This open letter is written in response to the RNZ article of 14 November “Senior lawyers call for the Treaty Principles bill to be abandoned.”
I respond with the authority of my age and experience. Search the Internet for “perce.harpham.nz” to see something of my experience. I have now lived more than half the time since the Treaty was signed. My various visits to the USA add up to about nine months. Similarly with China. We have a child born in each of England, Australia and NZ.
I was born in Tauranga. My Mum was 45 at the time. She was the first white girl born in Te Puke. Her father, my grandfather Freeth, was a despatch rider from Wanganui to Wellington in the Maori wars. I never knew my grandfather but Ernie Darnell, a very old man, assumed the role. His first job was with the Survey Party which had its pegs pulled out by residents of Parihaka who also killed one of the Survey Party. He spoke often about those times.
So I have some memories from long ago handed down to me verbally.
I am now frightened by the imminent collapse of our democracy and legal system. It is well described by John Robinson. See https://www.nzcpr.com/a-broken-nation-complete-tribal-disunity.
The letter from the KCs increases my concern although it is somewhat negated by the commentary from James Farmer KC - see https://www.jamesfarmerqc.co.nz/Legal-Commentary/why-i-did-not-sign-the-letter.
Let me make some observations relevant to the KC’s letter.
Since the KC’s letter appears to accept the perversion of several words let me intersperse some comments on them here:
A. Colonisation
The Oxford English Dictionary (OECD) defines “colonialism” as “1. a policy of acquiring or maintaining colonies. 2. the policy regarded as the esp. economic exploitation of a weak or backward peoples by a larger power.”
What the European powers did in Africa was colonisation. They killed the existing rulers and enslaved the people to produce profits for the colonising power. Remember the “slave trade” where they even sold people as chattels.
Exactly the opposite occurred in NZ. The Queen was invited by Maori to become the Queen of NZ. Within days of the Treaty being signed Maori were applying it. Apart from Te Rauparaha inter-tribal warfare stopped. The Chiefs remained in place. Maori Slaves were released. The only money taken from NZ by the English was the returning of loans to NZ.
As well as peace the settlers brought four legged red meat, sheep, pigs, horses, all sorts of fruit and vegetables, steel tools, axes, spades, wheels, corrugated iron, reading, writing, arithmetic and on and on. They paid Maori to work on farms, build roads, bridges and wharves.
It is nonsense to claim that Maori suffered from colonisation.
B. Indigenous
This word has been construed by the separatists to have all sorts of meanings. The OECD says ”...(of people) born in a place..” I am indigenous to NZ, nowhere else..
The United Nations Declaration on the Rights of Indigenous People is quite extensive but I see little there which is not available to all in NZ. Importantly article 46 says
“Article 46 1. Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.”
So all the hyperbole and claims made by the separatists under this declaration are in fact prohibited by it.
C.Tikanga - Maori Customs
These customs are not written or formally made part of our legal structure. But if they were it would be essential to have them in English because there are 7 different dialects recognized in Te Reo and some 150 different Iwi with different customs as well as different words.
The ultimate tikanga for the resolution of disputes is by the use of force.
We have seen a number of demonstrations of the use of Tikanga. For example when ( in another demonstration of the power of the block of Maori seats in Parliament) 50% of the fishing quota was given to Maori. Maori could not resolve the distribution of that quota by themselves and, using the courts, spent some ten years to reach a conclusion. Even then the expected employment of many Maori in the fishing industry was limited and contracts were let to other nationalities - some with slave-like conditions for the on-board workers. Again, Ngapuhi have spent years trying to form a negotiating team to work with the Government on Treaty settlements.
Another paper by Dr John Robinson - https://www.nzcpr.com/tikanga-in-law-what-does-it-mean/#more-35072- spells out the utter hopelessness of trying to meld Maori Tikanga with our law.
Our Supreme Court - yes, our Supreme Court - in the Peter Ellis case suddenly justified granting the continuation of his appeal after his death by quoting Tikanga although no Maori were involved. Lower Courts then applied this “word of mouth” instead of applying the law.
Many lawyers and otherwise knowledgeable people are greatly disturbed by this development. See https://www.nzinitiative.org.nz/reports-and-media/reports/who-makes-the-law-reining-in-the-supreme-court/ and other papers by Roger Partridge.
The Maori Party has a good Constitution (written in English with some Maori words) which says:
“Part 1: Kaupapa and Tikanga He Kupu Whakataki Te Pāti Māori relentlessly asserts the rights of Māori rest in the bedrock of Te Tiriti O Waitangi. Te Pāti Māori is for all citizens of Aotearoa New Zealand.
