Gareth Morgan and the Pākehā Pathology

The Treaty of Waitangi. 

Sometimes it seems like the qualities we cherish in our democracy we condemn in our politics. We revere a kind of abstract equality, but we hesitate when it means substantive equality for Māori. There are plenty of New Zealanders willing to admonish Māori underrepresentation in local government, yet few are willing to support any measures to achieve the equality they claim to support. There are plenty of intellectuals and politicians who applaud the rule of law, yet few who supported the rule of law so much that they opposed the Foreshore and Seabed Act. 

This is the incongruous intellectual tradition of which Gareth Morgan is a part. He supports “rangatiratanga”, yet he opposes “unique political rights for Māori”, which is rather contradictory because rangatiratanga is a unique political right for Māori: it is the right to our “unique” indigenous systems*. Surely, for the sake of credibility if not consistency, you cannot support something in one breath and then condemn it in the next. Yet Morgan seems intellectually unfazed. 

As one might be after solving the tax problem and the cat problem, the “Treaty problem” must seem small and simple in comparison. The New Zealand Herald - whose roster of writers on Māori issues appears to be two Pākehā men – has commissioned a four part series based on Morgan’s new book, Are We There Yet? The Future of the Treaty of Waitangi. But Morgan, certainly an impressive economist and publicist, is hardly a Treaty expert.

In his first column, a kind of extended inoculation, Morgan tells us the Treaty “renaissance [should] be celebrated”. Yet in the second and third columns it becomes clear that underneath this superficial optimism is a grim fatalism: the Waitangi Tribunal is using the Treaty to “divide society along descent lines”. I’m sure the members of the Tribunal would be flattered to know they are credited with such sinister power. 

Apparently this division is emerging because the Tribunal is “only talk[ing] to one of the partners”. That is, the Māori partner. The reality is rather different. Far from refusing to participate in Tribunal hearings the Crown regularly disputes claimants’ versions of events and vigorously contests their evidence at hearings. But I suspect this is not Morgan’s meaning – how could a Treaty author get such an elementary fact wrong? – I think the clue to his intended meaning is later in the paragraph where he writes:

“How can those in the Treaty industry guide enduring solutions if they don't take non-Maori with them”

Or, in other words, the Tribunal and the “Treaty industry” - which, ironically, Morgan is now a part of as a Treaty author – must soothe Pākehā sensitivities and avoid findings which do not meet their ideological expectations. Morgan wants to shift the full burden to Māori – we must compromise – the full measure of justice is not available to us because it is not acceptable to them (Pākehā). The statement should be reversed: how can Pākehā society offer “enduring solutions” if they do not take Māori with them?

That is not to say I expect Morgan to completely understand our perspective. The relentless focus on what is acceptable to Pākehā – rather than what is just for Māori – is natural. When you are born to one culture with few voices dissimilar to your own then it is very easy to mistake the happy accident of your own cultural sensibilities as a set of natural laws. 

This is more common than we might hope and it is not peculiar to one culture. Yet in almost every settler colony only one culture gets to draw the line between the acceptable and the unacceptable, the normative and abnormal. Which culture gets to draw the line is a matter of power and where the line is drawn is then a matter of ideology. In New Zealand the culture that draws the line is Pākehā culture and where they draw it will often exclude Māori.

And this is very much what the anti-Treaty industry does: they draw a line and declare that we go no further. But Morgan is more sophisticated than this. He wants us, rather paternalistically, to reclaim our “self-esteem” with power devolved from the state, but he will not permit measures like dedicated representation which give us some power over the state. 

Yet, in the final column suggesting better ways to implement the Treaty partnership, Morgan then goes on to endorse an upper house with a 50/50 split between Māori and non-Māori. Confused yet? You should be because in each column Morgan warns us of this inchoate division the Tribunal and the Treaty industry are creating, yet he then suggests a political division between Māori and non- Māori as a solution to that division. Again, Morgan seems intellectually unfazed.

Which is not to say we should opposes his suggestions - most of them are already in place, all of them are acceptable steps forward – but we should recognise that he fails to examine the Treaty in a substantive way. Marking problems at the edges will not do. The Treaty partnership has no meaning without reckoning with where power lies and how it is really meant to be distributed. 

Social and political reality does not change just because it is unjust, it does so when the material reality that gave rise to it expires. The problem is economic – colonisation was wildly profitable, decolonisation is costly – but also ideological. Pākehā supremacy is an organising principle in New Zealand society. Certainly not in the sense that Pākehā think themselves racially superior and are pursuing a conscious agenda on that basis, rather in the sense that their systems are placed above our systems. 

Thus the burden of compromise always falls to Māori – we can push only for what is compatible with their system – this makes Morgan’s idea that there is some sort of creeping political division emerging an utterly ridiculous one. Think about it from an iwi perspective. For each iwi a typical settlement represents around 1 to 5 percent of what was lost. In this situation who is making the compromise? The party which agrees to concede 95 to 99 percent of what it lost or the party which agrees to return 1 to 4 percent of what it gained?

*Rangatiratanga is more than a "right" as we would normally understand it. It describes a form of authority as well as the systems, practices and so on which derive from it. However, in the context of Morgan's pieces he is referring to the "right" to rangatiratanga guaranteed in the Māori text of the Treaty. 

Reflections on Waitangi Day

I think of Waitangi Day (WD) as a metaphor for the national mood and the health of the bicultural partnership. For an illustration, compare and contrast WD 2009 and 2012.


WD 2009:

Significant for its sense of optimism, WD 2009 came off of the back of National’s election win and their partnership with the Maori Party. The optimism of that win and the symbolism of that bicultural partnership defined WD 2009. For Maori, the day represented a break from the foreshore and seabed era and a realisation of an old Maori ambition – a kaupapa Maori party in but not of the government. For non-Maori New Zealanders, what defined the day was the (vacant) optimism that the Prime Minister’s election win created. Early indications suggested that John Key was not cut from the same cloth as Helen Clark, Jenny Shipley, Jim Bolger or any other Prime Minister since Sir Keith Holyoake. Key represented a break from the radicalism of the fourth and fifth Labour and National governments respectively and a swing against the perceived nanny stateism of the fifth Labour government.

As a result of these factors, nothing much happened and no remembers the day. Well, other than the Popata brothers having a crack at the Prime Minister, but their actions were an outlier. Brent Edwards told RNZ that, compared to the past four years, WD 2009 was “much more peaceful” and “much more of a celebration”.* Pita Sharples encapsulated the mood when he spoke of the “covenant” between Maori and Pakeha and the “hope” he had for the future.**


WD 2012

WD 2012 is best remembered, rightly or wrongly, for the Popata brothers (again) and the late Sir Paul Holmes (and a few thousand off-their-tits Kiwis in London). The day came off of the back of significant tension between the Maori Party, Mana and Labour and antipathy towards the National government, including their support for off-shore oil drilling. Add to that the perception that the Maori Party had betrayed the optimism and faith of 2009, well, the conditions for vicious protest were set. Maori Party MPs were labelled “John Key’s niggers”, speakers were drowned out under protest and marches were held. Sir Paul Holmes captured the non-Maori mood that year: frustration with what was perceived as unjustified protest. After all, the Maori Party were in government. Add to that a stagnant economy, worsening unemployment and a series of disasters in 2011. It’s probably no surprise that the national mood wasn’t, for want of a better word, tolerant.

