Takamore case appealed to the Supreme Court

From the Herald:

The Supreme Court will decide who has the final say on where the body of a man whose family stole his body and took it to his ancestral home should be buried. 

James Takamore was 55 when he died suddenly of an aneurism in 2007.
He was originally from Taneatua, in Bay of Plenty, but moved to Christchurch with partner Denise Clarke 20 years before his death. The couple had two children. 

Mr Takamore had specified in his will, of which Ms Clarke was executor, that he wanted to be buried but did not say where. 

Despite him returning to the North Island only twice in 20 years, his family decided he should be buried on the family marae, in accordance with Tuhoe custom.
However, Miss Clarke had intended him to be buried in Christchurch. 

In 2009 the High Court ruled that the Takamore family had taken the body unlawfully and that Miss Clarke was entitled to make the final decision on where he should be buried. 

However, Mr Takamore's sister, Josephine Takamore, went to the Court of Appeal and argued that the burial of a Maori was governed by tikanga (customary practices), and that taking Mr Takamore's body was in accordance with Tuhoe burial custom. 

After a four-year struggle, the Court of Appeal last November released its decision, siding with Miss Clarke and ordering the matter back to the high court "to deal with the question of remedy''.

I've been meaning to comment on the awful decision from the Court of Appeal, but I've never got the time. I hope to comment on the case in the next week. In short, the decision shows little judicial imagination combined with bucket loads of disrespect for tikanga Maori. Don't, however, rejoice that the appeal to the Supreme Court has succeeded. The current bench, with the exception of the Chief Justice Elias, is equally hostile to tikanaga Maori. Anyway, expect comments here some time next week.

Relativity clause to trigger

Hamish McNeilly reports:

After years of speculation, the Government and Ngai Tahu have confirmed a Treaty of Waitangi top-up clause is set to trigger, potentially pumping millions into the beleaguered South Island economy.

Both Ngai Tahu and Waikato-Tainui negotiated "insurance clauses" as part of their original settlements, entitling each iwi to a percentage of all future Treaty settlements once they exceeded $1 billion in 1994 dollar terms.

For the first time, the Government has acknowledged that amount could be reached this year, which would entitle Ngai Tahu to 16.1% and Waikato-Tainui 17% of all future Treaty settlements.

If one or more of the larger iwi settle this year, think Tuhoe and Ngati Tuwharetoa, the relativity clause will almost certainly be triggered. The relativity clause ensures Ngai Tahu and Tainui maintain their position relative to other iwi. It’s, as termed above, an insurance clause.

Under the principles of the Treaty, the Crown is obligated to preserve tribal relations. In practice this means the Crown should not give an unfair advantage to one or more iwi, hence the relativity clause. The clause ensures Ngai Tahu and Tainui remain at the top of the pecking order – at least until Tuhoe and Nga Puhi settle.

I’m surprised this story’s failed to gain more traction. When the clause is invoked, the consequences will be considerable. Many New Zealanders will resent the fact that some iwi can double dip, some tribes may resent this as well and the National government won’t want to this to stick to them. After all, it was the previous National government that negotiated the clause.

Ngai Tahu and Tainui will welcome the money – as anyone would. This is especially so given Ngai Tahu’s investment in the Christchurch rebuild and Tainui’s increased play for strategic assets.

The Urewera failure

So the Urewera verdict is in and it’s a fizzer. The case, triggered by the 2007 terror raids, has come to an anticlimactic end with the jury finding the remaining defendants guilty on some firearms charges – which were largely minor – and failing to reach a verdict on whether or not the four were part of an organised criminal group. An organised criminal group is a group of 3 or more people who have as their objective(s) obtaining material benefit from the commission of crime(s) punishable by four years or more. This charge, the supposedly serious charge, is so far removed from what the Police and the government of the day were alleging in 2007.

Casting our minds back to 2007, the Police were claiming that they foiled a paramilitary plot and hijacked plans to, among others things, assassinate the Prime Minister. Terrorism charges were laid, but the Solicitor-General decided that terrorism charges would not hold. The Police and Crown Law, however, charged ahead. Failure after failure followed and charges against the majority of the defendants proved unsustainable and, as we know, the only serious charge the Police and Crown Law had against the remaining defendants resulted in a hung jury. Whatever way you look at it, this is an epic defeat for the Crown. Thousands of man hours, millions of dollars and the might of the New Zealand Government could not bring down a bunch of pohara Maori and Pakeha activists. Tame Iti is now further entrenched in Maori mythology and rightly so.

