who rejected the Governor: “We do not want to be tied up and trodden down. We are free. Let the missionaries remain, but, as for thee, return to thine own country.” His fellow chiefs were warned that acceptance of Hobson meant the Governor would be able to order: “Kawiti must not paddle this way, nor paddle that way, because the Governor said ‘No.’”
Pumuka (Te Roroa) rose next, saying: “I will have this man a foster-father for me.” To the Governor: “I wish to have two fathers – thou and Busby, and the missionaries.”
Warerahi (Ngaitawake), then addressed his fellow chiefs: “Is it not good to be in peace? We will have this man as our Governor” and “Say to this man of the Queen, Go back! No, no.”
Hakiro (Ngatinanenane) was another recalcitrant: “We are not thy people. We are free. We will not have a Governor.”
Tareha (Ngatirehia) stood after Hakiro and told Hobson: “We, we only are the chiefs, rulers. We will not be ruled over.” Never would he accept “the Governor up high” and Tareha “down, under, beneath!”
Rawiri (Ngatitautahi) rose to greet the Governor in English as his “Father,” saying, “Stay here, O Governor! … that we may be in peace.”
Hone Heke (Matarahurahu) reiterated what previous speakers in favour of Hobson had said: “Remain, Governor, a father for us.”
Hakitara (Te Rarawa), also stood up for the Governor, though most of his words were drowned out by side conversations taking place after Heke had spoken.
Tamati Waka Nene (Ngatihao) then told Hobson: “[R]emain for us – a father, a judge, a peacemaker. Stay thou, our friend, our father, our Governor.”
Eruera Maehe Patuone, Tamati Waka Nene’s older brother, spoke next, saying: “Remain here with us, to be a father for us, that the French have us not.”
Te Kemara (who’d spoken first) here jumped up again, saying to the Governor: “Go away; return to thine own land.” To the chiefs, he said: “Let us all be alike [in rank, in power].” Then in an abrupt about-face he told Hobson: “O Governor! remain. But, the Governor up! Te Kemara down, low, flat! No, no, no.”
After all that, he still signed it.
After 6th February 1840 signing
Was endorsed by the chiefs at Waitangi, Crown agents went throughout New Zealand seeking signatures. Most chiefs could see the benefit of signing and soon did so, but a substantial minority, centred on the Tainui, Tuwharetoa and Tuhoe tribes did not. The words and actions of non-signatories make it clear they had no intention of being ruled over by someone else.
Revisionist assertions that the word “mana” (prestige, evidence of breeding) should have been used in the Treaty instead of “kawanatanga” (governance) to ensure the chiefs understood what they were actually being asked to give up are politically useful but factually vacuous.
For example, Piko, a chief at Coromandel, rejected the Treaty because he could “see no necessity for placing himself under the dominion of any prince or queen, as he was desirous of governing his own tribe.”
Mananui Te Heuheu, paramount chief of Tuwharetoa also refused to sign, saying “I will never consent to the mana of a woman resting upon these islands. I myself will be chief in these isles: therefore begone!”
Potatau Te Whero Whero, paramount chief of Tainui, was greatly angered to learn that a handful of minor Tainui chiefs had signed the Treaty at Port Waikato on their own initiative and without his prior approval. To head off any suggestion that the Queen’s authority might extend over the Tainui tribes, he made them return the Crown’s red blankets they’d been given in return for their signatures.
The Kohimarama Conference of 1860
Was attended by 112 Maori Chiefs, many of whom were Ngapuhi. It had been called to discuss the direct challenge that the Kingitanga [Maori King] Movement was mounting to the Queen’s sovereignty, something the loyal chiefs expected the Crown to quell in the interests of national unity.
Its recorded proceedings further explode Waitangi Tribunal myth-making that those who signed the Treaty had no idea this would make British subjects of all Maori. In opening the Conference, Governor Gore Browne told the chiefs there assembled: “Her Majesty has instructed the Governors who preceded me, and she will instruct those who come after me, to maintain the stipulations of this Treaty inviolate, and to watch over the interests and promote the advancement of her subjects without distinction of Race.”
