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Upton-on-line October 6th

A few brief observations before we get down to some serious treatyology.

Delinquent Elderly

News that a 74 year old pensioner has been convicted for cultivating cannabis and possessing it for supply has brought upton-on-line up with a start. He did it as a protest against the fact that the Housing Corporation would not concrete his drive.

The convict was just 34 in 1960. Is this the first ripple of the 'sixties generation' as it starts to flow through into the ranks of the elderly? Twenty five year olds in 1960 are just starting to pick up their pensions this year. The 74 year old cannabis grower is definitely ahead of his generation but as the new century gathers pace one assumes these sorts of social protests by the elderly will become increasingly colourful. Will there be peaceful sit-ins in the grounds of hospitals and rest homes as greying hippies do battle with their cyber grandchildren?


Back in the eighties when we were bedding down the Reserve Bank, there was a major debate about whether the bank should focus solely on price stability or whether it should keep an eye an a raft of other outcomes (like employment). Single-mindedness won the day. Now we’re about to apply fiscal myopia to the cornucopia of surpluses the Finance Minister is going to conjure from his hat – hence, superopia.

It works like this: there will, in future be only one fiscal aim – the generation of surpluses for the super fund. There will never be any room for tax cuts or spending increases because there will always be the need to secure a fiscal surplus dedicated to future super payments. Voters are never likely to have other priorities and governments will always have surpluses. (And, by the way, the economy will always grow.) Why didn’t we think of this before?

Think about it carefully: this is a prescription for a type of fiscal straight-jacket that is both myopic and mind-bending. Do liberal spending Labour and Alliance MPs know what they’re signing up to?

How Important is History?

The Waitangi Tribunal has just completed 25 years in business and all and sundry have been speculating on the next 25. In a rather extraordinary editorial piece for the Tribunal’s newsletter, its director, Morrie Love, sent some carefully veiled messages to the Government.

First, there was an element of flattery. Given Labour’s midwifery at the birth of the Tribunal in 1975 and its role in the operating theatre when a retrospective faculty was grafted onto the tribunal’s cerebellum in 1985, Mr Love felt safe to intone that “It was natural, then, to expect the next innovation in Treaty settlements to come from the new Labour/Alliance Government”. Every decade we elect a Labour government and new treaty gadgets are crafted like Faberge Easter eggs.

But then Mr Love carefully detailed how the machinery that has been assembled deals with the claims that have been flooding in at the rate of about 60 a year. Here’s how the Tribunal’s Director describes the work in hand:

“The Tribunal has divided the country into 36 inquiry districts. Each district has a single casebook of evidence and the Tribunal deals with multiple claims within each district. Fourteen districts have completed casebooks or settlements; 22 districts have yet to complete their casebooks. These will take another 10 years to complete. Some of the 14 districts completed are very large, for example the Ngai Tahu (Southern South Island) district, with 120 claims, which equates to about six average-sized districts.

Claimant groups in each of the districts where casebooks are still required deserve some degree of individual treatment. While there are similarities between the main issues that come before the Tribunal, how these issues have impacted on individual claimant groups in each district is significant. Claimants should retain the right to have their claims fully researched, and each claimant deserves to be heard. (u-o-l’s emphasis)

It’s that last sentence that is crucial. Love is warning the Government that it has better not 'speed things up' if that means by-passing the sort of research-based approach the Tribunal has established. Settling the historical grievances, Love warned, “remains a crucial 'gap closing' instrument”.

The cause for the Tribunal’s concern lies in the stated intention of Margaret Wilson, the Treaty Settlements Minister, to speed up the settlements process and re-emphasise the desirability of direct negotiations between Maori and the Crown. Wilson allayed none of these fears when she spoke at a function to mark the Tribunal’s quarter century. “Justice delayed is justice denied” she said, daringly echoing an ancient pakeha maxim.

