Home | Databases | WorldLII | Search | Feedback Otago Law Review

Round, D J --- "Two futures: a reverie on Constitutional Review" [2011] OtaLawRw 5; (2011) 12 Otago LR 525

Last Updated: 1 April 2013

Two Futures:

^{A Reverie on Constitutional Review}

D J Round*

The shame is not in having once been foolish, but in not cutting the folly short.¹

I

On 8 December 2010 the Deputy Prime Minister Hon Bill English and the Minister of Maori Affairs Hon Dr Pita Sharples publicly announced a “wide-ranging review of New Zealand’s constitutional arrangements”. An agreement to conduct such a review had formed part of the Relationship and Confidence and Supply Agreement entered into by the National and Maori Parties when they went into coalition after the 2008 general election. Echoing the words of the Cabinet paper,² Mr English was cautious about the possibilities of change, saying that the review “would keep in mind that enduring constitutional changes generally require a broad base of support”, and adding that significant change “will not be undertaken lightly and will require either broad cross- party support or the majority support of voters in a referendum”.³ Any similarly cautious remarks of Dr Sharples went unrecorded, however; instead, he was reported as saying that he knew “that Maori want to talk about the place of the Treaty of Waitangi in our consultation, and how our legal and political systems can reflect Tikanga Maori.” He also remarked – again, echoing the words of the Cabinet paper – that “[p]ublic consultation will guide the review, and information and education campaigns will be part of the review process.”⁴

Cynics – and who is not occasionally cynical in observing politics? – might consider ominous the announcement of public information and education campaigns. The cynic might wonder if this suggests that the “review” would be as much concerned with telling the public what they should be thinking and wanting on the subject of the Treaty as it would be with asking them what they actually want.⁵ Indeed, although

^* LLB (Hons) (Cantuar), Lecturer in Law, University of Canterbury; author of Truth or Treaty? Commonsense Questions About the Treaty of Waitangi (Canterbury University Press, 1998); National Party candidate at the 2005 general election.

¹ “Nec lusisse pudet, sed non incidere ludum” – Horace Espistles Bk i, Ep 14, 36.

^{2 Cabinet Office Consideration of Constitutional Issues (undated).}

^{3 New Zealand Government “Government begins cross-party constitutional}

^{review” (Media release, 8 December 2010).}

^{4 “Constitutional review detailed” New Zealand Herald (New Zealand,}

^{8 December 2010).}

^{5 In an appearance on the television current affairs programme Close-Up on}

^{5 May 2011 (in which your author was one of the participants) Mr Willie}

^{Jackson, another participant, responded to a public poll (in which 81%}

^{of the 41,000 viewers who had responded considered that Maori “should}

Mr English might speak of the necessity of widespread support for significant change, the Prime Minister has shown no interest in his own very similar promise that Labour ’s 2004 Foreshore and Seabed Act would not be repealed and replaced in the absence of widespread public support. Mr English’s requirement of cross-party support or referendum approval might refer only to changes to the matters currently entrenched in the Electoral Act 1993, and no more. On the other hand, the review is described as a “cross-party” one, where all parliamentary political parties will be represented. But then, just as the Labour Party’s defence in 2011 of its own 2004 foreshore and seabed legislation was very muted, perhaps with the thought at the back of the Party’s mind that it might one day need the assistance of the Maori Party to form a government, so it might be that in this review also both major political parties feel inclined to be more accommodating of Maori Party desires than most New Zealanders would wish.⁶ Politicians, as much as anyone else, can be guilty of a conspiracy against the public; they have been notorious for closing ranks, for example, where their own privileges and perquisites are at stake. The Cabinet paper could even be construed as pointing in this direction already, since it speaks of “seek[ing] the views of all New Zealanders ... in ways that reflect the Treaty relationship”, and “in ways that reflect the partnership model and are responsive to Maori consultation preferences”.⁷ Consultation with Maori, in particular, “must be reflective of the Treaty relationship”. All this could surely be said to be begging the question and already assuming as fact what actually has to be established.

The subject matter of the announced review would fall into three general categories. One category is of general parliamentary matters – the size of Parliament, the length of the Parliamentary term, the size and number of electorates and “electoral integrity legislation”. The second category concerns specifically Maori issues – Maori representation, including the Maori electoral option, Maori electoral participation and possible reserved Maori seats in Parliament and local government – and the “role of the Treaty of Waitangi in our constitutional arrangements”. The third category concerns a possible written constitution and “Bill of Rights issues”. The question of New Zealand becoming a republic does not appear on this list, although the Cabinet paper contemplates that the review may consider other matters that are raised during public engagement, especially the republican question and relations between

not have a special place in this country”) by arguing that the result merely demonstrated all the more clearly the necessity of a thorough public education campaign to convince the public of the opposite.

⁶ Indeed, of all parties currently represented in Parliament, only the ACT Party could be predicted with any certainty to have doubts about the general direction of a Maori Party agenda. United Future’s Peter Dunne voted with the government in favour of the Marine and Coastal Area (Takutai Moana) Act. The Green Party voted against it because it was not generous enough to Maori.

⁷ Cabinet Office Consideration of Constitutional Issues (undated) at 1 and 4, author ’s emphases.

national and local government. The second and third categories are intimately connected; whether New Zealand became a republic or not, it is certain that any written constitution which we might adopt in the current political climate would in one way or another “enshrine” the Treaty and place it in a position of some eminence.

The press statement’s emphasis on Parliamentary “cross-party” support, particularly desirable when constitutional legislation is being made, led easily to the belief that the review would in fact be conducted by politicians.⁸ It will be in part; but just as this article was going to press, another press statement⁹ announced 12 appointees to the “Constitutional Advisory Panel”, an independent group “that will lead public discussion on constitutional issues...and will then report to the Ministers” and to the “Cross-party Reference Group of Members of Parliament”. The Panel’s co-chairs are Emeritus Professor John Burrows QC, whose fairness and reasonableness cannot be doubted, and Sir Tipene O’Regan, whose moderation has on occasions led to his condemnation by Maori radicals. Their names might well provide reassurance and quell cynical thoughts; but an analysis of the entire panel may provoke more mixed feelings. The panel’s racial composition is evenly balanced, with five European New Zealanders,¹⁰ five Maori,¹¹ one Pacific Islander¹² and one New Zealander of Asian extraction.¹³ Among the Maori members are certainly some – Professor Walker, most notoriously – who can reasonably be expected to pursue a pretty radical programme. Professor Burrows’ legendary patience and reasonableness are going to be sorely tested.

II

Maori responses to the announcement have tended to confirm suspicions that the review may well be, more than anything else, an occasion for the promotion and entrenchment of Maori interests and privileges. The review arose, after all, out of agreement between the National and Maori Parties as part of the price of Maori party support. It deserves to be emphasised that, apart from catering to the aspirations of one particular political party and members of the racial interest group it represents, the review has no evident necessity or purpose. Mutterings continue on the matter of proportional representation, but that issue does not require any

⁸ New Zealand Government “Government begins cross-party constitutional review” (Media release, 8 December 2010), above n 3.

⁹ New Zealand Government “Constitutional Advisory Panel named” (Media release, 4 August 2011).

¹⁰ John Burrows, Deborah Coddington (journalist and former ACT Member of Parliament), Dr Michael Cullen (former Labour Cabinet Minister and deputy Prime Minister), John Luxton (agribusinessman and former National Cabinet Minister) and Peter Tennant (accountant and former mayor of New Plymouth).

^{11 Sir Tipene O’Regan, Dr Leonie Pihama, Hinurewa Poutu, Professor Linda}

^{Tuhiwai Smith and Professor Ranginui Walker.}

^{12 Bernice Mene, television presenter, teacher and former netball player.}

^{13 Peter Chin, lawyer and former mayor of Dunedin.}

thorough constitutional review and in fact is already being dealt with by way of referendum coinciding with this year ’s general election. No obvious constitutional problems have arisen recently. Rahui Katene MP, the Maori Party’s Constitutional Issues Spokesperson, has declared the Party’s hardly surprising belief that the Treaty of Waitangi must “be the backbone for constitutional change”.¹⁴ A Maori Party fact sheet says that the party’s “ultimate goal...is to ensure that the Treaty of Waitangi is given proper recognition and that constitutional arrangements in New Zealand allow for full engagement and recognition by tangata whenua”.¹⁵

On 15 December 2010 Professor Margaret Mutu and Moana Jackson, two well-known radical Maori voices, announced that a group of iwi will be holding its own constitutional review, without any input from anyone but Maori, in order to formulate their own conceptions of a desirable constitutional future. We may surely take judicial notice of the Maori activism and agitation which has been one of the most prominent features of our national life since the 1980s. In these circumstances it would surely be surprising if claims for the “recognition” and entrenchment of “Treaty rights” were not a central focus of the review.

^{Whether by coincidence or not, the Waitangi Tribunal has, after over 20}

^{years of slow gestation, finally released its report on the Wai 262 claim.16}

^{The claim has grown since it was originally made as one for ownership}

^{of all native flora and fauna, and the report covers intellectual property,}

^{genetic and biological resources, the Resource Management Act 1991,}

^{the conservation estate, Maori health, the Maori language and culture}

^{and Maori participation in international instruments. It is a “whole}

^{of government” report, “addressing the work of more than twenty}

^{government departments and agencies”. It is good to read in it that the}

^{Tribunal considers it necessary “to move beyond grievance in the Treaty}

^{relationship”, but the Tribunal does not conclude from that that its work}

^{is largely done. No – the Tribunal, although professing not to pre-empt}

^{the work of the constitutional review, maintains that the Treaty envisages}

^{the Crown-Maori relationship as a partnership, in which the Crown is}

^{entitled to govern but Maori have full authority over their “treasures”,}

^{a term now used to encompass language, culture, physical health and}

^{much besides.}

It is not necessary to be a Marxist in order to accept that all laws, including constitutions, express the desires and further the agendas of the particular people and interest groups which have a hand in their making.¹⁷ Maori have become increasingly economically influential

14. Maori Party “Treaty must be backbone for constitutional change” (Media release, 8 December 2010).

^{15 Maori Party Our Aspirations: Constitutional Courage – Constitutional Change}

^{(Factsheet, undated).}

^{16 Waitangi Tribunal Ko Aotearoa Tēnei: Report on the Wai 262 claim (2 July}

^2011).

