Should the Treaty of Waitangi dictate how NZ is governed today?

In 1877, the Supreme Court of New Zealand declared the Treaty of Waitangi to be a "simple nullity" and said it had no force in law. Today, the Treaty, which was signed in 1840, is regarded as the founding document of New Zealand and it increasingly has the status of inviolable constitutional law. It has achieved this status only since 1975 when the Treaty of Waitangi Act established the Waitangi Tribunal to make recommendations on Maori claims for breach of the Treaty. That and subsequent acts have enshrined in law the concept of a "Treaty partnership" between the Crown (i.e. the New Zealand Government through its head of state, Queen Elizabeth II) and Maori tribes.

The Treaty is a simple document consisting of three articles. In the first article, Maori ceded sovereignty or "kawanatanga katoa" (most often translated as "governance") over their lands to the Crown. The second article guaranteed Maori "exclusive and undisturbed possession" or "tino rangatiratanga" over their property. The third article gave Maori the protection and all rights accorded to British subjects. The Treaty does not say anything explicitly about a governing partnership.

In any event, the Treaty of Waitangi was just that - a treaty, not a constitution - and it was never intended to be a detailed prescription for governing New Zealand. If proof of this is required, consider the many laws and proclamations that followed the signing of the Treaty, which provided the actual constitutional framework for New Zealand as a separate state with its own government:

• The New Zealand Government Act, passed by the Parliament of the United Kingdom in August 1840, providing for the establishment of a colonial administration in New Zealand separate from that of New South Wales.

• The royal charter of November 1840 that allowed for the establishment of the New Zealand as a colony in its own right and the establishment of the Legislative Council and Provincial Councils.

• The declaration on 3rd May 1841 of New Zealand as a Crown colony with William Hobson as its first Governor.

• The New Zealand Constitution Act 1846, passed by UK Parliament, empowering the government in New Zealand.

• The New Zealand Constitution Act 1852, which repealed the earlier Constitution Act.

• The royal proclamation in September 1907 of New Zealand as a Dominion.

• The 1931 Statute of Westminster Act and 1947 Statute of Westminster Adoption Act that made New Zealand an independent nation.

One interesting aside is that the reason there was two New Zealand Constitution Acts is that the first one was suspended for six years because Governor George Grey opposed provisions that established separate Maori and European districts - so clearly consideration of separate Maori political structures is not a new thing.

New Zealanders of all stripes have been very accepting of the need to redress historical wrongs perpetrated towards Maori. For the most part, these wrongs have been redressed by way of monetary and property settlements to the present-day Maori tribal authorities. But New Zealanders have become concerned as these claims have become more outlandish, encouraged in part by poorly-drafted legislation that has become the enabler for spurious claims for possession of everything from water resources to the entire coastline of New Zealand. But even these claims pale against the agenda that was outlined in a document that the current New Zealand Government tried to keep secret - the report known as He Puapua [PDF download].

He Puapua proposes that ultimately New Zealand will be split into three spheres of governance:

• Rangitiratanga - in which Maori exclusively govern "people and places"

• Kawanatanga - the sphere of Crown governance

• Joint - in which Maori and the Crown share governance over matters of joint concern.

The document suggests that the effect of this will be three parliaments - one for Maori, one for non-Maori and a joint one. In effect, the 16% of the population with some Maori ancestry will be on constitutional parity with non-Maori, i.e. the Maori suffrage will be worth six times the non-Maori vote. This is already reflected in the Ardern Government's health reforms - with a Maori and non-Maori health funding agency and the right of veto of one over the decisions of other - and in the Three Waters reforms. Of course, no one is proposing that Maori pay half of the taxes to fund these ambitions.

I believe that individual human beings are sovereign and that, in Thomas Jefferson's inimitable words, governments derive their just powers from the consent of the governed. Consistent with this belief is the principle that any group of people, whether defined by geography, ethnicity, language, religion or some other factor of importance to themselves, has the right to self-determination. Therefore I believe that if people of Maori descent (or of a particular tribe) want to govern themselves, they are entitled to do so, but by the same token, people should not be forced to be subject to a polity to which they have no means of consenting. There is also a practical problem of having different legal jurisdictions in the same territory, which He Puapua recognises when it says, "self-determination...require[s] spaces and places for Māori to exercise authority, decision-making and choice within New Zealand’s territories."

I can imagine a future where Maori tribes govern their distinct territories within the Realm of New Zealand, in a similar arrangement to Tokelau. Northland tribes, for example, might decide to reconstitute the Confederation of United Tribes that signed the 1835 Declaration of Independence, and Tuhoe are likely to want to implement the self-governance that was envisaged (but never implemented) under the 1896 Urewera District Native Reserves Act. People in those territories would still be New Zealanders but they could determine their own laws within a constitutional framework that reserves some powers and responsibilities, such as foreign policy and defence, to the national government. Populations that did not wish to be part of the self-governing territory, for example predominantly non-Maori towns and cities, could opt not to join it.

It is up to the people of this country today to determine how they should be governed. Our form of government was not, and should not be, prescribed by a treaty between Queen Victoria and Maori chiefs nearly two centuries ago. The Treaty of Waitangi is an important founding document of New Zealand but it should not be used to abrogate the rights of modern day New Zealanders. Debating what the actual words of the Treaty were intended to mean is of limited value in informing how New Zealand should be governed today. More important than the principles of the Treaty of Waitangi are the fundamental principles on which modern, liberal democracies are based - the rights to life, liberty and the pursuit of happiness, the rule of law, equality before the law, secure property rights and the right of due process. We should honour the Treaty of Waitangi to the extent that it is consistent with these fundamental principles, not as an alternative to them.