The irony was that the Maori Party in government is partly what fueled the protests. Maori felt that the party had over compromised in government (thus betraying the optimism and faith of 2009). Include a Maori unemployment rate that was worsening, static Maori education statistics and negligible improvement in Maori crime and, well, protest becomes almost inevitable.

(It’s a sort of interesting to note that, almost prophetically, Holmes' piece set the tone for what was a turbulent political year)

WD 2013

Treaty settlements are continuing apace, the flame war between the Maori and Mana parties is smouldering rather than burning and the constitutional review is beginning. On the other hand, asset sales and wai rights top the agenda. With that in mind, the conditions are present (although absent a catalyst for action on the day). The national mood is, I think, also in flux. The conditions are present, think wai rights and a perceived pro-Maori constitutional review, but a catalyst is absent. Having said that, John Ansell is planning on an appearance. Then again, he is hardly an explosive catalyst in the way that, say, a Supreme Court judgment that awarded significant wai rights to Maori. Anyway, I think these factor do not define WD alone. Hundreds of events are held across the country. Events that, I think, better catch the potential of WD better than much of what happens at Te Tii.

*Radio NZ has a collection of audio from WD 2009. Listening to the pieces gives you a sense that it was, like Brent said, a more peaceful and celebratory day than in previous years.

**That speech was, I think, Pita Sharples at his best - a conciliator and a cross-cultural statesman. It’s a pity that at many times he has failed to live up to that potential.

Fact checking Elizabeth Rata

There are two certainties in life: death and taxes. Benjamin Franklin lent fame to the proverb in a letter to French historian Jean-Baptiste Leroy. In modern times, writers tend to add a third certainty to create a triple or satisfy the rule of three. Vince McMahon (yes, I used to watch WWE) said that the three certainties in life are death, taxes and Randy Savage. He was right of course, but hardly suitable for a New Zealand context. In New Zealand, the three certainties in life are death, taxes and Maori bashing.

In the latest round of anti-Maori opinion, Dr Elizabeth Rata* argues that “tribalism” – meaning the Maori political system pre-1840 – is incompatible with democracy. Rata presents a more sober argument than David Round, but it is based on a false premise – that Maori operated under a system of tribalism and that Maori want to recreate said system.

Rata misrepresents the Maori political system. Maori did not operate under her invented definition of tribalism – the Maori political system was governed by tikanga. Maori society was grouped in three units; whanau, hapu and iwi. The hapu was the main political body led by a central rangatira and several lesser rangatira. Rangatira governed without force and relied on consensus politics to ensure compliance with tikanga. The consensus model was, arguably, as democratic as anything in industrial Europe. Tikanga developed as a result of centuries of practice and was informed by core principles (comparisons can be made with the common law). Tikanga regulated Maori political, legal, social and spiritual behaviour. According to Timoti Gallagher it was “flexible, adaptable and could be interconnected to fit with the demands of the moment or as new circumstances arose”**. This conception of Maori society is at odds with Rata’s make-believe notion of “tribalism”. As a result, Rata’s conclusions cannot stand. With this in mind, let’s pick the article apart piece by piece:

Kin status is what matters in the tribe; citizenship is the democratic status… Tribalism is exclusive. To belong you must have ancestors who were themselves born into the system.

Untrue. Whakapapa regulated belonging, but it was possible to join a hapu through marriage or immigration. Indeed, it was not uncommon for one hapu to subsume another.

Yet how can a traditional tribal system be revived when it was destroyed by democracy? Tribalism and democracy are incompatible - they cannot exist together as political systems in the one nation.

The Maori political system was not destroyed by the introduction of western democracy. Hapu transferred their sovereignty to the Crown in exchange for the protection of rangatiratanga. Crown sovereignty and Maori rangatiratanga have always co-existed, but one is subordinate to the other. Rangatiratanga was never destroyed (despite the Crown's efforts). Rangatiratanga is still exercised within our own "spheres", for example on the Marae or in Iwi governance.

Those wanting to place the Treaty into New Zealand's Constitution must address the implications of the fundamental incompatibility between democracy and tribalism if the constitutional review is to have any real purpose.

Well, that’s not right. Even if, and it’s a huge if, the Treaty were included in a written constitution that doesn’t alter New Zealand democracy. Constitutions remain subject to democratic amendment or destruction and neither the Treaty itself nor its principles diminish Crown sovereignty. The principles of the Treaty demand that Maori recognise and accept the sovereignty of the Crown in exchange for the protection of rangatiratanga and so on. The Treaty does not demand an end to liberal democracy and a return to the Maori political system pre-1840, if anything the Treaty with its reference to citizenship endorses Dr Rata’s definition of democracy.

The place of religion in New Zealand is a good example of the division between political status and identity. Many New Zealanders have a religion but their religious identity is not part of the political arrangements, although the right to exercise their religion is. Race and culture are like religion - an identity but not a political status. We meet in the political sphere as equal citizens not as members of a religion, a race, or a tribe.

An opponent of identity politics – fair enough – but this argument is working against 21st century trends. Former colonial societies are moving towards forms of multicultural or bicultural pluralism. New Zealand is no different. Racial politics is an entrenched part of New Zealand democracy. In 1908 the then Prime Minister Sir Joseph Ward rebuked Rua Kenana’s request to enrol on the Pakeha electoral role saying that Maori have “special representation of their own”.*** The representation the Prime Minister was referring to were the Maori seats, established in 1867 by the Maori Representation Act. The seats have and continue to affirm racial politics in New Zealand and are “an institutional endorsement that Maori are a distinct people with a unique place in New Zealand’s constitutional framework."**** Viewed in this light, the Maori seats have meant that the Maori democratic identity has been defined, for over a century and a half, by virtue of our whakapapa Maori. Rata’s argument does not hold water in the New Zealand context. The Select Committee reporting on the then proposed MMP legislation recommended that the Maori seats be retained despite the Royal Commission's recommendation to abolish the seats. Maori feel that the seats are an inalienable right – further entrenching racial politics as a part of our democracy.

Race or cultural identity cannot be included as a political status in a constitution.

Well, that’s wrong. Racial identity is already included in New Zealand’s constitution – in the Treaty and the Electoral Act - and it works perfectly well.

This takes me back to the question of chieftainship. Can chieftainship be exercised in a democracy? The comparison with religion holds the answer. Just as bishops and priests lost their considerable political power to democracy's system of accountable leadership, so too must today's iwi leaders accept the same limitations. Their influence on the political system should be that of any other social organisation or business corporation.

