Thursday, May 20, 2004

Who's confused?

The Whig thinks I'm confused about Don Brash's position on the Treaty, saying that it's simply "an issue of interpretation". Hardly. What Don Brash is claiming - that cession of sovereignty was also a cession of property rights - has no support in either the Treaty, its judicial interpretation, or in common law.

British common law has a well-established concept of "aboriginal" or "customary" title, which essentially holds that the locals retain their property rights (including usage rights) when a country is settled or colonised. The Treaty confirmed that the this concept would apply in New Zealand, and early jurisprudence was consistent in upholding it. Justice Prendergast's dismissal of the Treaty as "a simple nullity" on the basis that a deal with "savages" was not binding put a hold on the legal use of aboriginal title for a hundred years, but a decision in 1986 resurrected it, and it has since gained widespread judicial and legal support. What Don Brash is saying - that sovereignty necessarily equals extinguishment - is simply not the case.

The crown did gain the right under article one of the Treaty to entinguish Maori property rights by legislation - but that is not what Don Brash was claiming (and in any case the Court of Appeal found that that right had never been exercised with regards to the foreshore and seabed, meaning that any aboriginal title that existed at the time of the Treaty was still intact).

Brash may wish that the government had expropriated the foreshore, and he may wish that we were still back in the dark days of Prendergast when the crown owned everything and deals with "savages" were not binding, but it did not and we are not. There is simply no basis for his claim that Maori ceded property rights with the Treaty. He is either fundamentally ignorant, or being deliberately misleading. Either way, he should correct himself publicly at the first opportunity.