Dec 14, 2012

On Tariana Turia's retirement

A few comments on Tariana Turia’s decision to retire:

  • Te Tai Hauauru isn't wide open - yet. Turia retains a loyal following and has, I think, the mana to anoint a successor. On the other hand, 2017 will be anyone's election. Unless Turia’s successor solidifies her base, boundary changes and a strong field might weaken the Maori Party hold on the seat. It’s worth remembering that their share of the party vote has declined from 31% in 2005 to 21% in 2011. Assuming that 2014 will be a four-way contest in the Maori seats (Lab v Green v Mana v Maori), the downward trend will continue. 

  • Rahui Katene now has an opening. Rahui is based in Porirua (one of the electorate’s major population areas) and has campaigning experience and an experienced campaign team. As much as Katene wants Te Tai Tonga, that electorate’s staying red for the foreseeable future. Katene will also fulfill the constitutional requirement that there be both a male and female leader. 

  • Turia’s legacy is not whanau ora. The program, in its current form, will not survive a change of government. Turia’s legacy is the Maori Party itself and the normalisation of kaupapa Maori politics. The Maori Party are not and never were a radical party. Their approach to governing, rather than looking to overthrow or remould the system, was to insert Maori into the governing and business classes. The party achieved that. The Iwi Leaders Group are now a power structure in NZ society, government has and is devolving some power to iwi (think Whanau Ora and Charter Schools) and the UN Declaration on the Rights of Indigenous People lends international recognition to tangata whenua. 

  • Not to take anything away from Tariana Turia and her achievements. She deserves an enjoyable and prosperous retirement.

Dec 6, 2012

Citizen Tuheitia...

Should Kingi Tuheitia stand down? It’s a valid question, surely. In an attempt to apply further pressure on Tom Roa and the remaining members of Te Arataura, Tuheitia has released a second open letter claiming that “Waikato -Tainui is once more at the edge of an abyss.” Well, yes, but is Tuheitia the right person to pull the tribe back?

It’s worth remembering that the Kingitanga is not an expression of power or sovereignty. The movement is an expression of and tool for unity. Tuheitia, however, appears to treat his office as if it's a cheap imitation of the worst aspects European Royal Protocol. In 2011 the Herald reported that:

Guests are encouraged to lead conversation, although it should be kept to only two subjects, and people should ask only polite questions, keeping the whole encounter to one or two minutes maximum.

Guests are also encouraged to refer to Tuheitia as “your majesty”. Odd. I find it strange that royal protocols exist at all – Te Atairangikaahu did not keep a protocol guide. Hell, when she travelled the country she would stay at the homes of her friends and whanau. No hotels and chauffeurs, thank you very much. After all, the Kingitanga isn't about reverance and mana does not extend to those people with less having to act towards you with veneration.

Add to that a verbal incident that the Waikato Times reported in 2010. Apparently, in a meeting about Tania Martin and Te Kauhanganui, Tuheitia let rip against a kaumatua and Tame Iti’s sister. The King is reported to have asked the kaumatua whether he can “fucking read” and, when called on it, he told Iti if she doesn’t like it she can “fuck off”. Not the qualities you would expect of any leader, let alone the Maori King.

Waikato-Tainui members are also asking whether this is part of a continuing campaign for more power and money. In January this year Tuheitia first voiced his desire to “take control of the tribe’s parliament” and Chris Webster reports that the Office of the King has received millions in tribal funding from 2009. Earlier this year Tuheitia penned a plea in the tribal magazine for further funding. You have to ask whether the King's latest reach for power, read the first and the most recent open letters, are part of a pattern.

Another cause for worry is the King’s cartel of advisors. The King maintains a large office, in comparison to his mother at least, including Rangi Wallace who admitted to beating his step-daughter and her mother, Helen Kotua. Further to that, Wallace also owed $250,000 to IRD in 2011 and Kotua owed Baycorp over $3000. Kotua is the author of the protocols above. 