Rubbish. Of course rangatiratanga can be exercised in a democracy. After all, rangatiratanga is subordinate to the Crown’s sovereignty and only binding on those who submit to it. The Crown’s sovereignty – empowered by our democratic system – is binding whether you recognise it or not. Rangatiratanga is no different to any other form of devolved authority – confined and inferior. As for the argument that iwi leaders influence should be equivalent to an ordinary organisation, that ignores the New Zealand context. The Treaty guarantees Maori the right to citizenship (i.e. the right to participate in democracy and the acceptance of the sovereignty of the Crown) and the right to retain and exercise their Maoritanga. Successive governments and courts have recognised this right. The Treaty, various pieces of legislation and the attendant jurisprudence acknowledges that Maori have a special place in New Zealand society. The role of iwi reflects this.

At best, Rata’s piece is faulty because it relies on a false premise. At worst, it’s intellectually dishonest. Rata misrepresents the nature of tikanga and rangatiratanga and displays an impressive ability to think in binary. Unsurprisingly, Rata also demonstrates a poor grip on how democracy evolves to meet different conditions. New Zealand democracy, for example, has evolved to accomodate rangatiratanga and our cultural identity. Canadian democracy is also evolving to meet the special place of First Nations' people. The same is true across other Commonwealth countries and some parts of Asia and South America. Democracy does not have to confine itself to Rata's perfunctory and ostensible definition of the democratic state.

It's a shame that Rata is given a prominent platform to parrot her faulty views. Her regressive pieces go a long way towards justifying anti-Maori and anti-Treaty feeling and undermining sympathy for tino rangatiratanga. The three certainties in New Zealand are no Maoris, no Treaty and no sympathy.


Post-Script: Arihia at Te tau okioki writes: "a Pakeha woman with a massive chip on her shoulder, Rata is well known at home for raving on endlessly in a fact-free kind of way about biculturalism, Maori education, and Maori language. She is highly critical of what she calls 'culturalism' and the 'elite' in Maoridom, and the problems of Maori language education... the evidence she uses to support her claims is decontextualised, inaccurate or a fabrication most of the time and this is made possible partly by her refusal to follow the basic rules of any research... I am angry at Elizabeth Rata because she is an Associate Professor at the University of Auckland on the basis of such poor scholarship, and because she refuses to engage with a range of scholarship or to conduct her own research in ethical or even methodologically robust ways." This somewhat reflects my thinking on Rata's scholarship. Much of Rata's writing is concerned with the intersection of race and politics. Some of her ideas hold true, I think, but most of what I have read is rubbish. 

*I suspect Dr Rata is a graduate of the John Ansell School of Law and Social Sciences. I used to have some time for her despite never agreeing with her arguments and conclusions. She was willing to push into some controversial territory, but the piece in question is intellectually dishonest. It's worth mentioning that Dr Rata is a member of Muriel Newman’s hate group. Check out some of her anti-Maori academic and media writing. Says it all really.

**See Te Kahui Kura Maori, Volume 0, Issue 1 Tikanga Maori Pre-1840. Very accessible and draws on the likes of Justices Durie and Williams and other writers of celebrity.

***See Mihaia, Oxford University Press, Auckland, 1979, pg 38. It’s a masterful history book from Professor Dame Judith Binney.

****See Electoral Law in New Zealand by Professor Andrew Geddis (starting at pg 93). Prof. Geddies writes a brief and easily read discussion of the Maori seats.

Fact checking David Round

The first rule of fact checking is that everything you read, hear and see is wrong. The second rule of fact checking is everything you read, hear and see is wrong. The third rule of fact checking is, well, you know what it is. In American politics fact checking is a lucrative business. FactCheck.org, PolitiFact.com and The Fact Checker at the Washington Post are built around verifying the claims and counter-claims of politicians, writers and commentators. PolitiFact uses the Truth-O-Meter while the Washington Post dishes our Pinocchios. Fact checking is less important in New Zealand politics, but the rise of Treaty obstructionists, falsifiers and denialists provide plenty of material for local fact checkers. Example: Treaty Rights a trap in constitution plan by David Round.

Round bases his piece on a tenuous premise: he assumes the Constitutional Review Panel will recommend that the Treaty and Treaty principles be incorporated into supreme law and the government will implement that recommendation. That assumption runs against political logic.* There are no ideological, pragmatic or popular imperatives that demand the government incorporate the Treaty and Treaty principles in to a new constitution. Doing so would amount to legislating against the National Party’s base. Only 57% of New Zealanders agree that the “Treaty is for all New Zealanders” and 59% agree that the Treaty is our founding document – but subtract for Maori responses and that figure is likely to fall below 50%. Those numbers do not demand movement from the government. After all, the Prime Minister is a pragmatist, not a Maori supremacist in a Merril Lynch suit.

For the sake of it, let’s assume that the Prime Minister and National aren’t pragmatists. Even then, neither conservative nor neoliberal ideology would allow a Treaty based constitution. Conservatives value custom, convention and continuity. A Treaty based constitution represents foundational change – the antonym of custom, convention and continuity. The same offence is made against Neoliberalism. Neoliberal dogma prescribes the supremacy of free markets and the individual. A Treaty based constitution transfers significant power to the collective – and a mainly proletarian collective at that – and that could impede the market. I must have a dry imagination, but I can’t see committed conservatives (like English and Burrows) and faithful neoliberals (like Key and Joyce) adopting kaupapa Maori politics.

Pragmatism and ideology aside, Round makes a number of more fundamental mistakes. He claims that the word taonga meant “physical property” in 1840 as opposed to “anything Maori might take a fancy” (sloppy dog-whistle). Well, Te Puni Kokiri holds that taonga “was a more abstract and wide ranging term than the ‘properties’ in the English text”. The article also mentions that taonga has been translated as meaning “treasures” or “all things highly prized”.** Both translations can be read in the abstract. Matthew Palmer writes that taonga “may be more than objects of tangible value”.*** Again, there is an abstract value to the word. In any case, I was taught that taonga has and always has had an abstract meaning. It isn’t confined to western notions of physical property.

Round also claims that “Parliament has been our undisputed supreme lawmaker for centuries”. Well, again, that’s wrong. The United Kingdom Parliament granted self-government to New Zealand in 1852 and created the “General Assembly of New Zealand”. However, the UK Act establishing our General Assembly placed substantive restrictions on that body’s law making power. Academic Bruce Harris wrote that the Act “ensured that the local legislature would remain subservient to that at Westminster”.**** Our Parliament didn’t acquire full law-making power until 1947 with the passage of the Statute of Westminster Adoption Act 1947.***** So, actually, our Parliament has only “been our undisputed supreme law maker” for going on 66 years. Well less than the “centuries” that Round seems to think. No law lecturer should make such a rudimentary mistake.

Round also says that:

The Treaty's words are now twisted to mean their exact opposite. The Treaty said Maori and settler were to be equals under the Queen's government. In Captain Hobson's words, "Now we are one people". But by the modern "principles", "Maori" are not the Queen's subjects but her "partners" in governing New Zealand.

Round doesn’t provide any example of what words are “twisted to mean their exact opposite”. That’s because he can’t. The meaning of the Treaty is well established. Round also misrepresents what is meant by partnership. The Treaty is probably best viewed as a “developing social contract” rather than a tight legal contract (like a commercial contract). Partnership, in the sense of a social contract, doesn’t mean Maori should or do have a 50/50 say in how New Zealand is run, rather the Crown and Maori (broadly speaking) must act reasonably and in good faith. Round is deliberately scaremongering.