Her solution is to have claimants by-pass the Tribunal and do a deal direct with the Crown. Her confidence in inviting Maori claimants to consider this path stems from a deep-seated hubris that afflicts Labour’s soul (and which Morrie Love was shamelessly massaging).

The hubris goes something like this: National’s decade-long attempts to do the decent thing led to “a gradual steady erosion” of the Treaty since it sought final, durable solutions. Worse, National didn’t understand the Treaty in terms of a relationship. Rather it got “de-railed by thinking it’s about money, or property or rights”.

Labour, by contrast, has a soul untarnished by filthy lucre. And it knows that Maori are similarly other-worldly. Only Labour can be trusted because only Labour understands Maori as people – not economic agents; so those claimants who 'travail and are heavy laden' can come to Labour to be refreshed. In its current form, this involves trying to buy-off the scale of the claims (bearing in mind that the fiscal cap is now officially dead) by de-emphasising property and holding out a closing of the gaps. In other words, it’s the standard prescription of the left. That is why, in her speech, Wilson said:

“…we are seeking to develop and build and maintain and nurture human relationships. We are not simply seeking judgements over property. We do not want only to see past wrongs redressed, we want stronger communities and a stronger nation as a result. So we see the settlement of historical claims as a part of a much wider relationship between the government and Maori, which encompasses our modern commitment to the Treaty and our commitment to closing the gaps. The Treaty is so much more than settling claims. The on-going relationship into the future must be given full attention and it is vital to assess whether current structures, including the Tribunal, need to evolve and adapt to assist in this role.”

If the Treaty is about “so much more than settling claims” we need to know what that ‘more’ entails. In the meantime, claimants have to decide whether they opt for assurances of a life-raft in the form of ‘closing the gaps’ and throw away the life-belt of the Tribunal, or whether they hang firmly to its research-based approach.

Upton-on-line sides with Morrie Love – if only because no government, however well-intentioned, can guarantee to close any gaps. More importantly, nasty mean-spirited governments that don’t share Labour’s anointed role may one day win an election in which case the life-raft may sink and there won’t be a life-belt to grasp either.

Does this mean the Tribunal’s historical fossickings are beyond reproach? No it does not. Upton-on-line’s enquiries suggest that the quality of research commissioned by the Tribunal is (not surprisingly) variable. It has commissioned 187 reports over the last four years – they can’t all have been written by Simon Schamas. But they have injected a better understanding of what happened than we’ve previously had and at least provide a transparent evidential background we can argue over if necessary.

If Wilson’s plan is to stop a self-perpetuating historical research industry taking root, then upton-on-line supports her. But if the manoeuvre is built out of a desire to supersede the historically focussed enquiry with new constitutional machinery then we are sceptical in the extreme. It was Annette Sykes who sniffed this possibility at the Tribunal function, asking Wilson about the possibility of “constitutional adjustment”. In her cautious post-academic mode, the Minister replied that the Government would take it slowly but that settling grievances would be “a very good basis from which we can then start to look at the other constitutional issues” (whatever they are!).

Educating Ourselves

Whatever they are, we’re about to be educated about them. The Minister credited the Tribunal with winning cross-party support for just settlements. But, the Minister said with masterful understatement, “the public attitude remains mixed”. So she’s going to have public meetings “aimed mainly at pakeha” because, in the Minister’s words, “it is really important to get a strong base before we move. We have to move together, which is why I want to go out and do these meetings.”

It would be nice to think the Minister might consider treating the House of Representatives as a group who might care for a briefing. We have no idea what constitutional issues the Minister has in mind, or what strong base of Treaty understanding she wants to secure before “we move”. Or, for that matter, who ‘we’ is. And again, whose account of history will be relied upon to explain just what those wily old treaty magicians were up to last century?