Speeches by the chiefs, many of whom had signed the Treaty 20 years before, reiterated their understanding of what this commitment entailed:
Wi Te Tete: “Listen ye Pakehas, and ye Maori Chiefs! We have now become one people under the Queen.”
Hori Kerei Te Kotuku: “When you arrived we were dwelling in ignorance, we were blind. First came Christianity, after that the Law. I saw that there was salvation for me. You appointed magistrates. We received them. It was during the time of Governor Grey that we first recognized the Queen's authority. He said there is no other Sovereign for us but the Queen. I did not receive the Law without consideration. I sought it carefully in the pages of Scripture. I did not search in ignorance. I saw its benefits, and then I embraced it. Now the Queen is my Sovereign.”
Te Ahukaramu: “These are the things which I desire. First, God: secondly, the Queen: thirdly, the Governor. Let there be one Queen for us. Make known to us all the laws, that we may all dwell under one law.”
Raniera Te Iho: “I offer my land, in the proper manner, to the Governor. True the land passes across to the Governor, but then I get my price for it. Should I afterwards stretch forth my hand after my land that would be wrong. I prove my allegiance to the Queen by parting with my lands. I give up my land to Queen Victoria, and to the Kings and Queens, her successors.”
Tohi Te Ueurangi: “Let the Queen be above all. I have nothing more to say.”
Crown upholds the sovereignty of New Zealand
In 1863, supported (and often aided in the field) by the majority of leading North Island chiefs, the Crown fulfilled its Treaty promise to uphold the sovereignty of New Zealand against the challenge of the Tainui tribes who’d never signed the Treaty in the first place. It put down the Kingitanga Movement by force of arms and punished Tainui with land confiscations as it had earlier warned.
Sir Apirana Ngata
In 1922, Sir Apirana Ngata summarised the effect of the Treaty of Waitangi with considerable clarity, finality, and certainty: “Article I of the Treaty transfers all chiefly authority to the Queen forever, and the embodiment of that authority is now the New Zealand Parliament. For that reason, all demands for absolute Maori authorities are nothing more than wishful thinking.”
The Partnership Fallacy
The partnership fallacy came about because the 1984 Labour Government placed references to “the principles of the Treaty of Waitangi” into key legislation that it passed. These references had first appeared in Section 6 of the Treaty of Waitangi Act 1975, but lay unnoticed and dormant until included in the State-Owned Enterprises Act 1986, which at Section 9 states: "nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi."
Richard Prebble was Minister of State-Owned Enterprises in the Fourth Labour Government when the Bill which became the SOE Act was in its final drafting stage. Prebble wanted to sell off a number of state-owned enterprises he’d identified as suitable to be privatised. Labour’s Maori MPs were becoming increasingly resistant to this proposal, which they feared would open the door to the selling off of substantial Crown landholdings, thus preventing them being applied to future Treaty settlements.
To hose down these concerns, Prebble’s colleague, Attorney-General Geoffrey Palmer, inserted the wording quoted above into the new State-Owned Enterprises Act. By Prebble’s retrospective account, Palmer told him at the time that the clause was meaningless, would never apply to anything, and was just a way to get Labour’s Maori MPs off his back.
What many would regard as a deliberate failure to define these “principles” in statue then allowed the Waitangi Tribunal and activist judges on the Court of Appeal to usurp the proper law-making function of Parliament.
The tricky Palmer, a Victoria University of Wellington Law Professor before going into politics, was likely to have been well aware of what he was doing. His supposedly meaningless clause handed judicial activists the opportunity to make far-reaching rulings that the electorate would never have accepted had they came from politicians. Labour could then turn around and blame the judges, thus washing its hands of responsibility for outcomes it had actually wanted to promote in the first place.