The government and the Police owe Tuhoe an apology. Ruatoki was attacked, and I deliberately use the word attacked, as school buses were searched by armed police, kaumatua and kuia were illegally detained, men and women were man handled and mistreated all for a few firearm charges. Charges that are so remote from what the Police were alleging. It’s a sorry affair.

Finally, I think the Maori Party must be acknowledged for the work they did in the wake of the raids and what they continue to do. Pita Sharples was right, at least in respect of Tuhoe, when he said the raids set race relations back 100 years.

Maori in the mainstream media

Early last year I posted a list of Maori blogs and Maori bloggers. I thought of posting a new list, but not much has changed in the past year. There are a few new comers, most notably the Turangawaewae blog, Joshua Hitchcock and Kaapua Smith. The old hands, think Mars to Earth and Tim Selwyn, are still around and going well. Given nothing much has changed I thought I’d have a look at Maori in the mainstream media instead.

Maori are thin on the ground in the broadcast media. But, to be fair, Maori faces are becoming more and more common. Take Shane Taurima who now fronts as Q&A’s lead interviewer. As an aside, I think Shane was the best choice. He’s a very experienced journo, impeccably neutral and suited to long form interviews. Anywho, TVNZ also has Miriama Kamo fronting Sunday, Jenny May-Coffin doing sports on the 6pm bulletin, Greg Boyd (who I think is Maori) presenting the late night news and the likes of Jodi Ihaka and Scotty Morrison fronting TVNZ’s Maori shows. These are, however, isolated examples. I can’t name a Maori reporter on One News, Closeup or Breakfast. Pretty poor considering 1) TVNZ is, supposedly, a public broadcaster and 2) would employ 50 or more journalists across One News, Closeup, Breakfast and so on. As the public broadcaster at least 15% of these journalists should be Maori.

TV3 doesn’t do much better. Mike McRoberts anchors 3 News, Mihingarangi Forbes used to be, prior to her move to Maori TV, one of the lead reporters for Campbell Live and Duncan Garner is 3 News’ political reporter. Other than that, I struggle to think of any Maori faces. Clint Brown used to, before he disgraced himself, front the sports and Carol Hirschfield anchored 3 News before her move to Maori TV. On that point, it’s interesting to note the talent sharing between TV3 and Maori TV.

Radio New Zealand does far worse than both TVNZ and TV3. There isn’t a Maori voice to be heard. Te Manu Korihi, RNZ’s Maori news segment, gets some airing, but nothing significant. Natalie Mankelow is, or was last year, the Maori issues reporter. Having said that, RNZ’s coverage of Maori issues is always fair and balanced and, considering there are few Maori voices, very good. Better than TVNZ’s coverage. TVNZ often looks for the sensationalist angle on Maori stories and rarely, rarely, ever so rarely looks for a Maori face and voice on anything – not even Maori issues. TV3 does OK with Maori issues. Nothing to write home about though.

Maori voices are thin on talkback radio too. There’s Willie Jackson and John Tamihere on RadioLive but that’s about it. I can’t find any Maori on Newstalk ZB.

Things are equally bare in the print media. Yvonne Tahana and James Ihaka are fairly prominent reporters for the Herald, but, you guessed it, they’re about it. Karla Akuhata does good work for the Waikato Times, however she’s is a lone ranger I think. Over at Fairfax, I’m not aware of any Maori journalists. Kate Chapman, who isn’t Maori, covers the Maori Party and Maori politics (she does it well I should add). I suppose one problem with trying to determine who the Maori reporters in print are is that many Maori don’t carry Maori names.

Looking at the Listener, North and South and Metro there isn’t a Maori perspective to be found. It’s as if Maori don’t exist.

Mana Magazine is, of course, pretty much exclusively Maori.

On the subject of exclusively Maori there’s Maori TV. Their coverage of Maori issues is, as you’d expect, brilliant. Their coverage of non-Maori issues is also good. Adrian Stevanon, who is Samoan I believe, covers pacific issues much better than Barbara Dreaver from TVNZ. The vast majority of faces on Maori TV are Maori – which is what you’d expect from, keyword, Maori TV.