Round goes on and on, providing fallacious examples of how the Treaty principles will doom the country. It’s John Ansell-esque. He couldn’t resist the racist slur that “a lot of child support – must surely be a Treaty right”. He expounds on the effects of Treaty principles like he’s some sort of Oracle. It’s bat-shit crazy. I can handle strong opposition to the Treaty, but it has to be well reasoned - not half-baked Anglophilia.

Ultimately, the most worrying piece of the article isn’t anything Round wrote – it’s this:

David Round teaches law at the University of Canterbury.

Post-Script: I had a laugh where Round accuses Chief Justice Elias of treason and labels her a "usurper". He didn't provide an example of her treason, just threw down a platitude.

*For a lesson in political logic, American politics provides an instructive example. The Democratic Party enjoyed a near monopoly on the Southern States from the 1870s to the 1960s. In part due to the party’s defence of slavery, partly due to their defence of Jim Crow laws and partly due to economic policies that were perceived to favour Southern interests and industry. However, after Democratic President Lyndon Johnson signed the Civil Rights Act in 1964, he is supposed to have turned to his press secretary and said that the Democrats “have lost the South for a generation.” Johnson went against political logic (but not the moral imperative) and electoral realignment followed. Southern conservatives who opposed civil rights and integration fled to the Republicans Party. As a result, the Republicans implemented their “Southern strategy” and have dominated presidential politics from Nixon to Ford, Reagan, Bush and Bush II. Without such a powerful moral imperative, why would the Nats risk electoral realignment.

** See He Tirohanga o Kawa kite Tiriti o Waitangi (Wellington, 2001).

***See M S R Palmer The Treaty of Waitangi in New Zealand’s Law and Constitution (Victoria University Press, Wellington, 2008).

****Refer to B V Harris “The Law-Making Powers of the New Zealand General Assembly: Time to Think About Change” (1984) 5 Otago Law Review 565-571 (Harris is a former Dean of Law at Otago and Auckland and a Harvard graduate).

*****That same year the UK Parliament passed the New Zealand Constitution (Amendment) Act allowing our Parliament to regulate its own composition. The final step in the acquisition of full law-making powers.  

Fisking the Herald

I like South Park. One of my favourite episodes is “Raising the Bar” where a caricature of James Cameron leads an undersea expedition to, literally, raise the bar. The episode is notable because the show went meta. After Cameron raises the bar from the bottom of the ocean and Michelle Obama beats the shit out of Cartman, Kyle states that maybe South Park is responsible for lowering the bar. It was a nice way for the show’s creators to acknowledge that maybe they’re part of the problem. On a similar note it would be nice for the writer of this editorial to acknowledge his or her part in lowering the standard of editorial writing and argument in New Zealand. Admittedly, the bar couldn’t be set much lower, but it’s comforting to know there is still room before the Herald, the Dom Post and New Zealand’s other dailies hit the ocean floor. Let’s start at the beginning:

The Prime Minister was never more wrong last year than when he declared the Government could ignore a recommendation of the Waitangi Tribunal.

In reality, the Prime Minister was perfectly correct. The Waitangi Tribunal is a permanent commission of inquiry rather than a Court. Therefore, the Tribunal’s recommendations don’t bind the Crown (with rare exceptions) or any other parties. In contrast, the Courts can make rulings that bind the parties involved. The Tribunal exercises little to no soft power either. More often than not the political consequences of ignoring the Tribunal are positive, think of the foreshore and seabed when the government ignored the Tribunal and won approval from many New Zealanders.

It needs to be remembered that the case is not about who owns water.

No, it’s not. However, later in the piece the writer says that “the recognition (iwi) sought (is) customary ownership of the water”. Make your mind up – “the case is not about who owns water” and the case is about “customary ownership of the water” are two mutually exclusive statements.

It (the case) is about whether the ownership of dams and power stations will make it harder for iwi to be compensated if they ever convince a government they own the water.

No. The issue centred on whether or not the transformation from an SOE to a MOM company would affect the Crown’s ability to provide rights redress and recognition and, as a result, breach either s9 of the SOE Act or s45Q of the Public Finance Amendment Act (the Treaty clauses). It was also at issue whether or not there was a sufficient nexus to justify the Courts intervening*. The ownership of dams and power stations isn’t at issue, it’s the MOM proposal and its effect on rights redress and recognition.

By putting the cart before the horse the case has forced the Crown to assume the water claim has succeeded and to argue that the Government would be able to require a private power company to pay a royalty or some other form of compensation.

No, the case isn’t concerned with private companies. The Crown will retain a majority shareholding in Mighty River Power. Crown Counsel argued that “the transfer and sale of shares does not affect relevant rights in that it does not impair the Crown’s ability to provide redress or rights recognition”. Private companies are irrelevant.

The "shares-plus" arrangement was immediately ruled out by the Government as contrary to commercial law and compromising the main purpose of asset sales: accountability to the share market.

Firstly, the idea of shares-plus was rejected because of perceived impracticalities. Secondly, asset sales had nothing to do with “accountability to the share market”. In the government's own words, asset sales will contribute to:

The Future Investment Fund to reinvest the proceeds of our partial share sales programme. We expect that selling a minority stake in these companies will return $5 billion to $7 billion to the Government. We’ll spend every dollar of this on more assets that New Zealanders need – such as schools and hospitals – without having to borrow more from offshore lenders to fund our infrastructure needs.

The writer continues:

The Maori Council and co-claimants could not convince High Court judge Ronald Young that shares-plus had merit. He reasoned that since Mighty River Power did not own the water that it had been given a right to use, a shareholding in the company would not give the iwi the recognition they sought, customary ownership of the water.

Iwi were not looking for the Court to establish Maori customary ownership of water. At paragrapgh [52] onwards Justice Young sets out the remedies sought and they are 1) an injunction against the partial privatisation of Mighty River Power and 2) a declaration that the Court should take no further action.

Lord Cooke, author of the guiding judgment on the Treaty's application, said it required each party to act "reasonably and in good faith within their respective spheres". Assets that generate hydro or geothermal electricity are unquestionably in the government sphere.

That quote is misattributed. It was Richardson J who delivered this line and the writer misunderstands what is meant by “spheres”. The use of “spheres” does not mean there is a dividing line between things Maori and things British, or things owned and controlled by Maori and things owned and controlled by the Crown. I interpret the quote as meaning that Maori and the Crown will act reasonably and in good faith in their respective roles in the Treaty relationship. Maori will maintain “a duty of loyalty to the Queen, full acceptance of her Government through her responsible Ministers, and reasonable cooperation” and the Crown will maintain the duties of partnership, active protection, redress and so on.

*See paragraph [166] of the judgment. 

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.

