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The loss of Shane Jones is real for all of us

The gloating over Labour's discomfit since Shane Jones' loss of patience with Damien O'Connor's "gaggle of gays and unionists" should not disguise New Zealand's loss.

Shane Jones was the Maori leader most likely to end the intelligentsia's disastrous experiment with Treaty separatism. Recall that he was not only showing Labour Party leadership credentials when he bluntly denounced Auckland's racist Unitary Plan requirements for "cultural impact assessments". When he did not back down, and instead elaborated, he was also putting in a claim to lead the country out of the constitutional swamp.

National's silence is consistent with its recent abandonment of respect for property rights and equality before the law.  Since ACT lost its mana, Parliament has had no champion of fundamental rule of law principles. Rt Hon Winston Peters fitfully emerges to remind the government that Treaty appeasement perverts core values, but no one there has even bothered to recall Sir Douglas Graham's reassurances that the Treaty was a matter between the Crown and iwi and would not affect a square inch of private property.

Crown negotiators continue to resist attempts to include provisions in settlements that would directly affect private property, but it is telling that it was left to Law Professor Ken Palmer to remind the Auckland Council of Labour's statutory reassurance to voters in 2005, that they would not be afflicted with ransom demands disguised as 'consultation'.

Even Shane Jones has not couched his objections in terms of principle. With the disclosure obtained by NBR it seems that Auckland Council considered the problems with its Plan as solely a question of political management, to slide it past objectors. For those outside the paywall an earlier NBR piece gives a reasonable flavour. So far there appears to have been no hint of appreciation that the Plan is hostile to the very core of the Treaty.

The Treaty's legally orthodox principles entitle iwi to compensation for breaches of classical property rights. Under the 'foundation constitutional document' theory those rights were secured for all of us when Maori and the Crown signed the Treaty.

Remember the words -

"Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive 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…"

Now think about how Auckland Council is trashing those principles in the draft unitary plan.

It is not excused by the Local Government Act 2002. That Act says
“In order to recognise and respect the Crown’s responsibility to take appropriate
account of the principles of the Treaty of Waitangi …” two parts provide principles and
requirements for local authorities that are intended to help Māori participate in the
processes of local authorities to make decisions

Nor does The Local Government (Auckland Council) Act 2009 help the racists behind the Unitary Plan: 

“[Part 7] establishes a board whose purpose is to assist the Auckland Council to make decisions, perform functions, and exercise powers by … ensuring that the Council acts
in accordance with statutory provisions referring to the Treaty of Waitangi”.

I've found no central government "principle of the Treaty" or any other excuse for their Unitary Plan provisions. The following is still Wellington orthodoxy:

"With respect to local government, the dominant view is that local government owes no responsibilities under the Treaty, apart from specific statutory obligations." (Department of Internal Affairs, 2006).

But when Shane Jones has gone who will have the courage and the wisdom to denounce the racists' seduction of Maori into trampling the property rights of their Auckland neighbours? They will be doing just what so many Treaty grievance processes have set out to redress.

Former ACT MP and National candidate Stephen Franks is principal of Wellington commercial and public law firm Franks and Ogilvie.

Comments and questions

I agree Mr Franks, It is a crying shame that there seems to be no room in parliament for anybody that calls "a spade a spade".

What a shame he had to leave, and "had to leave" is correct.
The very idea of Mr Jones working harmoniously in a cabinet with "Norman and DC" as leaders is simply unimaginable. But that is where Labours psyche is at, and sadly, Nationals is heading into the same area.

It appears Mr Franks still thinks that respect for property rights and the rule of law requires good statesmanship and wise leadership, and care to avoid various temptations to allow politically influential groups from using the power of the state to undermine said property rights and the rule of law.

It is my sad duty to suggest to you that the rule of law is a myth, and that the state is inherently responsive to politically influential groups and their desire for feelings of importance and their desire to gain wealth at the expense of other people and their property rights and liberties.

The rule of law is a myth. The concept serves to enlist one's emotions in support of the idea of the state as the source of law and order in society, and that the depredations and oppression it carries on are for the social good and in accordance with morality and law, being a system of objective rules applied impartially.

For example, how do you suppose that the Maori suffered grievances in the decades after the treaty was signed? What could get Crown soldiers to the point of invading Maori lands and dispossessing its owners? Did they think they were acting lawfully and morally? Of course the rule of law myth made them believe what they were doing was on the side of right, not just might. The owners were branded as rebels, and the invaders were engaged in law enforcement actions, in their own minds. The fact that these actions were ultimately motivated by politically influential European settler interests was hidden by the myth of the rule of law.

Of course now the Maori groups are politically well organised and influential and the shoe is on the other foot. And of course the Maori are proponents of the rule of law these days, in the form of inserting statutory references to the Treaty of Waitangi that require consultation of Maori and various ways of making Maori leaders feel important and transferring wealth their direction or in directions they influence. They insist this is perfectly consistent with the rule of law, and of course it is consistent with the belief in myth of the rule of law. In addition, they are sure to couch their position in terms of redress for past wrong and protection against future wrongs too.