One of the problems with much of the debate about the Treaty and proposals for Maori self-determination is that those involved seem to regard the Crown as a separate entity to the people of New Zealand. This is a false assumption - the Crown's legitimacy today is solely through the consent of the people of New Zealand and if sufficient New Zealanders so decided, we could abolish the Crown in New Zealand and become a republic, as Barbados has just done. The debate about Maori self-determination needs to involve all of the people of New Zealand, not just some government ministers and officials in back rooms who claim to represent the Crown. The people of New Zealand must consent to any constitutional changes, unless those proposing them are thinking they can impose them by force (unfortunately it appears that this is the case, given the arrogant and dictatorial approach that is already apparent in the current Government's approach to these reforms).

I believe most New Zealanders want to accommodate Maori aspirations for self-determination, but few will be prepared to accept the imposition of new constitutional arrangements that have the effect of making non-Maori second-class citizens in their own country. A government that sets itself against the will of its people cannot last - or at least, not as a democratic government. We need a genuinely open debate on how New Zealand is to be governed in future without anyone who expresses a contrary view being labeled racist. I have always thought the most important clause in the Treaty of Waitangi was Article 3, which envisaged that we would all be British subjects - in modern parlance, equal citizens. That is the aspiration that should drive all consideration of how New Zealand is to be governed in future.

Taking the Law into Tribal Hands

A couple of years ago, I spent a month on a self-driving tour of Mexico. That country has a well-deserved reputation of being one of the most lawless nations on Earth. Mexico's murder rate, at around 25 per 100,000 of population per annum, is five times that of the United States and about thirty-five times that of New Zealand. There are entire regions of the country to which the warrant of the law does not extend or where the police are so corrupt they cannot be relied upon to enforce the law. When we were there, the Mexican president imposed federal police control over the state of Veracruz, sacking the entire state police force because it could not be trusted to uphold the rule of law, and since then the same has been done in Acapulco.

One of characteristics of a lawless Mexico is the prevalence of irregular enforcement of order (however those enforcing the "order" choose to define it). We got used to being stopped at unlawful roadblocks, often multiple times on a journey and on several occasions blockading entire cities. Many of these roadblocks were set up for the simple purpose of extorting money from hapless road users (particularly tourists like us - I think that rental cars in Mexico have special licence plates just to facilitate this). Others were established as protest actions in support of labour disputes or native land grievances. In most cases we weren't in any physical danger so long as we complied with their demands, but in one remote area of the country we were advised by Mexican Army patrols (the only legitimate authority in the area) not to stop for roadblocks under any circumstances if we could possibly avoid it. We were literally in fear for our lives.

I was reminded of my experiences in Mexico when I read about the "checkpoints" established by Maori tribal groups supposedly to stop the spread of Covid-19 to their areas. What makes these illegal roadblocks much worse is that they appear to have the support of local police and the New Zealand Government has refused to condemn them, which makes our country potentially as corrupt and as dangerous as Mexico. Of course, if I was to set up a roadblock at the end of my street, the police would be around to remove it and to arrest me as soon as you could say "rule of law".

We have seen the encroachment of special rights for Maori into New Zealand law for several decades, ever since Justice Cooke handed down his ruling in a 1987 Court of Appeal case relating to the sale of state-owned enterprises, which said that the Crown was obligated to act as if it were in a "partnership" with Maori tribes. This, of course, implied that Maori tribal authorities were equivalent to the Crown, with all the sovereign rights of an independent government. The problems with this are manifold, not the least being who defines what is a Maori tribal authority and whom do they represent? It is certainly not a recipe for universal, democratic, liberal government.

I have written before about how I believe legitimate political sovereignty derives solely from individual sovereignty, and therefore why I support the aspiration of any group of people for self-determination. If a distinct group in New Zealand, whether they are Maori or not, wish to establish a form of self-government, then that is their right. I also believe we all have an interest in ensuring all human beings enjoy the basic individual rights (of which the American Declaration of Independence remains the best definition with "life, liberty and the pursuit of happiness"), and as long as these rights are respected within the self-governing territory, then there is no reason for any external party to interfere with that self-government. What is intolerable is having two standards of law, or greater or lesser rights, based on ethnicity within the same jurisdiction. That is racism, pure and simple.

I will not submit to an illegal, racist, tribal authority that is trying to stop me going about my lawful business in this country. If I am confronted by an unlawful roadblock, I will act precisely as I was advised to do in that similarly lawless area of Mexico and I advise all law-abiding New Zealanders to do the same - keep your foot flat to the floor and keep going, no matter what.

[Hat-tips to Michael Coote at NZCPR and Bob Edlin at Point of Order.]

It is not racist to reject tribalism and neo-feudalism

Some left-wing politicians and commentators were quick to exploit the recent mass murder of Muslim worshippers in Christchurch, blaming it on the extreme right and 'white nationalists'. The New Zealand Green Party co-leader Marama Davidson went further, equating the attack with with oppression of Maori in colonial New Zealand and saying, "New Zealand was founded on the theft of land, language, identity and the mana of [Maori]. Here in...this very land we’re standing on, is land that [Maori] were violently removed from to uphold the same agenda that held the people in the mosque yesterday."

Auckland University historian Anne Salmond joined the fray saying, "White supremacy is part of us, a dark power in the land...it's violent and hateful, spewing out curses, incarcerating young Maori in large numbers, denying them a decent education, homes and jobs, telling them they have no future, and are better off dead." She went on to say, "Since the arrival of Captain James Cook 250 years ago, Maori have struggled to gain a nationwide acceptance of their cultural values, language and spiritual beliefs. Colonisation is one of Cook’s legacies and racism against Maori is a part of it. New Zealand has inherited a British supremacy perspective and it pervades every area of our society."