While this dodge may have fooled low information voters, the New Zealand Parliament is our supreme source of law, not the Courts. Had the Fourth Labour Government been truly unhappy about the way in which liberal judges fell over themselves to flesh out the “principles” clause, it could have appealed the ruling to a higher Court, repealed the clause altogether, or amended it to provide firm direction to the Judiciary.
The Appellate Court in the relevant case would have been the Privy Council, an overwhelmingly conservative body known throughout the Western world for interpreting the law according to law and precedent, rather than according to the social and political opinions of its constituent judges.
Thousands of kilometres away in England, the Law Lords might be expected to have been above the trendy Treatyism prevailing in New Zealand, and to have made the correct ruling. This would have been to strike down the judicial adventurism of the New Zealand judges, and to refer the matter back to the New Zealand Parliament for proper clarification in statute.
No prizes for guessing why Helen Clark’s Fifth Labour Government later abolished appeals to the Privy Council, thereby rendering New Zealand’s highest judicial body a local one.
Partnership Myth
The partnership myth entered the public square through an erroneous decision of the Court of Appeal in a 1987 case involving the New Zealand Maori Council. It is founded upon what researcher, Alan Everton describes as: “nothing more than the opinion of five judges, who combined a lamentable ignorance of New Zealand history with a willingness to ignore the constitutional principle that they were appointed to apply the law, not make it.”
The New Zealand Maori Council had asked the Court of Appeal whether the government’s plans to transfer land to state-owned enterprises breached the principles of the Treaty of Waitangi. To answer that question the Court took it upon itself to decide what those principles were.
The Court of Appeal’s proper response in this matter would have been to reserve its decision, then ask Parliament to define in statute how (if at all) “the principles of the Treaty of Waitangi” differed from its simple black letter clauses. Yet the President of the Court of Appeal, Cooke J. managed to state in his ruling that “The Treaty signified a partnership between races ...”
He went on to pepper the balance of his ruling with a raft of other such references and concluded: “[the Treaty] principles require the Pakeha and Maori Treaty partners to act towards each other reasonably and with the utmost good faith.”
The notion that the Treaty established a partnership was independently agreed to by all five members of the Court of Appeal, though expressed in somewhat different terms by each. More insidiously, the Court took the view that, to use Cooke J’s words: “The Treaty should be seen as an embryo, rather than as a fully developed set of ideas …”
This “living document” approach taken by the Court of Appeal’s activist judges effectively turned the Treaty’s black letter clauses into a kete (flax basket) for anything that Maori activists wanted to lay subsequent claim to.
The Court’s partnership invention was then slid into various Waitangi Tribunal reports, such as the Tribunal’s Muriwhenua Fishing Report of 1988, which suggested that Maori had a right: “to tribal self-management on lines similar to what we understand by local government.”
Treaty Principles
The sanction of the Courts and pro-claimant Waitangi Tribunal was all that Maori Sovereignty activists and their white liberal enablers in the Fourth Labour Government needed to begin spinning a revisionist narrative of the Treaty’s meaning and intent.
In 1989, the Fourth Labour Government noted that “the Government, the Courts, and the Waitangi Tribunal are each developing their own set of ‘Treaty principles’” because this was “not defined in legislation.” How very perceptive.
Prime Minister, David Lange, acting under “executive authority,” announced a laundry list of “principles” under which his Government intended to operate. To this day, these have never been presented to Parliament for ratification.
Successive governments, both National- and Labour-led, have left the Fourth Labour Government’s 1989 “Treaty principles” undisturbed for the last 27 years. The Treaty Gravy Train based on a fabricated and misconstrued version of the Treaty chugs on and on, picking up momentum as it rolls.
Powerful vested interests -- Treaty lawyers, revisionist “historians,” politicians seeking moral preening opportunities for “saving the Maori,” public servants employed in the Treaty Industry, and a Brown Table Iwi elite with snouts buried deep in the public trough -- make this Gravy Train increasingly difficult to derail.