Tuheitia has also come under fire for appointing Greg Miller, a “Pakeha”, as his representative on Te Arataura. In a similar vein Tuheitia nominated Susan Cullen to the Board of Te Wananga o Aotearoa. Cullen, whose father was the CEO at the time, is reported to have earnt more than $74m in 5 years from contracts with the Wananga and shamelessly touts her worth at over $30m. The Auditor-General later released a damning report into the Wananga criticising them for extensive conflicts of interest, poor quality courses and more.

Tuku Morgan was instrumental in the nomination and when the Wananga refused to accept her, and rightly so, he threatened legal action. This brings us neatly to Tuku Morgan – the source of and/or contributor to so, so much hurt in the tribe. Arguably there is a direct correlation between Tuku Morgan and tribal infighting. Many thought tribal battles had reached their climax while Tuku was the head of Te Arataura. Remember Tuku met Tania Martin, the former tribal leader, in Court on numerous occasions and appeared on television to launch a public attack while he was heading the executive. Negotiation and compromise is not a concept Tuku understands, apparently.  

It’s sad and I’m not going to pretend I have the answers. Structural change, like I discussed in a previous post, is a start but no cure. The personalities are toxic too. If the King succeeds in cleaning out Te Arataura and much of Te Kauhanganui (I support that idea in principle)... should he follow suit? Discuss.

Post-script: It's worth noting that I'm not speaking from personal experience here - I'm drawing from what is in the public domain. Rumours are relayed to me, but I'm hesitant to publish them. Also, I don't necessarily think Tuheitia needs to go. He should have the chance to improve tribal politics, but if he fails or makes matters considerably worse... Well, then we need to ask whether he displays the qualities we expect of an Arikinui.  

Dec 3, 2012

No, Justice Young, it's no king hit

I live with six boys; all Pakeha and all studying at Victoria. We’re a close and diverse group (if not ethnically). We range from religious to atheist, liberal to conservative and loose to sensible. Some of us were public schooled and others were private schooled and the North Island/South Island split is 5-2. Interestingly, one flatmate interned for David Cunliffe in 2011, another comes from a prominent National Party family and two others used to work for Donna Hall at Woodward Law. As you can imagine, the latter two have had some involvement and exposure to the water claim and the water case. Last week they told me that “Red Ron”, the supposedly liberal High Court Justice, appears to be leaning towards the Crown. One flatmate described him as ‘dismissive’ and ‘pre-determined’.

I don’t think this is surprising. After all, the Crown is right in arguing that the Courts cannot constrain Parliament. In the context of the water case, this means that the Courts cannot stop or declare invalid a decision or action properly made under the Public Finance Act Amendment Act 2012 (PFA). What's more, the Courts are reluctant to rule on matters of government policy. Asset sales are, I think it’s fair to say, the government’s main policy plank. As one example, in Curtis v Minister of Defence (2002) the Court refused to interfere with the Labour government’s decision to disband the air combat wing. The Court felt that it was a political not legal issue. You could reasonably argue the same principle applies.

However, emphasis on however, the orthodox rules are blurred where the Treaty is involved. Crown Law acknowledged as much in an article on judicial review where they state that “tensions arise… when disputes involve important political, Treaty or human rights issues"*. Despite the Crown’s argument that the Courts cannot review Parliament, the Maori Council and other claimants are on solid ground where they argue 1) transferring SOEs will be done via an order-in-council (an executive act) and is therefore reviewable. After all, the claimants are not asking the Court to review the merits of the PFA, but review an executive action taken under the Act AND 2) the case is directly analogous to the landmark (bad pun) case of New Zealand Maori Council v Attorney General, also known as the ‘Lands case’.

At its core, judicial review is about what the executive can lawfully do. The Maori Council and others are arguing, as I have in the past, that the government is in breach of the Treaty clause in the PFA if they remove Mighty River Power (MRP) and other SOEs from the State Owned Enterprises Act. In English, the government will be acting unlawfully. After all, there is a clear breach of the Treaty, and therefore s45(Q)(1), if a mechanism to recognise Maori rights and interests is not created and implemented. The Waitangi Tribunal held as much and even the most rudimentary application of the Lands case, broadcasting assets case** and radio frequencies case*** would find as much. An application of other Waitangi Tribunal decisions, for example Wai 1071****, will yield similar conclusions. Off the top of my head the government has failed to actively protect “Maori interests specified in the Treaty to the fullest extent”, they have failed to give sufficiently “high priority for Maori interests” and act “reasonably and in the utmost good faith”. Failing to recognise Maori wai rights and interests is a breach of the principle of active protection, failing to properly consult is a breach of the partnership principle and, I would argue, could be considered as procedural impropriety under judicial review.

