New Book: ‘New Zealand; the Benefits of Colonisation’

Summary

In order to address the issue of whether the colonisation of New Zealand by the British was of benefit to the native people it is necessary to understand how they were living at the time of discovery of the islands of New Zealand by the outside world, starting with Captain Cook’s Endeavour in 1769, the year that changed New Zealand forever. Using the written accounts of eye-witnesses of the time rather than unreliable oral history or the claims of revisionist historians, this book describes the way of the life of the Maoris before colonisation and the changes that came about with the introduction of British sovereignty, British law and British people as a result of the Treaty of Waitangi in 1840.

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Below is a FREE taste of Chapter 16 Introduction of law which brings an issue up to the present day and that is very important in view of what the judges are doing to our long-held common law rights.

Chapter 16 INTRODUCTION OF LAW

“That wonderful construction of good sense and good judgement”.

Winston Churchill on English common law.

One of the things that Captain Cook noticed about the people of New Zealand was that they were “without any settled form of government”.

When Samuel Marsden and John Nicholas visited New Zealand in 1814-5 they too noticed the total lack of laws or a system of law. Of the natives’ superstitions Nicholas wrote, “It serves them in the absence of laws as the only security for the protection of persons and property, giving them an awful sacredness which no one dares to violate.” 2

While staying at Kerikeri on his last visit to New Zealand in 1837 Marsden was approached by Wiremu Hau, a young chief who had succeeded Hongi. Hau presented the missionary with a letter, appealing for the establishment of some form of law in New Zealand. “Sir, will you give us a law. This is the purpose of my address to you.

First, if we say ‘let the cultivation be fenced, and a man through laziness does not fence [and] should pigs get into his plantation, is it right for him to kill them? Do you give us a law in this matter.

Second, Again, should pigs get into fenced land, is it right to kill or rather to tie them until the damage they have done is paid for? Will you give us a law in this.

Third again, should the husband of a woman die and she afterwards wish[es] to be married to another, should the natives of unchanged heart bring a fight against us – would it be right for us to stand up to 1 resist them on account of their wrongful interference? Will you give us a law in this also.

Fourth, Again, in our wickedness one man has two wives but, after he has listened to Christ, he puts away one of them and gives her to another man to wife. Now, should a fight be brought against us, are we in this case to stand up to fight? Give us a law in this.

Again, should two men strive, one with the other, give me a law in this. My mode is to collect all the people together and judge them for their unlawful fighting, and also for wrongfully killing pigs. Therefore I say that the man who kills pigs for trespassing on his plantation, having neglected to fence, ought rather to pay for the pigs so killed. Will you give us a law in this.

Sixth, but there is another. Should a man who is in the Church come in a fight against us. Give us a law in this. Another thing…..slaves exalting themselves against their masters. Will you give us a law in this also.” 3

From this discussion it was obvious that the concept of law was something that the natives were ignorant of but wanted to learn about. This fits in with what Rev. J. Buller wrote of them. “Their own rude law had been one of brute force.” 4

“Without the aid of iron the most trifling tool or utensil could only be procured by an enormously disproportionate outlay of labour in its construction and, in consequence, became precious to a degree scarcely conceivable by people of civilised and wealthy countries. This great value attached to personal property of all kinds increased proportionally the temptation to plunder; and, where no law existed or could exist of sufficient force to repress the inclination, every man as a natural consequence became a soldier……

Their intelligence causes them theoretically to acknowledge the benefits of law, which they see established amongst us; but their hatred of restraint causes them practically to abhor and resist its full enforcement amongst themselves…..people to whom, for their own safety and their preservation, we must give new laws and institutions,” wrote F.E. Maning,5 who also said, “At the time I am speaking of [pre- 1840] the only restraint on such people [violent ones] was the fear of retaliation.” 6

“The disunited state of the tribes and their jealousy of each other render it impossible to enact laws,” wrote Captain Hobson to Governor Bourke of New South Wales after visiting New Zealand in 1837 on HMS Rattlesnake. 7

“Pre-February, 1840, with no law and order, New Zealand was literally in a state of anarchy. Without law there could not be property rights; property could be taken and you could be killed without consequence,” wrote Andy Oakley in his book, Once We Were One. 8 And John Robinson in When Two Cultures Meet; the New Zealand Experience: “In the absence of any codified law or higher authority, there was no rule of law, no guarantee of safety. The response to a perceived wrong would be either to attack and thus to revenge that wrong, or to face one another, starting with warlike challenges, or following with argumentative dispute.” 9