It is, of course, a battle tactic of the far left to equate any differing views than theirs with racism, but we should examine such claims for their merits. Does New Zealand have a racist, "British supremacy perspective" that continues to discriminate against Maori? And what does Salmond mean by the struggle for "nationwide acceptance of [Maori] cultural values?"

Colonisation ended in a formal sense in 1853 when Britain granted New Zealand self-government, but the first New Zealand government was democratic only in a limited sense, with a property ownership qualification for male voters. Most Maori, who did not have recognised legal title to their lands, did not qualify to vote, but this was addressed in 1867 with the establishment of Maori seats in parliament, elected by universal male Maori suffrage. Non-Maori men were not granted universal suffrage until 1879 and women in 1893. The Maori seats still exist and people of Maori descent can choose to vote in Maori electorates or be on the general electoral roll. In the last election, 24% of the seats in the New Zealand Parliament went to candidates of Maori descent, compared with approx. 15% of the population identifying as Maori, so at least in terms of democratic representation Maori do not suffer discrimination.

The argument goes a little deeper, however, and it appears to be Western liberal democracy itself that is regarded as discriminatory against Maori. This is surely what Salmond means when she says, "Maori have struggled to gain a nationwide acceptance of their cultural values, language and spiritual beliefs." She seems to support a reversion to traditional Maori tribal rule and this is precisely what those calling for greater Maori political and economic privileges mean when they talk about the Treaty of Waitangi guaranteeing a "partnership" with the Crown. It means New Zealand should have two parallel systems, a tribal system for Maori and something else (perhaps some limited form of democracy) for non-Maori. It is clear that the partnership concept means that, at a minimum, each system will have equal power, but more likely that Maori will have supremacy. 

Traditional Maori society has been compared to compared to Communism, which is probably why many left-wing activists romanticise it, but a more accurate comparison is medieval feudalism with its strict gradations of social status including aristocrats, the warrior class and serfs. Slavery was widespread in Maori society and warfare and 'utu' (revenge) were the common forms of settling disputes. The dominant units of political organisation were the iwi (tribe) and hapu (sub tribe), and there were no equivalent concepts of individual rights, personal property and the rule of law. It was certainly a very different political and social structure to what exists in modern Western democracies.

Contrary to what Salmond and others would have us believe, Western civilisation is not a racial thing. It was rooted in the classical civilisations of Greece and Rome and flourished in Western Europe during the Enlightenment, but it has since spread across the entire globe with countries as geographically and ethnically diverse as Singapore, Botswana and the Cook Islands embracing the Western ideals of individual rights, a free market economy and the rule of law.

Maori in the 19th Century took to the British way of life with enthusiasm, learning to read and write the English language, becoming educated in the Western tradition, gaining trades and embarking on professional careers, and in many cases becoming wealthy in their own right. But many Maori men also became labourers, which entailed a significant reduction in status from that of a warrior, and there was a significant element of racism amongst the European population, many of whom believed, like school inspector Henry Taylor in 1862, that Maori were "better calculated by nature to get their living by manual than by mental labour." However, that does not mean that the system is rigged against Maori today and I am far from convinced that even most Maori would want to abandon the liberal democracy we have in New Zealand.

It is not anti-Maori to resist the imposition of traditional Maori political and social systems on modern New Zealand society any more than it is anti-Chinese to oppose Maoist Communism. On the contrary, it is totalitarian to take the position that you cannot oppose such an imposition without being racist. We need to be clear about what we reject and why we reject it - we do not resist tribalism and a neo-feudalism because it is peculiarly Maori (which, of course, it is not), we reject it because it is incompatible with our values of individual rights and liberty.

It takes courage to stand up for what you believe in when you are being called a racist and implicated in such a horrific crime as the Christchurch mass murders, but we need to recognise the motivations of those who are exploiting the awful event for their political ends. They do not want a pluralistic society where differences are tolerated, they want a homogeneous world where everyone is in lockstep with their views. They call those who disagree with them racists because they want us to shut up. We must reject their premises as well as their arguments because if we don't, we'll lose everything.

Debate on Brash speech ban avoids critical issue

I am going to write some more in this post about the banning of Don Brash from speaking at Massey University, not because I don't think enough words have been cast into the ether on the subject already, but because I believe most of those who have commented on the affair have missed a crucial point. On the surface, the matter has been about free speech and it has been a credit to our country that the overwhelming consensus has been that Brash shouldn't have been banned from speaking.

There is another aspect to this matter that, in my opinion, is almost more important than the general issue of free speech. The reason Vice-Chancellor Jan Thomas gave for banning Brash was that "Mr Brash's leadership of Hobson's Pledge and views he and its supporters espoused in relation to Māori wards on councils was clearly of concern to many staff, particularly Māori staff." She went on to say, "In my opinion, the views expressed by members of Hobson's Pledge come dangerously close to hate speech. They are certainly not conducive with the university's strategy of recognising the values of a Tiriti o Waitangi-led organisation."

Hobson's Pledge is an organisation whose vision is listed on its website as "New Zealand is a society in which all citizens have the same rights, irrespective of when we or our ancestors arrived." That seems innocuous enough, but the truly contentious part of its mission is its opposition to the constitutional and legal privilege that has been accorded to Māori tribal organisations under the interpretation of the Treaty of Waitangi adopted by the courts, Parliament and almost all public institutions over the last few decades. The issue about Māori wards for council elections was a subject in one of my recent blog posts. We have had Maori seats in our national parliament for 150 years but the idea of having exclusive Maori city councillors is a significant extension of this.