^{17 This is not to claim that Marx’s class analysis has not been supplanted by}

^{“identity politics” which prefer to consider the influence and claims of}

after the latest round of full and final Treaty settlements¹⁸ and also politically influential, especially through the Maori Party’s Parliamentary representation. The Maori Party avowedly exists to promote the interests of its own race. Why would it not desire to influence constitutional change in its own favour?

What would it mean, then, to have the Treaty of Waitangi “given proper recognition”, and to gave constitutional arrangements which “allow for full engagement and recognition by tangata whenua”?¹⁹ To speak of future arrangements which allow for “recognition” by tangata whenua suggests that the fundamentals of our present very longstanding arrangements are not “recognised” by them now as legitimate,²⁰ and Dr Sharples does indeed seem to be contemplating some far-reaching changes. Our laws now recognise the equality of all citizens, and certainly nothing in them prevents Maori, or anyone else, from “fully engaging” in constitutional processes. Any change would presumably be a change away from present equality, and that must mean, to put it simply, a change towards inequality.²¹

How, indeed, could the Treaty be given any recognition in our law? As has already been observed,²² the terms of the Treaty – the words

race, sex and sexual preference rather than class, and apply a neo-Marxist analysis to them. In New Zealand, race has supplanted sex as the most powerful identity. We continue to read of females, both visitors and locals, being placed in inferior positions on maraes. Despite feminists’ protests, marae protocol regularly trumps the equality of the sexes.

¹⁸ According to Michael Butler “[t]he total redress pail under Treaty... settlements [since 1989] is approaching $2.5 billion”, and the next five years should bring the total to about $3.5 billion. M Butler Money for nothing – Treaty Settlements 1989 – 2011, Analysis and Commentary (NZCPR,

^{21 August 2011).}

^{19 Maori Party Our Aspirations: Constitutional Courage – Constitutional Change}

^{(Factsheet, undated).}

^{20 In this view he is supported by such academic writers as the late Professor}

^{F M (Jock) Brookfield, who argued that British sovereignty over New}

^{Zealand has never enjoyed more than “partial” legitimation, and that}

^{the Crown therefore owes Maori an ineradicable duty to allow them “a}

^{qualified autonomy of some sort”: F M Brookfield Waitangi and Indigenous}

^{Rights, Revolution, Law and Legitimation (Auckland University Press,}

^{Auckland, 1999) at 169 ff.}

^{21 “... [F]rom the 18th to the 21st century the expansion of human rights}

^{has been a genuine progression from privilege and exclusion to equality}

^{and increasing participation... the Treaty... reflects the logic of this}

^{progression...” But from the 1970s, “New Zealand intellectuals’ faith in}

^{this progressive vision faltered... Maori rejected the liberal-democratic}

^{assumptions” upon which it was based and insisted that they “possessed}

^{an indissoluble and separate identity which could only be protected in}

^{and by Maori institutions.” – C Trotter “Separatist law strikes at the heart}

^{of liberal democracy” The Press (New Zealand, 15 February 2011).}

^{22 In D J Round Truth or Treaty? Commonsense Questions About the Treaty of}

^{Waitangi (Canterbury University Press, Christchurch, 1998) at 121-122;}

^{and D J Round “Judicial Activism and the Treaty: The Pendulum Returns”}

actually written on the paper – are short and simple, and provide no basis for arguments for special treatment. They do no more than give the most basic of blueprints for any organised state. By the first article the Queen is declared to be sovereign. By the third article Maori are declared to be her subjects, with the rights and privileges of subjects. This article is, obviously, the mirror-image of the first – Maori have the rights of subjects because they are subjects, and the Queen can grant those rights and protections to them only because she is sovereign. These two articles must be read together. As a simple matter of logic, if Maori insist on the rights and privileges of all the Queen’s subjects then they must acknowledge the authority which generates and maintains those rights and privileges. The second article amplifies the third, by guaranteeing to Maori the possession of their property, a right possessed by subjects.

That is all the terms of the Treaty – in the English version, anyway – actually say. There is no mention of partnership or special privilege, only of equality before the law. The Queen is sovereign, and Maori are her subjects, with the rights and privileges of subjects, including the possession and enjoyment of their own property. Now given that we live in an established state where the Queen undoubtedly is sovereign and where we all have the rights and privileges of subjects, including the possession and enjoyment of our own property, it would be completely meaningless to make the terms of the Treaty part of our fundamental constitutional law. It would grant Maori precisely nothing that they do not have already. Indeed, it could even be used as a basis for depriving them of any special positions they now enjoy. Dr Sharples believes that the Treaty “clearly foreshadowed a plural society, in which the various autonomous hapu would work in partnership with the Crown for the benefit of all citizens...”.²³ That is not obvious from the Treaty’s words, and certainly sounds very different from our present arrangements.

It is important to draw this distinction between the terms and the principles, because the “principles” are a modern invention, and still of very limited legal standing. The “principles” appeared only after they were referred to by Parliament in several statutes; first the Treaty of Waitangi Act 1975, which established the Waitangi Tribunal and authorised it to consider complaints against laws, policies and acts of the Crown which were “inconsistent with the principles of the Treaty”,²⁴ and then a handful of other statutes, the first to intrude itself upon public awareness being the State-Owned Enterprises Act 1986, the subject of the leading and often misinterpreted case on the matter.²⁵ As explained below, there is still no agreement on what the principles are;²⁶ and that

[2000] OtaLawRw 5; (2000) 9 Otago LR 653.

^{23 Dr Pita Sharples, Minister of Maori Affairs “He Karanga ki Tua: a Call}

^{to the Future” (Speech to the World Christian Gathering on Indigenous}

^{People, Manakau, 15 January 2011).}

^{24 Treaty of Waitangi Act 1975, section 6(1).}

^{25 New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA).}

^{26 See, for example the survey in B Mason “The Principle of Partnership}

is because any set of “principles” is nothing more than the personal interpretation, easily becoming the political agenda, of the person somehow extracting or discovering them by mysterious distillation from where they lie within the terms of the Treaty. The Treaty itself, of course, has per se no status in our law.²⁷ It is strange to think of a legal concept as less than nothing, but these recent inventions, the principles of the Treaty, have, outside the particular mention of them in particular statutes, even less status. The “principles”, even more so than the Treaty itself, do not have any independent legal existence, and to speak of New Zealand’s constitutional order as being founded on the principles of the Treaty is nonsense. It is a very easy progression for Maori to speak of the Treaty as a “founding document” – which may be true in a political sense, but certainly not in a legal one – and from there to speak of Treaty “principles” as fundamental to our constitution, and then to put a desired political slant on what those principles are; but at each step this involves a failure of logic and law.

The debates over the place of the Treaty in our law, constitution and national life are not legal debates. Maori prefer to phrase them in legal terms, for our national spirit is far more amenable to claims based in law than to ones based on unearned privilege. But Maori claims long ceased to be matters of law. They are – not just in metaphor, but in actual fact

– the colossal programme of confidence men. It is highly convenient to disguise them as law, but it is not true. It is not the case, then, that there is somewhere some agreed list of Maori requirements for just redress, which, once satisfied, will be an end of the matter. Demands will never end. As one concession is made, another new claim is raised. The failure to realise this – the failure to realise that the issues are not legal ones, but political gambits by an interest group which, not unreasonably, continues to exploit the stupidity and irresolution of its opponents – mars much lawyerly writing on the matter. Professor Matthew Palmer²⁸ expresses the desire, commendable in principle at any rate, to “stabilise” the constitutional place of the Treaty; he warns that if this does not happen

and the Treaty of Waitangi, Implications for the Public Conservation Estate” (1995) Public Access New Zealand (PANZ) Monograph No 6. A paper produced by the Parliamentary Commissioner for the Environment, Environmental Management and the Principles of the Treaty of Waitangi, Report on Crown Response to the Recommendations of the Waitangi Tribunal 1983-1988 (Parliamentary Commissioner for the Environment, Wellington, 1988) lists the very diverse Treaty principles identified by the Waitangi Tribunal, the Court of Appeal, by the New Zealand Maori Council and the Crown in the 1987 New Zealand Maori Council v Attorney-General case, and as defined by the 1988 Royal Commission on Social Policy. To these must be added the Principles for Crown Action on the Treaty of Waitangi (Department of Justice, 1989), as well as countless personal opinions.

^{27 Per Cooke P, New Zealand Maori Council v Attorney General, above n 25.}

^{28 c 6, The Treaty of Waitangi in the Future and c 7 Stabilising the Treaty of}

^{Waitangi in New Zealand’s Law and Constitution.}

“someone” – one gets the impression, a European New Zealander – “will scratch at the scab of fear and prejudice”. He considers that the Waitangi Tribunal might be “well-placed to give independent” (sic!) “advice to parliament on the Treaty implications of legislation”! He realistically accepts that a majority of the population would not accept the “principles” of the Treaty as having the status of superior law. But his writing, more sensible though it is than some, is nevertheless influenced by the assumption that “Maori” and “other” New Zealanders are now, and always will be, two distinct peoples; that a vibrant Maori culture requires (for some unstated reason) the Treaty to have some legal status

– and, most of all, it is marred by the assumptions, entirely unsupported by evidence, that “stabilising” is possible, and that Maori claimants are reasonable people who, having received one act of financial, legal or constitutional generosity, will not at once return to demand something more.

III

Appetites grow as they are fed, and it is not at all certain that Maori ambitions will ever be satisfied. For the time being, however, judging by Maori rhetoric, they might be satisfied in several ways. One way might be by some redefinition or alteration of our understanding of sovereignty, justified by arguments that the Maori version of the Treaty, in retaining te tino rangatiratanga for Maori while recognising kawanatanga in the Queen, agreed to something less than what we usually understand by the sovereignty of the Crown. In the far north Nga Puhi have recently been arguing before the Waitangi Tribunal that such was their understanding. The Waitangi Tribunal has from time to time accepted that “the essentials of sovereignty were not lost in the debate at Waitangi...on reading the Maori text in the light of contemporary statements, we are satisfied that sovereignty was ceded”.²⁹ But on other occasions the Tribunal has said rather different things, and it is not impossible that in the present political climate it might choose to make a “finding” favourable to those who deny the sovereignty of the Crown. Such a finding would have no immediate legal effect, for the Tribunal can, with one exception not relevant here, only make recommendations, but its political effect would of course be significant. It would, like New Zealand’s ratification of the United Nations Declaration on the Rights of Indigenous Peoples,³⁰ be another tool in the deconstruction of a nation.

