SIR GEOFFREY PALMER has penned a two-part response to Act Leader David Seymour’s “Treaty Principles Bill”. In its essence, Palmer’s contribution reflects the growing unease of the institutions which have hitherto dominated the Waitangi discourse – the legal profession, the courts, and the universities – that they are in real danger of losing control of the narrative.
Between the lines of Palmer’s analysis one detects a profound hostility to the populist impulse, and a palpable impatience with the machinery of representative government that empowers it. The clear intention of Palmer’s intervention is to deflect the popular desire for a democratically defined Treaty away from the decisive instruments of parliamentary democracy, and towards a much more manageable set of “deliberative” options.
In many ways it is surprising that Palmer, and those who share his ideas about the Treaty, did not anticipate the current populist push for a political solution to the doubts and anxieties raised by the document’s startling legal evolution. From the 1980s to the present day, some kind of democratic revision of the Treaty’s status and meaning was always on the cards.
In an address to the Māori Law Review Symposium entitled Māori, the Treaty and the Constitution on 12 June 2013, Palmer offered his audience the following, highly revealing, admission:
“If the remedying of injustice under the Treaty could only be done by Parliament under our existing constitutional structure, then the big obstacle was what John Stuart Mill called majority tyranny. If the legislation addressed the grievances, then majority tyranny would kick in and the likelihood of the issues being addressed in a principled fashion would be reduced. Elected politicians should not be involved in the investigation and formulation of the appropriate remedy. So Parliament had to be persuaded to initiate action, but not determine the nature of the grievance. A set of procedures, processes and principles was likely to work better. Thus, it seemed to me that the aim could be achieved by having Parliament set up a body to investigate and report. That meant extending the jurisdiction of the Waitangi Tribunal back to 1840.”
As a means of drawing the fangs of this supposed tyrannous and unprincipled majority (which is an interesting way of thinking about the nation’s political leaders and the people who elected them) these “procedures, processes and principles” were to prove their worth many times over. So much so, that Palmer felt able to reassure the symposium that:
“Insulation from the ravages of extreme opinion has been achieved. The settlements have become mainstream.”
But if elected politicians were to be excluded from the investigation and formulation of appropriate remedies for the sins of New Zealand’s colonial fathers, then in whose hands should the whole fraught process be placed? What other answer could a former law professor give except – the courts:
“The courts are better protectors of “discrete and insular minorities” than the majoritarian legislature, even under MMP. I remain of the opinion that the Treaty, like the Bill of Rights, should become part of New Zealand’s new superior law Constitution. We now know a great deal about how the courts will go about the task of interpreting the Treaty, just as we know how the courts go about interpreting the Bill of Rights Act. We have had more than twenty years’ experience of both […] We cannot go backward on these issues, but we need to summon up the political courage to go forward.”
The reference to “discrete and insular minorities” comes from a 1937 judgement of the United States Supreme Court. Such minorities, the justices explained, are “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.”
In citing this celebrated case, Palmer was signalling to his 2013 audience that he well understood the historical predicament of the Māori people.
The Treaty of Waitangi was the initiative of a British Government which, in 1840, was impelled by the political principles then guiding its Foreign and Colonial Office to secure control of New Zealand, but only after obtaining the freely given consent of its indigenous inhabitants.
This was duly achieved by recognising the full authority – tino rangatiratanga – of tribal chieftains to determine the disposition of their lands, forests, fisheries, and other valued resources, as they saw fit, and by giving Maori the same rights and privileges as the people of Great Britain.
Crucially, the chiefs’ lands could only be sold to representatives of the British Government. Thus were Māori protected from the contemporaneous depredations of the agents of the rapacious New Zealand Company – and the French.
Overseeing the evolution of this new relationship would be a Governor appointed by the British Government. Not the least of the Governor’s duties was to protect the Māori tribes from the greed and the larceny of the British, European and American settlers determined to make their fortunes in Britain’s new colony.
While the original parties to the 1840 Treaty, the British Government and the tribal chiefs, continued to be the only parties that mattered, the relationship, though often strained, endured. By the early 1850s, however, the fast-growing population of Pakeha settlers was demanding that the powers-that-be in London grant them self-government.
