One country. One law. One constitution.

Peter Cresswell's picture
Submitted by Peter Cresswell on Wed, 2006-02-08 01:29

Another Waitangi Day in New Zealand and (no doubt) another set of protests and claims for more legal privilege. Another Waitangi Day in which the the usual parade of politicians and protestors confront and avoid each other, and the professional grievance industry discuss and issue their demands for the taxpayer to give even more -- (for those interested in such things, this year's fashionable demand seems to be for a separatist Maori General Assembly.)

Frankly, we don't need another taxpaid gravy train or another grievance industry or yet another charter for separatism or a forum in which to demand it; we simply need good law.

We don't need more nationalisation of land, seabed or foreshore; we simply need a (colourblind) legal system in which what we own is protected, and in which real injustices can be proven swiftly and without great expense, and justice can be done and be seen to be done.

'He iwi tahi tatou.' We are now one people. So said Governor Hobson to Maori chieftains as they signed the Treaty that is now the source of division. But are we really 'one people'? Not really. No more than our ancestors were then. But nor are we two, three or fifty-four peoples -- do you have a people? -- and nor does it matter. What Governor Hobson brought to New Zealand with the Treaty was Western Culture, which makes it possible to view one another not as 'peoples,' but as individuals.

Unfortunately, we still don't, do we?

What he brought was a hastily written document intended to forestall French attempts at dominion (and the Frank imposition of croissants and string bikinis), and which brought to New Zealand for the first time the concept and protection of property rights and of an objective rule of law. The Treaty signed one-hundred sixty-six years ago today was not intended as the charter for separatism and grievance and the welfare gravy train that it has become - it was intended no more and no less than to bring the protection of British law and the rights and privileges of British citizens to the residents of these islands -- residents of all colours. That was the context that three simple clauses were intended to enunciate. And one-hundred and sixty-six years ago, the rights and priviliges of British citizens actually meant something -- not a promise of unlimited tribally-based welfare, but a promise to protect individuals from each other, and to protect also what individuals owned and produced by their own efforts.

Life in New Zealand before this advent of the rule of law recognised neither right, nor privilege, nor even the concept of ownership. It was not the paradise of Rousseau's noble savage; force was the recognised rule du jour and the source of much barbarity (see for example 'Property Rights: A Blessing for Maori New Zealand') -- indeed just a few short years before the Treaty was signed, savage intertribal warfare reigned and much of New Zealand was found to be unpopulated following the fleeing of tribes before the muskets and savagery of other tribes.

Property was not truly owned, it was just something that was grabbed and held by one tribe, until grabbed and held by another. Life to be blunt, was shit, just as it was in pre-Industrial Revolution Europe, and - let's face it -- it was largely due to the local culture. As Thomas Sowell reminds us: "Cultures are not museum pieces. They are the working machinery of everyday life. Unlike objects of aesthetic contemplation, working machinery is judged by how well it works, compared to the alternatives."

Let's be really blunt (and here I paraphrase from this article):

In the many years before the Treaty was signed, the scattered tribes occupying New Zealand lived in abject poverty, ignorance, and superstition -- not due to any racial inferiority, but because that is how all mankind starts out (Europeans included). The transfer of Western civilization to these islands was one of the great cultural gifts in recorded history, affording Maori almost effortless access to centuries of European accomplishments in philosophy, science, technology, and government. As a result, today's Maori enjoy a capacity for generating health, wealth, and happiness that their Stone Age ancestors could never have conceived.

Harsh, but true. And note those words before you hyperventilate: "not due to any racial inferiority, but because that is how all mankind starts out (Europeans included)." The boon of Western Civilisation was being offered for just a mess of pottage, and the right for Westerners to settle here too. As Sir Apirana Ngata stated, "if you think these things are wrong, then blame your ancestors when they gave away their rights when they were strong" - giving the clue that 'right' to Ngata's ancestors, equated to 'strong' more than it did to 'right.'