In point of fact, subsequent governments are free to modify Lange’s highly presumptuous nonsense at any time as they see fit. Currently, they are not obliged to genuflect to it in perpetuity, which explains why the Maori Party is so keen to get the Treaty of Waitangi (or rather its bogus “principles”) into a written Constitution. Then we will never remove its strangling tentacles from our national life. Nor will we ever be rid of the permanently embedded, self-anointed part-Maori racial aristocracy such a move would create.
The Treaty’s simple black letter clauses were never intended to create a “living document” or as a blueprint for an ongoing racial partnership. As Alan Everton reminds us, “the Treaty was a treaty of cession, and like all such was concerned with rights and territory, with defining what rights and territory were held or ceded by the contracting parties.”
ENDS.
NZ's "true and only" Treaty is the Te Reo version. This was what was presented orally to the chiefs, and this is what they agreed to. There is no English version. The Treaty of Waitangi 1840 does not contain the words "partnership" and "principles."
First open challenge to Treatyists: point to the words “partnership” and “principles" in Te Tiriti.
'Treaty of Wellington 1986'
This nonsense is of recent invention, and originated in what we might call "The Treaty of Wellington (aka Section 9 of the State Owned Enterprises Act) 1986.” Activist judges on the Court of Appeal hearing a 1987 case involving the NZ Maori Council then took Section 9’s unclarified in the statute reference to “the principles of the Treaty of Waitangi” to concoct “partnership” and "principles" out of thin air.
Everything the chiefs said on the lawn at Waitangi and elsewhere, as well as the words of those who refused to sign it, make it abundantly clear they were well-aware that by signing the Treaty this would place Captain Hobson in authority over them, and that behind Hobson was Queen Victoria. Reiterated at the Kohimarama Conference of 1860.
Second open challenge to all Treatyists: produce a single primary source account recording the words of a chief who thought he was going into "partnership" or some kind of sovereignty-sharing arrangement with the Crown.
My evidence is set out below. Where’s yours?
The words of the chiefs themselves display a full awareness that their acceptance of Captain Hobson as Governor would place him in authority over them, and that behind Hobson stood Queen Victoria. Eyewitness accounts of the pre-Treaty debates make it clear that none of the chiefs who signed it thought they were going into “partnership” with the Crown. Those who spoke up for Hobson also leave no doubt that they expected British sovereignty to bring lasting peace to the land, as well as protecting them from less benevolently inclined foreign powers, such as the French.
On 5 February 1840, the Treaty was first debated at Waitangi by Ngapuhi chiefs assembled there for that purpose.
Chiefs debate speeches
Te Kemara (Ngati Kawa) spoke first, observing that the effect of signing the Treaty would be for “the Governor to be up, and Te Kemara down.” Under the Governor, he could be “tried and condemned” and even “hung by the neck” should he behave badly enough.
Rewa (Ngati Taweke) spoke next, saying: “This country is ours … we are the Governor.” Like Te Kemara, Rewa saw that chiefly authority would be trumped by that of Hobson: “[Authority over] Your land will be taken from you and your dignity as chiefs will be destroyed.”
Moka (Patukeha) then stood up. “Let the governor return to his own country. Let us remain where we are [as ruling powers in the land].”
Tamati Pukututu (Te Uri-o-Te-Hawato) was the first to speak up for Hobson: “Sit, Governor, sit, for me, for us. Remain here, a father for us.”
Matiu (Uri-o-Ngongo) stood next, reiterating what the previous speaker had said: “Do not go back, but sit here, a Governor, a father for us.”
Kawiti (Ngati Hine) was another who rejected the Governor: “We do not want to be tied up and trodden down. We are free. Let the missionaries remain, but, as for thee, return to thine own country.” His fellow chiefs were warned that acceptance of Hobson meant the Governor would be able to order: “Kawiti must not paddle this way, nor paddle that way, because the Governor said ‘No.’”
Pumuka (Te Roroa) rose next, saying: “I will have this man a foster-father for me.” To the Governor: “I wish to have two fathers – thou and Busby, and the missionaries.”