In 1842 Te Whero Whero, who later became the first Maori “king”, speaking of the changes brought about by the Treaty of Waitangi, said to his people at Kaitohe, “And now I bring you this new treasure. We have brought law, a new law, to save us from killing and robbing each other. I will take this, my treasure, up Waipa, through every bend in the river. Friends, do not think little of what I say.” 10

“It was the law of Christianity that put an end to our cannibal practices,” Tamihana Te Rauparaha told the Kohimarama conference of chiefs in 1860. 11 Another chief, Hapurona Tohikura of Ngatiapa told the same conference, “My heart embraced the laws of the Pakeha….The law put an end to our evils.” 12 And Wiremu Te Whero of Ngatinaho: “The Governor came, bringing with him the laws”. 13

Himiona (Tuhourangi, Tarawera) told the same conference, “After this came the law. I saw its benefit and adopted it forthwith. The reason why I approved of it was a means of correcting all that went wrong.” Pererika: “Missionaries were sent to us, and then the Law appeared”. 14

In the words of Sir Apirana Ngata, probably the greatest mind that Maoridom has produced and whose face adorns the current $50 note, “Many claims were made [pre-1840] by various Europeans for the one piece of land sold to each of them by various Maori chiefs. Where was the law in those times to decide what was right?…..The Maori did not have any government when the European first came to these islands. There was no unified chiefly authority over man or land…… How could such an organisation as a Government be established under Maori custom?” 15

“They [the natives] regarded with admiration the peacefulness established by our habits of law and order, and displayed an almost unhoped-for degree of good temper in yielding their assent to the new order of things, which forbade the infliction of summary punishment as vengeance by the offended party according to their former customs,” wrote Edward Jerningham Wakefield. 16

It was certainly an improvement on their “former customs”; a dispute between two chiefs in Northland pre-1840 resulted in a hearing at the house of one of them. In the words of F.E. Maning, “The arguments on both sides were very forcible; so much so that in the course of the arbitration our chief and thirty of his principal witnesses were shot dead in a heap and sixty others badly wounded, and my friend’s house and store blown up and burnt to ashes.” 17

In view of these many and largely eye-witness accounts that there was neither laws nor a system of law in New Zealand prior to the Treaty of Waitangi it is both astounding and alarming to record that there are forces in the current Maori sovereignty movement and its supporting cast that propagate the utterly false statement that there was a system of law in New Zealand prior to the Treaty.

Among the worst offenders are two judges of the Supreme Court of New Zealand, Joe Williams and Susan Glazebrook. Williams is the first part-Maori judge of this, the highest court in the land since the Labour government of Helen Clark so unwisely ended our age-old right of appeal to the Judicial Committee of the Privy Council in London – a more objective and competent court than the gimcrack institution that replaced it. Williams is a former chairman of the Waitangi Tribunal, where he “distinguished” himself by enthusiastically pushing the WAI 262 Report, recommending that ownership of all New Zealand’s native plants and animals be taken away from the public and handed over to that small group of New Zealanders who can claim a smidgeon of Maoris blood. This Report is the epitome of racism, vengeance, nastiness and theft.

In a 2013 speech titled Lex Aotearoa, Williams “described tikanga Maori as Aotearoa’s first law; for 700 years it governed society on our islands. When English colonisers imported their common law system – Aotearoa’s second law – tikanga was mostly pushed aside. The Treaty of Waitangi was supposed to bring the two systems together.” 18

This is completely untrue. Tikanga was not a system of law before 1840. It was merely a word for the customs of various tribes and it differed from tribe to tribe, from place to place, and from time to time.

Tikanga was more a collection of cultural habits of these Stone Age people and it was heavily laced with revenge (utu), superstition (tapu), plunder (muru), violence and bloodshed. In an 1825 meeting at Kerikeri between missionaries and seven leading Ngapuhi chiefs Hongi Hika “described how the imperatives of tikanga prevented them from giving up war as a way of life.” 18 Is this what Williams wants? A “system of law” tikanga certainly was not. It did not have courts, cases, precedents, clarity or consistency. Or even writing!!!

“We do not want to share the failure of current law, where key words such as tikanga shift around, with the meaning chosen according to the requirements of a Maori litigant. It is poor law when groups can plunder the public purse behind a smokescreen of ambiguous language,” wrote Dr. John Robinson in When Two Cultures Meet; the New Zealand Experience. 20

And as for Wiliams saying that the Treaty of Waitangi was meant to bring this non-law system of tikanga together with the common law; that is not only false but utterly preposterous as the whole point of the Treaty was to bring to New Zealand a system of law that hitherto it had not had. There is not a single word in the Treaty or its Preamble that states or even implies that tikanga was to have any place in the new British colony. Even if tikanga was a “system of law”, it could not co-exist with English common law since it is not possible to have two different systems of law operating side by side in the same jurisdiction.