The settlers objective was brutally simple: to avail themselves of Māori land without having to secure the chiefs’ and/or the Governor’s permission. In other words, they wanted to construct a New Zealand state in which the Treaty could be dismissed as a “simple nullity”. Such a state could only be created by the forcible dispossession of Māori hapu and iwi, but that was a price the Pakeha settlers were perfectly willing to pay.
Putting the matter bluntly, the greatest enemy of Māori, since 1853, has been the Pakeha Parliament. While its power to make the law remained untrammelled there was nothing Māori could do to defend their fast-diminishing patrimony.
The great insight of sympathetic Pakeha jurists, like Palmer, was that, suitably empowered, the judiciary and the executive branch of the state could take on the role formerly played by the non-elected governors of mid-nineteenth century New Zealand. Māori resources could be protected, and past injustices redressed, but only if the Pakeha Parliament could somehow be persuaded to take itself out of the loop.
It is, perhaps, the most remarkable aspect of New Zealand history that, for a period of roughly half-a-century, the nation’s elected representatives were willing to do just that. They made way for the courts, the Waitangi Tribunal, and the Office of Treaty Settlements to right as many of the wrongs done to te iwi Māori as they adjudged Pakeha voters to be willing to accept.
That turned out to be an impressively large number. But, by 2023, Pakeha voters’ – or, at least, a majority of Pakeha voters’ – willingness to go on righting the wrongs of the past had reached its limit. In response, the newly elected Pakeha Parliament, to the utter dismay of the courts, the Waitangi Tribunal, and the Office of Māori Crown Relations, determined to suddenly and dramatically re-enter the loop.
Small wonder Palmer is calling for “deliberative” alternatives to parliamentary action, such as randomly selected citizens’ assemblies, to be substituted for the deliberations of the House of Representatives. These latter, which tend to culminate in legislative action, are to be avoided at all costs lest they precipitate a head-on collision between the legislature, the judiciary, and that part of the executive branch represented by the state bureaucracy.
Palmer, and those who share his outlook, must know that in any contest between Parliament and the rest of the State only two outcomes are possible. Either the coercive agencies of the state – the armed forces and the police – put an end to representative democracy on the Executive’s/Judiciary’s behalf. Or, the key institutions of the state, with varying degrees of rage and reluctance, bow to “majority tyranny” and the “ravages of extreme opinion”.
Otherwise known as the will of the people.
This essay was originally posted on The Democracy Project substack page on Thursday, 26 September 2024.
14 comments:
I don't know how far your tongue was embedded into your cheek, by 'majority tyranny' and 'ravages of extreme opinion' do not represent the 'will of the people'. A certain Mark Twain had some interesting things to say about 'the majority' - as, incidentally did a certain fritz Hayek'. I often condense Twain into this 'reminder to self': if you find yourself in agreement with everyone else, it is time to rethink your position.' Not quite what he said, but it'll do me.
Mark Twain did see majority opinion as - potentially at least - tyrannical. It is not always right or fair, either.
In my view the Treaty is well overdue for a far-reaching review. That there ought to be popular input is a reasonable stance to take, but that does NOT mean its future and/or form ought to be thrown open to a plebiscite. It seems to me that both ought to be subject to negotiation - negotiation in good faith - by all interested parties (however they might be identified). Whether that will - or even can - happen, given the increasingly divisive socio-political wokism and identity politics, is problematic.
Cheers,
Ion
We discussed in a former post the covenant nature of te tiriti, I stand by my comments on that issue. However, it is worth addressing the concept of Treaty and legal exceptionalism. Certainly for the Maori signees of te tiriti exceptionalism is absolute. It was a document that allowed a new people to largely govern themselves within the rohe, guaranteed these new people would regulate their interaction and not interfere with that which is Maori. It also gave Maori the legal rights of a British subject.
But, for the British was this exceptional? Throughout the 19th century the British used such treaties to establish protectorate status with indigenous nations. This allowed British influence and kept out other European powers. The rights of a British subject is important. This ties the rights of Maori under the Treaty to rights and interpretation under British law.