Warerahi (Ngaitawake), then addressed his fellow chiefs: “Is it not good to be in peace? We will have this man as our Governor” and “Say to this man of the Queen, Go back! No, no.”
Hakiro (Ngatinanenane) was another recalcitrant: “We are not thy people. We are free. We will not have a Governor.”
Tareha (Ngatirehia) stood after Hakiro and told Hobson: “We, we only are the chiefs, rulers. We will not be ruled over.” Never would he accept “the Governor up high” and Tareha “down, under, beneath!”
Rawiri (Ngatitautahi) rose to greet the Governor in English as his “Father,” saying, “Stay here, O Governor! … that we may be in peace.”
Hone Heke (Matarahurahu) reiterated what previous speakers in favour of Hobson had said: “Remain, Governor, a father for us.”
Hakitara (Te Rarawa), also stood up for the Governor, though most of his words were drowned out by side conversations taking place after Heke had spoken.
Tamati Waka Nene (Ngatihao) then told Hobson: “[R]emain for us – a father, a judge, a peacemaker. Stay thou, our friend, our father, our Governor.”
Eruera Maehe Patuone, Tamati Waka Nene’s older brother, spoke next, saying: “Remain here with us, to be a father for us, that the French have us not.”
Te Kemara (who’d spoken first) here jumped up again, saying to the Governor: “Go away; return to thine own land.” To the chiefs, he said: “Let us all be alike [in rank, in power].” Then in an abrupt about-face he told Hobson: “O Governor! remain. But, the Governor up! Te Kemara down, low, flat! No, no, no.”
After all that, he still signed it.
After 6th February 1840 signing
Was endorsed by the chiefs at Waitangi, Crown agents went throughout New Zealand seeking signatures. Most chiefs could see the benefit of signing and soon did so, but a substantial minority, centred on the Tainui, Tuwharetoa and Tuhoe tribes did not. The words and actions of non-signatories make it clear they had no intention of being ruled over by someone else.
Revisionist assertions that the word “mana” (prestige, evidence of breeding) should have been used in the Treaty instead of “kawanatanga” (governance) to ensure the chiefs understood what they were actually being asked to give up are politically useful but factually vacuous.
For example, Piko, a chief at Coromandel, rejected the Treaty because he could “see no necessity for placing himself under the dominion of any prince or queen, as he was desirous of governing his own tribe.”
Mananui Te Heuheu, paramount chief of Tuwharetoa also refused to sign, saying “I will never consent to the mana of a woman resting upon these islands. I myself will be chief in these isles: therefore begone!”
Potatau Te Whero Whero, paramount chief of Tainui, was greatly angered to learn that a handful of minor Tainui chiefs had signed the Treaty at Port Waikato on their own initiative and without his prior approval. To head off any suggestion that the Queen’s authority might extend over the Tainui tribes, he made them return the Crown’s red blankets they’d been given in return for their signatures.
The Kohimarama Conference of 1860
Was attended by 112 Maori Chiefs, many of whom were Ngapuhi. It had been called to discuss the direct challenge that the Kingitanga [Maori King] Movement was mounting to the Queen’s sovereignty, something the loyal chiefs expected the Crown to quell in the interests of national unity.
Its recorded proceedings further explode Waitangi Tribunal myth-making that those who signed the Treaty had no idea this would make British subjects of all Maori. In opening the Conference, Governor Gore Browne told the chiefs there assembled: “Her Majesty has instructed the Governors who preceded me, and she will instruct those who come after me, to maintain the stipulations of this Treaty inviolate, and to watch over the interests and promote the advancement of her subjects without distinction of Race.”
Speeches by the chiefs, many of whom had signed the Treaty 20 years before, reiterated their understanding of what this commitment entailed:
Wi Te Tete: “Listen ye Pakehas, and ye Maori Chiefs! We have now become one people under the Queen.”