● Its founding was an initiative of Māori, te kākano i ruia mai i Rangiātea, for the benefit of all citizens of this land.
● Its vision is of a nation of cultural diversity and richness where its unity is underpinned by the expression of tangata whenuatanga by Māori, te kākano i ruia mai i Rangiātea.
● Its commitment to Te Tiriti o Waitangi as the founding document of this nation is steadfast….”
Note that the Constitution says “Te Pāti Māori is for all citizens of Aotearoa New Zealand.
The Constitution makes no reference to partnerships, indigenous rights, colonisation, principles, separate parliaments or any of the other clutter promoted by the radicals but which are nowhere to be found in the Treaty.
Many of the current problems stem from the drafting of the Waitangi Tribunal Act 1975. This referred to the “principles of the Treaty of Waitangi” in various places. But it gave no definition of any such principles. Clearly the intent was that the Treaty was to be observed as a whole, including the 3 clauses of the Treaty and the relationships between them as principles. Otherwise there would surely have been a glossary of terms provided as in much other legislation.
Then over time various “principles” have been invented and laws have been passed providing for Maori to have different legal entitlements. Some 18 months ago the Chief Justice warned that interpreting these would overwhelm the capacity of the current Court System.
My memory of the passing of the Waitangi Tribunal Act is that it was sold to the public on the grounds that it would enable Maori to decide for themselves who owned what. Therefore Pakeha (non-Maori) could not take a case to the Tribunal or insert themselves into the hearings. Recommendations from the Tribunal to the Government were to be just that. All costs to the Maori were to be borne by the Government. This gave rise to the “Treaty Industry” (alternatively “The Gravy Train” for some Maori, Lawyers and Historians) with ever increasing numbers of claims and multiple “final claims”. Instead of the normal 6 year limitation period (or 12 in the case of Deeds) cases (but only Maori cases) back to 1840 could be heard.
Various settlements with the Government have been made. Details for many of these are not available. For example, a number of Government properties have been transferred to Maori organisations with payment to be made by perpetual monthly payments. How are these commitments recognised in Government accounts? And are the new owners to pay the council rates which should have been collected over the years in order to pay for the infrastructure developments which give the properties their current valuation? The Pakeha communities paid for those developments and some will still carry the debts.
Another development --- race based laws -- demands a definition of Maori. I have no Maori ancestors but I think that some of my descendants will be classified as Maori for some generations. Will they have different legal entitlements from their relatives?
Clauses 7 to 14 in the KC’s letter are totally inappropriate. What is being done with the Treaty Principles Bill in terms of consultation, opportunity for public discussion and eventual submission to a referendum is an impeccable demonstration of the use of our conventions. The proposed Bill is available for public discussion including both Maori and Pakeha, submissions to a Select Committee, multiple opportunities for scrutiny in the House and elsewhere and a referendum.
Compare this to what the Labour Caucus did, largely in secret. If the KCs see improvements that should be made to the current process let them put these forward in a constructive manner.
This KC’s letter is extremely damaging to the image of our legal fraternity and cohesion of our society. It should, in kindness to the KCs and for the good of the country, be ignored.
Perce Harpham, an author and retired businessman, was a pioneer of the New Zealand computer industry. His website is here: https://perce.harpham.nz
8 comments:
Dividing NZ by race is very frightening and the need, to nip in the bud, legislation giving Māori (whoever they are) special rights needs to happen sooner rather than later. If Seymour’s bill is the catalyst for that to happen, then we all need to support it. Luxon needs to ask himself what he thinks he is achieving by arrogantly suggesting there is nothing he likes about the bill.
Thank you very much for this sane and informative explanation in what is a very silly time in NZ politics. There is no excuse for the judiciary who should know better. Even rational people are being overwhelmed by the guilt that is being poured on them by Maori activists largely ignorant of their own past, and the extent to which they take the European arrival for granted. I am in no doubt at all, that after four centuries of isolation, Maori were hugely grateful for the influx of Northern civilisation, and I do not accept that 100,000-or more-of them 'owned' all the103,740 square miles. This is a keeper.
New Zealand is already a republic in all but name Robert Fisher KC said. “In New Zealand supreme power is held by the people and their elected representatives he said.”
But Fisher KC doesn’t address – and possibly doesn’t even know about: the secret “unratified” NZ constitutional coup of 1986.
