This paper also looks at the Treaty in its context of British legal and political theory in 1840, and Maori objectives and predicaments at the time.

 

It points to the Treaty as a natural crystallisation of the finest products of our 19^th century legal forebears, the Rule of Law, the primacy of individual liberty and contract over status, and a classical Lockean view of property rights.

 

Seen in that light ’tino rangatiratanga’ ceases to be a conundrum. The Treaty extended to its signatories what was then an internationally avant-garde protection of personal and property rights. It was expressed in the English aphorism “every man’s home is his castle”.

 

So the Treaty can have a modern importance. Those who signed it would never have expected the general law to stop respecting classical property rights. But we have eroded them like a river bank, chunk by chunk, to the point where the framers of our modern Bill of Rights also funked it when dealing with the fundamentals. The Bill of Rights omitted property rights.

 

The Treaty can, at the insistence of Maori, remedy the deficiency.

 

Maori, by ending up with a large proportion of land threatened with sterilisation and devaluation through collective regulatory takings (the RMA and conservation laws etc) may have the greatest per head stake in restoring clear property rights.

 

Maori efforts to get redress for historical wrongs have elevated the Treaty into a trump card with our ruling establishment. It may not necessarily keep that status, but meanwhile it would enable Maori to reinstate in our constitution something more nearly approaching the classical property rights they were assured in 1840.

 

In that sense the Treaty’s true constitutional significance is equivalent to the ‘Takings’ provision of the American constitution. Iwi successors to the signatories of the Treaty could be the kaitiaki of that feature of our legal constitution, to the benefit of us all.

 

 

 

 

 

Hernando de Soto, a Peruvian development economist cited in the Economist in April 2001 has attributed most international differences in wealth and development to the extent to which property rights are made uniform and readily accessible and enforceable. In "The Mystery of Capital" he explains how a lack of secure property rights leaves most of the world’s population without the mechanisms to turn their assets into more productive ‘capital’. Tom Bethell’s “The Noblest Triumph” illustrates similar points in a comparative historical review of prosperity waxing and waning.

 

David Landes, in “The Wealth and Poverty of Nations” links the property rights characteristics of peoples to their cultures. He explains the high correlation between respect for property rights, and wealth. What incentives do cultures set up in what they reward and punish? Do they reward taking more than making? Or making over taking?

 

Harvard scholar Richard Pipes in "Property and Freedom" builds the case for the essential connection between property rights and the development of law and individual liberty, beginning with Greece and Rome. He contrasts England, where property rights and parliamentary government advanced hand-in-hand, with Russia, where restrictions on ownership have for centuries abetted authoritarian regimes.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Nevertheless, this solution to the debate seems to have been overlooked. To explain this requires more detailed examination of the Treaty, in its intellectual context. Because the Treaty is so short, so contentious as to meaning and so much the subject of recently created mysticism, it can be useful to say first what the Treaty is not.[4]

 

 

It is not a partnership agreement. There is nothing in the text or in the context which suggested that the Crown, or Maori, contemplated what we now understand to be partnership. For a start, it could only have been multiple partnerships, each between the Crown and a signatory iwi or tribe.

 

The Treaty did not assume only collective rights, or government by or for Maori generally. Nor does it create or recognise any collective government mechanisms or privileges. It gave security of property to identifiable iwi and to Maori individuals. And on the other side the Crown party has all but lost the nature needed to be in a domestic political partnership. To New Zealanders there is now no “Crown” in the sense of an embodied Treaty counter-party. In a democracy we are all participants in “sovereignty”. It is hard to see how some of us are in partnership with all of us including themselves – who collectively determine what the Crown can or must do. “We are now one people”[5] cannot be twisted into any notion of constitutional partnership.

 

Partnership rhetoric can help us focus on the positive side of the expectations that motivated signing the Treaty, more than the fears that also propelled it. But the metaphor becomes sinister when the partnership analogy is used to extract so called “principles” that justify racism. That is – privileges and special powers conferred by historical brownness, rather than by ordinary principles of property succession.