Hori Kerei Te Kotuku: “When you arrived we were dwelling in ignorance, we were blind. First came Christianity, after that the Law. I saw that there was salvation for me. You appointed magistrates. We received them. It was during the time of Governor Grey that we first recognized the Queen's authority. He said there is no other Sovereign for us but the Queen. I did not receive the Law without consideration. I sought it carefully in the pages of Scripture. I did not search in ignorance. I saw its benefits, and then I embraced it. Now the Queen is my Sovereign.”
Te Ahukaramu: “These are the things which I desire. First, God: secondly, the Queen: thirdly, the Governor. Let there be one Queen for us. Make known to us all the laws, that we may all dwell under one law.”
Raniera Te Iho: “I offer my land, in the proper manner, to the Governor. True the land passes across to the Governor, but then I get my price for it. Should I afterwards stretch forth my hand after my land that would be wrong. I prove my allegiance to the Queen by parting with my lands. I give up my land to Queen Victoria, and to the Kings and Queens, her successors.”
Tohi Te Ueurangi: “Let the Queen be above all. I have nothing more to say.”
Crown upholds the sovereignty of New Zealand
In 1863, supported (and often aided in the field) by the majority of leading North Island chiefs, the Crown fulfilled its Treaty promise to uphold the sovereignty of New Zealand against the challenge of the Tainui tribes who’d never signed the Treaty in the first place. It put down the Kingitanga Movement by force of arms and punished Tainui with land confiscations as it had earlier warned.
Sir Apirana Ngata
In 1922, Sir Apirana Ngata summarised the effect of the Treaty of Waitangi with considerable clarity, finality, and certainty: “Article I of the Treaty transfers all chiefly authority to the Queen forever, and the embodiment of that authority is now the New Zealand Parliament. For that reason, all demands for absolute Maori authorities are nothing more than wishful thinking.”
The Partnership Fallacy
The partnership fallacy came about because the 1984 Labour Government placed references to “the principles of the Treaty of Waitangi” into key legislation that it passed. These references had first appeared in Section 6 of the Treaty of Waitangi Act 1975, but lay unnoticed and dormant until included in the State-Owned Enterprises Act 1986, which at Section 9 states: "nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi."
Richard Prebble was Minister of State-Owned Enterprises in the Fourth Labour Government when the Bill which became the SOE Act was in its final drafting stage. Prebble wanted to sell off a number of state-owned enterprises he’d identified as suitable to be privatised. Labour’s Maori MPs were becoming increasingly resistant to this proposal, which they feared would open the door to the selling off of substantial Crown landholdings, thus preventing them being applied to future Treaty settlements.
To hose down these concerns, Prebble’s colleague, Attorney-General Geoffrey Palmer, inserted the wording quoted above into the new State-Owned Enterprises Act. By Prebble’s retrospective account, Palmer told him at the time that the clause was meaningless, would never apply to anything, and was just a way to get Labour’s Maori MPs off his back.
What many would regard as a deliberate failure to define these “principles” in statue then allowed the Waitangi Tribunal and activist judges on the Court of Appeal to usurp the proper law-making function of Parliament.
The tricky Palmer, a Victoria University of Wellington Law Professor before going into politics, was likely to have been well aware of what he was doing. His supposedly meaningless clause handed judicial activists the opportunity to make far-reaching rulings that the electorate would never have accepted had they came from politicians. Labour could then turn around and blame the judges, thus washing its hands of responsibility for outcomes it had actually wanted to promote in the first place.
While this dodge may have fooled low information voters, the New Zealand Parliament is our supreme source of law, not the Courts. Had the Fourth Labour Government been truly unhappy about the way in which liberal judges fell over themselves to flesh out the “principles” clause, it could have appealed the ruling to a higher Court, repealed the clause altogether, or amended it to provide firm direction to the Judiciary.
The Appellate Court in the relevant case would have been the Privy Council, an overwhelmingly conservative body known throughout the Western world for interpreting the law according to law and precedent, rather than according to the social and political opinions of its constituent judges.
Thousands of kilometres away in England, the Law Lords might be expected to have been above the trendy Treatyism prevailing in New Zealand, and to have made the correct ruling. This would have been to strike down the judicial adventurism of the New Zealand judges, and to refer the matter back to the New Zealand Parliament for proper clarification in statute.