What is overlooked by some commentators is that Anglo-Saxon, English and British law evolved ahead of, and interdependent, with democracy. Preceding it all was the view of customary rights, practice and law. The Treaty is reaffirmation of customary law, and a recognition of the British that Maori rights under this will be protected and enforced.
This is not new law, the British by 1840 had a understanding of native title, even Locke's doctrine of terra nullius was abated by his view that all persons are endowed with natural rights to life, liberty, and property. Maori had those natural rights, and the Treaty promise was to uphold these unless extinguished by consent. In Te Weehi v Regional Fisheries Officer (1986), Judge Williamson's decision recognized te tiriti, but was very much based on customary rights.
Chris has asked the wrong question in his heading. If we have a rights based democracy and civil society, a Parliament does not unliterally extinguish the guaranteed rights of a treaty partner, and reverse not just the foundation of New Zealand as a nation, but also the very foundation of Anglo-Saxon law that evolved to democracy. We cannot have a civil society and democracy by removal of the basic building blocks.
h
At the end of the day, if Britain had not bothered to govern the country the French would have taken it by force while at the same time allowing the Maori tribes to effectively wipe each other out with the increasing use of muskets and sheer savagery.
Chris
You are correct in your assessment that by the end of 2023 the New Zealand public, or at least a majority had exhausted their willingness to allow Government and the courts to develop ever more revisionist interpretations of the Crown’s treaty obligations. Co-governance perhaps being the most egregious example, but they are numerous and we still live with most of their innovations today despite the coalitions attempt to dial many of the back.
It would appear that our institutions of State, and perhaps the majority of church leaders in New Zealand have completely embraced the evolving narrative and are reluctant to revisit the articles of the treaty, or the context in which it was signed in order to re-establish an appropriate framework for the resolution of remaining grievances.
The most recent claims that Maori did not cede sovereignty because of the wording in the translated text of the Maori version of the Treaty document does not stand close scrutiny. Clearly the missionaries who were motivated by a sincere love for the Maori people would have taken great pains to explain to the Chiefs present the implications of the words sovereignty and governance. It is because they understood what it meant to cede sovereignty to the Crown that most Chiefs were at first reluctant to sign, and while in the end most considered the benefits exceeded the cost and proceeded to sign, a few still refused for this very reason.
David Seymour may not have landed upon the ideal wording for the definition of ‘principals’ and a debate along with a select committee process may deliver improvements, however the current process is no longer fit for purpose and does not have the support of most New Zealanders.
It is past time for those with vested interests in promoting an a-historical, reductionist and revisionist understanding of the treaty to be dethroned. All three articles of the Treaty in both English and Maori directly or indirectly reference the sovereignty of the Crown. Let’s move on by moving back to the original intent of the document.
There seem to be an awfully large number of non pakeha in the Pakeha Parliament. Perhaps they are all the wrong type of non pakeha.
Palmer seems to think that TOW is about justice, but by what objective standard? If Maori were just another group of white people, would we give them the time of day? Instead, we have made them sacred as (essentially) junior ("we can't live in your culture")?
Maoriness, is coming across as performative:
I do not agree that it is necessary to re-introduce 'essentialism' into the discussion. In fact, I think it is dangerous, because it adds fuel to the fire of those who love engaging in 'authenticity talk' to establish that there are no 'real' or 'full-blooded' Maori left in New Zealand anyway, and that
consequently nobody can be entitled to anything simply on the grounds of 'being Maori'. The authors should have made clear that it is a strategic essentialism that underlies a commitment to bi-nationalism. Qualifying the essentialism as 'strategic' makes explicit that the Maori nation is constructed as an imagined community with the aim of wrenching power from the 'mainstream', while at the same time avoiding the 'authenticity trap'
Review by Simone Drichel of Recalling Aotearoa by Paul Spoonley
Henry Williams (missionary and tiriti translator) alone claimed 11,000 acres (5,420 hectares) of Maori land. Missionaries were not passive. They had been gun traders leading to the musket wars, they had financial interest in the Treaty holding off the NZ Company. Evangelical entrepreneurs.
