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Treaty is About Property Rights, Not Partnership

Monday, October 8 2001 Stephen Franks Press Releases -- Governance & Constitution

The Treaty of Waitangi never created a partnership between the Crown and Maori, ACT Justice spokesman Stephen Franks said today.

But it can reinstate constitutional respect for property rights for the benefit of pakeha and Maori, who have often been trampled by the same people guilty of falsifying a different role for the Treaty.

Delivering a paper to the New Zealand Law Conference in Christchurch at 2pm today, Mr Franks said there was nothing in the text of the Treaty or in the context which suggests or even justifies crown or Maori claims of partnership.

"I believe a number of judges are now embarrassed by the nonsense they unloose on us, trying to make sense of cynical waffle that politicians put in legislation. Judges in future cases may try to repair the damage.

"The Treaty gave security of property to identifiable iwi and to Maori and pakeha individuals. To New Zealanders there is now no "crown" suitable to be a Treaty partner, even if we thought that was a good idea. In democracy we are all participants in "sovereignty".

"It is hard to see how Treaty assurance of equality before the law can allow some of us to be in partnership with all of us, including themselves. We all collectively determine what the Crown can or must do.

"'He Iwi Tahi Tatou - We are now one people' cannot be twisted into any notion of constitutional partnership.

"Partnership rhetoric can help us to focus on the positive reasons why people signed the Treaty, more than the fear that was another impetus. But the partnership metaphor becomes sinister when it is used to extract so-called "principles" that justify racism. It is racist to entrench political privileges and powers according to inherited brownness and to override ordinary principles of succession to property rights.

"Without the separatist (and racist) interpretation now pedalled, the Treaty should be no more threatening to any New Zealander than the law guaranteeing property rights to everyone including once unpopular minorities like Catholics, Jehovah's Witnesses or Chinese immigrants."

Stephen Franks said the New Zealand government no longer needed the Treaty as the foundation of its legitimacy.

"For at least 130 years our government has been legitimate solely because it has enjoyed the obedience of the people. So in legitimisation terms, the Treaty is now like a superseded "lifetime" driving licence. But it is a powerful statement of rule of law ideals that against the efforts of opportunist politicians and lawyers who have forgotten their heritage.

Mr Franks said that New Zealanders had to rediscover and re-establish the rationale for property rights.

"We should be building the New Zealand envisaged by Hobson and the signatories. In such a New Zealand, the government and the law are colour-blind: we are all equal under the law which upholds our property rights. Genuine respect for cultural freedom and the rule of law to restrain the government protects liberty to express our various beliefs and cultures.

"We would all benefit if Maori were supported by pakeha (and vice versa) in moving property rights back toward the classical model our forbears meant and intended when the Treaty was signed. If the Treaty was restored, Treaty tensions would reduce substantially. It would become a constitutional Taonga for us all", Stephen Franks said.


For more information visit ACT online at or contact the ACT Parliamentary Office at

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