It’s not only important to have Maori speaking on Maori issues, but it’s also useful to have a Maori person giving some perspective on mainstream issues. A Maori commentator will, almost certainly, offer a perspective that other people don’t have, see or understand. A few pop up from time to time, Rawiri Taonui, Maria Bargh, Willie Jackson, John Tamihere and myself are the only ones that come up with any regularity though. This isn’t good enough, especially from our public broadcasters. To be fair, the situation is changing, but there’s still a long, long way to go. Feel free to leave a comment if I’ve missed anyone.

Kawerau Intermediate files frivolous action

Few judicial review actions are filed in New Zealand each year and even fewer succeed. With that in mind, I just can’t fathom why Kawerau Intermediate is taking that route. From RNZ:

Kawerau Intermediate School (KI) in the Eastern Bay of Plenty has lodged an application for a High Court judicial review to try and save the school from closure.

Education Minister Hekia Parata wants to close the school and nearby Kawerau College from the end of this year.

A new year seven to 13 secondary school in the town will then be opened on the existing college site.

The principal of the intermediate says the judicial review is the final chance the community has to save the school.

That’s the thing, judicial review can’t and won’t save the school. The remedies available to KI are limited. The best the Court can do is order the Minister to revisit the decision, this time correcting any errors of law, breaches to natural justice and so on. All this means in practice is 1) The Minister will revisit the decision, but this time ticking all of the boxes and 2) The same decision will be reached. In other words, the Minister will still close the school. Let me be clear, the Court cannot order the government to leave KI open. The Courts cannot decide on the substantive merits of the Minister’s decision, merely the process.

If you ask me, this is a frivolous action on behalf of KI. It’s a massive waste of money. Money that could go towards providing high quality education and activities for the remaining students. The school may win a moral victory if they win the case, but they won’t score a substantive victory. It’s about time they let this issue rest.

Iwi back slavery on our seas

I’ve been meaning to read the Swain report on slave fishing, but - yes there’s always a but - I haven’t found the time. Instead, I browsed summaries, news reports and the like. The story goes something like this: last year the Sunday Star Times revealed that workers on foreign fishing vessels were being underpaid, forced to work in unsafe conditions, beaten and sexually abused. In other words, the workers were basically slaves. The story forced the government to act so the Minister, at the time Phil Heatley if I remember correctly, launched an inquiry. The result is the Swain report. The report recommends full reform of the industry. Unfortunately, the government is not picking up on all of the report’s recommendations, only the cosmetic stuff like increasing observers. Never mind extending New Zealand laws, like Health and Safety in Employment Act, to foreign vessels. In my opinion, this isn’t good enough.

Now, you’re probably thinking what does this have to do with Maori. Well, many of the foreign vessels guilty of slave fishing are fishing on behalf of Maori. Maori sell the rights to their catch because, the argument goes, Maori do not have the capacity to fish their quota themselves. This is true, but it’s also a massive cop out.

Maori unemployment is more than double the national rate. With that in mind, iwi should be doing all they can to create jobs. Iwi should have Maori crew working Maori owned vessels. Of course, some have argued that iwi can’t afford to own their own boats. First of all, this isn’t true of all iwi. Secondly, if iwi can’t afford to own and crew their own vessels, and I strongly suspect this isn’t true, why not invest in bareboat chartering. This involves hiring an empty boat, providing your own crew and fishing your quota. Jobs are created and the cost of owning the vessel isn’t a factor. And, importantly, the slave fishing issue is eliminated.

The decision to contract out, read iwi’s decision to sell their quota, is nothing more than a ruthless business decision. Selling ones quota is more profitable than investing in fishing it yourself – in the short term at least. Taking the long view, it makes more sense to invest in your own vessels and crew and, as a result, create sustainable jobs and a more diverse and resilient Maori economy.

If iwi leaders fail to move on this issue, then they’re morally bankrupt. They are, in other words, complicit in slavery. If this was Maori getting, say, raped at sea you can bet that iwi leaders would be encouraging Maori to blow up Parliament. 

At the moment, the only Maori seeing the benefits of the Maori fishing quota are the iwi elite. Maori aren’t in fishing jobs and the revenue that is generated from contracting out our quota certainly isn’t “trickling down”. We should demand better.