Nga Puhi’s claim is indefensible both historically and linguistically. (There is also no agreement among radical Maori as to what precisely Maori sovereignty might mean,³¹ and it can well be imagined that even many of its advocates might rebel against traditional chiefly authority in

²⁹ This quotation and a fuller consideration appear in D J Round, Truth or

^{Treaty? (Canterbury University Press, 1998).}

^{30 On which see DJ Round “United Nations Declaration on the Rights of}

^{Indigenous Peoples” [2009] NZLJ 392.}

^{31 Greatly differing Maori understandings appear in H Melbourne (ed) Maori}

^{Sovereignty, The Maori Perspective (Hodder Moa Beckett, Auckland, 1995).}

practice.) The alleged differences between the Maori and English versions of the Treaty on the matter of sovereignty are illusory. Both kawanatanga and rangatiratanga are missionary words, coined by the missionaries and having no general currency in the Maori language. Kawana, indeed, is the Maori pronunciation of “governor” and the word appears in the Maori New Testament to describe Pontius Pilate, kawana of Judaea. Rangatira, it is true, is a Maori word, but rangatiratanga – the quality or nature of being a rangatira – is not. (It is also worthy of note that rangatira does not strictly mean a chieftain – an ariki – a rangatira is rather a gentleman or nobleman, a man of high rank. It includes chieftains, but it also includes many others.) By 1840 most Maori were familiar with the Bible and would have known that the Judaea of Pilate’s time was a province of the Roman Empire, and they would have a fair idea of what that entailed

– a Roman governor with very wide powers, and yet still the servant and emissary of a distant absolute authority. Judaea was in fact only the tributary of a foreign occupying power, and a power, as students of the New Testament would know, considerably resented by many Jews. By

1840, too, many Maori had visited Australia, some even England, and would have acquired a fair idea of what the Queen’s protection meant in practice, as well as an understanding of Britain’s actual physical power. Moreover, the Treaty, as is well known,³² was drafted first in English and then translated by Henry Williams and his son Edward into Maori. (The English version with which we are familiar is a back-translation of the Maori.) The draft from which they worked may or may not be lost,³³ but there can be no doubt but that it spoke of the Queen’s sovereignty as we understand it, and there can be no doubt but that the translators, honest men knowledgeable in the Maori tongue,³⁴ endeavoured to translate into

³² C Orange The Treaty of Waitangi (Allen & Unwin, Wellington, 1987) at 37.

^{33 A plausible prima facie case has been put forward by Martin Doutre that}

^{the so-called “Littlewood Treaty” is this draft: M Doutre, The Littlewood}

^{Treaty, The True English Text of the Treaty of Waitangi Found (De Danaan}

^{Publishers, Auckland, 2005). Whether this be the case or not, the precise}

^{status of the Littlewood Treaty is undoubtedly an intriguing question,}

^{and we can only speculate as to why scholars so keen to delve into every}

^{other aspect of the origins of the Treaty of Waitangi show a complete lack}

^{of interest in this particular question.}

^{34 Claudia Orange maintains that Henry Williams was not an “acknowledged}

^{expert” as a translator, and his son Edward was not an “experienced}

^{translator”. But she admits that even Edward had “the facility with spoken}

^{Maori that one might expect from someone who had spent most of his}

^{youth in New Zealand” (he had in fact grown up here, and was perfectly}

^{bilingual), and Henry had laboured and preached among the Maori since}

^{1823. It would surely be surprising if after 17 years of speaking Maori in}

^{peace and war, in diplomacy, politics and business as well as theology,}

^{Henry Williams were still unfit to translate. In this matter Dr Orange}

^{clearly has demanding standards. She offers no evidence as to why the}

^{Williams’ translation skills might be inadequate, and her suggestions}

^{concerning Henry Williams’ possible motivations are pure speculation.}

^{C Orange The Treaty of Waitangi (Allen & Unwin, Wellington, 1987) at 39}

^ff.

Maori the meaning of the English draft. The very nature of the Treaty’s origins – as an English draft which purported to cede sovereignty being then translated into Maori – render differences between English and Maori versions improbable.³⁵

Given that Henry Williams’ translation into Maori of the first article granted sovereignty to the Crown, it is inconceivable that his translation would then contradict itself in the second article by allowing that sovereignty to remain with Maori. That Maori present at Waitangi understood what was meant by kawanatanga is evident from the remark of one chief that if sovereignty – kawanatanga – were ceded, he would thereafter have to ask the permission of the British authorities to paddle his canoe across the river. He had taken the point too far – but he clearly knew what authority kawanatanga involved.

Dr Claudia Orange maintains³⁶ that so sophisticated a concept as sovereignty could not receive a precise definition in one Maori word, and that it refers to “authority in an abstract rather than a concrete sense”. In her previous sentence, however, she had spoken of the powers of Pontius Pilate and governors of New South Wales. It can hardly be argued that the powers of the man who ordered Christ to be put to death, or of he whose rule over nearby New South Wales immediately affected not only Australians but, in many ways, Briton and Maori here, were merely “abstract” powers. She argues also that rangatiratanga was used in Busby’s 1835 Declaration of Independence to refer to New Zealand’s independence. This, however, is surely a circular argument; it assumes what it sets out to prove. Rangatiratanga in the 1835 Declaration meant whatever rangatiratanga meant, whatever that might be. But its use there does not mean that the word meant “independence”, even if Britain had acknowledged the Declaration. That is a gloss which Britain may have put on the word. Moreover, given the comic opera nature of the Declaration – Pember Reeves’ description of it as a “bloodless puerility” and “comical scheme” to provide the “machinery of civilisation for a race of savages still plunged in bloodshed and cut asunder by innumerable feuds and tribal divisions”³⁷ was a fair summary of opinion at the time and later³⁸ – the word rangatiratanga is surely likelier to be reduced rather than enlarged in meaning by such associations.

Dr Orange finally maintains that rangatiratanga was the word used for

^{God’s kingdom in translations of the Lord’s Prayer, gospels and various}

35. I am indebted to Mr Bruce Moon for drawing my attention to several of the points raised hereabouts.

^{36 C Orange The Treaty of Waitangi (Allen & Unwin, Wellington, 1987) at}

^39-44.

^{37 W Pember Reeves The Long White Cloud, Aotearoa (Revised edition, Viking,}

^{New York, 1987) at 133.}

^{38 “A second and equally contrived ceremony took place... at Waitangi in}

^{1835...”; M King The Penguin History of New Zealand (Penguin, Auckland,}

^{2003) at 154. King describes earlier negotiation in 1834 as “little short of}

^{a farce” (at 154).}

prayers, “whereas kawanatanga...referred to rulership or principality in a vaguer sense”. She seems to contradict herself here. It is surely the rangatiratanga of God’s kingdom which is the vaguer concept when compared with the kawanatanga of the governors of Judaea and New South Wales.³⁹

The Treaty must be understood in the light of the discussions which took place before its acceptance. It is not unreasonable to call agreed understandings to aid in the interpretation of a document, and there is no reason to disbelieve Henry Williams when he wrote⁴⁰ that “[t]he instruction of Captain Hobson was “not to allow any one to sign the treaty till he fully understood it”, to which instruction I did most strictly attend.” In 1863 the Revd Samuel Warren wrote:⁴¹

I was present at the great meeting at Waitangi when the celebrated treaty was signed, and also at a meeting which took place subsequently on the same subject at Hokianga. There was a great deal of talk by the natives, principally on the subject of securing their proprietary right to the land, and their personal liberty. Everything else they were only too happy to yield to the Queen, as they said repeatedly, because they knew they could only be saved from the rule of other nations by sitting under the shadow of the Queen of England. In my hearing they frequently remarked ‘Let us be one people. We had the gospel from England, let us have the law from England.’ My impression at the time was that the natives perfectly understood that by signing the treaty they became British subjects, and though I lived amongst them more than fifteen years after the event, and often conversed with them on the subject, I never saw the slightest reason to change my opinion. The natives were at the time in mortal fear of the French, and justly thought they had done a pretty good stroke of business when they placed the British lion between themselves and the French eagle.

To this very day there are millions of people who yearn for the status of British subjects. There can be little doubt but that in 1840 many Maori equally coveted formal membership of what seemed to them – as it undoubtedly was – a great and powerful polity, bringing the undoubted blessings of peace, law and many material comforts to a dark and war- torn land.⁴²

³⁹ C Orange The Treaty of Waitangi (Allen & Unwin, Wellington, 1987) at 41.

^{40 Letter from Revd Samuel Warren to Bishop Selwyn regarding the Treaty}

^{of Waitangi (12 July 1847).}

^{41 Quoted in T Lindsay Buick The Treaty of Waitangi: How New Zealand Became}

^{a British Colony (Capper Press, Christchurch, 1976) at 281-282.}

^{42 “Was living in pre-European Maori society in any way an anxious or}

^{nervous experience? By modern standards it most certainly was. Not}

^{only was death widespread, so too was violence associated with war,}

^{killing and the threat of being killed...surprise attacks were the preferred}

^{method of warfare...The gentle reposes of Maori figures in the paintings}

^{of George Angas belie the stratum of fearful anticipation that afflicted}

^{life in almost all Maori communities. Even sleep was governed by the}

^{need to be vigilant. Weapons were kept close by; men were often trained}

^{to be light sleepers; and everyone maintained alert to sounds that might}

Should any doubts still persist on this point, they may surely finally be dispelled by the Kohimarama Conference, when over 200 chiefs from many parts of the country, including 27 from Nga Puhi, attended a month long hui in July and August 1860.⁴³ The Conference was notable for the emphatic assertions, made repeatedly by those present, of their loyalty to their sovereign the Queen and to her law. Tamati Waka Nene, who had signed the Treaty at Waitangi, said “I know no sovereign but the Queen, and I shall never know any other”. Te Taurau spoke: “I am from Nga Puhi....there [is] but one name upon earth – the Queen. Let us then rest under the [Queen’s] government”. Wi Te Tete said “Let me have the last word! We have now become one people under the Queen”. This was a chorus, in which the Nga Puhi chiefs joined their voices with others in unanimous recognition of the Queen’s sovereignty.