Williams had used the word "mana" in the 1835 Declaration of Independence (for which Busby was still getting signatories up until the Treaty) to stand for sovereignty. He deliberately used a Biblical term "kawanatanga" in tiriti (governance, a term mainly used for Pilate), while also guaranteeing rangitiratanga, which is chiefly mana.
It is difficult not to see Williams as a spin doctor deliberately deceiving Maori while protecting his own interest.
For all men being originally equals, no one by birth could have a right to set up his own family in perpetual preference to all others for ever, and tho' himself might deserve some decent degree of honours of his cotemporaries, yet his descendants might be far too unworthy to inherit them
Thomas Paine
A lot more thought went into the American Constitution than TOW, and it wasn't between two "peoples".
The idea that "sovereignty can be divided" violates natural law. It asks us to accept that there are two truths such as Victoria Square "is said to be" (it was or it wasn't; archeologically) the site of Puari Pa" or men can be women, if they have a woman brain. Jon Haidt calls this "a stable and coherent moral order", however there are academics out there who don't believe in truth (in an on balance of probability sense).
At the end of the day, in the late 1830s the French government perceived the North Island as a defacto British colony, due to the activities of British merchants and missionaries. The South Island, Stewart Island and the Chatham Islands were seen as there for the taking. The South and Stewart Islands were to be colonies of settlement, Chatham Islands were to be a penal colony. Have a read of Peter Tremewan "French Akaroa".
As much as we are to believe the Judiciary is independent of Parliament I for one don't believe it. If Judges are appointed by the Governor general on the recommendation of the Attorney general, who was David Parker in the last Labour Coalition, I fail to see where there is any independent unbiased thinking. So what do we have happening at present as regards to the treaty bill. A judiciary who are supposed to be unbiased but may not be, The Church who are beating the drum of their past representatives, the missionaries, who I take it were happy with both the Maori and English versions of the treaty , and the Waitangi Tribunal, who are appointed and not elected. Seymours Bill will be easy to understand, and will be compared to the Maori version of the Treaty which it seems can have an interpretation that suits whoever is reading it. At least discussing the bill and getting an opinion from the people in NZ seems an attractive proposition. I didn't appoint the Waitangi Tribunal or the Judiciary so why should they speak for me.
Hiding through anonymity and obscurity, it is easy to make silly and unsubstantiated claims.
I have previously addressed the issue of judicial appointment. If you have any example as to an appointment by David Parker based on political bias, name that judge, if you have a judicial decision that you see as legally unsound because of the political bias of a judge, name the judge and the decision and any comments on appeal or from legal experts.
I do get sick of vacuous "I reckons" to justify an attack on the institutions of civil society. Putin has vast programs for this, whole in NZ there are just opinionated fools seeking the same goal.
If there is a problem withe the judiciary, identify it and we will address it and fix it. If it is simply you don't agree with decisions or direction and you have nothing to intellectually back your misconceptions, attack the ethics of the experts seems your flaccid response.
"New Views"?, old play book.
Often confused by your posts and arguments. Thomas Paine recognized native title and blamed "proselytizing Christianity" with the plight of the Native Americans and the theft of their land.
Paine also drew heavily on Locke, and expanded on the view of natural rights. That is not to say Paine was not problematic and switched between noble savage and condemnation. However, he did negotiate a Treaty with Native Americans (which the Continental Congress abrogated), however, this would show Paine's belief they were a sovereign people that could enter treaties
The rest of your "truths", seem to be your preference to the definition of words and exclusion of others definition. You then betow yourself as the decider of "truth".
Just one more nite John. Your view that "'Sovereignty can be divided" violates natural law', is yours alone.
The very document you cute, the US constitution, is concerned with the sovereignty of the states within the republic.
NZ is more than capable of constructing a nation in which there is balance, respect and mana. These are ontological building blocks within te ao Maori, would seem to be an honourable response expected by the Parliament.
Dear Baron (whoever you are) can you provide historical references for your claims?
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