Perce Harpham: Letter from 42 King’s Counsel

Dear All,

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