Since the concept of sovereignty is admittedly without physical shape or form it may perhaps be difficult to point to the precise moment at which it passed from the keeping of Maori to that of the Queen. Professor Rutherford, in his 1949 monograph, long considered the orthodox view, considers 10 possible dates when sovereignty might have passed, although he is nevertheless able to settle on one.⁴⁴ But whatever

herald an attack.” P Moon This Horrid Practice: The Myth and Reality of Traditional Maori Cannibalism, (Penguin, Auckland, 2008) at 157-158. Similar statements appear on many other pages. It would be salutary, but the author ’s motive might be misunderstood, to quote further from this appalling chronicle, from R D Crosby The Musket Wars: A History of Inter-Iwi Conflict 1806 – 1845 (Reed, Auckland, 1990), or from numerous first-hand accounts by contemporary impartial European observers. Mr Crosby estimates that “[o]f an estimated 100,000 – 150,000 Maori living in New Zealand at or around 1810, by 1840 probably somewhere between 50,000 and 60,000 had been killed, enslaved or forced to migrate as a result of the wars...” (p 17) He observes also that tribal boundaries as they existed in 1840 often bore little if any resemblance to those of a generation earlier. “To apply ‘the 1840 rule’ to this distribution of people and power [as the Waitangi Tribunal does] has as much logic, and as much fairness, as the application of a hypothetical ‘1940 rule’ would have had on the borders of Europe.” (p 12) At the time of the 1845 census the total number of Ngai Tahu was somewhere about 1,050, their numbers having been reduced by the great kai huaka feud and then by Te Rauparaha as well as by the white man’s diseases. In actual fact, and by the Maori law of occupation, although not by the generous theory of aboriginal title, most of the South Island and Stewart Island could properly have been considered as terra nullius in 1840.

⁴³ The proceedings, which were published at the time in Issues 13 to 18 of the Maori Messenger, have recently been made available online by the Victoria University of Wellington.

⁴⁴ J Rutherford The Treaty of Waitangi and the Acquisition of British Sovereignty in New Zealand 1840 (Auckland University College Bulletin No 36, 1949). He concludes that 21 May 1840, being the date of Captain Hobson’s two proclamations asserting sovereignty, is “the earliest date at which it may be claimed that the whole of New Zealand was legally British territory”, although he considers that “[a] case may be made for taking the view that

^{uncertainties there may have been in 1840 had long been settled by 1860.}

It must be added that the authority of chiefs in Maori tribal society was autocratic, dictatorial and absolute. Yet if Maori activists are actually correct in their claim that te tino rangatiratanga preserves to the chiefs these sovereign powers, they are surely obliged to require, and submit themselves to, its restoration. They cannot have it both ways; they cannot require the restoration of chiefly authority, and then completely redefine the nature of that authority into some more politically-acceptable sort of general unfettered “independence”. And if they were to attempt to argue that with the passage of time chiefly or tribal authority has (unnoticed beneath the surface of things) evolved into something rather more acceptable to the citizens of a very un-authoritarian social welfare state, then it could surely be replied that its evolution could well have been in another direction, that of complete disappearance.

Let us remember too that sovereignty is not just a legal concept whose existence and transfer is a matter for lawyers and lawyers alone. Sovereignty is a brute fact, and it is now a century and a half and more too late to deny its existence. To deny now the sovereignty of the Queen and the legality of the existing constitutional order would make no more sense than to argue that Great Britain’s “real” sovereign now is not Elizabeth II of the House of Windsor but rather Albert of Wittelsbach, the Prince of Bavaria, who is, by the law prevailing before the Revolution of 1688, the lawful heir of James VII and II of the House of Stuart.⁴⁵

There comes a time when it no longer makes sense to argue with the facts on the ground. Yet advocates of Maori sovereignty are the Jacobites of today. Their claims are, however, taken more seriously than one might expect. In what other aspect of our national life – for that matter, in what court of law – would one or two words – words whose alleged meaning of Maori sovereignty is, at best, by no means established, and in a document of no legal standing – be entertained as a serious threat to the entire established law and social fabric of almost one and three quarter centuries? The pedantic quibbler who proposed such a thing would be laughed out of court. Yet not just Maori radicals but sundry intellectual and influential figures seriously suggest or contemplate that Maori (however defined) should, because of the Treaty, be entitled to share, if not take completely, the sovereignty of the Crown. It is surely likely that the majority of New Zealand’s population, not being of Maori descent, might finally object, either to such a proposal in principle or to its

certain parts of the North Island were obtained in sovereignty as from 6

^{February...”}

^{45 Professor Heuston in his Essays in Constitutional Law (2nd ed, Stevens and}

^{Sons, London, 1964), while touching on the matter of the Stuart claim}

^{(p 25) in his essay on Sovereignty, records its last vestige in Hall v Hall}

^{(1944) 88 SJ, where the defendants, whom one senses to have been short}

^{of other arguments, “unsuccessfully pleaded at Hereford County Court}

^{that the Court of Probate Act 1857 had never received the royal assent as}

^{the Stuart line alone were entitled to the throne”.}

administration in practice. If they were to object, then the imposition of such a proposal could be achieved only by the ignoring of their objections and perhaps, ultimately, by forcibly suppressing them. Yet if the Maori aspirations currently being actively encouraged by our political and intellectual class are not realised, there will undoubtedly be much Maori discontent. It remains inexplicable why any country should be so busily creating such a serious and insoluble problem for itself.

The concept of “partnership”, as currently expounded, is no less than a sort of sovereignty, and very different from the partnership all too loosely spoken of by the Court of Appeal in 1987. The Court of Appeal then used the words “partners” and “parties” interchangeably.⁴⁶ Moreover, the Court identified other Treaty principles, including the duty of loyalty to the Queen and the Queen’s government and obedience to the laws. Loyalty to the Queen is hardly consistent with a partnership with the Queen. The “partnership” the Court spoke of was rather of a “partnership between races”.

If there were to be a partnership of Maori and the Crown, then by definition Maori could not be subjects of the Crown. One cannot be a partner and a subject at the same time. If there were to be a partnership of Maori and the Crown in the government of New Zealand, then it must follow logically that the only people who would be subjects would not be Maori – they would be partners – but rather non-Maori, who would be the subjects of the Crown and also the subjects of the Treaty partner who shares the Crown’s authority. The necessary and inevitable consequence of a Crown-Maori “partnership” is the inferior status of all non-Maori citizens.

IV

Another way in which Maori ambitions might be satisfied, at least for the short term, would be by establishing, as some entrenched and overriding superior law, not the terms of the Treaty but the principles. It is the principles of the Treaty which various statutes have referred to since the 1980s. Yet those principles are simply not agreed on, neither in their number nor their nature nor their extent. At the very best a list of Treaty principles is a list of platitudes among which can be found some that can be used to justify any desired decision. Moreover, even the most innocent list of Treaty principles speaks from a particular political background and agenda. Paul McHugh has written that “[n]o-one pretends that the language of ‘partnership’ and ‘fiduciary obligation’ was exchanged at Waitangi in 1840. The Courts have stressed their construction of what amounts to a contemporary mythology of the Treaty.”⁴⁷ Even Sir Robin Cooke, in cases after the seminal 1987 decision in New Zealand Maori

⁴⁶ See the PANZ monograph, above n 26. In New Zealand Maori Council v Attorney-General [1989] NZCA 43; [1989] 2 NZLR 142 Cooke P observed that “Partnership certainly does not mean that every asset or resource in which Maori have some justifiable claim to share must be divided equally...”.

^{47 P McHugh “Constitutional Myths and the Treaty” [1991] NZLJ 316.}

Council v Attorney-General, felt moved to observe that “partnership” had taken on a life of its own and had gone far beyond what the Court of Appeal had contemplated when its judges, obviously far too loosely, used the word.⁴⁸ Sir Geoffrey Palmer considers that “some of the scholarship surrounding [the Treaty] is highly suspect, fuelled as it is by political motivation rather than detached analysis”.⁴⁹ That phenomenon has not diminished since he wrote those words.

To enshrine the principles of the Treaty as some superior law would therefore be very dangerous, for it would be an open invitation to activist judges and bureaucrats to readjust and rewrite the laws of our country at their leisure and pleasure.⁵⁰ The Ministry for the Environment was more prophetic than it may have realised when it wrote that statutory references to the “principles...have provided room for the courts to rewrite and moderate the actual terms. ...Partnership has little or no intrinsic meaning and so can be made to mean whatever it is wished to mean. It is an empty box to be filled by whomever wields power on the

⁴⁸ As well as New Zealand Maori Council v Attorney-General (n 46), Sir Robin Cooke has also written of partnership as a mere “analogy”; R Cooke, “Introduction” (1990) 14 NZULR 5.

^{49 G Palmer “The Treaty of Waitangi – Principles for Crown Action” (1989)}

^{19 VUWLR 335 at 336.}

^{50 S Elias “Sovereignty in the Twenty-First Century: Another Spin on the}

^{Merry-go-round” (2003) 14 Public Law Review 148: “...Parliament is}

^{not limited by earlier legislation. But it is bound by the constitution}

^{which may partly be expressed by earlier legislation. The constitution}

^{evolves. Saying what it is in a case where the content of the constitution}

^{directly arises is ultimately for the courts. That is because the conditions}

^{of valid law-making are law. Parliament is supreme as legislator. But it}

^{legislates under the law of the constitution...An untrammelled freedom of}

^{parliament does not exist” (pp 162-163). But see also Elias CJ’s comments}

^{in the Harkness Henry Lecture 2011, University of Waikato, 12 September}

^{2011. Her Honour observed that common law constitutional principles}

^{include the rule of recognition of the pre-eminent law-making authority}

^{of Parliament and that she was not one of those who thinks that our}

^{constitution is deficient because the courts do not disallow statutes as}

^{unconstitutional. But she also said her concern was not to speculate}

^{about what the courts would or could do faced with legislation that}

^{undermined the democratic legitimacy of Parliament or the independence}

^{of the courts. For a democratic Parliament to make such legislation would}

^{offend against our deepest constitutional sense and it might be desirable}

^{to recognise unmistakeably that Parliament’s restraint from making}

^{such laws is law observed by Parliament not as a matter of grace but as}

^{a matter of obligation undertaken formally: http://www.courtsofnz.}

^{govt.nz/speechpapers/Harkness%20Henry%20Lecture-Hamilton-12%20}

^{September%202011.pdf/at_download/file. E Thomas “The Relationship}

^{of Parliament and the Courts” (2000) 31 VUWLR 5 at 8, also enjoys flirting}

^{with the attractive idea of his own increased judicial power without}

^{any corresponding responsibility – he “postulates the possibility that}

^{Parliament’s legislative supremacy is not absolute”, and like Elias CJ}

^{finds convenient excuses for the judicial coup d’etat in international human}

^{rights and the Treaty.}

day. The concept cannot be found in the words of the Treaty.” ⁵¹

It may well be unwise to tie ourselves down with any written constitution and entrenched bill of rights, for that would at once transform many political and moral questions into legal ones. It would enable politicians to abdicate their representative and deliberative duties, deprive the people of any future say in fundamental questions, and hand over much power to (currently) unelected and unaccountable judges. Section 8 of the New Zealand Bill of Rights Act 1990, for example, declares that “[n]o one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice”. If judges were to be entitled to strike down statutory provisions because they allegedly breached such a fundamental right, then important political and moral questions, where judges have no superior knowledge, training or virtue, would at once become matters on which the public and their elected representatives would never again be entitled to make decisions. Fundamental issues concerning abortion, euthanasia, capital punishment and indeed public funding for health services would thereafter become “legal” matters for judges to decide. Politicians might welcome being spared the awkwardness of debates and decisions on abortion, although they would be less appreciative of judges’ declarations of their legal duties concerning health funding; voters would most certainly resent being deprived of a voice on all these issues.