Both of these issues are significant and are at least legitimate questions for public debate, and Brash's views on them are shared by a large number of New Zealanders (and, in the case of the Māori wards, an overwhelming majority of those who have voted on the issue).

Jan Thomas said that Brash’s views were not conducive to the university’s strategy of being a "Treaty-led organisation”. What exactly that means is open to interpretation, but we can assume she means the university is committed to the post-modernist view of the Treaty that seeks to turn New Zealand's constitutional structure into a bicultural 'partnership' between Maori tribes and the Crown. This anti-democratic, racist arrangement would see governance of New Zealand shared between Maori tribal leaders and an unrepresentative government, a situation in which non-Maori New Zealanders would become second-class citizens in their own country.

Thomas’s actions in banning Brash is part of a broader movement to ensure that any view contrary to this post-modernist interpretation of the Treaty of Waitangi is wiped out. The Massey vice-chancellor has made it clear that the university has a doctrinal position and it won’t countenance any dissent from that doctrine. That is the sort of thing that was typical of universities in Maoist China during the Cultural Revolution and that ought to have no place in a New Zealand university or NZ society as whole.

I think it is clear that the Treaty gives no superior political rights to any tribal leaders today and claims that it established some sort of on-going partnership between tribal political entities and the government of today are entirely spurious. Irrespective of whether I am right or wrong, I am entitled to express this view on an issue that is so vital to New Zealand's future. If this country has become a place where we cannot even debate such matters, then we are no longer a democracy. I am encouraged that so many New Zealanders have come out in support of free speech, but almost no one has addressed the elephant in the room - that we should be free to debate the place of the Treaty of Waitangi in our modern society.

Brash ban is a tipping point

Don Brash is an avuncular, elderly politician who was once leader of the National Party, New Zealand's longest-governing political party. He narrowly missed out on becoming prime minister when he was defeated by Helen Clark's Labour Party in 2005. There were many who thought he was robbed of election victory because Helen Clark illegally used taxpayers' funds to publish a 'pledge card' that was distributed to every household in the country. The Electoral Commission, which oversees the conduct of elections in New Zealand, referred the matter to the police, who declined to prosecute. Had Labour been tried and convicted of electoral fraud, there almost certainly would have been another election with a different result.

This is the man who has been banned from speaking at Massey University in Palmerston North after he was invited by the Massey University Young Politics club to talk about his experiences as Leader of the Opposition. The university's vice-chancellor, Jan Thomas, cancelled the event because of Brash's "leadership of Hobson’s Pledge and views he and its supporters espoused in relation to Māori wards on councils" (as well as some very dubious "security concerns").

Hobson's Pledge is an organisation whose vision is listed on its website as "New Zealand is a society in which all citizens have the same rights, irrespective of when we or our ancestors arrived." That seems innocuous enough, but the truly contentious part of its raison d'être is its opposition to the constitutional and legal privilege that has been accorded to Māori tribal organisations under the post-modernist interpretation of the Treaty of Waitangi. The issue about Māori wards for council elections was a subject in one of my recent blog posts here. Both of these issues are significant and legitimate questions for public debate and Brash's views on them are shared by a large number of New Zealanders (and, in the case of the Māori wards, an overwhelming majority of those who have voted on the issue).

I believe this fairly minor matter of a university cancelling a speaker may turn out to be a tipping point in New Zealand politics, for several reasons. Firstly, the issue of banning speakers for their controversial views is already a hot topic after the cancellation by the Auckland Council of an event by Canadian speakers Stefan Molyneux and Lauren Southern. Secondly, I believe there is a sense of disenfranchisement amongst many New Zealanders that is similar to that amongst Britons before Brexit and Americans before Trump's election. I think we are ripe in New Zealand for a trigger issue to ignite this disenfranchised group in the same way that Trump ignited the support of those Hillary Clinton called "deplorables". Thirdly, I think the Treaty of Waitangi has become that sleeper issue for many New Zealanders who are far from content with the increasing demands from Māori tribal elites and the escalating concessions from successive governments eager to appease those demands. New Zealanders have bitten their tongues on the Treaty issue for fear of being called racist but have been biding their time, waiting for an opportunity to make their views known. 

New Zealanders are a impassive bunch most of the time and it takes a lot to rouse us to anger. But we have a keen sense of justice and I think the idea of a former Leader of the Opposition being denied the right to speak on a public university campus will strike most New Zealanders as unjust. The idea that it is unacceptable to voice any opposition to the establishment position on important issues is exactly what will turn many people against the establishment position. I may be wrong, but I suspect Jan Thomas and Massey University will come to regret their decision, and the New Zealand political establishment may end up with a shock of Brexit proportions.

As I said on Twitter earlier, if you think that Don Brash is extreme, wait until you see the alternative.

Resource Bill is anathema to democracy

A few weeks ago I wrote a post about the possibility of a populist leader, à la Donald Trump or Nigel Farage, coming to the fore in New Zealand politics. I said that the lack of real choice in policies between the major New Zealand parties, National and Labour, could cause New Zealanders to look for populist alternatives in this year's election, but I also said that New Zealand doesn't have the same groundswell of political division and frustration that resulted in the electoral wins for Brexit and Trump. However, I think we are seeing the rise of an issue that could be a game-changer in New Zealand politics.

New Zealanders have put up with increasingly undemocratic changes to our legal and constitutional frameworks since the 1970s, all in the name of redressing alleged historical wrongs to Maori. People of Maori descent comprise about 15% of the population of New Zealand but those who identify as Maori today often have only a small fraction of Maori ancestry. They are likely to be more of English or Scots descent as Maori, which makes their contemporary grievances all the more ridiculous - they are calling for redress for the actions of one lot of their ancestors against another lot.