For the Present

In a recent edition (upton-on-line, September 22nd), we asked in passing what the framers of the NZ Constitution Act of 1852 had in mind when, in Article 71, they provided that

“the Laws, Customs and Usages of the aboriginal or native inhabitants, so far as they are not repugnant to the general Principles of Humanity, should for the present be maintained for the Government of themselves…”

Upton-on-line has been musing on this, since the provision was recently referred to by Caren Wycliffe as evidence that Maori sovereignty was not extinguished by British sovereignty but has survived, albeit in a subterranean form. The right to exercise sovereignty is, she claimed, inherent and inextinguishable. Maori sovereignty is immanent in all sorts of institutions and from time to time has been recognised in statute – an instance being Article 71 (which was repealed only in 1986).

Wycliffe’s most interesting claim was that Article 71 was evidence (along with other enactments) that the British Government understood the Treaty of Waitangi as having preserved (through Article II) tino rangatiratanga, as it is expressed in the Maori version. (For the different versions, see upton-on-line’s edition of August 11th). If we are going to be educated in preparation for new constitutional excitements, then getting these sorts of things right is pretty important.

Did the British believe they were guaranteeing the co-existence of Maori sovereignty – and is Article 71 evidence in support of this? It could be. But upton-on-line has been digging around trying to understand what on earth the Colonial Office could have had in mind when it inserted the words “for the present” into Article 71’s provision for Maori self government. Research to date has revealed the following:

The New Zealand Constitution Act of 1852 was commissioned by the Colonial Secretary in London, Lord Grey. Its parliamentary champion was Sir Charles Adderley (latterly Lord Norton) and it was worked on in the UK by a clutch of big names in New Zealand’s future development including Wakefield and three future New Zealand Prime Ministers (Sewell, Fox and Weld). In New Zealand, the Governor (Sir George Grey) was also heavily involved – in fact he received an Honorary Doctorate from Oxford in 1854 for his work on the recommendation of the Colonial Office)

Now the significance of this is that New Zealand’s future constitutional development absorbed a lot of intellectual horsepower in the very early days – probably more than any other colony. The key players knew what they were doing. So it is worth asking whether, from what we know of jurisprudential theory at the time, they were in fact acknowledging some residual Maori sovereignty as Wycliffe suggests? We cannot be definitive but there are grounds for suggesting that may not be so – and the key is that qualification “for the present”.

When in Rome

To understand it we need to go back into Roman Law. The Romans had centuries of experience absorbing territories and peoples into the empire and trading with others. (They had the same sort of need for legal harmonisation and mutual recognition we have when we seek favours from the imperial masters across the Tasman). They also had to resolve where their laws started and stopped. Out of their annexations and incorporations grew the ius gentium – a body of law developed by the praetor peregrinus to establish legal norms common to Roman citizens, immigrant communities and those they traded with.

The Roman authority on ius gentium is Gaius, a jurist from the early 2nd century AD who introduced Stoic natural law principles into the law governing relations between nations (ius feciale) and ius gentium, the law common to all peoples – “the law that natural reason establishes among all mankind” as Gaius puts it. Now there are two points to note about ius gentium.

First, in applying ius gentium the Romans did not seek to oust indigenous legal systems. Provided they were not repugnant to natural law their continuation was allowed (and often encouraged). But there was no suggestion that this was a ‘sovereign’ right. The Romans always reserved the right to abrogate pre-existing laws and promulgate their own. So it was a “for the time being” concession.

The second point is that Gaius insisted that no ruler could cede that which it wasn’t in his power to convey. So when King Herod was appointed King of Judea in 40 BC by the Senate, Rome didn’t purport to extend his remit to the Temple or the religious law of the Jews – which is why Pontius Pilate had to put up with what Herod Antipas did one dark night in 33 AD. Maori Chiefs would have understood this example of mixed jurisdictions under one sovereign and Jesus’ injunction to “render unto Caesar that which is Caesar’s” rather more acutely than some of the settlers, one suspects!