Upholding the Treaty

Who would’ve thunk that swearing an oath to uphold the central document in our constitution would be “controversial” and “another bid by the Maori party to take New Zealand down the road of racial separatism”. In line with their populist and racist roots National, Act, United Future and NZ First voted down Te Ururoa Flavell’s bill that would allow MPs to swear an oath to uphold the Treaty of Waitangi. The current oath reads:

“I swear that I will be faithful and bear true allegiance to Her Majesty, Queen Elizabeth 11, her heirs and successors, according to law, so help me God.”

Yuck. It’s easy to imagine this oath in pre-Magna Carta England, but New Zealand in 2012?

One of the basic tenents of the rule of law is that governments and citizens are held to the agreements they freely negotiate. The Treaty of Waitangi is not an exception, operative words being not an exception – it’s the central tenant of our constitution after all. With that in mind, shouldn’t we expect MPs to swear an oath to uphold it? Federal representatives in the US swear an oath to uphold their constitution, the nearest equivalent in NZ would be to swear an oath to uphold the Treaty.

In reality, there is no argument against voting the bill down. All Winston Peters could muster were empty platitudes about separatism. Weak. The National Party hasn't, as far as I'm aware, offered a justification. Weaker. What the rednecks forget is that the Treaty doesn't just confer rights on Maori and obligations on the Crown, the Treaty gives the Crown the right to govern.Wouldn't MPs want to swear to uphold the document that they source their legitimacy from?


NB: normal blogging will resume from about the 19th of November (after my exams).

Calling all champions for Indigenous Worldview

An indigenous perspective has much to offer Aotearoa as we search our nation’s soul for a better way.

As Tangata Whenua of Aotearoa, my tūpuna already had a longstanding connection to this land many centuries before the European colonials arrived to our shores. We went from being the dominant peoples of this land with our own distinct living systems – to a minority collective of people living under infrastructures which oppressed and removed our own. This process of historical and ongoing colonisation, alongside our ancestor connections, is part of what makes us the indigenous people of Aotearoa.

 In 2010 New Zealand finally (sigh) endorsed the United Nations Declaration on the Rights of Indigenous Peoples (Declaration). This Declaration is the culmination of over two decades of rigorous debate among native/indigenous peoples from around the world. The United Nations said it was “a landmark declaration that brought to an end nearly 25 years of contentious negotiations over the rights of native people to protect their lands and resources, and to maintain their unique cultures and traditions.”

So I celebrated our State’s eventual endorsement in that bittersweet ‘better late than never’ sort of a fashion. My main mihi at the time was for the many natives who had literally given their blood to this affirmation of indigenous rights. There had been much ado over almost every single word in this document – indeed the saga of the letter ‘s’ being placed at the end of the word ’People’ in the Declaration title is worthy of a documentary in itself.

Given NZ’s initial and staunch opposition to the Declaration and a general history of Crown refusal to honour Tangata Whenua sovereignty – I always knew it would be up to us to give this landmark moment any enduring teeth. What I think is useful for Aotearoa is to truly investigate the indigenous worldview that such a Declaration aims to protect, as an essential part of our community fabric going forward.
Article 3 of the Declaration says: “Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

Recent political polling suggests that there are enough people questioning the current political, social and economic approaches being adopted for our nation. I think now is a good time for us to bury ourselves in some fundamental discussions around what a better nation would look like and how indigenous self-determination can play a vital part in that. As the current world market free-trade capitalist approach is being called into question, we are starting to look seriously at alternatives. Um – over here!

While it is true that Iwi and Hapū ourselves need to un-learn and re-learn some stuff, there is still enough to start working on with some viable options for honest collective health. For a start our reliance on global financing could lead us up the creek as is happening to other economies. As a little country tucked away in the Pacific, we could look strongly at protecting our unique environmental riches as a fundamental part of economic sustainability. Never mind Tino Rangatiratanga for Iwi – how about we understand that our government is slowly relinquishing its own authority to overseas imperialist economic powers!
The Declaration lends support for indigenous leadership on this very environmental resource protection in Article 26:

1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

In the above article the definition of ‘protection’ and ‘development’ of resources is diverse among Hapū. But I believe we have a unique responsibility to ensuring our long line of indigenous mokopuna get to play and fish in clean seas and beaches, hunt/eat and heal from bushy forests, breathe in fresh air, drink clean water and marvel at the unspoiled beauty of all of that. But here’s the thing – everyone else’s descendents will reap that protected environment too.

On the “sustainable living” push.
Yes we also have to do the hard yards to minimise our current absurd energy use and seek alternatives to illogical fossil fuel exploitation. Again I see the Declaration supporting all opportunities for us to turn our habits towards the wisdom of our tūpuna. There was a time when we could do it - live sustainably. There are a number of articles that emphasise the retention, development and evolution of our world views and knowledge to get us back towards that place of existence.

Of course the UN Declaration on the Rights of Indigenous Peoples must be campaigned for alongside He Whakaputanga 1835 Declaration of Independence, the Treaty of Waitangi and the current route for NZ’s Constitutional Transformation. The Declaration also stands as part of a whole host of international human rights documents under the United Nations framework. We must insist that the Declaration be considered in conjunction with and in full support of all of those discussions. It is up to us to assert the ‘practical effect’ of the Declaration that our Prime Minister crudely tried to play down at the time of government endorsement. It is the very practical effect of upholding the rights of this Declaration which I strongly believe has promise for Aotearoa and all the peoples in it!

I have focussed on only a few examples of how the United Nations Declaration on the Rights of Indigenous Peoples is an instrument of strong advocacy for how our nation can more positively develop from here. The beauty of the Declaration is that it is there for all of us to invoke. Previously I have talked about us not confusing Māori whakapapa for Māori advocacy. The adverse is also true. I have had the privilege of getting to know many a non-indigenous person living on this land who feels the essence of what our native truth is capable of. So the Declaration can help carve out that common ground among different peoples and can also be a catalyst for Tangata Whenua to re-inhabit our own ways of thinking and being. A starting point is for more of us to engage in the discussion around indigenous rights and responsibilities at all.

Calling all champions for indigenous worldview. Our future needs you now.

Marama Davidson
(Te Rarawa, Ngāpuhi, Ngāti Porou)

 

Why Maori own the water: further comments

This is from a post in February this year when news of the Maori Council lodging the water claim first broke. In light of events this week, I think the post is topical: 


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Maori are not invoking the Treaty for the sake of invoking the Treaty. Maori are concerned that 1) if state assets pass in to private hands the government’s ability to settle current and future claims will be affected AND 2) Maori, as well as the Crown, are unsure what rights, if any, Maori have to water resources (i.e. ownership and management rights).

Selling state assets while question 2 is still under consideration breaches the principle of partnership and good faith. The Waitangi Tribunal holds that the Treaty guarantee of rangatiratanga requires a high priority for Maori interests where proposed works may impact on Maori taonga. With this in mind, the Crown is, arguably, obliged to consider Maori interests above private interests. The Crown is also under a duty to actively protect and give affect to property rights, management rights, Maori self regulation, tikanga Maori and the claimants (i.e. Maori) relationship with their taonga. In light of this obligation, it would be inconsistent with the principles of the Treaty for the government to ram ahead with partial privitisation without 1) determining Maori interests 2) giving those interests a “high priority” and 3) actively protecting those interests.