No prizes for guessing why Helen Clark’s Fifth Labour Government later abolished appeals to the Privy Council, thereby rendering New Zealand’s highest judicial body a local one.
Partnership Myth
The partnership myth entered the public square through an erroneous decision of the Court of Appeal in a 1987 case involving the New Zealand Maori Council. It is founded upon what researcher, Alan Everton describes as: “nothing more than the opinion of five judges, who combined a lamentable ignorance of New Zealand history with a willingness to ignore the constitutional principle that they were appointed to apply the law, not make it.”
The New Zealand Maori Council had asked the Court of Appeal whether the government’s plans to transfer land to state-owned enterprises breached the principles of the Treaty of Waitangi. To answer that question the Court took it upon itself to decide what those principles were.
The Court of Appeal’s proper response in this matter would have been to reserve its decision, then ask Parliament to define in statute how (if at all) “the principles of the Treaty of Waitangi” differed from its simple black letter clauses. Yet the President of the Court of Appeal, Cooke J. managed to state in his ruling that “The Treaty signified a partnership between races ...”
He went on to pepper the balance of his ruling with a raft of other such references and concluded: “[the Treaty] principles require the Pakeha and Maori Treaty partners to act towards each other reasonably and with the utmost good faith.”
The notion that the Treaty established a partnership was independently agreed to by all five members of the Court of Appeal, though expressed in somewhat different terms by each. More insidiously, the Court took the view that, to use Cooke J’s words: “The Treaty should be seen as an embryo, rather than as a fully developed set of ideas …”
This “living document” approach taken by the Court of Appeal’s activist judges effectively turned the Treaty’s black letter clauses into a kete (flax basket) for anything that Maori activists wanted to lay subsequent claim to.
The Court’s partnership invention was then slid into various Waitangi Tribunal reports, such as the Tribunal’s Muriwhenua Fishing Report of 1988, which suggested that Maori had a right: “to tribal self-management on lines similar to what we understand by local government.”
Treaty Principles
The sanction of the Courts and pro-claimant Waitangi Tribunal was all that Maori Sovereignty activists and their white liberal enablers in the Fourth Labour Government needed to begin spinning a revisionist narrative of the Treaty’s meaning and intent.
In 1989, the Fourth Labour Government noted that “the Government, the Courts, and the Waitangi Tribunal are each developing their own set of ‘Treaty principles’” because this was “not defined in legislation.” How very perceptive.
Prime Minister, David Lange, acting under “executive authority,” announced a laundry list of “principles” under which his Government intended to operate. To this day, these have never been presented to Parliament for ratification.
Successive governments, both National- and Labour-led, have left the Fourth Labour Government’s 1989 “Treaty principles” undisturbed for the last 27 years. The Treaty Gravy Train based on a fabricated and misconstrued version of the Treaty chugs on and on, picking up momentum as it rolls.
Powerful vested interests -- Treaty lawyers, revisionist “historians,” politicians seeking moral preening opportunities for “saving the Maori,” public servants employed in the Treaty Industry, and a Brown Table Iwi elite with snouts buried deep in the public trough -- make this Gravy Train increasingly difficult to derail.
In point of fact, subsequent governments are free to modify Lange’s highly presumptuous nonsense at any time as they see fit. Currently, they are not obliged to genuflect to it in perpetuity, which explains why the Maori Party is so keen to get the Treaty of Waitangi (or rather its bogus “principles”) into a written Constitution. Then we will never remove its strangling tentacles from our national life. Nor will we ever be rid of the permanently embedded, self-anointed part-Maori racial aristocracy such a move would create.
The Treaty’s simple black letter clauses were never intended to create a “living document” or as a blueprint for an ongoing racial partnership. As Alan Everton reminds us, “the Treaty was a treaty of cession, and like all such was concerned with rights and territory, with defining what rights and territory were held or ceded by the contracting parties.”
ENDS.