Due to the Labour governments “unratified” 1986 constitutional coup, supreme power is not held by the New Zealand people. We are still “subjects”, but now of a “Parliamentary Monarchy” in Wellington rather than Charles III in London. That individual only remains the nominated face of the kingdom in Wellington at their invitation.
We are an illegal, unconstitutional monarchy where Parliament in Wellington took “supreme power” for itself in 1986, and that power has intoxicated politicians ever since.
Former Appeal Court President Sir Robin Cooke once famously opined that if Wellington ordered the deaths of all blue-eyed babies the courts would have to uphold it and the military enforce it.
So, when “Senior lawyers call for the Treaty Principles bill to be abandoned,” on who’s “instructions” do you think they were acting?
With respect, the times are not silly - they are very dangerous times. There is clear intent to make the current Coalition a 1-term government - then to accelerate the He Puapua agenda to meet the 2040 deadline for tribal rule.
Re the above, I suggest that it is not so much that the 'power is held by the people' but that power originates in the people and that we vest it in our elected representatives to govern us for a set term. I mean that as a matter of fact, the rest is just legalese mumbo jumbo. The power is the physical energy which we can bring to bear to create and, if necessary, to destroy.
We have to tolerate a certain amount of gibberish on this platform in the interests of free speech but it gets beyond the pale when people like Anonymous 12.22 can’t be bothered to do their basic research before dreaming up baseless conspiracy theories. I refer to this “secret unratified constitutional coup” nonsense and assume it refers to the Constitution Act 1986, an Act of the properly constituted Parliament of New Zealand.
The Constitution Act is summed up in the following explanatory note incorporated in the current reprint of the Act:
“An Act to reform the constitutional law of New Zealand, to bring together into one enactment certain provisions of constitutional significance, and to provide that the New Zealand Constitution Act 1852 of the Parliament of the United Kingdom shall cease to have effect as part of the law of New Zealand”.
Read the Act please Anon12.22. It’s not long. It succinctly defines the different roles of the Sovereign, the Executive, the Legislature, and the Judiciary in our version of a Westminster style democracy. All pretty ordinary stuff. But please note the reference to the Parliament of the United Kingdom which had largely devolved sovereignty to the New Zealand Parliament in its own Statute of Westminster of 1931. That’s the interesting bit.
The Statute of Westminster formally removed London’s general colonial-era right to legislate for New Zealand, but it retained that option in the event of being requested to do so by New Zealand. Probably because of that caveat, New Zealand refused to ratify it until 25 November 1947 but that ratification was subsequently revoked by the subsequent Constitution Act which removed that last faint provision for the UK Parliament to make laws for New Zealand.
It achieved that by codifying our very own declaration of independence from the Parliament of the United Kingdom (read section 26) and I suspect that is what Anon 12.22 finds offensive. But the UK had already explicitly devolved sovereignty to New Zealand in the Statute of Westminster and so far as it was concerned, that was the end of the matter. The people of New Zealand, through their elected representatives, put it beyond doubt in 1986. And even the Monarch we share with the United Kingdom had no qualms and gave her Royal Assent to the Act through her own representative, the Governor General, on 13 December 1986.
All perfectly legal and above board. So Anon 12.22, let’s hear your justification for deeming it otherwise. Which part of the Constitution Act would you change and why? Until you do that, so far as I'm concerned, your comment remains gibberish.
And Anon@12.22, as far as I recall, Wellington (the coalition) decreed that all Govt Depts were to be called first and foremost by their English names. Cut to TV1 News last night and see them refer only to "Te Whatu Ora". Then the branding is on the next screen shot with the latter in larger bold typeface and Health New Zealand beneath much smaller. It doesn't appear what Wellington orders is given any heed - so blue-eyed babies are quite safe.
>"What the European powers did in Africa was colonisation. They killed the existing rulers and enslaved the people to produce profits for the colonising power. Remember the “slave trade” where they even sold people as chattels."
By the 19th century, the policy of the main colonial powers in Africa - Britain and France - was to leave the natives to their own devices, including the application of their own laws except where those were too barbaric to allow unabated. The slave trade had operated by Big Tribe conquering Little Tribe, then instead of enslaving the captives, selling them on to an Arab or an Ethiopian who would then sell them on to a European slaver who would take them to the Americas. All this came to a halt in the early 19thC after Britain made slave trading illegal.
We Europeans didn't start slavery - it has been around for millennia, Black enslaving Black, White enslaving White. But we did end it.
Note also that a colony in 19thC English referred specifically to a place where the imperial power exported many of its own people to. Hence, because there was no intention of shipping many thousands of civilians to the place to live there, India was not a 'colony' but an imperial possession.
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