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The Treaty and property rights


Stephen Franks MP
Paper for New Zealand Law Conference: Christchurch October 2001
The Treaty was a compact to establish the Rule of Law and to recognise and secure property rights. Both sides sought those blessings from it in 1840. And property rights are essential to equality before the law. Equality before the law was at the core of our Rule of Law inheritance.
This paper records the benefits of property rights. It reviews recent scholarly recognition of the near impossibility of long term prosperity without respect for property rights.
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 19th 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.
Liberty and Security Depend on Property Rights
Racial harmony and equality of opportunity are rare human conditions. Only recently have a privileged minority of humans come to see them as normal. They are not. They were the product of great struggle. New Zealand inherited those endowments. We did not earn them. They survive only with continuing care.
Some consider harmony, equality and prosperity to be natural products of democracy. Democracy may not be a precursor or even a precondition of any of them, though most of us would prefer to believe otherwise. Certainly not the prosperous equality of opportunity that may mean the most to the most. History and a clear eyed view of our own world probably tell us that property rights are more vital than democracy.
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.
How Do Property Rights Work their Magic?
Democracy can result in majoritarian tyranny. Being equal before the law needs constraints on the power of the State. Law must mark and respect the territory that cannot be invaded by a governing elite, the neighbours, or the status quo consensus. This needs rights, and those rights must be individual rights. This does not mean a rejection of co-operation, of group endeavour, or of collective ownership. For example, the limited liability company as a collective ownership vehicle has liberated millions from poverty, through accumulating their savings.
But the difference is the difference between societies that that run largely on consensual institutions and behaviour, and those that rely on coercion. Co-operation, collaboration and collective endeavour are unavoidably consensual in a realm of individual property rights.
The would be controllers of collective wealth have to persuade, not order, individuals to entrust their assets to collective use. And they have to keep justifying their control, in competition with the competing opportunities for the individual. Equality of opportunity needs a potential for mobility in society, for transcending inherited status, for upsetting the status quo, for defying the power of existing wealth and political and religious authority, for exercising practical personal freedom that only property rights can deliver – the right to do as you will with your property without having to get the consent of elders or neighbours, or priests, or the tribe or wider family.
Individual property rights and the Rule of Law may have been England’s greatest gift to humanity. Property rights are the institution most necessarily associated with respect for life and liberty. Without property rights tolerance is short lived. You need a “castle”, from which to express cultural freedom. Only property rights, or superior force of arms, can secure a Türangawaewae.
Why Property Rights Matter:  Summary
1.            Property rights protect the weak against the strong.
2.            Property rights are fundamental to liberty and equality. People unable to hold property inviolate against claims of neighbours or the State don’t have the practical security to exercise liberties such as that of free speech or religion.
3.            Individual property rights save environments. Hardin’s “tragedy of the commons” explains why communal assets can turn into desert. Foraging goats in many lands, and almost all fisheries are examples. The individual incentive is to over graze or over fish as fast as possible before the common resource is exhausted.
4.            Property rights create incentives to plan and work for the long term. Where occupiers do not get, or are not responsible for the residual value, the incentives are to exploit without replenishing or developing.
5.            Property rights secure owners against neighbour’s abuse through doctrines such as nuisance, and the rules for damage compensation.
6.            Property rights shield innovators. Coercion to maintain the status quo is the hallmark of collectively exercised authority. Property rights that keep out the state, authorise peaceable experimentation.
7.            Individual property rights allow the persistent accumulation of capital. This is rare over the longer term in communal societies. The price for having decisions on property use made politically is the distribution of some or all of any surplus to those who ‘toil not’. It is needed to secure and maintain their political consent. Treating property as “an enshrined right of selfishness” (Karl Max) or as “theft” (Proudhon) results in societies that focus on taking not making.
8.            Property rights assure workers they can enjoy the fruits of their labour. It is harder for free riders to bludge.
9.            Property rights support markets and pricing systems which tend to move the control of assets into the hands of those with the most valuable potential uses for them.
10.         Political resource allocation allows the expropriation of surpluses by the classes that can keep their hands on the levers of power. Sometimes the route is assertion of ‘public resource’ status, then diversion of the benefit to the powerful. Or it may be more direct.
Property Rights Eroding in New Zealand
Property rights are now ‘damaged goods’ New Zealand.
·         Under the RMA:
*     We are all denied compensation for de facto expropriations.