The only way to break the myth of the rule of law is to suggest a feasible and desirable alternative. The public believes in the rule of law because they believe at the alternative is to be subject to the whim of a king or dictator. Seeing the alternative requires one to take off one's blinkers and see how social order emerges informally from the customs, manners and internal institutions of society. Good laws and institutions are endogenous to the market and to the society, and emerge as and to the extent required to coordinate consensual interactions, proscribe and provide remedies for harmful interactions, and to peacefully settle disputes. (This is of course how the best of our laws, as represented by English common law, originated).

I recommend fair minded readers to read John Hasnas's paper The Myth of the Rule of Law which is available online and deals extensively and persuasively with this topic.

Mr Hasnas' material is indeed extensive but not at all persuasive to the conclusions you have drawn. A legal principle is not a 'myth' just becuase it must contest with others, and their respective boundaries are continually being nudged back and forth. Indeed in the normal sense of the word 'myth' it is idle to apply it to genuine legal principle. The latter makes no claim to tangibility (existence in fact) except in application, the evidence of it having normative force in legal decision making.

Thanks for your comments Stephen and I appreciate you appear to have reviewed my comment and Hasnas's work.

Perhaps an analogy might be helpful here. For example, the Roman Catholic Church claims to be the official Christian church and to be an authority of a range of religious matters. The RC Church claims it has a special status in defining and imposing particular statuses such as excommunication and sainthood, or the granting of indulgences, and making formal binding rulings on matters of faith and religious doctrine. As with state law, RC cannon law has various boundaries being nudged back and forth, and believers in the special status and religious authority of the RC church will submit that this does not make the RC church's claims any less tangible and true. On the one hand there may be differences of interpretation of scripture or church teachings, but on the other hand the RC church's authority and right to clarify or rule on these definitely and authority isn't in question either, to those who believe in it.

Non-RC Christians deny the truth of the RC Church's claims of special religious authority and most believe that religious authority is dispersed around in the Christian community, and that matters of faith and doctrine have no, and should have no, organisational final arbiter on each, with the moral and religious authority to render binding and conclusive determinations on such matters. Such non-RC Christians naturally emphasize the alternative way of resolving religious controversies such as the role of conscience at the individual level, and the role of less formal and monolithic Christian communities, i.e. the plurality of Christian churches and some sense of competition between churches. This approach could be fairly compared to anarchy, and the same kinds of objection will be applied, for example it could foster the proliferation of heresy, and engender religious confusion, and that important religious values might not be well provided for by the free market in organised Christian religion. And the same charges against the state by anarchists can be made against the RC church and its teachings and practices, e.g. corruption, abuse of power, official heresies, ineffectiveness in advancing important religious values and so on.

If we don't need an entity with sole religious authority, why do we need one with sole secular authority over a territory?

Stephen raises some good points. Equally of concern is the emerging pattern of separatism in agriculture. Maori have separate funding streams, often in the form of government redress for historical land abuses by non Maori in earlier leasing arrangements. Such payments can be repetitive in nature, probably not without some justification, given our collective commitment to addressing as a nation, the injustices of our past legacies. Where I believe there is an emerging disconnect is that Maori agriculture ambition is increasingly focused on separate indigenous marketing and procurement strategies. It could be argued that such a strategy is at odds and in direct competition with not only NZ inc but also with the collective interests of non Maori brands and production processes.

Oh and what about Landcorp John? Then again the current buzz about collaboration will fix everything wont it? How quickly we lost the lessons of pre 1985.

Landcorp a total anomaly and is patently at odds with any democratic principle. Meat industry needs a collaborative change,it is perfect example of how to erode brand power through the principles of patch protection and destructive internal competition .

One of the things we should be most shocked about in this push for racial separatism and privilege is that Parliament lies behind it.

For the last two decades and more well-qualified historians and researchers have pointed out that some of these iwi settlements have been based upon untruths, exaggerations and downright lies.

Historian John Robinson (who was told by iwi that if he did not take out reference to historical facts that invalidated their claims the iwi concerned would not pay him- whereupon he did so)- to his belated credit he has now written a book admitting what he did and regretting it .

Judge Ed Durie also warned the country that iwi were being less than honest - which in fact means plain dishonest - in order to claim for themselves financial "recompense" which was not historically justified.

In a well-researched articles, columnist Amy Brooke has examined the founding and processes of the Waitangi Tribunal with examples of the fact that it has become fundamentally corrupt, Other well-respected historians have written in detail about these issues, substantiating these facts for the benefit of treaty negotiations Minister Chris Finlayson, who not only ignores very substantial evidence,but is offensive and dismissive when challenged, and shows distinct and damaging bias in his portfolio.

We are haemorrhaging many hundreds of millions of dollars towards claimants whom the Minister appears to personally support, having encouraged disaffected iwi to bypass both Parliament and the courts and deal directly with them - as in the Coastal and Marine area legislation

This, while the hospitals youth services etc are I kept cash-strapped and desperate for funding.

The situation has become scandalous - and as both Labour and National have no interest whatsoever in the preserving of democratic procedures - let alone an interest in the truth of these issues - it can well be argued that each of us is also morally culpable if we give any of these parties (and that includes the Greens and ACT) a Party vote.

The words "Treaty of Waitangi Principles" are meaningless but have been (ab)used to claim all kinds of privileges and payoffs,