The Treaty is a matter at least as contentious as abortion, euthanasia and capital punishment, and it is one where judges have no special insights or expertise, and where, indeed, they should by now have learnt through painful experience that they are no better qualified than anyone else to solve problems that are political and not legal. It may well be unwise for us to tie ourselves down with any written constitution and bill of rights; but how much more unwise it would be to be tied down by a document at once as meaningless and as charged with political potential as the Treaty, as surrounded by myth, propaganda and controversy, and increasingly tied to doctrines of racial inequality and privilege.

These two courses – the redefinition of sovereignty and the entrenchment of Treaty “principles” – could well be argued to be essentially the same thing, and one cannot say where they might lead.

Whatever method, however, is chosen to satisfy current Maori ambitions, that method cannot be effective without “tribal” identification. If our constitution in future is to contemplate some inhabitants of our country being subjects of the Crown, as we all are now, and others being members of “autonomous hapu” who are going to “work in partnership with the Crown”, then the members of these autonomous hapu must be identified. Such clear classification would be most deeply resented by many, who might consider it a division into first and second class citizens such as we now associate with certain Middle European countries in

⁵¹ Ministry for the Environment Resource Management Law Reform Working

^{Paper No 27, 1988.}

the 1930s and early 1940s. It would be open to abuse as some citizens were, in effect, allowed to choose which jurisdiction and personal law they would prefer for the future. It would inevitably become an avenue for corruption. It would also be an utterly artificial exercise, not even a conscious anachronism but a conscious invention. Many Maori are of more than one hapu. Many Maori, especially poor, urban dispossessed Maori, most likely to be in need of the financial and social support that hapu might offer, are quite unaware of their tribal identity. Maori ethnicity, as Mr Simon Chapple has pointed out,⁵² is not a rigid binary primordial dichotomy but rather fluid, differing in degrees of interest and commitment, and constructed. Most importantly, many, perhaps most, of those Maori who are aware of their tribal links nevertheless have little day to day practical association with their tribes, and would most probably deeply resent being forced into submission to archaic and undemocratic tribal authority. Many Maori consider themselves just as New Zealanders, with a somewhat, although not entirely, different background from that of many other citizens. This could well be argued to be as it should be. Only for a small minority does the tribe remain a genuine living part of life, and one cannot help but wonder if a hint of self-interest underlies that minority’s eagerness to see power return to tribes and to them. If many of Maori descent turned out to be reluctant to abandon the blessings of the Queen’s law and subject themselves again to the authority of autonomous hapu, that would presumably lead to greater shares and influence for those who were hapu members.

All New Zealanders of Maori descent are also of non-Maori descent; no particular fraction of Maori blood is required before someone may declare him or herself to be Maori. The Electoral Act 1993, for example, defines a Maori as “a person of the Maori race of New Zealand; and includes any descendant of such a person”.⁵³ Anyone with the tiniest drop of Maori blood, then, can claim to be Maori; indeed, Ngai Tahu includes on its roll of members someone who is 1/256th Ngai Tahu. But it is absurd to suggest that anyone who has only that fraction of Maori blood is in any meaningful way “Maori”. In nearly all cases it would be absurd to suggest that someone who is even one eighth Maori was Maori in any comprehensible sense. He or she is not genetically Maori, and is extremely unlikely to be “culturally” Maori. He or she is extremely unlikely ever to have suffered any racial discrimination because of that fraction of Maori blood, and is also extremely unlikely to be suffering in his or her own life as a consequence of any injustice which might or might not have been done to his or her remote ancestor.⁵⁴

All proposals for Maori autonomy, though, whatever precisely is

⁵² S Chapple “Maori Socio-Economic Disparity” (2000) Political Science

^{52(2) 101 at 106.}

^{53 Electoral Act 1993, section 3.}

^{54 For further consideration of the question of racial definition, see D J Round}

^{“United Nations Declaration on the Rights of Indigenous Peoples” [2009]}

^{NZLJ 392.}

^{implied by the claim, require racial definition. It is necessary to know who}

^{will be in those hapu which are operating in partnership with the Crown.}

Aldous Huxley argued in Ends and Means⁵⁵ that there is, ultimately, no difference between those two things, as the means one employs determines the end one will achieve. The world is round, and so one can, say, travel from Paris to Rouen via Shanghai; but history is flat, and so one cannot work towards an objective by walking away in completely the opposite direction. One cannot usher in a reign of peace and brotherhood with guns. Neither, we might surely add, can one usher in a reign of racial equality with racial definitions and different legal regimes for different races.

The time is clearly past when the Treaty was an argument or vehicle for racial equality. It is difficult to know whether one should profess to be surprised, or not, that it is the National rather than the Labour Party which has been more accommodating to growing Maori assertiveness. At the 2008 general election National campaigned on a promise to end racial separatism, even as far as committing itself in principle – not necessarily, it was understood, in the very immediate future – to doing away with the Parliamentary Maori seats. Yet in office this National-led government has ratified the United Nations Declaration on the Rights of Indigenous Peoples (which the previous Labour government had refused to do) and, despite various opportunities and available excuses as to why National might have changed its mind, it has repealed Labour ’s Foreshore and Seabed Act 2004 in favour of something which might well turn out to be inconceivably more generous to Maori. The proposed constitutional review may well flow in the same direction.

Folk wisdom tells us that it is easier to let worms out of a can than to get them back in, and impossible to recapture the evil spirits Pandora released from her fatal box. Time will of course tell, but might it be that our still coherent but increasingly tattered nation could, especially in a future of economic stringency, resource depletion and environmental crisis, be destroyed by the spirits which politicians of many political parties, and the mandarin, bureaucratic and academic class now seem actually determined to conjure up?⁵⁶ Just as important, have we reached the stage in our national life when it is now forbidden to raise that even as a possibility? If we have reached that stage, and it is forbidden even to say that continued political and constitutional – and indeed material

⁵⁵ A Huxley Ends and Means (Oxford University Press, Oxford, 1946).

^{56 “The extraordinary fact of the past forty years of our history is the manner}

^{in which this bold rejection of Captain Hobson’s famous declaration of 6}

^{February 1840: he iwi tahi tatou – now we are one people – has become the}

^{official policy of the New Zealand state. Not, I hasten to add, the policy}

^{of the New Zealand people – who have never been given the opportunity}

^{to formally endorse, or reject, the separatist “two nations in one state”}

^{orthodoxy which now prevails in our universities and throughout the}

^{public service.” – Chris Trotter “Separatist law strikes at the heart of}

^{liberal democracy” The Press (New Zealand, 15 February 2011).}

– generosity to Maori might not be a good idea, then we are thereby refusing to face one possible future for our country. To refuse to face any real possibility is surely a foolish courting of disaster.

There is abundant evidence to suggest the very real possibility that very hard times lie ahead for the world and for New Zealand. On countless occasions, however, your author has observed that his countrymen and women simply refuse to contemplate the remotest possibility that things could ever go wrong. He may talk with some degree of plausibility about peak oil, climate change, overpopulation, the end of resources and economic calamity, but he encounters an invincible blind faith in the certainty of progress. He is regularly told not to worry and that he should take a holiday or consult a physician.

The same phenomenon appears to be at work within our ruling class in relation to the Treaty. So far, anyway, there seems no consciousness of the possibility that the results of racially inspired constitutional change could be anything less than wholly beneficial. It would surely be a fair generalisation to say that politically acceptable discourse on the Treaty focuses virtually entirely on what Treaty rights and obligations are imagined and alleged to be, and quite ignores the supreme practical question of whether the world which could be fashioned to express these fine abstractions might be workable or desirable. The Treaty is obviously so wonderful a thing that it is simply unthinkable that its consequences could be anything but equally wonderful. And if they are not – well, Treatyists might just reply “Fiat justitia ruat coelum.” But the thought that the heavens might fall has not yet occurred to them.

But in a spirit of openmindedness, your author asks his readers to consider the possibility that all things do not automatically always work together for good, and that not just the National Party but the New Zealand nation may have a tiger by the tail.

V

Until recently, argument and popular disquiet concerning the Treaty centred on claims before the Waitangi Tribunal for the remedying of historical wrongs. Some of those claims were valid, although many were debatable. Some claims, although once valid, had already been settled in the past, and were now being the subject of a “full and final settlement” for the second or even third time. Some claims were, to the European mind at least, bizarre.⁵⁷ There is no doubt that many of the claims now fully and finally settled will be made again in a generation’s time, when the present settlements will have faded from popular memory. But for the immediate future, the focus of political and popular attention on Maori issues will be different. The largest historical claims – Ngai Tahu, Tainui, Taranaki – and many of the small ones have been settled, for the time being, and the government’s announced intention to have all historical

⁵⁷ See the remarks in Capital Letter on the claim to radio waves, quoted in D J Round “Judicial Activism and the Treaty: The Pendulum Returns” [2000] OtaLawRw 5; (2000) 9 Otago LR 653 at 658 – 659.

claims settled by 2014, although it may not be realised, nevertheless does not appear to be impossible. An omnibus bill currently before the House and dealing with 23 historical claims is strong evidence that the settlement of historical claims is, for the present, at the final mopping- up stage. The outline of the future is already apparent, considering such issues as “indigenous rights”, the foreshore and seabed (where it is not to be believed that the matter is now finally settled) and fundamental constitutional questions.