The duty to actively protect is a serious one. New Zealand’s greatest jurist, the late Sir Robin Cooke, held that the Crown’s obligation is not:

 Merely passive but extends to active protection of Maori people in the use of their lands and waters to the fullest extent practicable.

The UN Declaration on the Rights of Indigenous People also supports this position:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

To be fair, the government is consulting Maori and credit to them for doing so. First criteria satisfied. However, article 32(2) – i.e. the article above – sets a requirement for “consent”. Of course, this isn’t binding on the government, but it will guide and inform any decision of the Court.
There is legal authority to support the proposition that Maori have rights to water. Lord Cooke’s obiter statement above, where he implies that Maori have rights to water, is an example. The article above also signals that the UN believes indigenous people have rights to water too. Most significantly though, the Lands case held, roughly speaking, that if the Crown was going to transfer land that was potentially subject to a claim the Crown must take steps to ensure its ability to meet the claims is not adversely affected.

John Key seems to think that no one can own water. Audrey Young's excellent overview holds that this position is correct at common law. However, Maori can, and Te Arawa is an example, own beds, banks, and potentially the airspace above. This, however, ignores the fact that Maori did not distinguish between river beds, lake banks and so on. Beds, banks and the water itself were one in the same – not constituent parts. The Courts can take this into account, and even incorporate this notion into the common law (assuming it does not offend any common law principles), however the Courts have proved reluctant to incorporate Maori customary law into the common law (the recent Takamore case is an example). As an aside, this is unfortunate and, in my opinion, hinders the development of a uniquely New Zealand legal system.

Most significantly, as No Right Turn points out, Maori water rights could persist under the doctrine of aboriginal title, or customary title as it is more commonly known in New Zealand. Customary title is a lesser form of property right than fee simple title (freehold title) and only exists if it has not been extinguished. That's the crux of it there, I think. Was Maori customary title extinguished? I agree with I/S in that I think customary title has been extinguished through various pieces of legislation. I/S holds that this is a breach of article 2 of the Treaty which guarantees Maori rangatiratanga. Of course, we have to look at this through the principles of the Treaty rather than applying the strict meaning of the text so I'm not so sure this is correct.

For the sake of this post, let’s accept that Maori do not have ownership rights. The Crown is sovereign and, under the Treaty principles, has the right to govern. Okay, Fair enough. Maori do, however, have management rights. The Crown has already explicitly recognised these rights under the Waikato river co-management deal. Ngati Tuwharetoa, Te Arawa, Raukawa and Tainui all have co-management arrangements with the Crown. Ngati Maniapoto will also, if they have not already, sign a similar deal.

Considering this, at the very least Maori have management rights and the Crown cannot move forward with partial privatisation until those rights are clarified and a regime to recognise and implement them is put in place.

Anywho, back to the main thrust of Roughan piece (you can probably tell I’m not so concerned about his column I just wanted to use it as a springboard for this discussion). I respect John Roughan, but I think he misunderstands the nature of the partnership principle. Maori and the Crown are under different, but in a few instances similar, obligations. The Crown’s obligations are similar to a fiduciary duty. This means the Crown has a legal and ethical duty as the dominant partner. Therefore, if the Crown’s duty is analogous to a fiduciary one, then the Crown must act to a stricter standard. Maori operate under a less onerous standard.

Comments on the water claim

John Roughan is a good columnist, but I think he misses the mark with this offering:

Protesters forget that Maori have to act in good faith too.

(On the partnership principle): "rested on the premise that each party would act reasonably and in good faith towards the other within their respective spheres".

Lands, forests, fisheries and treasured things were expressly in the Maori sphere. Government and good order were entrusted to the Crown. Cooke stressed that the obligation to act "reasonably and in good faith" was reciprocal. It applied no less to Maori than the Government.
Is it "reasonable" of them to ask that Meridian, Genesis, Mighty River Power and Solid Energy should continue to be bound by an obligation on the Crown to observe Treaty principles? I think so; the Crown will remain their major shareholder.

Is it reasonable that those companies might be obliged to consider Maori interests if they ever want to change the flow of rivers or drown land? I think so.

On the Maori side, is it acting "reasonably and in good faith" to invoke the Treaty simply to oppose partial asset sales? I don't think so.

Management of the state's assets is in the Government's sphere.

Protesters forget the Treaty cuts both ways. With good faith on both sides, the Government and the Maori Party can take another big step.

I don't agree. Maori are not invoking the Treaty for the sake of invoking the Treaty. Maori are concerned that 1) if state assets pass in to private hands the government’s ability to settle current and future claims will be affected AND 2) Maori, as well as the Crown, are unsure what rights, if any, Maori have to water resources (i.e. ownership and management rights).

Selling state assets while question 2 is still under consideration breaches the principle of partnership and good faith. The Waitangi Tribunal holds that the Treaty guarantee of rangatiratanga requires a high priority for Maori interests where proposed works may impact on Maori taonga. With this in mind, the Crown is, arguably, obliged to consider Maori interests above private interests. The Crown is also under a duty to actively protect and give affect to property rights, management rights, Maori self regulation, tikanga Maori and the claimants (i.e. Maori) relationship with their taonga. In light of this obligation, it would be inconsistent with the principles of the Treaty for the government to ram ahead with partial privitisation without 1) determining Maori interests 2) giving those interests a “high priority” and 3) actively protecting those interests.

The duty to actively protect is a serious one. New Zealand’s greatest jurist, the late Sir Robin Cooke, held that the Crown’s obligation is not “merely passive but extends to active protection of Maori people in the use of their lands and waters to the fullest extent practicable”.

The UN Declaration on the Rights of Indigenous People also supports this position:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

To be fair, the government is consulting Maori and credit to them for doing so. First criteria satisfied. However, article 32(2) – i.e. the article above – sets a requirement for “consent”. Of course, this isn’t binding on the government, but it will guide and inform any decision of the Court.

There is legal authority to support the proposition that Maori have rights to water. Lord Cooke’s obiter statement above, where he implies that Maori have rights to water, is an example. The article above also signals that the UN believes indigenous people have rights to water too. Most significantly though, the Lands case held, roughly speaking, that if the Crown was going to transfer land that was potentially subject to a claim the Crown must take steps to ensure its ability to meet the claims is not adversely affected.

John Key seems to think that no one can own water. Audrey Young's excellent overview holds that this position is correct at common law. However, Maori can, and Te Arawa is an example, own beds, banks, and potentially the airspace above. This, however, ignores the fact that Maori did not distinguish between river beds, lake banks and so on. Beds, banks and the water itself were one in the same – not constituent parts. The Courts can take this into account, and even incorporate this notion into the common law (assuming it does not offend any common law principles), however the Courts have proved reluctant to incorporate Maori customary law into the common law (the recent Takamore case is an example). As an aside, this is unfortunate and, in my opinion, hinders the development of a uniquely New Zealand legal system.