 

Without its new separatist (and racist) interpretation the Treaty should be no more threatening than law guaranteeing property rights to once unpopular minorities (Catholics, or Jehovah Witnesses, or Chinese immigrants).

 

 

But the Treaty of Waitangi is clearly of constitutional significance. It legitimised the Rule of Law in New Zealand. In that sense we have a wonderful gift that few peoples have. For the nearly universal human experience of different peoples trying to co-exist in one geographical area is of seizure of authority by force of arms (or treachery), and later legitimatisation by practical demonstration of effective control.

 

The New Zealand government does not now need the Treaty as the foundation of legitimacy. For at least 130 years our government has been legitimate in legal terms because it has enjoyed the obedience of the people. So in legitimisation terms the Treaty is now like superseded “lifetime” driving licences or a car registration certificate. It is useful evidence of proper purchase rather than seizure or theft. It helps show how long we have been lawfully driving together with few of the fatal offences or accidents that mark the experience of most societies. But it is neither conclusive nor necessary, when measured against all the usual tests for determining and recognising the legitimate government authority of a country.

 

The fact that disgraceful breaches occurred soon after and almost continuously since, shows the lack of actual constitutional power in the document.

 

But these limitations are not reasons to discard it or to invent fantasies about it. It has political power, as a rallying symbol, and an inspiration. More importantly it can now have real force as a guarantee of property rights. This specific function would have seemed superfluous until 30 years ago.

 

Primarily a Guarantee of Property Rights?

 

A survey of the intellectual furniture of the British in 1840, and of Maori who understood the significance of the Treaty, may help us appreciate what the Treaty could become for us again. Understanding of that context resolves some of the contradictions. It would allow the judges to apply it as a legal document rather than a political slogan empowering them to invent a whole set of subsidiary slogans.

 

By 1840 property rights were the heart of the Rule of Law. You could not be considered an educated man without knowing the elements of property rights, and consciousness of the hard issues and debates over property rights was widespread.

 

For New Zealanders in 1840 Sir William Blackstone had already elucidated the key elements of property rights, quarrying in Roman law, and the decisions of generations of English judges. Modern development economists recognise his definitions as masterful, scarcely to be improved upon.

 

The Judaeo Christian religion emphasised property rights, with the death penalty for interfering with them. Maori quickly became adept in Bible based theology.[6]

 

Maori Anglican converts would have been familiar with the Commination of Sinners from the Anglican Book of Common Prayer. “Cursed is he that removeth his neighbour’s landmark”.

 

The father of Sir Robert Torrens, who pioneered our land title registration system, was an active member of the New Zealand Association. A noted early economist, he was addressing his mind in 1839 to the accommodations a land ownership system would need to make for indigenous races.[7]

 

Maori too were well aware of the benefits of better defined property rights. As Orange records it:[8]

 

"Land speculators from New South Wales also began to exert pressure on Northern Maori, and just before 1840 Busby received a number of appeals from Chiefs who were anxious to secure their land title."

 

The war weariness of Maori, and their strong wish for secure land tenure is powerfully shown in R.D. Crosby’s account of the pre-treaty period "The Musket Wars – A History of Inter-Iwi Conflict 1806-45". Sir Apirana Ngata’s wonderful explanation of the Treaty, in 1922 also emphasises this background.[9]

 

The centrality of property rights is overlooked by modern historians. The "social justice" generation focuses on the political significance of the ‘land guarantee’ in terms of the impediment it represented to settler acquisition, and the subsequent dishonour of that provision of the Treaty.[10] But they have completely ignored the characteristics of the ‘guarantee’.

 

The Maori version promises “the unqualified exercise of their chieftainship over their land, villages and all their possessions".