In any case, Maori didn't even own New Zealand. First of all, they had no concept of ownership, except that things taken by force might be held by force, if they could be (see again, for example 'Property Rights: A Blessing for Maori New Zealand'). Second, even if they had begun to develop the rudiments of such a concept (the concept of ownership by right being relatively new even to 1840 Europeans) they didn't own all the country -- they only 'owned' what they owned: that is, the lands and fisheries that were being occupied, farmed, fished and used. But note that this did not encompass all of New Zealand, nor even most of New Zealand. The rest lay unclaimed by anyone.

Third, Maori did not even see themselves as 'one people'; the word 'Maori' simply meant 'normal,' as opposed to the somewhat abnormal outsiders who had now appeared with their crosses and swords and strange written incantations. The tangata whenua saw themselves not as a homogeneous whole, but as members of various tribes - there was no way a whole country could be ceded by those who had never yet laid claim to it.

So the British came, and saw, and hung about a bit. The truth is that some of the best places in the world in which to live are those where the British once came, and saw and then buggered off -- leaving behnd them their (once) magnificent legal system, and the rudiments of Western Culture. See for example, the USA, Canada, Australia, New Zealand, and of course (as noted in this week's Obituary of former governor John Cowperthwaite) Hong Kong. We lucked out.

What the Treaty did do, for which we can all be thankful, was to bring British law to NZ at a time whan British law was actually intended to protect the rights of British citizens. But the Treaty itself was not a founding document. No, it wasn't. On its own, with just its three simple clauses there was just not enough there to make it a founding document. As a document it simply pointed to the superstructure of British law as it then was and said, 'let's have that down here on these islands in the South Pacific.'

The treaty's greatest promise was really its bringing to these islands those rights and privileges that British citizens enjoyed by virtue of their then superb legal system; the protection of Pax Britannia when those rights and that protection meant something, and British law saw protection of rights as its sworn duty. Sadly, it no longer does see its duty that way, which means the legal context in which the Treaty was signed has changed. Law, in Britain and in NZ, now places welfarism and privilege above individualism and rights.

The truly sad thing is that the Treaty relied on a context that no longer exists; that, in my view is the chief reason a new constitution is needed: to restore that legal context, and to improve upon it with a constitutions that protects and reinforces an Objective rule of law, as British law itself once did; and that makes clear what in the Treaty was only vague and barely put. And in doing so, of course, such a constitution would make the Treaty obsolete. Thank goodness.

Waitangi Day comes just two weeks after Martin Luther King Day. It might be worthwhile to remind ourselves of King's dream:

"I have a dream that my four children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character"...

Perhaps we will one day celebrate the national day of New Zealand without the colour of a man's skin being more important than his character, and without what has become a charter for grievance continuing to poison discussion, and empower a gravy train of grievance.

Linked Articles: Unsure on foreshore: A Brash dismissal of Maori rights? - Not PC

Property Rights: A Gift to Maori New Zealand - Peter Cresswell
What is Objective Law? - Harry Binswanger
No Apology to Indians - Thomas Bowden

Superseding the Treaty with something objective called "good law" - Not PC

More from the Archives of Not PC: Maoritanga, Racism, History, Law, Constitution


Very good

David Bertelsen's picture

Very good, Peter. I particularly enjoyed this quote, and wish all the hard-done-by, not-respected primitives could appreciate the sentiment that it is not THEM that is inferior, it is the coincidence of history, and to be blessed with inheriting the best of Western civilisation is a gift that can lift any individual out of the dark ages, if he so chooses:

In the many years before the Treaty was signed, the scattered tribes occupying New Zealand lived in abject poverty, ignorance, and superstition -- not due to any racial inferiority, but because that is how all mankind starts out (Europeans included). The transfer of Western civilization to these islands was one of the great cultural gifts in recorded history, affording Maori almost effortless access to centuries of European accomplishments in philosophy, science, technology, and government. As a result, today's Maori enjoy a capacity for generating health, wealth, and happiness that their Stone Age ancestors could never have conceived.

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