*   Consultation and objection rights recollectivise the control of the use and disposition of property.
*   Powers to block a use arbitrarily transfer property value from owners to the veto holders. For example a building height limit enriches the land owner whose view is secured, at the expense of the owner who is restricted.
*   The uncompensated costs of RMA proceedings negate the transaction cost advantages of individualised ownership. Development under the RMA may be as expensive as it was for customary land holdings.
*   Political mechanisms for land use control make local politicians the chieftains of others’ property.
There are many other recent wounds to property rights, including:
·         Restrictions on harvesting forests which have devalued native forest land for all New Zealanders. Ad hoc compensation arrangements for some Maori (Waitutu) are duct tape to hide a broken axle.
·         The abrogation last year of the West Coast Accord which expressly denied compensation to those it damaged.
·         The commencement of a sharemarket takeover law. It expropriates the control premium recognised by valuers, economists and the law, as naturally incidental to share parcels that confer control. It attempts to require that it be distributed to shareholders who have not paid for it. A share is personal property, created by contract. This law tells competent adults they must accept in their contracts inefficient exceptions to the right to use and dispose of their rights as they wish.
·         The Trademarks Bill now before Parliament requires the Commissioner to cancel an existing mark, if faced with reasonable evidence that it causes cultural offence. There is no provision for compensation, nor any requirement that the offence be reasonable, or taken only by reasonable people.
Not so recent was the disgraceful omission of property rights from the New Zealand Bill of Rights 1992. Many Commonwealth constitutions were framed during the baleful intellectual reign of post-Fabians of the London School of Economics. Independence leaders often saw property rights as an unfortunate impediment to ‘land reform’. Most Commonwealth constitutions nevertheless provide for property rights. Singapore is the notable exception, along with New Zealand. The significance of this omission – and the extraordinary New Zealand ignorance of its importance, can be seen in Tom Allen’s "The Right to Property in Commonwealth Constitutions". In Allen’s comprehensive work, New Zealand does not even have an index entry. Of the hundreds of case citations only four are New Zealand cases, none upholding property rights. Among over 200 works in Allen’s bibliography there is only one with any recognisable New Zealand connection.[1]
Tino Rangatiratanga
After more than three hundred years of painful post feudal political growth, British common law asserted:
1.            the law should be no respecter of persons, treating the great and the small alike;
2.            property rights must exclude the arbitrary power of the state to requisition or interfere with the exclusive possession use and enjoyment of property (absent war or extraordinary exigency);
3.            judges should enforce contracts freely entered by adults, not substitute their view or the State’s view of what contracting parties ought to have decided.
That was the law extended by the Treaty to Maori and Pakeha alike.
Accordingly, tino rangatiratanga need be no mystery. Article 2 of the Treaty is not in conflict with sovereignty.
The Englishman’s home is his castle” summarised the jealously guarded right of the British citizen to do as he would inside his private property without interference from princes, priests or any other despots.[2] That was the ‘full chieftainship’ assured to “all the people of New Zealand” both rangatira and ordinary Maori.
Properly understood, the first part of the Second Article merely expresses the classical features of property rights. Full and undisturbed possession is the right to keep others out. The right extends without consideration of rank or status, so that the weak are protected against the strong.
Ownership also gives the right to the fruits or benefits of the property, to receive the income. It must include the right to transfer the property to others, whether by inheritance or by sale.[3]
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]
Not a Deed of Partnership
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).
The Treaty As a Foundation
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]
The Intellectuals
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]
“… it is unclear how one reconciles the strong individualist notions of undisturbed possession that seem to be guaranteed under the Treaty, with the [currently preferred] rule of non-discrimination in the enforcement of general forms of regulation. One option is to say that the grant of individual rights trumps the subsequent regulation. The other option says that it simply creates[d] new private rights that are not better or worse than the undisturbed possession of subsequent purchasers, namely any New Zealander, who is thereby subject to the same rules.” (p 13, 14).
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]
“What was significant about the Enclosure Acts was not that so many of them were passed by a property owning Parliament, but that in general a meticulous respect for fair compensation and due process was in fact observed. The Enclosure Acts did not provide for simple confiscation of the rights of common of which the poor were generally deprived. Whatever the Enclosure Acts may demonstrate about the attitudes of the propertied classes to the rights of the poor, they certainly did not demonstrate any lack of respect for the rights of property.”
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.
The Failure of Communal Settlement
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”.
Article 2 Reflects Classical Property Rights Learning
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.