 

The omission from the Maori version of the reference to ‘forests’ and ‘fisheries’ is puzzling. Were the missionary translators, who persuaded the chiefs to sign, anxious not to hold out promises that the law could not perform? Did they think that custom did not give exclusive rights sufficiently close to ownership? Did they fear that Maori were unlikely to be able to establish and hold exclusive possession of unmarked estates for which there was no practical evidence of boundary marking? Or were they conscious that pakeha were already sharing these resources, and exclusive possession could not be re-established, for political reasons?

 

Possessions or ‘taonga’ is translated as "treasures" by Sir Hugh Kawharu. The mysterious mutation of ‘taonga’ from ‘goods’ or ‘possessions’ or even ‘treasures’ to include intangibles has perverted the Treaty. It is inconceivable that the British or Maori would have tried to grant exclusive possession to things like language or custom.[11] The law which the Treaty brought to New Zealand resisted strongly the creation of rights not susceptible to enforcement. These are precepts our legislators have forgotten in the last two decades, with the purported creation of rights without remedies (see for example the current Victims’ Rights Bill) and imperfect forms of property such as a "right" to a job. Some of our worst law gives remedies without ascertaining the rights they should flow from. The Resource Management Act and the Employment Relations Act exemplify this kind of legal solecism.

 

Even now treating information as property (giving exclusive possession) is contentious. For example, the sensible evolution of our insider trading law has been hampered by lawyer resistance to a simple property/conversion analysis.[12] We even hear some of the same people who support mystical expansions of Treaty rights and ‘indigenous rights’ to control use of indigenous flora and fauna, fulminating against conventional intellectual property in genetic knowledge.[13]

 

 

 

John Locke (1632-1704) in The Second Treatise of Government (paragraph 123) saw men as consenting to unite under government “for the mutual preservation of their lives, liberties and estates, which I call by the general name, property”. Paragraph 124 begins “To the great and chief end therefore of men’s uniting into commonwealths, and putting themselves under government, is the preservation of their property”.[14]

 

But he was equally clear on the essential limits on the power of the state (paragraph 128) “For a man’s property is not at all secure, though there be good and equitable laws to set the bounds of it, between him and his fellow subjects, if he who commands those subjects, have power to take from any private man, what part he pleases of his property, and use and dispose of it as he thinks good”. Locke stated simply (paragraph 142) the equality before the law which is needed to respect property rights. “They are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favoured at court, and the countryman at plough.”

 

Richard Epstein has superbly summarised the inheritance delivered by British rule. He points out that it embodied a classical property rights approach, drawing on John Locke’s insights. But he goes straight to the tension which those rights now create, with regulation over-riding traditional property rights. He asks whether Maori have a right to exemption from regulations that affect all other New Zealanders.[15]

 

 

David Hume (1711-1776) in Book III of his Treatise of Human Nature explored property rights further as “the three fundamental laws of nature, that of the stability of possession, of its transference by consent, and of the performance of promises. ‘Tis on the strict observance of those three laws, that the peace and security of human society entirely depend; nor is there any possibility of establishing a good correspondence among men, where these are neglected. Society is absolutely necessary for the wellbeing of men; and these are as necessary to the support of society”.

 

Edmund Burke did not believe in self evident “natural rights” but he had no doubt “a law against property is a law against industry” (Tract on the Popery Laws).

 

Even Thomas Hobbes (1588-1679) who upheld the absolute powers of rulers because of his fear of anarchy, accepted that ancient rights, including the Magna Carta, had to be respected by, and bound, the Crown.

 

Adam Smith might have been more current in the minds of the Englishmen considering what should go into Article 2 of the Treaty. In The Wealth of Nations his view of property rights is plain. “The security with which the law in Great Britain gave to every man that he shall enjoy the fruits of his own labour, is alone sufficient to make any country flourish …”.

 

Jeremy Bentham recognised it. “Property and law are born together and die together. Before laws were made there was no property; take away laws and property ceases.”

 

 

 

Were the Treaty Parties Thinking of Communal Property?