The Treaty of Waitangi, signed by many Maori chiefs in 1840, and by Governor William Hobson on behalf of the Crown, made all Maori British subjects, and their descendants (by constitutional succession) New Zealand citizens. Maori today are represented in government both through their vote in general electorates and through a small number of race-based electorates. Tribal leaders, who are chosen through family links and traditional alliances, have no constitutional role in national or local governament - but that is about to change.

The Resource Legislation Amendment Bill, which may pass into law this week, grants tribal leaders the right to sit on local councils with full voting rights. This means every decision of a council in future will be determined by people who are not elected or accountable for their decisions - people who often have conflicts of interest in the matters they are deciding. Few New Zealanders realise the implications of the legislation because the government has been at pains to keep its dealings on this bill from public scrutiny. New Zealanders do not realise that every local government decision concerning their properties, livelihoods, recreation and taxes in future will be subject to the whims of unelected tribal representatives.

I believe this Bill is very wrong for several reasons. Firstly, it is racist and contrary to principles of universal suffrage to give members of any race a position of privilege in our government. Secondly, the tribal leaders do not represent even the vast majority of people of Maori descent, who live in urban areas and often do not have strong affiliations to their ancestral tribes. Thirdly, it shows a contempt for democracy and constitutional safeguards and is likely to lead to corruption.

Lawyer and former member of parliament Stephen Franks says, "So far as I can tell from the Bill there is virtually nothing to prevent power sharing agreements with iwi/hapu [i.e. tribes] from by-passing democracy and diving below the current legal safe-guards against dishonesty and self-dealing."

Former ACT Party member of parliament Rodney Hide says, "Tribalism is the worst form of economic organisation. It’s collectivist, it lacks incentive to perform, the principals can’t readily sack their agents and there’s invariably a complete lack of transparency and hence accountability. The structure works to the advantage of tribal bosses, not members."

I couldn't agree more. This is one of the most significant constitutional changes in New Zealand's history and it is being sneaked into law. Once the public realise its implications it may become the issue that drives New Zealand voters into the arms of a populist leader like Winston Peters (who is of Maori descent but opposed to race-based privilege).

I think the silent majority has had enough of the gradual erosion of democratic rights and legal equality in New Zealand and that people are ready to fight back in the same way as British and US voters did last year. The political establishment will express bewilderment just as they did in Britain and the US, but they will only have themselves to blame.

Waitangi Day

It is Waitangi Day, which, for overseas readers, is sort of like New Zealand's Independence Day. I say 'sort of like' because, having celebrated July 4th in America, I can tell you Waitangi Day is really nothing at all like Independence Day. The national day in the United States is universally celebrated and an opportunity for Americans to express pride in their nation and unity in being Americans, but in New Zealand it is a day of protest and division. Almost no one here feels national pride on Waitangi Day - if there is a day when those feelings come to the fore it is Anzac Day, which is our Memorial Day, although on that day pride is mixed with sadness at the sacrifices of our countrymen in war.

The problem with Waitangi Day is that it has become all about Maori grievances and the separatist politics of Maori activists. The Treaty of Waitangi was signed by Governor William Hobson on behalf of the Queen and by many Maori chiefs in the place it was named after on this day on 1840, but in recent years official ceremonies at Waitangi have been marred by protests and violence. Successive prime ministers have been treated with contempt by local Maori, with the result that Prime Minister Bill English has refused to attend the 'celebrations' there this year.

Many of the Treaty of Waitangi grievances are, in my view, baseless. The Treaty is a very short and simple document with three articles that recorded the following:

1) Maori chiefs ceded sovereignty to the British Crown

2) Maori tribes, chiefs, families and individuals were guaranteed their existing property rights

3) It made all Maori British subjects.

Articles 1 and 3 effectively abolished Maori tribal government and made Maori individually British citizens, but ironically the Treaty has been interpreted in recent years to bring about a return to the tribal rule that it ended. I think it is clear that the Treaty gives no superior political rights to any tribal leaders today and claims that it established some sort of on-going 'partnership' between tribal political entities and the government of today are entirely spurious. There is nothing in the Treaty that gives legitimacy to current tribal leaders who claim to represent people of Maori descent - unless they are elected to our contemporary democratic institutions, in which case they represent all New Zealanders, not just those of Maori descent.

Governor Hobson said, after the initial signing of the Treaty on 6th February 1840, "now we are one people." It would be nice if that ideal was recognised on this day rather than it being seen as yet another opportunity to promote an entirely bogus separatism and seemingly irreconcilable grievances.

On Immigration, Sovereignty and the Modern Nation State

Donald Trump made immigration a central issue of his election campaign, claiming that immigrants take Americans jobs and commit a disproportionate number of crimes. I disagree with Trump that immigrants steal jobs or that they make a country less safe. The evidence from countries that have had high levels of immigration historically, such as the United States, is that immigrants create more jobs and commit less crimes than the 'native' populations. I believe that the benefits immigrants bring almost always outweigh any negative factors such as social disharmony and that anyone who comes to a country with peaceful intentions and who is self-supporting should be welcomed.

Trump's view of immigration is a typically collectivist one. Collectivists believe the rights of the group, i.e. the nation state, the race, the socio-economic segment or however they define it, should prevail over the rights of the individual. In the case of immigration, they believe the collective rights of those who are already in the country outweigh the individual rights of the immigrant and others such as family members, friends and employers who might have an interest in that person coming in.

I have written before about how modern nation states are, for the most part, entirely artificial and arbitrary entities. If you doubt it, consider that in the early 19th Century it was almost as likely that New Zealand would end up as a French colony or a state of Australia as the nation we became. The United States was cobbled together from territories that were settled, conquered, purchased and conceded over many centuries and through successive waves of immigration and it is still evolving as a political entity today (e.g. with the current initiative for Puerto Rico to become the 51st state). So when Trump talks about 'America First' or Winston Peters about New Zealand First, which America or New Zealand do they mean?