Most significantly, as No Right Turn points out, Maori water rights could persist under the doctrine of aboriginal title, or customary title as it is more commonly known in New Zealand. Customary title is a lesser form of property right than fee simple title (freehold title) and only exists if it has not been extinguished. That's the crux of it there, I think. Was Maori customary title extinguished? I agree with I/S in that I think customary title has been extinguished through various pieces of legislation. I/S holds that this is a breach of article 2 of the Treaty which guarantees Maori rangatiratanga. Of course, we have to look at this through the principles of the Treaty rather than applying the strict meaning of the text so I'm not so sure this is correct.  

For the sake of this post, let’s accept that Maori do not have ownership rights. The Crown is sovereign and, under the Treaty principles, has the right to govern. Okay, Fair enough. Maori do, however, have management rights. The Crown has already explicitly recognised these rights under the Waikato river co-management deal. Ngati Tuwharetoa, Te Arawa, Raukawa and Tainui all have co-management arrangements with the Crown. Ngati Maniapoto will also, if they have not already, sign a similar deal.

Considering this, at the very least Maori have management rights and the Crown cannot move forward with partial privatisation until those rights are clarified and a regime to recognise and implement them is put in place.

Anywho, back to the main thrust of Roughan piece (you can probably tell I’m not so concerned about his column I just wanted to use it as a springboard for this discussion). I respect John Roughan, but I think he misunderstands the nature of the partnership principle. Maori and the Crown are under different, but in a few instances similar, obligations. The Crown’s obligations are similar to a fiduciary duty. This means the Crown has a legal and ethical duty as the dominant partner. Therefore, if the Crown’s duty is analogous to a fiduciary one, then the Crown must act to a stricter standard. Maori operate under a less onerous standard.

Ultimately, I think Roughan’s piece is based on a shaky premise. Maori are not opposing for the sake of opposing. There are legitimate concerns around Maori rights and the Crown’s actions. Surely, if Maori were opposing for the sake of it, then other iwi would join the fight. This isn’t the case though, in fact iwi have refused to join the legal battle, preferring instead to take a more diplomatic route. Whether this is the right choice, well time will tell, in any circumstance I think it signals the growing maturity of Maori as a people. Then again, it could mean that the iwi elite are trying to gun for private gains for themselves and their iwi, rather than Maori as a whole.

Maori issues in 2012

Last year the Parliamentary Library released a number of research papers. The papers deal with selected issues from different portfolio areas. I’ve taken a look at the Maori affairs paper, here are some key points:

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It is estimated all historic claims will be settled by 2016 (not 2014 which is National’s “aspirational” date). The relativity mechanism in Tainui and Ngai Tahu’s settlements are expected to be triggered this year or next. The government is expected to respond to the WAI262 report, Ko Aotearoa Tenei, this year.

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The Maori Economic Development Panel will present their report in July. The panel will produce a Maori economic strategy and action plan.

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The implementation of Whanau Ora is expected to continue. TPK is providing ongoing monitoring. As part of the government and the Maori Party’s plans to restructure TPK, a new high level policy unit will be created and, according to my sources, focus on Whanau Ora.

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The discussion phase of the constitutional review will begin in 2013. The review will consider, among other things, Maori electoral participation, Maori seats in government (local and national) and the role of the treaty within New Zealand’s constitutional framework. For some odd reason the only legal expert on the panel is Professor John Burrows.

Further comments on the Maori Party's threat

A few commentators have rightly pointed to the Maori Party’s ineptitude around s9 and the new state asset legislation. Treaty clauses are, and have been, central to Maori progress over the past two decades and the Maori Party must have known said clauses would be up for review. After all, the government was open in their intentions to sell state assets, meaning they were open about their intentions to reform the SOE act. The party must have been aware that s9 would come under review.

The party is either 1) receiving poor advice OR 2) whipping up Maori fervour for political gain. I think it’s a bit of both. The Maori Party would have known what was coming when National announced a series of hui to consult Maori. So they were in the loop only a few days ago. They sat on the information for a day, Hone Harawira then found out s9 was up for review and went public with the claim that s9 can stop asset sales proceeding. Hone hogged the headlines and threatened to own what was, in the Maori Party’s eyes, their story. As a result, they went nuclear with the threat to leave, thus reclaiming the story and positioning themselves as the champions of Maori interests. They, the Maori Party I mean, needed to shift left and reposition as the real Maori Party. The party continued to bleed support and, until now, failed to treat the wound. Meaning they continued to drift right and further right. Given this shift, the party needed to steer left and also bust the perception that the party was selling out Maori interests. The perception that the Maori Party were “sell outs” took hold last term and always threatened to sink them.

Like I said yesterday, I don’t think the Maori Party is going to walk. The Prime Minister has put what appears to be a sensible, or elegant as he terms, compromise on the table. A treaty clause will inserted, but it will apply to the government only and not private investors. It wouldn't be a massive loss if the Maori Party accept the deal. In the eyes of Maori they appear to have strong armed the government and, as an added bonus, they get to keep Whanau Ora, the constitutional review, the poverty committee and so on. Most importantly for them, they get to keep a seat at the table – after all their entire re-election was predicated on the fact that the party would occupy a seat at the table.

On the other hand, if the Maori Party cut their losses and leave their survival post-2014 would almost be guaranteed, however it would be open season on the Maori seats. Taking the principled road, read leaving National, would be a move that would go along way towards reclaiming the tino rangatiratanga vote. The Maori Party comes away having reasserted their independence and their credentials as Maori advocates.

Although, having the Maori Party in opposition would leave little room for the Mana Party. There isn’t enough real estate for two Maori Parties in opposition. With that in mind, I’d rather see the Maori Party stay. Better to have a Maori party on each side of the fence (i.e. one in opposition and one in government). Ultimately, the Maori Party will probably stay. This seems to be the opinion of most. But don’t underestimate what a potent issue this is. The Treaty has always meant far more to Maori than it ever has for other New Zealanders.

Maori Party contemplates split (updated)

The Maori Party seems to have found it’s backbone. From the Herald:

The Maori Party is considering breaking from the National-led Government over asset sales.

Maori Party co-leader Tariana Turia says the party will consider walking out of its relationship with the National Party if a Treaty clause is not extended to those state owned enterprises tagged for partial sale.

Ms Turia said today that the issue was similar to the foreshore and seabed issue for Maori.

"If it comes down to the wire, the Maori Party will have to consider its position with the Government."

She said the party would meet with iwi leaders to gather their reaction, although some had already made their displeasure known. She said the party was beholden to iwi and its constituents and would follow their lead.

You have to wonder whether the Maori Party intended to break from the agreement all along. The party’s decision to re-enter a relationship with National defied logic, although it was consistent with the party’s rhetoric around being “at the table”. If, and it’s a big if I should add, the Maori Party turn their back on the government Maori faith in the party will be renewed and the Maori Party will, I think, have a fighting chance at the next election.

Of course, it’s a big decision. The Maori Party built their election campaign around the idea that it’s better to be at the table, read the Cabinet table, than outside banging at the door. The party will also have to sacrifice it’s baby – Whanau Ora. The National Party will, out of spite, axe the program. Tariana Turia has spent her entire parliamentary career building Whanau Ora. With that in mind, I find it difficult to imagine her sacrificing it.