Despite being ruled by the same monarch since 1603 and being the same nation since the Act of Union of 1707 England and Scotland have different systems of law – the common law in England and an amalgam of common law and Roman law in Scotland. Completely separate jurisdictions. No one has ever tried to run them together as that would never work. It would work even less were English common law in New Zealand to run side by side with the non-law system of tikanga, which is not much more than the primitive practices and beliefs of pre-1840 tribal witch doctors.

In making the false assertion that tikanga was a system of law Williams was either woefully ignorant of the law, history and constitution of New Zealand or he was being deliberately deceitful – perhaps in pursuit of an agenda that seeks to undermine our common law rights that everybody in New Zealand has enjoyed since 1840. In either of these events it is questionable as to whether Williams is a fit and proper person to be a lawyer, let alone a judge.

Williams tried to introduce the fiction of tikanga in the Peter Ellis case in the Supreme Court and was supported in his error by another judge, Susan Glazebrook. And, just as cancer spreads, so too does this judicial falsehood that tikanga was a pre-1840 “system of law”.

In the High Court case of Edwards (claims by tribes for large swathes of foreshore and seabed in the eastern Bay of Plenty) Judge Peter Churchman ignored the clearly stated intention of the democratically elected Parliament of New Zealand by putting the non-law tikanga above the requirement in the Marine and Coastal Area Act (s. 58) that a claimant must prove that its members have “exclusively used and occupied their claimed area from 1840 to the present day”.

“Up until the assertion of sovereignty by Great Britain in 1840 the sole system of law in New Zealand was tikanga Maori,” he falsely asserted before waffling on about the “earth mother” and the “sky father”…… “with the earth being created when these two were thrust apart by their children” and other such juvenile Maori witch-doctory which should have no place in a modern court of law. By basing his judgement on a fictional “system of law” that never existed Churchman’s whole rotten judgement seems to be based on a lie.

Since the claimants could not succeed in accordance with the clearly stated words of the Act, that should have been the end of it. Instead, Churchman said, “The task for the court in considering whether the requirements of s. 58 (1) (a) of the Act have been met is therefore not to attempt to measure the factual situation against Western property rights or even the tests at common law for the establishment of customary land rights. The critical focus must be on tikanga and the question of whether or not the specified area was held in accordance with the tikanga that has been established.”

He then passed the whole thing over to a couple of part-Maoris, Hiria Hape and Doug Hauraki, who are not part of the justice system but who have spent their careers in advancing Maori culture and Maori interests, as to whether these applicants, who failed to succeed under the Act, held their claim “in accordance with tikanga”. So, why do we have judges on Churchman’s salary of $471,100 plus unbelievable perks when the case can be more or less decided by two outsiders?

In the words of former judge, Anthony Willy, commenting on this ignorant and dangerous judgement, “It is simply not tenable to import spiritual beliefs and ancient codes of conduct into the fabric of the contemporary common law of New Zealand. The law must be certain.” 21 In the not too distant past New Zealand had judges – like Judge Willy – who knew, understood and valued the law. Now we have types like Churchman who ignore the law and in the process take away the rights of the people of New Zealand so as to indulge the greedy claims of small, private groups of iwi. Churchman’s mistake, if not outrage, was all based on the premise that tikanga was a system of law when it plainly was not.

Another deeply flawed judge who ties his flag to the non-law system of tikanga rather than to our tried and tested common law is Grant Powell who, before he became a judge was deeply involved in acting for claimants to the Waitangi Tribunal. One has to wonder whether he was the best choice to be the judge in the case of Reeder and Others, dated 12th October, 2021, which gave some tribal groups rights of customary marine title to the coast near Tauranga.

Powell also ignored the Marine and Coastal Area Act and said that the test of whether the claimants could prove exclusive use and occupation of the claimed area must be viewed “through a tikanga lens that reflects the continuity of customary relationship with the land” and that the nature of tikanga colours the words”, thus allowing a lower threshold than in the Act. 22

He really gave the game away and seems to have exposed his own bias when he said that the court must take a protective approach to customary rights and interpret these liberally in favour of indigenous groups (and against the rest of us). The Act does not say that. This judgement is every bit as dodgy as that of Churchman and does nothing to arrest the rapidly sinking trust in the judiciary by ordinary New Zealanders who have had their traditional rights shafted in so many ways by defective, if not biased, judges.