Len Brown: a scab and a racist?

These sorts of stories really annoy me:

A $30-million plus block of prime Auckland waterfront land will lose its marine park designation when it is sold cheaply to Maori as part of a big Treaty deal.

The 3.2ha Takapuna Head site, used by the New Zealand Navy as an officer training school, is being sold back to Ngati Whatua for $13.8m - but the iwi has been given freedom to do what it likes with the land.

At the same time, the Government is close to finalising a settlement with Ngati Ranginui in the Bay of Plenty on the land under two primary schools and Tauranga's new police station.

But local elected officials say they were never properly consulted: Auckland mayor Len Brown has written to Treaty Negotiations Minister Chris Finlayson asking for a meeting. He said the settlement would "potentially alienate future public access to the property".

"What is more concerning is that this change is being introduced without any formal consultation with the local board and/or community and the Auckland Council," he added.

Firstly, there is no obligation on the government and Maori to consult the Council. Secondly, the status quo will barely change. Ownership will change, but the Navy school will remain and in Tauranga the two primary schools and police station will remain.

What underlies objections to land transfers, or in this case land purchases, is racism. Many New Zealanders have an unfounded fear that Maori will restrict access, develop the land in ways that will negatively affect the community and so on. I’d challenge anyone who operates under this mind set to point to more than one example where Maori have blocked access to previously public land, urupa (cemeteries) and other wahi tapu (sacred) sites excluded. Restricting access runs contrary to Maori values. After all, there is no such thing as private property in Te Ao Maori.

In this particular case, the government and iwi have obtained approval from the Hauraki Gulf Forum. It was the Gulf Forum that secured the areas marine park designation so surely they are the most appropriate group to consult and seek approval from – the Council is secondary.

It's disappointing, but understandable I suppose, to see Len Brown objecting. If the Mayor continues to oppose the proposed deal then he risks perpetuating the current grievance. If iwi do purchase the land, new grievances will not be created. This is rubbish. Will the people of Takapuna be that sore about the navy school site being sold. 90% of the good residents won't even notice and 95% won't even care. 

Basically, this is a non-story. The story should focus on Len Brown's opposition to treaty settlements and his continued drift to the right.  

Kohanga hearing begins

Late last year the Kohanga Reo Trust lodged an urgent claim with the Waitangi Tribunal. The claim alleged that the Crown, or more accurately the Ministry of Education (MOE), was guilty of discriminating against Kohanga. The claim argues, among other things, that Kohanga should not be classed as early childhood centres (ECC) and separate legislation should be created to separate Kohanga from the MOE.

The hearing into the claim opened on Monday. As far as I’m concerned, the Trust is in the right. Kohanga should not be classed as ECCs. They were never intended to operate as ECCs and, in fact, do not operate as ECCs. Kohanga aren’t babysitting clinics or, strictly speaking, education centres - Kohanga are language incubators.

When defined as an ECC Kohanga are unable to operate according to tikanga. For example, if the kohanga is located on a Marae it must be fenced off and separated from the main complex. This is inconsistent with the spirit in which Kohanga were created and, as I said, tikanga Maori. And this is the central issue; the rules that straddle ECCs do not take into account Maori cultural needs.

As such, the Trust and their supporters are arguing for new legislation that will separate Kohanga from the MOE. I don’t know if this is entirely necessary, but the logic behind the call is clear. Rather than create a new act, the MOE could create a new category that would treat kohanga as autonomous entities with separate regulations governing their operation. However, I understand that there’s resistance to this idea. Under the MOE kohanga received funding increases 200% less than mainstream early childhood education centres and the number of kohanga have halved. This is a source of considerable tension.

I’ve no idea what way the Tribunal will fall. But for what it’s worth the Trust has engaged Chen Palmer and, from what I’ve seen, I think the Trust has a strong case. The Trust will continue to present their arguments this week and the Crown will respond next week. I’ll keep you updated.

Sandra Lee for Auckland Mayor....

In the wake of Len Brown's betrayal of his base, Maori are floating Sandra Lee as a possible contender for the Auckland Mayoralty. My understanding of Auckland politics is limited, but the idea is plausible - I think. Is anyone else hearing this?