Political commentators and historians talk about sovereignty as if it is inherent to a political entity rather than to the individuals who inhabit that entity. If sovereignty is a right in the sense that John Locke or Thomas Paine defined the concept, then it cannot belong to a territory or a group, it must be inherent to individuals. The Magna Carta, the English Bill of Rights and the US Declaration of Independence were all based on the principle that state sovereignty derives from individual sovereignty and that individuals only cede a degree of their inherent sovereignty in return for collective protection - not the other way around.

Which brings us to New Zealand and the Maori. The Treaty of Waitangi was a deal in which Maori chiefs agreed to trade their tribal sovereignty for the protection of the British Crown. The Treaty bestowed on Maori 'all the Rights and Privileges of British Subjects', i.e. Maori individually became subjects of the Crown. This meant that they were no longer subjects of whichever violent and capricious chief happened to gain the upper hand in the endless wars that were fought between tribes up until 1840, and that they were emancipated from the slavery, indiscriminate tribal killings, infanticide and cannibalism that had prevailed in their highly collectivist society until that time.

Some tribal leaders and many political sympathisers today interpret the Treaty of Waitangi as giving residual sovereignty rights to present day tribal elites. I completely reject this view, not because of anything the Treaty of Waitangi may or may not say (although I think the words support my interpretation) but because I don't accept that tribes have any inherent rights whatsoever. Whether you think Maori chiefs ceded sovereignty or not is irrelevant - the Treaty extended the rights recognised under British law to Maori individually and those rights cannot be given up or abrogated today - at least not morally. It is the individuals who live in New Zealand today that have the sole right to determine who governs this nation state because it is their sovereignty that is being ceded - not that given up by a group of Maori chiefs 176 years ago.

Which brings me back to immigration. The main problem that collectivists have with unlimited immigration is their belief that a nation state is some sort of exclusive club, membership of which is determined by racial, ethnic or cultural criteria, and they don't want to share the nation's benefits with those who don't meet their selective membership criteria. This presupposes that a nation is a zero sum game, which is of course a typical left-wing view of economics. But if I am right and a nation is only a collection of individuals that delegate some of their rights for protection to the state, there are no collective benefits to be shared. It is up to individuals, families and businesses to decide whether they will be generous in accommodating newcomers and the state's role should be confined to ensuring those who enter the country do not endanger anyone else.

Mexico has lessons for New Zealand

I recently spent a month travelling around Mexico. It is not a country we hear a great deal about here in New Zealand but recently it has been in the news because of Donald Trump's campaign promise to build a border wall and make the Mexicans pay for it (although, interestingly, the US presidential election seemed to be of far less importance in the Mexican media than the outcome of the baseball World Series, which was being contested north of the border about the same time).

Mexico is a beautiful country with a hugely rich history and far more diverse geography and demography than most people would imagine. The Mexican people are warm and friendly, once you overcome their initial reserve, and they appear to enjoy life far more than the overly serious and officious Americans north of the border. However, Mexico is a basket case politically, economically and socially, which is why so many Mexicans want to join their numerous cousins in the USA.

Mexicans, like Maori, still tend to blame their people's ills on colonialism but they perhaps have a greater justification in doing so than those descended from the first New Zealanders. The Spanish conquistadors had few of the qualms of the British colonisers in New Zealand, seizing all the land, enslaving the entire indigenous population and setting up a feudal society that various revolutions since have never entirely overcome. The consequences of this is that Mexico today is a country that is still to some extent at war with itself. 

The conflict in the country is seen in several areas. Firstly, there is the well-known drug violence, which is mainly confined to the northern regions that border the United States. The drug violence is all the worse because of the extensive corruption in the local police forces that not only turn a blind eye to much of the violence but actually participate in some of the worst of it (such as the massacre of 43 students in Guerrero in 2014). Then there is the political violence, like the recent kidnapping and torture of a priest in Veracruz, which seems to be a constant if low-level threat particularly in the states of Oaxaca and Chiapas. And finally there is the less overtly violent, but nevertheless intimidatory, protest actions that regularly disrupt life in all the major cities in Mexico - such as barricading all the exits from a city and demanding money from drivers to let them past (which I personally experienced on several occasions).

Tribalism plays a significant part in Mexico's political and social conflict. Ethnic groups such as the Nahuatl, Yucatec and Zapotec all have their particular grievances, usually about land and the preservation of language and culture. Like Maori, they choose to focus on their differences rather than on commonalities of shared national heritage, individual rights and the benefits of living in a modern, pluralistic society. Many of their historical complaints may be justified but collective grievances and identity group politics are only likely to hold people back and ultimately economic and social advancement always comes down to individual aspirations and responsibility.

Mexico seemed to be on a track to economic prosperity and real democracy in the latter decades of the 20th Century after hundreds of years of autocracy and one-party rule, but progress has stalled in the last twenty years and the lack of investment in infrastructure such as roads, schools and hospitals is obvious to anyone visiting the country. Undoubtedly the country's long dalliance with socialism is a significant cause of this decay, with even the state-owned oil monopoly, Pemex, unable to maintain investment in new exploration and extraction methods.

There are some lessons in Mexico for New Zealand, which has been encouraging the grievances of Maori for the last forty years in a seemingly endless series of Treaty of Waitangi claims and settlements. The strength of modern Western democracies is in their unity and common humanity, not in tribal differences. Universal rights to life, liberty, the pursuit of one's own interests and equality before law are the keys to freedom and prosperity. Tribalism and the inevitable grievances that arise from identity politics are obstacles not the solution.