These four judges – Williams, Glazebrook, Churchman and Powell – are playing fast and loose with the law so as to advance the interests of one minority race group at the expense of all other New Zealanders. As John Robinson wrote in his book, Regaining A Nation; Equality and Democracy, “The whole basis of law is being overturned by judges who are effectively carrying out a coup d’etat against both the law and the constitution”. The function of a judge is to apply the laws that are enacted by the democratically elected Parliament and not to make the law and certainly not to break the law. They need to be reminded of their proper function very forcefully if they are not to become the enemies of freedom and democracy.

In choosing to ditch tikanga, utu and other forms of violence, and embrace for the first time a system of law that provided enforceable personal and property rights, the chiefs of 1840 were acting wisely; in fact, they were going for the top prize in exchanging their Stone Age culture for the legal system of England that was the most advanced and civilised in the whole world and which placed more importance on individual rights and humane values than any other. The rigid Code Napoleon of France was not – and still is not – a better system than English common law while in 1840 the United States was still practising slavery and would do so for another quarter of a century. As Sir Apirana Ngata said in his speech at Waitangi on the centenary of the Treaty in 1940, “Let me acknowledge first that, in the whole world I doubt whether any native race has been so well treated by a European people as the Maori.” 23

It beggars belief that, after nearly two centuries of living successfully and prosperously under English common law, a clique of out-of-control judges like Churchman, Powell, Williams and Glazebrook should try to reverse the wisdom of the chiefs of 1840 by falsely insisting that tikanga was a “pre-1840 system of law.”

In the words of John Robinson, “The Maori were fortunate that it was the British, at that time when the ideas of equality and universal humanity were flourishing, who were the dominant new force in the South Pacific. There were many people who would have used their superior weapons to kill them and take their land without a second thought, to conquer and enslave them (Cortez in Mexico, Pizarro in Peru and the Belgians in the Congo), slaughter them (as Alexander the Great did to all who opposed him, as Maori did in the Chathams). If we consider all societies throughout history – like the Spanish in the seventeenth century – the British were remarkably considerate.” 24

Article 3 of the Treaty of Waitangi gave all the people of New Zealand – native and settler – all the rights of British subjects and so liberated the natives from a state of fear and anarchy – something that Joe Williams, Susan Glazebrook, Churchman and Powell should be celebrating instead of trying to switch the clock back to a past that no one except those of ill-will could possibly want.

The rule of law not only guarantees individual rights such as habeas corpus and free speech but, through the law of contract, etc. has provided the foundation for the economic growth and improvement in living standards that have transformed New Zealand into the modern and comfortable society that we know today. As Apirana Ngata stated, “British law has been the greatest benefit bestowed by the Queen on the Maori people”. 25 Not tikanga!

The facts are very simple. Before 1840 there were no laws or system of law in New Zealand; since 1840 all New Zealanders have lived under English law, the finest system of law yet conceived by man. It is a treasure that must be preserved.

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Chapter 16 Introduction of Law

1. The Life of Captain James Cook, J.C. Beaglehole, P. 359
2. Vol. 2, P. 309
3. A show of justice, racial amalgamation in nineteenth century New Zealand, A.Ward, 1973, P. 32;
   Taua, A. Ballara, 2003, P.429-31;
   The Years Before Waitangi; a story of Early Maori/European Contact in New Zealand, P.M. Bawden, 1987, P.144-5;
   Two Great New Zealanders, John Robinson, P.69-71
4. Buller, P. 490
5. P. 92-3
6. Maning, P. 80
7. Capt. Hobson to H.E. Lt. Gen. Sir Richard Bourke, Governor of NSW, Enclosure A,Visit of HMS Rattlesnake to New Zealand, 1837, as quoted in Once We Were One, Andy Oakley, P. 142
8. P. 143
9. P. 35
10. Shortland, Auckland Standard, 9 May, 1842
11. Maori Messenger Reports on Kohimarama Conference, 2 August, 1860
12. Ibid, 23 July, 1860
13. The Kohimarama Conference 1860, John Robinson, P. 82
14. Maori Messenger Reports on Kohimarama Conference, 11 and 18 July, 1860
15. The Treaty of Waitangi; An Explanation, A. Ngata
16. Wakefield, P. 198-9
17. Maning, P. 68
18. Dividing A Nation; the Return to Tikanga, John Robinson, P. 160
19. Unrestrained Slaughter, John Robinson, P. 74-5
20. P. 13
21. NZCPR, 9 May, 2021
22. Stuff News, 14 October, 2021
23. When Two Cultures Meet; the New Zealand Experience, John Robinson, P. 20
24. The Treaty of Waitangi, An Explanation, A. Ngata 130

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