Now since our age firmly believes in the importance of individuals and their choices, and how no one size fits all, we might well accept Montesquieu’s proposition that laws and constitutions inevitably differ in order to fit their nations and societies. In one of his best-remembered examples he argued that “when Montezuma ... insisted that the religion of the Spaniards was good for their country, and [Montezuma’s] for Mexico, he did not assert an absurdity; because in fact, legislators could never help having a regard to what nature had established before them.”⁵⁸ Montezuma was obviously not thinking of the modern reforming legislator; but leaving that aside, Montesquieu’s argument is that a society’s culture is an organic growth which expresses the history, character and situation of a people. In the long run it cannot be created out of the brains of rulers and philosophers, even if they were motivated by the purest generosity. It is not an artefact that can be consciously and artificially fashioned and imposed.

Although it is easier for legislators to impose laws than it is to impose customs, yet nevertheless laws also, if they are to be accepted and successful, must be consistent with a society’s deeply held beliefs and understandings. This argument can of course be used for selfish ends. It can justify any status quo and frustrate any attempts at reform. Catherine the Great and a whole school of Russian political philosophers argued that Russia, at least at that time in its history, had a spirit naturally inclined to autocracy, and that representative institutions were inappropriate and would not work. Present day dictators use the same argument. But then, present day practical observers who might hesitate to express themselves quite as Montesquieu did would nevertheless argue that democracy will succeed only if certain practical conditions are fulfilled

– the existence of an adequate middle or propertied class, perhaps, and stable economic conditions, or at least ones offering some degree of prosperity. Sufficient qualities of education, political understanding and character in the general population are necessary – patience, self-restraint, respect for other interests and persons, and an ability to postpone present enjoyments for the sake of future benefits.

If such conditions are necessary, then democratic institutions will not be appropriate everywhere at all times. In the absence of sufficient maturity and virtue, a population will be no wiser than a group of children who would predictably use democracy only to vote for abundant icecream and

⁵⁸ Montesquieu The Spirit of Laws, Book xxiv, c 24.

the abolition of rules on bedtime. Russia’s melancholy history, for one, surely seems to offer some evidence to support the claim that the spirit of its people is more naturally inclined to autocratic government, whether the rulers be labelled tsars, commissars or even presidents. We can all think of states where, without a strong man to bang heads together and impose a brutal order, an even more terrible anarchy might well result.

Such thoughts make uneasy those who, while valuing multiculturalism (whatever exactly that means) still support democratic principles. Democracy and multiculturalism are the two gods of our age; their combat seems unnatural and terrible, and like that of an irresistible force meeting an unmovable object. Which might prevail? What if a culture’s way of expressing itself is by growing and becoming dominant, and, with all the more confidence after its earlier demands were met, demanding yet more “rights”? Does a civilised humane society have a right to say “no” to that culture? This is in the way of becoming a very important practical question in the future. How far exactly must our courtesy to the other, as a human being like ourselves, be extended? Must it be extended to the point of our society’s surrender?

The Maori Party’s desired constitutional changes tend inevitably towards racial definition, and, following that definition, a privileged status for Maori persons and institutions. This would be but a confirmation in writing – writing graven in stone, indeed, in a written constitution – of one of the most prominent developments in our politics and law in the last several decades. That development, though, has never enjoyed popular support. At best there was a widespread open-mindedness to the idea that if injustices had been done, as was now being loudly and angrily claimed, then there should certainly be investigations, and some recompense. Public patience has long run out on that argument,⁵⁹ and, as observed, the current focus of Maori agitation is no longer on historical injustices but on wider issues. Montesquieu might well argue that current developments towards Maori privilege run contrary to New Zealand’s national spirit. They run contrary to our very strongly held commitment to equality. Public support for the redress of real or alleged Treaty grievances over the last two decades has been founded on the argument that Maori in the past were somehow not treated “equally”, whatever that might mean. Equality and egalitarianism are surely among our most intensely held national feelings. Public support for growing Maori ambitions is not guaranteed, then; indeed, the principle of equality on which it is based contains its own natural limit. Our national spirit has a hint of socialism about it,⁶⁰ and a preference for public ownership;

⁵⁹ There is no reason to suppose that the poll referred to in n 5 is not representative of the general feeling of the country. Statistics, even of opinion polls, are scarce in this area, at least in part, one suspects, because of the reluctance of those commissioning or conducting them to be forced to confront the views of the country, or to be accused of fomenting racial discord.

^{60 According to a recently-released United States diplomatic cable of mid-}

it does not like to see public assets privatised to anyone. Ever since our European ancestors came here determined not to recreate the classes and privileges they had left behind, a dislike of privilege – even arguably earned privilege – has been a strong strand in our history. An egalitarian dislike of the rich, especially the undeserving rich, is the other side of the coin of our egalitarianism. Our recent pioneer past and the brevity of our human history underlie our love of mountains and bush, beaches, sea and open spaces, which we hold to be the inheritance of us all, and not something to be given away.

Likely Treaty developments, in short, seem to contradict the spirit which has hitherto underlain and animated New Zealand society.⁶¹ A groundswell of resentment against the trend of Maori racial privilege has long existed, and is almost certainly growing. Your author has, all his life and all over the country, found immensely widespread concerns about where the Treaty industry is leading us. Several devices have hitherto been used to disarm criticism. For a good while the argument was put forward that once the current round of Treaty claims and settlements was over, racial issues would disappear, and that Maori and European New Zealanders would then be able to put the past behind them and move forward together. The Treaty settlement process was (it was said) not one establishing racial privilege but only the righting of past wrongs, and anyone expressing doubts was of course therefore accused of racism. (“Injustice” would surely have been a more logical accusation.) But the prophecy that after Treaty settlements were over everything would go on as before has not been fulfilled. What may have begun as a movement for historical and social justice and political inclusion has become a drive for the establishment of a racial and “indigenous” elite. Treaty claims and settlements have receded from public view for the time being, but racial agitation has not disappeared, merely taken different forms. The United Nations Declaration on the Rights of Indigenous Peoples has established a good foundation for further agitation. Foreshore and seabed claims are presented primarily as a matter of legal right rather than as arising directly under the Treaty. Chris Trotter has described the Iwi Leaders Group (ILG) as “now negotiat[ing] with the New Zealand state in much the same way as the great feudal magnates of mediaeval England negotiated with their king”.⁶² (And, he continues, “what Sharples’ speech made very clear is that the ILG will use the forthcoming constitutional review to secure for the leaders of the Maori tribes the same

2007, The Prime Minister, the Rt Hon John Key, then told United States diplomats that he shared New Zealanders’ “socialist streak”, which made this such a caring country; “’Socialist Streak’ just means we have a heart, says Key” (2010) Stuff <www.stuff.co.nz>.

⁶¹ “In light of the Costal Marine Area (Takutai Moana) Act 2011’s passage national must delete from its ‘vision and values’ the notion of ‘equal citizenship and equal opportunity’.... M Coote “Race to foreshore will drown a nation” The National Business Review (New Zealand, 4 April 2011).

^{62 C Trotter “Waitangi’s Ironic Welcome” The Press (New Zealand, 8 February}

^2011).

sort of Magna Carta of aristocratic rights and privileges that the barons extracted from King John at Runnymede in 1215.”) The forthcoming constitutional agitation will obviously claim to be based on the Treaty, but is not a “Treaty claim” as that term has hitherto been understood, and once the Treaty is within a constitution then future arguments for Maori privilege may very well be based as much on “the constitution” or “the law” as on “the Treaty”.

As Professor Elizabeth Rata writes:⁶³

[i]n the last five years there has been a shift in the strategies used by iwi in their quest for property rights and constitutional recognition. The shift is from a Treaty of Waitangi justification to a more comprehensive indigenous group rights argument. The group rights argument is used to claim customary rights and, in an extension, to claim that those customary rights are property rights guaranteed under English common law.

Professor Rata considers much of the modern Maori political revival to be an expression of a general widespread shift in the 1970s, seen in many parts of the world, from class politics to identity politics, rather than as another very belated response to 19th century colonialism, and she also perceives a great historical discontinuity between 19th century Maori tribes and their soi-disant heirs and successors. “The real character of contemporary iwi is that of an economic corporation concealed by neotraditionalist ideology.”

As yet, the doubts and resentments of non-Maori New Zealanders have found little political expression beyond bringing the ACT Party more votes than it might otherwise receive and providing a convenient occasional grandstand for Mr Winston Peters. We are not entitled to assume that that state of affairs will continue. The world is becoming a harder place, where the generous welfare state we regard as part of the very nature of things will have far fewer resources at its disposal to meet the soaring demands of its increasingly hard-pressed citizens. A spirit of hardiness and frugality, a unity of purpose and a sense of common citizenship will be vitally important assets in such hard times. Any idea of “indigenous rights”, however, is of its very nature the enemy of equality of citizenship.⁶⁴ A sense of racial separateness and special entitlement based on a perceived superiority as an indigene, and corresponding demands for separate and better treatment, are going to receive short shrift in harder times to come. The English may be, as the Duke of Wellington is said to have remarked, a “quiet people”, and New Zealanders certainly have displayed patience in the face of a looming racial confrontation; but no-one’s patience is inexhaustible.

⁶³ E Rata “People Power or Ethnic Elites” (2011) New Zealand Centre for

^{Political Research <www.nzcpr.com>.}

^{64 “At stake is whether indigenous rights can override the principle of}

^{equality of citizenship.” – M Durie, quoted by C Barton “Race issue}

^{forces new look at New Zealand’s constitution” New Zealand Herald (New}

^{Zealand, 12 – 13 June 2004) at B6.}

^VI

It is not an original observation that constitutions and constitutional documents, certainly the most memorable and enduring of them, are made at times of crisis in a nation’s history. Magna Carta expressed England’s grievances against King John, as not only the barons but a French army were arrayed in England against a bad ruler. The great constitutional documents of the 17th century arose out of the drama of the long confrontation of the Stuarts with their peoples. The United States Constitution, our best known example of a full written constitution, arose out of the successful rebellion of the 13 colonies against their overseas government. Many constitutions have been established at the end of a war, or when a nation attained independence. Such situations, obviously, make a new constitution a practical necessity; but it is also at precisely such times that a nation is likelier to have a clearer understanding of what it is and what form its future should take. Struggle and misfortune concentrate the mind wonderfully. In a nation which has been united in travail it will probably be much easier to find general agreement about general outlines and structures than it might be in more settled times.