Self-Determination, Nationalism and Maori Treaty Rights

The New Zealand election campaign brought with it the usual xenophobia from looney right-wing parties such as New Zealand First and Conservative, and at the same time we heard that the Government is to guarantee the Maori tribe Tuhoe some degree of self-determination under a settlement of their Treaty of Waitangi land claim.  All this was against a background of the Scottish vote on independence from Britain and the territorial gains by the so-called Islamic State in Iraq and Syria (ISIS), and it got me thinking about self-determination and how far it should be taken as a matter of rights.

I am a keen student of American history and I am particularly interested in the Civil War, that most ignominious conflict in US history. At a political level the US Civil War was about self-determination - the right of the states to determine their own laws versus the right of the US federal government to impose overarching laws on the states. Of course, it was also about the morality of slavery but that was in many ways secondary as a cause of the conflict to the issue of 'states rights'.

My views on self-determination come from my libertarian politics and the Objectivist philosophy on which those political views are based. I believe that individuals are inherently sovereign and that governments are (to borrow a phrase from an important American document on the subject) "instituted among Men, deriving their just powers from the consent of the governed." This means that self-determination, if it means anything at all, must apply at the individual level - in other words I should be able to determine how I am governed. But many would say that individual self-determination is impossible, or at least in practice it would amount to anarchy. After all, how can the individual self-determination of 4.5 million New Zealanders (or 300 million Americans for that matter) possibly be compatible with good government?

The answer is, it depends on what you mean by "good government". The American founders defined the ideal as government that protects the rights of its citizens, that is the rights to life, liberty and the pursuit of happiness. To those good men, government had no other function than to protect the individual rights of its citizens. Good government is, by their definition, the collective expression of the self-determined and voluntary will of the people to protect their rights. They understood rights as being inherent in man and that the rights of one individual could not infringe upon the rights of another (their heinous error in not applying rights to slaves notwithstanding). They accepted that in order to maintain individual rights, governments must act to prevent individuals abrogating the rights of others and should arbitrate in disputes over rights between individuals. In other words, they understood that as long as governments only protect individual rights and do nothing else, there is no inconsistency between individual self-determination and collective government.

Taken to its logical conclusion, self-determination means that any group of individuals should be able to decide to opt out of any existing governing structure (be it nation, city or neighbourhood) and set up an alternative. This is, of course, exactly what the American founders did. Which brings me back to the Tuhoe, the Scots and ISIS. The problem with all of these groups' aspirations for greater self-determination is that none of them wants to protect individual rights. Tuhoe want to impose a traditional form of Maori government, wherein political power was seized by the strongest and most brutal members of the tribe, and women, slaves and outsiders had no rights at all. The Scots independence campaigners wanted to retain and enhance their socialist economy wherein taxpayers are forced to part with an ever-larger portion of the fruits of their labour to pay for whatever the government wants to spend it on. And the Islamic State rebels want to impose Sharia law wherein women and 'infidels' are second class citizens and no one is free to choose what religion they practice, who they marry and what they say. In all of these cases the alternative form of government is less protective of individual rights than the one they are seeking to replace. That is not self-determination in my book.

I have no truck with nationalism. All nation states are artificial constructs, no matter how old or grand they are, and there is nothing inherently good in one national structure versus another. I'm all for tearing down anachronistic national or empirical structures where they do not serve the citizens they should be serving. I believe that smaller, more local government is generally better at protecting individual rights because it is easier to hold accountable than larger, more geographically spread government. But self-determination is not worthy of the name unless it protects individual rights.

Racial discrimination in NZ law has to stop

Life in New Zealand is pretty good. Our country is uncrowded, our economy has come through the global recession in relatively good shape and we have been able to retain our open, largely self-reliant society in the face of the post-9/11 security craziness that has engulfed the rest of the world. However, there is a cancer that threatens to overturn all that is good about New Zealand. That cancer is racial discrimination in favour of Maori.

Last week we saw one of the most disgusting cases of this discrimination when Auckland District Court judge Philippa Cunningham discharged a young man named Korotangi Paki without conviction on charges of drink driving, burglary and theft (see the NZ Herald article here). These are not trivial charges. New Zealand, like many other Western countries, treats driving while under the influence of alcohol as a significant crime, in some cases sentencing perpetrators to prison. Paki, who is 19 years of age, had a breath-alcohol reading of 761. The limit for adults over 20 years of age is 400 but for drivers under 20 it is zero. As for the burglary charge, anyone who has been the victim of a burglary knows just what a terribly intrusive crime it is, even if there is no associated violence. These are not Paki's first criminal offences - he was charged with dangerous driving as a result of a motor vehicle accident in 2011.

So what were the grounds for discharging Paki without conviction? It was simply that he was the son of the so-called Maori king. I say 'so-called' because Paki's father, Tuheitia Paki, who is the head of a group of Maori tribes in the middle of New Zealand's North Island, has no legal or constitutional authority and is not even recognised as the monarch by most other Maori. 

I recall the case of Princess Anne in 2001 who was convicted of breaking the speed limit and accepted her conviction and fine without evasion. Her conviction was a symbol of the 'without fear or favour' that historically has been characteristic of English law and is what we expect of our public figures and the judiciary in New Zealand.

I can reluctantly accept the New Zealand taxpayer dolling out vast sums of money to Maori tribes for Treaty of Waitangi claims (although I have previously written about the highly dubious merits of some of these claims) but I cannot accept some New Zealanders being treated differently by our criminal justice system because of their race. Equality before the law goes back in our tradition to the Magna Carta and it is one of the benefits Maori received when they accepted British rule in 1840.  As a society we have nothing without equality before the law and the discharge of Paki is a huge indictment on New Zealand's legal system and society. 