I think this case will not turn, or does not turn, on what is justiciable. The case is more to do with whether privatising Mighty River Power will affect the government’s ability to recognise and compensate for the use and/or breach of Maori rights and interests. Ngai Tahu answer in the negative, but they are wrong. The Waitangi Tribunal was right to find that private shareholders are likely to push against any deal with Maori, especially if that deal decreases share prices. Why wouldn't they? The Tribunal said:

Partial privatisation will make a crucial difference to the Crown’s ability to act. Private shareholders will resist the introduction of any kind of levy, charge, resource rental or royalty that impacts on the profitability of the company and (as a result) their income and the value of their shares

Considering all of the arguments, it should be hard for Justice Young to rule against the Maori claimants. Although he could rule against us***** the Lands case is persuasive, if not binding. In that case the Court of Appeal declared that transferring land to SOEs, without establishing a mechanism to protect treaty claims to that land, would be unlawful under the Treaty clause of the SOE act. Sound familiar? Well, it is. The Maori claimants in the wai case are arguing (essentially) that there will be a breach of the Treaty if a mechanism to recognise and compensate for the use and/or breach of Maori rights and interests is not created.

When considering his decision, Justice Young should keep at the forefront of his mind Robin Cooke who said:

(the) principles require the Pakeha and Maori Treaty partners to act towards each other reasonably and with the utmost good faith.

That duty is no light one. It is infinitely more than a formality. If a breach of the duty is demonstrated at any time, the duty of the Court will be to insist that is honoured.

Whatever way Justice Young falls, we can be sure this case will be going to the appellant Courts.

Post-script: Crown Law is probably wrong in arguing that the wai issue is not justiciable (i.e. that the Court cannot rule on it because Parliament is the supreme law maker). Most Treaty litigation involves judicial review. In Treaty cases the government is usually exercising a power authorised by Parliament, but that power was or is used illegally. The approach the Courts have usually taken in judicial review is to make orders to get the parties negotiating. This is consistent with the approach in Canada, the jurisdiction closest to us on indigenous rights. The Canadian Chief Justice has said that “it is through negotiated settlements… that we will achieve… reconciliation of the pre-existence of aboriginal society (Morgan: read aboriginal rights) with the sovereignty of the Crown”.

Post-script 2: The Maori Council and other claimants can reasonably argue that international law, specifically the UN Declaration on the Rights of Indigenous Peoples, is a mandatory relevant consideration and that when interpreting the PFA and the Crown’s actions the Courts must strive for consistency with the declaration. The Supreme Court has shown that it is receptive to international law when reviewing domestic law (see Zaoui v Attorney-General (No 2 ) [2006] 1 NZLR 289; (2005) 7 HRNZ 860; [2005] NZSC 38 (Zaoui)). The declaration holds at Article 26 that “indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired”. At Article 32 it is held that “states shall consult and cooperate in good faith with the indigenous peoples… in order to obtain their free and informed consent prior to the approval of any project affecting their lands… and other resources, particularly in connection with the development utilization or exploration if mineral, water or other resources”.

*Crown Law Office. 2005. The Judge over your shoulder – A guide to judicial review of administrative decisions

**New Zealand Maori Council v Attorney-General (1994) (Privy Council)

***Attorney-General v New Zealand Maori Council (1991) (Court of Appeal)

****Waitangi Tribunal Report on the Crown’s Foreshore and Seabed Policy (2004)

*****Justice Young might find that the government is acting lawfully i.e. there is no breach of the Treaty clause because the sale of MRP will not affect the ability to recognise Maori rights and interests. Alternatively, Justice Young could use Crown Law’s “king hit” submission and find that a ruling against the government could amount to a ruling against Parliament and Parliament is supreme etc.