By the same token, the worst time to embark on substantial constitutional change would be when a nation is divided, or when an otherwise unexcited nation is liable to have constitutional provisions which it will dislike imposed upon it by a determined and vocal minority. Constitutions must be generally accepted, yet in such circumstances general acceptance is highly unlikely. Timing is everything. To start a debate when the circumstances of the time virtually guarantee that no consensus will emerge – indeed, when positions will be polarised, and different parts of the community will continue to grow in distrust and dislike towards each other – is not just a recipe for the failure of the constitutional project itself. It is a recipe for strife.

Constitutions have a legal standing, but the best of them, anyway, are more than mere legal documents, for they express a people’s greatest yearnings and aspirations. For all that they are rooted in legal particularities, Magna Carta and the Bill of Rights cry out in one voice “Freedom!”. That freedom was to be rooted in law, certainly, but so must all freedom surely be. Such was the cry of the colonies who perceived among the inalienable rights of men “life, liberty and the pursuit of happiness”. In the Declaration of Arbroath of 1320, six years after Bannockburn, the Scots, after declaring their loyalty to their Prince and King the Lord Robert, to whom they were “bound by law and by his merits that our freedom may be still maintained”, went on to tell the Holy Father John XXII that: ⁶⁵

Yet if [King Robert] should give up what he has begun, and agree to

⁶⁵ The Declaration of Arbroath, the original Latin believed to be the work of Bernard de Linton, abbot of Arbroath and Chancellor of Scotland; quoted (without mention of translator) in Maurice Lindsay Scotland: An Anthology (Robert Hale & Co, London, 1974).

make us or our kingdom subject to the King of England or the English, we should exert ourselves at once to drive him out as our enemy and a subverter of his own rights and ours, and make some other man who was well able to defend us our King; for, as long as but a hundred of us remain alive, never will we on any conditions be brought under English rule. It is in truth not for glory, nor riches, nor honours that we are fighting, but for freedom – for that alone, which no honest man gives up but with his life itself.

Standing beside such imperishable declarations, does not our present constitutional review look to be not just utterly tawdry but an actual betrayal of the human spirit? As the “principles” of the Treaty are currently being interpreted to justify constantly increasing Maori demands, there is no longer any chance that the Treaty can ever become the basis of equality or fraternity between Maori and non-Maori. The Treaty is, now and for the foreseeable future, a source of actual division. Our constitutional review is not, therefore, just a modest, unexciting but nevertheless sensible review such as one might expect from an enlightened but modest and quiet little country. In one way or another, then, the forthcoming review is doomed to failure. At the very least, nothing will come of it by way of constitutional change, but race relations will be soured by the debate. But it is possible that it will result in changes. To do that, of course, it will have to ignore the wishes of the generality of the New Zealand people, who have never displayed any interest in the establishment of different sovereign entities in our country.

Overriding popular wishes would not however be difficult, and most certainly not novel, for the apostles of the Treaty movement, as it has now evolved – in which category we can include many members of the public service and the universities – have seldom displayed any interest in liberty, equality or fraternity. Professor Jock Brookfield⁶⁶ could write an entire book⁶⁷ about relations between “the Crown” and “Maori”, which contains, until the conclusion, virtually no recognition of the existence, let alone the interests and claims, of the majority of the population. In the conclusion they appear merely as “an inconvenient and narrow-minded possible impediment to what would otherwise evidently be an amicable and unanimous final settlement with the Crown”.⁶⁸

The Treaty, it seems, is now officially beyond discussion. As mentioned above, even the forthcoming constitutional review appears to begin from the automatic premise that a Treaty partnership exists and all discussion must show deep respect to this founding document and its principles. The “Treaty debate”, as it is now framed in official discourse, is only concerned with the speed at which we move in this direction, and perhaps a few matters of detail. For example, the first of the 2011 Radio

⁶⁶ Peace to his shade.

^{67 F M Brookfield Waitangi and Indigenous Rights; Revolution, Law and}

^{Legitimation (Auckland University Press, Auckland 1999).}

^{68 D J Round, review of the above, in History now, Te pae tawhito o te wā, vol 7,}

^{no 4 (November 2001) 21, at 22-23.}

New Zealand Treaty debates featured Tom Bennion from the Maori Law Review “exploring the issue of the ownership and use of the foreshore and seabed with fellow-lawyer Matanuku Mahuika”. In the second debate Whaimutu Dewes and the Human Rights Commissioner Joris de Bres “consider[ed] how power might be shared between Maori and the Crown in the 21st century”. Such “debates” are but political propaganda for one side, for the other side simply is not to be heard. In the first debate of the 2010 series Professor Paul Spoonley of Massey University “articulate[d] the evolutionary nature of the last 40 years of Maori social and cultural change through a focus on the life and achievement of fellow-panellist Professor Emeritus Ranginui Walker”. The second saw Professor Mason Durie, with social commentator Colin James, consider three alternative future scenarios “which have New Zealand as a republic, as part of the federated states of Australasia and with Maori leading worldwide networks of indigenous people and businesses”.⁶⁹

Mr James may have quietly expressed some very little reservations, but to judge by his columns and commentaries they would not be any more than mild. Such, in the last two years of official radio debates, is the sum total of dissent from a worldview which, in the opinion of our official taxpayer-funded broadcaster, is in its essentials obviously beyond debate.

As its prime mover the Maori Party conceives it, anyway, the purpose of the constitutional review can be nothing less than the binding in eternal chains of other New Zealanders. For the officials of our government even to contemplate such a step obliges us, not for the first time, to wonder where their true loyalties lie. At Waitangi, Captain Hobson’s famous declaration was “He iwi tahi tatou” – “Now we are one people”. If we are to believe the current wisdom, that was never intended, and (if it were) was a bad thing.

VII

But let us ask a simple practical question: If the Maori Party agenda were to be achieved, and New Zealand should be transformed from a state run on its present lines to one where the “various autonomous hapu would work in partnership with the Crown”,⁷⁰ what would be wrong with that? Is change always so unthinkable? Is it not possible to imagine a country where Maori, charged with a new vitality as the result of their liberation from oppressive colonial structures, become a vigorous, healthy and valuable part of the community? Would that not be better than leaving Maori as they are now, languishing in every aspect of the worst statistics – rates of crime, imprisonment, unemployment, domestic violence, broken homes, bad health, welfare dependence and illiteracy?

Let us leave to one side a reply which until recently was made regularly, but which is now obviously in danger of being forgotten – that the

⁶⁹ “Treaty debates” Radio New Zealand (2011) <www.radionz.co.nz>.

^{70 Dr Pita Sharples, Minster of Maori Affairs “He Karanga ki Tua: a Call}

^{to the Future” (Speech to the World Christian Gathering on Indigenous}

^{People, Manakau, 15 January 2011).}

justification for the generous full and final Treaty settlements of the last two decades was that they would provide the opportunity and economic basis for Maori to turn their lives around. We are now perhaps to understand that that was a less than completely accurate argument – that in fact it is now the case (was this discovered very recently, or has it been known to Maori for some time?) that only constitutional change will deliver Maori the goods.

But that aside, the point has its merit. The present state of affairs is in many ways profoundly unsatisfactory, and should not remain. But that is not to say that some proposals for change are unlikely to achieve the desired change, or at any acceptable cost. There is absolutely no evidence that the transfer of very considerable public assets and funds to tribal claimants in the last two decades has done anything to stem the growth of crime and despair which now seems our ingrained in much Maori life. These appalling social facts have appeared at the very same time that New Zealand has been following policies alleged to produce exactly the opposite results.

We are at present quite unaware of what it might mean in practice if Maori cease to be subject to the sovereignty of the Crown, and instead become somehow independent and tribally organised. Will they have their own territories, where all land will be theirs, and other landowners will have been removed or at least must pay tribute to their new rulers? At the very least, presumably, they will not be subject, at least quite as other people are, to the Queen’s laws. There is no obvious agreement among Maori as to the precise details. That lack of agreement may be a useful thing from the point of view of a policy of divide et impera, but may serve only to fuel further discontent and make it likelier that any final constitutional arrangement that is arrived at may still be considered by many Maori to be inadequate and repudiable.

Whatever the details, the desired objective is towards some sort of independent life. Such a project, as well as being incredibly vague, complicated, and requiring immense administrative structures, suffers from another problem. Maori will insist on the possession of proper resources. The only possible source of those resources will be the remaining assets of an increasingly impoverished and hard-pressed non-Maori public.

Independence cuts two ways. It would mean that non-Maori would not be entitled to any say in how “Maori” ran their own affairs; but the word also has the economic meaning found in that magnificent but seemingly extinct phrase, “of independent means”. If Maori are to be independent, they must support themselves as well as govern themselves. Yet it is quite possible that Maori now cost the community more than they contribute to it. No statistics exist, and few would dare to compile them, but it is universally agreed that Maori feature disproportionately in all the wrong statistics, and the suspicion must arise that the costs to the taxpayer from expenditure on the police, courts and prison system, social welfare, health treatment and education, not to mention an abundance of autonomous

welfare agencies, substantially outweighs any economic benefits that population might bring to New Zealand. Conceivably some of those expenses might diminish after Maori independence, but that can be no more than speculation. Economics is not the principal end of existence, by any means, but without money one’s options are more limited. In any case, the matter is a fundamental one that would have to be considered. Why would the majority of New Zealand’s population – not hapu, but the “Crown’s subjects”, let them be called – why, just having seen their country carved up, a process inevitably involving not only expense and inconvenience but also a great amount of unpleasantness, why would they now be prepared to offer indefinite financial support to this new “independent” nation?

Maori Treatyists have not yet worked out the contradictions within their own ideas. Your author has heard one prominent Maori spokeswoman announce at a political meeting that “Maori want two things. They want independence – and they want more funding”.⁷¹ Yet these two things are incompatible. A desire for independence must be based on the idea that Maori can do better on their own; that they are somehow oppressed or impoverished by their membership of the same state as non-Maori, and they would be happier and better off on their own. After the independence struggles, we may guess that the rest of New Zealand would be ready to take them at their word. Yet at the same time “Treaty principles” are interpreted by many Maori spokesmen to mean, essentially, their entitlement to be supported for ever by the rest of the population.