Taking up the cudgels again in 2014 in defence of individual rights

I have had a very relaxing start to the year, partaking of some great weather, wonderful sights, delicious food and fine wines in some of New Zealand's most beautiful holiday spots. The relaxation was undoubtedly enhanced by confining my holiday reading to some excellent books (Donna Tartt's The Goldfinch and Bill Bryson's One Summer stand out) and consuming as little of the execrable mainstream media as possible. But it is time to return to the challenges that will face us in 2014.

In New Zealand, the Government led by John Key seems to be determined to pursue a political agenda that is as secretive, and frankly as corrupt, as ever. Key and his coalition of right-of-centre hypocrites and and racial determinists will continue to expand the power of the state and debase the rights of some New Zealanders in order to retain power.

Late in 2013 it the Key Government introduced a bill to enable the nefarious US FATCA regime, which I have blogged on before. FATCA treats any New Zealander with the misfortune of being born in the United States, or even born here to American parents, as "United States taxpayers that are resident in New Zealand." The Government acknowledges that the proposed law explicitly overrides the Privacy Act, Human Rights Act and New Zealand Bill of Rights Act. To what purpose does it treat some New Zealanders as non-citizens? It is to enforce a US taxation regime that is one-sided, unique in the world and inconsistent with OECD model taxation agreements. This analysis on the New Zealand legislation from the Isaac Brock Society sets out the issues in more detail.

Another nefarious piece of legislation the Key Government introduced in late 2013 is the Treaty of Waitangi settlement bill that gives redress to the Ngati Toa tribe for alleged wrongs committed against the tribe by the Crown in the early 19th Century. These Maori grievance settlements have become more and more outrageous over time, establishing two classes of citizenship in New Zealand - a privileged Maori tribal citizenship and lesser rights for the rest of us - but this one really takes the cake. Ngati Toa was the tribe of chief Te Rauparaha who committed what can only be described as genocide against other Maori tribes in his violent rampage through the North Island and top of the South Island in the 1820s and 1830s. British forces intervened against Te Rauparaha and his nephew Te Rangihaeata in the late 1830s and 1840s, stopping their horrific attacks against other Maori tribes and European settlers. Giving compensation to Ngati Toa today for the actions of British forces is like giving compensation to Bosnian Serbs for what happened at Srebrenica in the 1990s. Former Maori Treaty claim researcher John Robinson provides background and opinion on this claim in this article.

In the United States the Obamacare legislation is being shown up for the disaster some people always knew it would be, with even former supporters shocked to discover the huge cost increases that it is imposing and President Obama being exposed as having lied through his teeth when he said Americans would be able to keep their existing healthcare plan. Supreme Court Justice Anthony Kennedy said the legislation would "change the relationship between the government and the individual in a profound way." He meant that socialised medicine makes citizens dependent on the state in a way that Americans have traditionally not been, and he is being proved right.

On the positive side in America, President Obama has said he will rein back the extent of spying on citizens and foreign leaders that were exposed by NSA whistleblower Edward Snowden. Many commentators have said the president's pledge does not go far enough and have expressed scepticism about whether there will be any meaningful change. Obama has pursued more prosecutions under the Espionage Act than all other presidents combined, so people are right to be cynical about his intentions.

So as much as I enjoyed my holiday and have been slow to take up the cudgels again in defence of freedom, I am mindful of Thomas Jefferson's (or Edmund Burke's similar) saying, "All tyranny needs to gain a foothold is for people of good conscience to remain silent."

As Shakespeare said, "Once more unto the breach, dear friends, once more..."

1984 is coming

I'm going through a George Orwell phase at the moment, rediscovering his books that I first read as a high school student. Perhaps it is the fact that I am re-reading them with an additional 30 years of experience of the world, or perhaps it is that the world has changed considerably since the first reading, but Orwell's books now resonate with a prescience that they did not back then. 1984, in particular, is scary in its parallels to life in the Western world today.

We have all heard of the comparison of Newspeak, the redacted language of the fictitious state of Oceania, with modern politically-correct language and its euphemistic elimination of any words considered to be insensitive or too permissive (e.g. "differently-abled" for disabled, "Afro-American" for Negro, etc.) But this is the least of the similarities.

The constant electronic surveillance by which Big Brother watches his subjects is reality today.  In the book the surveillance is conducted by the somewhat primitive means of two-way television sets, whereas today it is conducted much more surreptitiously by the likes of the US National Security Agency (which surely would be part of the antonymically named Ministry of Love in the book) simply by demanding all the telephone and internet records of every American be handed over for scrutiny. The fact that the NSA does this it in complete disregard of the law (as indeed did New Zealand's own Government Communications Security Bureau did in the Kim Dotcom case) is, again, portended in the book when the protanganist Winston Smith points out, "nothing was illegal, since there were no longer any laws".

The scariest part of the absolute totalitarianism portrayed in the book is Big Brother's ability to not only rewrite history but to recreate the "truth" by erasing any information that is contrary to its view of the world.  In New Zealand we have an obvious example of this in Treaty of Waitangi settlements for historic Maori grievances that include the government's agreement to issue an official version of the historical facts in issue that suit the claimants' version of events.  Government bureaucrats decide what history should be and then attempt to create an accepted version.  Anyone who tries to maintain a contrary version is branded a racist, just as in 1984 anyone who contradicts the official version of events is guilty of thoughtcrime.

Fortunately, we still live in a world that is at worst a very diluted version of 1984, but the trend in most Western countries is very much towards a more concentrated version of Orwell's distopia.