Harawira slams "corporate takeover"

Hone Harawira has come out swinging against the “corporate takeover” of New Zealand. Newswire reports:

Mr Harawira condemned government plans to partially privatise four state-owned energy companies, and dismissed the government’s claims that asset sales will open the doors to “mum and dad” investors.

“Rather than being managed for the benefit of all of us, these companies will operate purely for profit, and it’ll be irreversible.

“The profits aren’t going to go to mum and dad, the profits will come from mum and dad paying higher power bills,” he said.

“It’s not just about fighting this or that piece of legislation, we have to stand together and fight back against the corporate takeover of this country.

“We need to stop the juggernaut in its tracks, and that will take action on a whole bunch of levels. It’s time we brought the war home. We’re in a war for our children’s future.”

This wasn’t delivered in a press release, nor was it delivered in a highly structured speech, this came out of a public meeting. No politician, with the exception of Winston Peters, is this quotable off the cuff. David Shearer’s advisors can spend hours formulating key lines, but they never achieve the sort of cut through Hone can create. The “corporate takeover” narrative, or line as it is at the moment, cuts to the heart of the government’s approach to governing and, I imagine, would score well if focussed grouped.

Labour, and to a lesser extent the Greens, don’t have an equivalent narrative. In opposition National had, among others lines, the “nanny state” narrative. Maybe David Shearer is going to reveal Labour’s cut through issue(s) and narrative on Wednesday. You’d hope so because Winston Peters, Russell Norman/Metiria Turei and Hone Harawira own the opposition benches. This is contributing to the ideas that 1) Shearer is a political lightweight 2) Shearer stands for nothing and 3) Shearer knows nothing.

I suspect someone’s going to say “no, you’re wrong because Labour’s rising in the polls”. I’d tell you to wake up. Labour isn’t rising as a result of action on their part; Labour’s rising as a result of the government’s efforts to push unpopular policy. It’s a default rise, not a positive rise.

On a slightly different note, Hone Harawira is still struggling to control his emotions. Hone subjected Gordon Campbell to some profanities when Campbell, by the looks of it, took up the role of devil’s advocate at the meeting. It’s unacceptable to abuse anyone, least of all a respected journalist that shares your position.

More on the Maori Party and s9

The pressure is mounting on the Maori Party. From TVNZ:

The leader of Pita Sharples' iwi says he will help the Maori Party pack up its offices if a controversial treaty clause is not applied to private shareholders buying state assets.

The Maori Party threatened to quit the coalition if the treaty clause did not apply to both the Crown and private shareholders.

But only the Crown will be subject to the treaty clause in legislation unveiled by National yesterday, putting the Maori Party under pressure to make good on its ultimatum.

"Well they [the Maori Party] said it and we supported them, so there's going to need to be some quite strong thinking around this issue," said Ngati Kahungunu chairman Ngahiwi Tomoana.

Many Maori are very, very disappointed that s9 will not be inserted in the Mixed Ownership Model Bill. Instead, s9 will be replicated in the Public Finance Act (PFA) and will only apply to the Crown in respect of the PFA. That, according to many Maori including myself, is not good enough.

When the government floated the idea of removing s9 the Maori Party went nuclear and demanded that private shareholders fall under s9. In the party’s submission on s9 they hold that “section 9 relates to all shareholdings not just the Crown’s”. Remember the Maori Party stated that they would dump their deal with National if this condition was not met. This condition remains only half satisfied, meaning s9 applies to the Crown only, yet the Maori Party remains in government. God knows how they can justify that.

You can argue that the party is taking a pragmatic approach. The government was never going to accept the Maori Party’s demands and, after all, they have no leverage. But on the other hand you can argue that the party has caved on principle – again. They said they would do this, but ended up doing that. Much like they did with the Marina and Coastal Areas Act.

In my opinion, the leaders are undermining their own credibility and further damaging the Maori Party brand. Outside of iwi circles and outside of government circles the Maori Party brand is shit. They cannot afford to have iwi leaders turn against them. Support from iwi leaders is about the only thing that could possibly carry the Maori Party through the next election. But even then, I don’t think that’s going to be enough.

Maori Party complicit in attack on Maori rights

So the government has announced that s9 will be retained, or replicated according to Bill English, in the mixed ownership act (or whatever it’s going to be called). The new section will read: "Nothing in this Part shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi. For the avoidance of doubt, ss1 does not apply to persons other than the Crown."