It is not enough, it has been said, that statutes be written so that good men and women may understand them. A statute must be written so that bad men and women cannot misunderstand them. It is even better if they cannot even claim to have misunderstood them. Laws, as St Thomas Aquinas observes,⁷² are made for a multitude of human beings, not all of whom are perfect. Constitutions must be included in this category. Dr Sharples always speaks of the autonomous hapu “working in partnership with the Crown for the benefit of all citizens”. Such talk of working together presupposes attitudes of positive cooperation which are not always evident in human affairs. Positive attitudes simply cannot be assumed. No constitution will last long if its workability is dependent on cooperative and generous attitudes. A constitution must be prepared to assume widespread indifference, most of the time, to the welfare of one’s fellow citizens, and an expectation that they will have to look after themselves. Certainly, after Maori have taken such pains to achieve independence, it would be strange if they were keen to work in partnership for the benefit of those they have just got free of. They can, after all, work in partnership with them now if they wanted to. And why

⁷¹ Sic!

^{72 St Thomas Aquinas Summa Theologica I-II, q 96, a 2 “a human law is}

^{promulgated for the sake of the majority of men, and the greater number}

^{of these are not perfect in virtue.”}

^{would those other people want to help them?}

The Treaty movement has long been one heading in the opposite direction from the American Civil Rights movement, or the black struggle for freedom in apartheid South Africa. The Civil Rights movement was one against a policy of “separate but equal”, which was of course not equal at all, and it demanded the right to integrate into wider American society. The South African struggle was one against “homelands” and, again, demanding integration into South African life. The Treaty movement, by contrast, is separatist and exclusive. Its slogan could well be “Separate but equal”; from the mouths of those who claim that the Treaty preserves Maori sovereignty over the whole country, the slogan could well be “Separate and superior”. It may claim “partnership”, and claim to find it in the Treaty, but its attitude to partnership is that of a marital partner seeking a much-desired divorce – which is, indeed, a fair description of the situation.

It would be the grossest failure not just of statesmanship but of commonsense to assume that any future age in which laws will operate will be characterised by perfect goodwill such as has hitherto been rare in human history. Why should the future be different, especially after an unpleasant parting of the ways in a country which already is clearly on the way towards being the successor to the PIIGS economies?⁷³ Most of the time, most people are more concerned with their own interests than with the welfare of others, and laws operate in that climate of opinion. We would like to be thought charitable but our charity will go only so far; especially when we too are experiencing hard times.

If the Maori aspirations of independence now being fanned by the Maori Party are not fulfilled, there will be profound discontent within Maoridom. If they are fulfilled, there will be much profounder discontent as Maori realise that the price of independence is too high. Instead of admitting their error, however, it is surely far likelier that they will raise further demands, considering their continued dire social and economic situation to be evidence that the Treaty requires non-Maori New Zealand to provide them with still more. We should not assume that any constitutional settlement that may be reached hereafter will be the last word. On the contrary, once an inch is given, an ell will be sought.

Since constitutional law is more closely connected than are many other legal fields with the practical world of politics and the forces that shape our destinies, one might have supposed that constitutional lawyers might be equally hard-headed and realistic. Yet the Treaty seems to have the opposite effect, and call forth a willing suspension of disbelief on the part of its adherents. Discussion of Treaty “principles”, regardless of what precisely they might be determined to be, generally proceeds on the assumption that these principles and the consequences of their application can never do anything but good. The Treaty process, both before the Waitangi Tribunal and in the wider world, is dominated by

⁷³ The “PIIGS” nations: Portugal, Italy, Ireland, Greece and Spain.

lawyers and legal arguments. In no other area of our national life would we assume that the best way to deal with an immensely complicated social and political problem, whose roots lie deep in history and whose outcomes, whatever they might be, would have profound effects on almost every aspect of our national life, is best solved by handing the matter over to lawyers. But remarkably, none among these hard-headed lawyers seems to have questioned the assumption that handing more power over to one particular interest group is certain to have only benign and beneficial effects on our nation. We would laugh aloud at the suggestion that giving greater influence to farmers or manufacturers, say, or the elderly, the poor, the Business Round Table or the trade union movement would do anything but allow such groups to further their own interests at the expense of the rest of us. Yet so far very few commentators seems to take at anything less than face value Dr Sharples’ statement that in his future plural society the various autonomous hapu will work in partnership with the Crown “for the benefit of all citizens”.

VIII

Your author was recently e-mailed with a story which is both of concern and also so ordinary as to pass every day without comment. There is nothing unusual in what the emailer wrote; her experience can be repeated a hundred times a day in many parts of New Zealand. She wrote after reading a column your author had written in a popular blog⁷⁴ and described her experiences of a paper at her learning institution. The reading material, she writes, is very selective, and all her fellow students have been provoked by the material to rage at the injustices Maori have, evidently, continually suffered for 170 years. At a recent class students were obliged to write on the following quotation and question:

We can get the picture that in the mind of iwi Maori from 1840 to the present day there have been continual, ongoing, varied responses and initiatives to clarify and bring to the attention of the Crown their understanding of the agreement of Te Tiriti and their commitment to it as a sacred covenant. In the hearts and minds and reality of iwi Maori Te Tiriti issues are not only a current situation but one they have worked at and on since 1840.

Did you know this? How does it make you feel? Does it help you understand some of the current issues?

The unattributed quotation is not a controversial statement which students are invited to discuss. It is presented as a statement of fact, and the following question is no more, and no less, than a requirement that students agree, and feel angry or guilty in sympathy. Abundant anecdotal evidence exists that the indoctrination of the young with such sentiments is not uncommon within all stages of our educational system. But the Maori experience since 1840 has not been one long sorry saga of

⁷⁴ D J Round “Time to say No to Treaty Claims” New Zealand Centre for

^{Political Research (2011) <www.nzcpr.com>.}

grief and tribulation. Despite undoubted disruption and adjustment and even misfortune – although none as great as that of hideous defeat and massacre in pre-1840 wars – many Maori have come to terms with the European world and have made decent lives of security, prosperity and cultural meaning in the New Zealand nation, or indeed even overseas.

Even in the austere pages of an academic journal it is surely not improper to ask a question of the utmost practicality. We have now reached the stage in our national life when the division of our country into “us” “them” is taken for granted, and one of those parties, a significant proportion of the population, is now increasingly convinced that it has been grievously wronged. This is a development of little more than the last generation, and it is a worrying one. The evidence may be anecdotal, but there is abundant evidence that Maori claims are not going to end in the immediate future, but will continue indefinitely until social and economic circumstances make further generosity impossible.

We seem to have forgotten that, the essay quotation above notwithstanding, things were not always thus. Jared Diamond, contemplating the destruction of the very last tree by the Polynesian settlers of Easter Island, who thereby destroyed their own manner of living, considered the question “What did the Easter Islander who cut down the last palm tree say as he was doing it?”⁷⁵ He answered that very probably, no-one would have noticed, for the memory of the valuable forests of centuries before, which would have declined only gradually, had succumbed to “landscape amnesia”. Each generation would remember only the situation in its own youth, and since in each generation the decline would be only little and gradual, a dramatic change over several centuries could occur virtually without remark.

In the same way, New Zealand’s increasingly polarised and bitter race relations were not always so; they have appeared only gradually, and the fact that this development has occurred at the same time as policies of misguided separatism and generosity will, illogically, be used as an argument that these very policies should be applied with redoubled vigour, since they will be said to have failed hitherto only because they were applied with insufficient determination. This division has been promoted by men and women with kind hearts and good intentions. That does not prove, though, that their policies are thereby guaranteed success; all it proves is the truth of the old saying that the road to hell is paved with good intentions.

Put aside for one moment any sympathies which we may have for Maori or European. Above any other question we must surely ask ourselves, is this development a good thing? Will it actually lead our country towards peaceful and harmonious relations and towards widespread prosperity? There is abundant evidence that our present courses do not lead in that direction. That being so, we should not go in

75. J M Diamond Collapse: How Societies Choose to Fail or Survive, (Penguin, London, 2006) at 426.

that direction. Even abstract justice does not require it; and even if it did, fiat justitia ruat coelum is a very foolish maxim. Those who utter it do not believe it. For they are quite confident that the heavens are not going to fall; or at least, not fall on them. But without a peaceful and ordered state no humanity, let alone generosity, is possible. At the time of the 1998

Ngai Tahu settlement certain voices within the tribe declared publicly that what they were receiving was far less than they were “justly” entitled to, and that a truly just settlement would bankrupt the country.⁷⁶ But as a simple matter of logic this cannot be so. To bankrupt the country would be to condemn all New Zealanders, including all other Treaty claimants, and indeed Ngai Tahu themselves, to misfortune and misery; and that can hardly be said to be a demand of justice. It is time – it is indeed past time – for New Zealand to pause and ask itself if the direction of our present policies is a wise one. It is not yet too late to step back from the brink, but it may well be too late after any constitutional review renders return up the slippery slope impossible. New Zealand has long prided itself in being the “social laboratory of the world”. We seem to have forgotten that laboratory experiments do not always succeed.

IX

Yet change must come. Nothing written above should be taken as arguing that our constitution in its present form will even be adequate, let alone better than any other, in enabling us to deal with the challenges we shall face in future. The argument has merely been that the changes desired by radical Maoridom, although perhaps good for them – as long as they still get “the funding” – will not be good for anyone else, and do not accord with that spirit of the people and the laws with which any constitutional arrangements must be in harmony. And yet, having said that, it may be that something along the lines of what Maori propose for themselves might actually be good for us all. Modern evolutionary theory suggests that much biological evolution occurs at the margins – at those places and times where populations are under stress and where, therefore, natural selection and evolutionary development are likeliest to occur. No such incentives to evolve exist where populations are comfortable and secure in their present state. In the same way, it may be that the best ideas we have for the future may be found not among the political parties of comfortable majorities, but among those at the margins, where old complacent ideas are tested and found wanting. It may be that among the many foolish ideas of the Maori Party, the Green Party and the ACT Party, can be found a surprising residue of common ground and commonsense, and visions and models of effective national and local government and resilient and self-reliant communities which may well better meet future needs than would our present structures. The challenges of the future, and how we might meet them, will be the subject of a future article.

⁷⁶ In particular Mr Charles Crofts, then chairman of Te Runanga O Ngai

^{Tahu; see D J Round Truth or Treaty? above n 22 at 87.}