Only in the last decade, particularly since the collapse of the Soviet Bloc and socialist utopian dreams everywhere, especially in Africa, have we started to recapture this knowledge. Our immediate forebears hardly needed to write about it. So obvious to them was the contrast between lands and regimes where property rights were respected, and those where they were not, they did not imagine that New Zealanders might have 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 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.

[1] An essay by Michael Taggart in Forsyth and Hare (eds) ‘The Golden Metwand and the Crooked Cord: Essays on Public Law in Honour of Sir William Wade QC pp91-112, Oxford: Clarendon Press, 1998. Michael Taggart is also acknowledged as having read a draft of chapter 7 of Allen’s book.
[2] Sir Edward Coke (d.1634) expressed it in his report on Semayne’s Case “the house of everyone is to him as his castle and fortress, as well for his defence against injury and violence as for his repose”.
[3]The Crown’s right of pre-emption conflicted with that. In the English version, it is a ‘right of first refusal’ qualification, not a negation. But in the Maori version, and in Hobson’s opinion, it was an exclusive right to the Crown to buy. This was both paternalistic, and potentially exploitative. And exploitation ensued, though arguably less of it than would have accompanied unrestricted trading. In either case, pre-emption conflicted with the equality promise of Article 3.
[4] … there is much force in the observation of Sir Henare Ngata and his evidence that “a contentious matter such as the Treaty will yield to those who study it in whatever they seek. If they look for the difficulties and obstacles, they will find them. If they are prepared to regard it as an obligation of honour, they will find that the Treaty is well capable of implementation.”” (Sir Henare Ngata’s evidence cited by Richardson J. in the New Zealand Maori Council case at page 673.)
[5] ‘He iwi tahi tatou ‘ Hobson’s repeated greeting to each signatory at Waitangi after signing.
[6] Consider for example Deuteronomy 19(14) “Thou shalt not remove thy neighbour’s landmark, which they of old time have set in thine inheritance …”. 5(19) “Neither shall thou steal”, 5(21) “Neither shalt thou covet thy neighbour’s house, his field, or his manservant or his maidservant, his ox, his ass or anything that is thy neighbours.”
[7] Orange cites Torrens writing to Lord Glenelg (Secretary of State for Colonies on 6 November 1839 – Orange fn 50 on p27).
[8] p17 and see also fns 94 and 95 to page 58.
[9] "The Treaty of Waitangi – An Explanation" The Maori Purposes Fund Board, 1922.
[10] Orange (p38) acknowledges "Without the land guarantee the treaty proposal would almost certainly have been rejected (as was a treaty that Gipps tried to press upon some South Island Maori visiting Sydney in early February 1840)".
[11] As signing was underway Catholic Bishop Pompallier interrupted to get an assurance of religious toleration (or perhaps to throw a last minute spanner in the works). Over the objection of other missionaries Hobson then insisted on the reading of a written statement that "the several faiths of England, of the Wesleyans of Rome, and also the Maori custom(ritenga), shall alike be protected by [the Governor]". See Orange pp 53, 57 and 58/ This gives no indication of any special Crown responsibility to promote Maori custom. This was an assurance of a classic ‘negative’ right – liberty or toleration, which was all Pompallier asked for.
[12] The first Chairman of the Securities Commission opted to recommend overtly ‘pragmatic’ and conceptually confused insider trading law for New Zealand because he could not accept the adequacy of a scheme depending on the ownership of information.
[13] The ‘Mataatua Declaration’ (http:\\ in 1993 shows these contradictions. The Royal Commission on Genetic Modification nevertheless managed to commend the Declaration as showing "world leadership" (p.289) of its August 2001 report.
[14] Incidentally he had no illusion about the impossibility of healthy government with shared sovereignty. In paragraph 134 he endorsed clear paramount authority for law making … “it being ridiculous to imagine one can be tied ultimately to obey any power in the society, which is not the supreme”.
[15] Sir Apirana Ngata (op cit) explored this question in his Explanation, reaching the conclusion that there were mutual breaches of the ‘one law for all’ requirement of the Treaty.
[16] The Rise and Fall of the Freedom of Contract (p 15).
[17] See Prebble’s ‘The Highland Clearances’ for stories to put our Taranaki “holocaust” in perspective.
[18] The Times of London ran vivid accounts of the events.
[19] These accounts are drawn from Bethell, ‘The Noblest Triumph’.