The British Imperial Experience

What has all this to do with us? Well the British were fairly expansive imperialists and they had to think through the same issues. Roman Law notions transmitted through Grotius would, at the level of scholarly lawyers, certainly have retained their resonance. We see the practical application of the ius gentium approach in India. Here is what a senior British official, Mountstuart Elphinstone, Governor of Bombay from 1819-1827, said when considering weighing up whether or not to preserve the native Maratha justice system:

“…enough will remain to satisfy us that the chance of attaining or approaching to perfection is as small under our own plan as under that of the natives; that on either plan we must submit to many inconveniences and many abuses; and that no very sudden improvement is to be looked for in the actual state of things. If this be the case, it becomes of the first consequence to cherish whatever there is good in the existing system, and to attempt no innovation that can injure the principles now in force, since it is so uncertain whether we can introduce better in their room. I propose, therefore, that the native system should still be preserved …[but] if it should fail entirely, it is never too late to introduce the Adalat” [the British-supervised alternative system]

So there you have it. Local custom and law could prevail for the time being but the British would impose their own system if it failed.

So where was imperial thinking by the time New Zealand’s fate was under discussion? The answer is, undergoing a transition. Upton-on-line’s legal sleuth identifies 1832 as a seminal year. In America, Chief Justice Marshall in Worcester v. Georgia upheld the integrity and continuity of native law describing the Cherokees as “a distinct political society separated from others, capable of managing its own affairs and governing itself.” (NB: This didn’t stop the US Government forcibly evicting Cherokee from their lands. It was a revolutionary seizure of power – the parallels with Professor Brookfield’s analysis of what happened in New Zealand are fascinating. But the legal argument continued – and continues – to resonate in the USA.)

1832 was also the year in which John Austin published his influential text The Province of Jurisprudence. Austin distinguished between positive law and mere relations of honour and general opinion. Legal authority required a sovereign or sovereign tribunal presiding over positive law. Anything else fell short including the ius gentium. Austin put it this way:

“The law obtaining between nations is not positive law: for every positive law is set by a given sovereign to a person or persons in a state of subjection to its author…The law obtaining between nations is law (improperly called) set by general opinion.

So began a cleavage in Anglo-American jurisprudence between the tolerant attitude to local law and custom that ius gentium in its Roman and Indian incarnations had fostered, and the positivist tradition of Austin and the utilitarians who sought a moral cleansing through legislation.

If you wanted to find a classic statement of the American position, try Chicago, Rock Island & Pacific Ry v. McGlinn in which it was explained that upon any change in sovereign political and legislative jurisdiction, “laws which are intended for the protection of private rights, continue in force until abrogated or changed by the new sovereign.” This didn’t extend to laws that were contrary to humanity but when it came to laws to do with property and the good order, peace, health and prosperity of the community “which are strictly of a municipal character, the rule is general, that a change of government leaves them in force until, by action of the new government, they are altered or repealed.”

These arguments – rooted in the Roman notion of ius gentium – have underscored the inclusion of tribal governments within the framework of the US constitution. The British, on the other hand, under the influence of Austinian positivism, sought to deny the force of any degree of tribal sovereignty.

Where were New Zealand’s constitutionalists in all of this? The answer is, on the ius gentium side of the ledger at least prior to the first Taranaki war in 1860. The evidence is Article 71 of the Constitution Act of 1852 and the Native District Councils Act and the Native District Courts Act of 1858. Why? We don’t know but it probably had something to do with the intellectual milieu in which Grey and the Colonial Office were immersed. They cleaved to the old East India Company tradition of supporting native lore and enjoyed the support of organisations like the Aboriginals Protection Society.

But for all that liberality, the tradition in which they were rooted saw the survival of indigenous law and institutions as being contingent on imperial benevolence. When that benevolence was withdrawn, sovereign law could extinguish it.

So What?

Very simply, before anyone claims that Maori sovereignty was never extinguished and calls Article 71 of the 1852 Act in support of their case, there is at least an argument that the “for the present” proviso is evidence of a ius gentium tolerance of native law under sovereign British authority. The question is whether that same understanding applied to the concession of tino rangatiratanga in the Maori version of Article II.

Hold the education programme – we’d better do a bit more historical research!

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