 

The great debates over the Enclosure Acts (some 3000 between 1760 and 1815), had focussed English attention on the differences between communal ownership and more “efficient” forms of ownership. As P.S. Atiyah describes it[16] –

 

 

The missionaries urging Hobson and Maori to conclude a treaty would also have been familiar with the appalling consequences of upholding the chiefly powers of Scottish clan lairds[17]. Clearances for sheep ran in waves for 50 years. They were to continue until 1855. Clan chiefs faced with the temptations of an industrial cash economy turned their people into landless paupers. They triggered mass starvation and emigration (from which New Zealand was then benefiting). The Sutherland Clearances, two decades before the Treaty, were notorious.[18] The missionaries would have been anxious to see a modern form of property rights that did not expose the ordinary people to such ruthless exploitation of chiefly authority.

 

The references to individuals in Article 2 and to the ordinary people in Article 3 were therefore unlikely to be accidental. While the Crown rights of pre-emption can be viewed as disadvantageous to Maori, to the missionaries they were to safeguard the people against rapacious chiefs as well as mendacious pakeha buyers.

 

 

Colonists everywhere had in mind the terrible experiences of colonies established by communal utopians. Governor William Bradford set the Plymouth colony in America on its road to wealth only after a disastrous three years of communalism. During that time the predecessor first governor and a quarter of the others from the first three ships (including his wife) had died of starvation and disease. In 1623 Governor Bradford replaced the Platonic community with individual allocations of land with “very good success”. It ended a “prevailing unwillingness to work, confusion, discontent, lack of mutual respect and sense of slavery and unfairness”.[19]

The earlier Virginia Company’s settlement had a similar experience with 600 colonists reduced to about 60 over a period of three years. They were reduced to cannibalism in a land that easily supported them several years later when properly worked. Sir Thomas Dale substituted indentured labour with three acre private allotments. The obligation to work for the community was replaced with a rent or flat tax fixed in corn plus one month’s work a year on public projects. By 1616, instead of being dependent on the Indians for survival, the colony was producing so much that the local Indians were “mortgaging their whole countries to buy from the settlers”.

 

 

 

So there was, and is, nothing mysterious or deceptive about the second article. The English version assured “the chiefs and tribes and their respective families and individuals thereof the full and undisturbed possession of their lands and estates forests fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession”.

 

This was no more than what the English regarded as due to any property owner. That part of the Article was an assurance of sharing the most fundamental elements of British civilisation and its legal system.

 

 

 

 

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 a law that upholds our property rights. With genuine respect for freedom, and a Rule of Law that restrains the Government we can protect our freedom to express our various beliefs and cultures.

 

We would all benefit if Maori were supported by Pakeha (and vice versa) in moving property owners’ rights back toward the classical model our forebears had in mind when the Treaty was signed. If the Treaty was restored Treaty tensions would reduce substantially. It would become a constitutional taonga for us all.

 

 

 

 

 

Allen, Tom “The Right to Property in Commonwealth Constitutions” Cambridge University Press, 2000.

 

Bethell, Tom “The Noblest Triumph – Property and Prosperity through the Ages” St Martin’s Griffin, 1998.

 

Burns, Patricia “Te Rauparaha – A New Perspective”, Penguin, 1983.

 

Crosby, R.D. “The Musket Wars – A History of Inter-Iwi Conflict 1806-45”, Reed, 1999.

 

de Soto, Hernando “The Mystery of Capital – Why Capitalism Triumphs in the West and Fails Everywhere Else”, Basic Books, 2000.

 

Epstein, Richard A. “The Treaty of Waitangi – A Plain Meaning Interpretation”, NZBR, 1999.

 

Landes, David S. “The Wealth and Poverty of Nations – Why Some Are So Rich and Some so Poor”, Little Brown Co, 1998.

 

Orange, Claudia "The Treaty of Waitangi", Allen & Unwin, 1987.

 

Pipes, Richard “Property and Freedom”, Vintage Books, 2000.

 

Prebble, John “The Highland Clearances”, Penguin, 1969.

 

---