The first thing to notice is the wording “nothing in this part”. Read, the section will not apply to the entire act. Instead, the new section will apply to the parts of the Public Finance Act (PFA) that relate to the mixed ownership companies (the purpose of the PFA is here). This isn’t good enough. The government will retain a controlling stake in the new companies; therefore a treaty clause should operate on the companies themselves – not just the Crown in respect of the PFA. Read, a treaty clause should be inserted in the new act not just the PFA. After all, for all intents and purposes the new companies will be Crown entities.

The second thing to notice is that subsection 1 will not apply to persons other than the Crown. The government reasons that it is impossible to bind non-Crown groups to Treaty clauses. If this is the case, why bother to include a section that states this? Carwyn Jones takes the government to task on this matter.

The government also reasons that s9 as it stands applies only to the Crown and not the SOEs themselves. This is a strange claim. SOEs are Crown entities. A part of the executive. Hence the Treaty clause, hence the ability to OIA an SOE and so on.

This cannot be seen as a win for Maori. Joshua Hitchcock makes the point that s9 is weak as it is and that the entire debacle over retaining the section is an opportunity lost. Rather than having a debate about strengthening treaty rights, we’re having a debate about retaining the weak protections we already have.

Tony Ryall understands that the Maori Party is satisfied with the wording. Well, if that’s the case the Maori Party cannot continue to claim to any credibility as a representative of Maori. This is a weak outcome and not the one Maori signalled they wanted. The government comes out of this looking clean, but the reality is far from it. Contrary to media reports, the status quo has not been maintained, it has been eroded.

The Maori Party will, given their complicity in this, suffer the political consequences. Selling out on ACC changes, the ETS, the 90 day law and the Marine and Coastal Areas Act built the perception that the Maori Party’s principles are flexible, or in other words it built the perception that the party are a bunch of sell outs. Hone Harawira and, but to a lesser extent, Labour have exploited this narrative well. A refusal to walk over s9 will solidify that perception, or that reality as you could credibly argue. This opens the door for a resurgent Labour and a dominant Hone Harawira.

Maori are, without a doubt, better off because of the Maori Party. The party does a poor job selling this proposition, but most Maori know it intuitively. However, this is becoming irrelevant as more and more Maori begin to view the Maori Party as a waste rather than a use. The gains the party has secured this term are minimal and, so far, the losses are substantial. Attacks on s9, TPK, the Maori Policy Unit in MFAT and so on outweigh any good achieved thus far.

I’m confident in picking that this will be the Maori Party’s last term. Turia and Sharples are retiring and Flavell will be on the wrong end of an epic thrashing in Waiariki.

Policy for sale

The Prime Minister is on the back foot – again.

The Prime Minister says there will be fewer pokies in New Zealand, despite the Government's deal with Sky City Casino to build a national convention centre in return for more gambling machines, because of a policy to reduce numbers.

John Key this morning defended casinos as a safer gambling environment despite five children being locked in a van outside Sky City Casino last month.

"In a casino they are in a better environment say than attached to a pub deliberating targeting low income people in South Auckland."

"In a casino they are in a better environment say than attached to a pub deliberating targeting low income people in South Auckland."

Casinos had more stringent conditions and so were more able to reduce the harm caused by gambling, he said. I don’t agree with this. Casinos are always, with a few exceptions, targeted at low income people. There are smatterings of high end gamblers, but the overwhelming majority of gamblers are low income people.

I struggle to see how John Key can claim a Casino is safer than the pub. Alcohol facilities are always attached to Casinos. The Casino managers aren’t stupid and they know that 74% of all gamblers drink while playing.

Sure, Casinos have a dress code. But unless you’re come fresh from the homeless shelter, you’re going to get in. Casinos don’t have a limit on what you can spend or how long you can spend in the Casino. The controls are limited. You can spend all night on the pokies pissing away your week’s wage.

An increase in gambling machines will increase accessibility and, in turn, increase problem gambling. This, like night follows day, will increase crime, poverty and family violence. For example, a woman whose partner is a problem gambler is 10.5 times more likely to be a victim of violence.

This is policy for sale. The Prime Minister looks disingenuous trying to spin it otherwise. This would almost be acceptable if he wasn’t selling harmful policy.