The refusal to insert a treaty clause is a significant issue for Maori. It’s about progress. Maori fought hard for treaty clauses and now that we have them we are dead set against taking a step back. S9 has been central to the Maori rights movement for the past two decades. The Maori Party realises this. After all their selling out last term, they still have a feel for tino rangatiratanga.

It will be a delicate compromise for Pita Sharples and Tariana Turia. Do they walk away and risk leaving Maori out in the cold for three years. With the Maori Party out of the picture the government has no cover when passing left wing and pro-Maori legislation – meaning the government will probably opt to pass on anything pro-Maori. After all, pro-Maori stuff doesn’t exactly play well with National’s base.

Without the Maori Party Maori funding is likely to come under the gun. Cuts at Te Puni Kokiri, cuts to Maori education, Maori health and any other Maori program that speaks to perceived “special treatment”.

The party leadership have announced that they will consult with iwi and Maori generally on whether a treaty clause is make or break. I’ve already pointed out that Maori support for asset sales is dwindling. I think the overwhelming message will be ditch the deal with National. The absence of a treaty clause will diminish the power (mana) iwi have in relation to NZ resources. The Maori elitie will not take a threat to iwi power lightly. The consensus among flaxroot Maori will echo the iwi consensus. Diminishing Maori mana and rangatiratanga is unacceptable.

Pita Sharples has warned that this issue may flare tensions at Waitangi. All governments should know by now not to give Maori a reason to protest at Waitangi, because everyone knows Maori will take it. It’s a bad look for the Prime Minister too. Minus some moments from a few fringe activists, John Key has enjoyed a positive reception at Waitangi. This year, should the government keep their current course, Key can expect massive protest as well as, rumour is having it, a hikoi later in the year. Then again, nothing will boost the PM’s popularity like a Maori hikoi.

Without the buffer the Maori Party provides John Key’s government will be fragile. Peter Dunne is a reliable subordinate, but it doesn’t take much to bring down a one seat government. Julia Gillard’s shaky coalition is a case in point. Then again, a one man majority is still a majority. This means the Maori Party doesn't hold much leverage. As I said, a walk out means the government has no cover to pass left legislation, thus compromising their centrist appeal. However, I doubt National intends to run a centrist line this term, therefore the Maori Party becomes expedient.

Anyway, I’ve dragged this out longer than intended to. The next few days will be interesting.

Treaty won't stop asset sales (updated)

I was in a rush to write this post, so it's not as considered as I'd like. 


Despite Hone Harawira’s enthusiasm, I doubt s9 of the SOE Act can stop asset sales. From TVNZ:

Mana Party leader Hone Harawira is making a bold claim that the Treaty of Waitangi can be used to stop state owned asset sales and is calling on Maori to reject the necessary law change at a series of Government-organised Hui.

The Government has planned a series of hui to consult with Maori on legislative changes it considers necessary in order to float the minority shareholdings of four State Owned Enterprises (SOEs).

"Section 9 of the State Owned Enterprises Act says that the Crown must not act in a manner inconsistent with the Treaty. And to sell off assets that Maori still have claim over is inconsistent with the Treaty," Harawira told TV ONE's Breakfast.

"The Treaty is stopping the Government from flogging off the nation's assets, so they're gonna throw the Treaty out," claims Harawira.

The Waitangi Tribunal (WT) sets out the following principles: reciprocity and partnership, active protection, equity and options and redress. The Court follows, roughly speaking, the same principles. However, unlike the WT, the Court explicitly recognises the Crown’s right to govern and the duty to consult as stand alone principles.

A Maori claimant could lodge a claim with the WT, but a WT decision would have no binding effect. A claim would have to be filed in the High Court. In my opinion, a case exists, but not a very strong one.

If I were the claimant, I’d argue that the Crown is breaching the principle of active protection. Under this principle the Crown must take active steps to ensure Maori interests are protected. The sale of SOE’s runs contrary to Maori interests as, arguably, the Crown’s ability to offer redress is affected through the loss ongoing revenue and the loss of land that could be included in any settlement. A broader argument is that Maori consumers will be affected through higher power prices and decreased government services in the long run. The late Sir Robin Cooker, NZ’s greatest jurist, held that the Crown’s duty is “not merely passive but extends to active protection of Maori people in the use of their lands and waters to the fullest extent practicable”. As you can see, a strong obligation rests on the Crown.

The sale of state power companies will also impact on Maori relationships with their taonga. The WT holds that “The Treaty guarantee of rangatiratanga requires a high priority for Maori interests when proposed works may impact on Maori taonga. If the Crown is ever to be justified in exercising it’s power to govern in a manner which is inconsistent with and overrides the fundamental rights guaranteed to Maori in Article II, it should be only in exceptional circumstances and as a last resort in the national interest”. Reducing the deficit is in the national interest, however on any objective measure asset sales are not the option of last resort.

Selling state power companies will also affect the relationship Maori have with their waterways (i.e taonga). Maori will have fewer rights when it comes to determining the status and use of rivers, tributaries, dams and so on.

The debate around what, if any, rights Maori have in relation to water is still not settled. Given the Crown does not know exactly what rights Maori have, or should have, it would be unfair to pass off water rights to private entities. It is incumbent upon the Crown to actively give affect to and protect Maori property rights and management rights, however if water rights are passed onto private interests Maori customary rights will be diminished against private property rights. Clearly, if the government passes on water rights to private interests this will run against the principle of active protection.

These are just some of the arguments that can be made against the government. I have not taken into account previous decisions of the Court that may favour or harm a claim against the government. At the end of the day, the Crown has a right to govern as they see fit. I come back to Sir Cooke who said “the principles of the Treaty do not authorise unreasonable restrictions on the right of a duly elected government to follow its chosen policy. Indeed, to try and shackle the Government unreasonably would itself be inconsistent with those principles”. Hone Harawira can hope that the Treaty will stop asset sales, but if you ask me he’s hoping in vein.

UPDATE: I should add that it makes perfect commercial sense to exempt a treaty clause, meaning a s9 type clause, from the new legislation needed to sell shares in the SOEs. A treaty clause would add some uncertainty around the assets and drive the share price down. However, refusing to insert a treaty clause in the new legislation is probably a breach of the principles.

Invoking the relativity clause

The Treaty settlement process is moving along nicely under Chris Finlayson (and was moving well under Michael Cullen too). The total value of all Treaty settlements to date exceeds $1 billion – or by my estimation at least. This is hardly a revelation, but consider this:

As part of their settlement agreements Ngai Tahu and Tainui have a relativity clause. A relativity clause is a “special top up mechanism” designed to ensure Ngai Tahu and Tainui maintain their high position relative to other Iwi. The relativity clause comes into effect when the sum total of treaty settlements exceeds $1 billion in 1994 dollars (the clause has effect from 1994 to 2044).

Unfortunately, I can’t find the text for the full Ngai Tahu and Tainui settlement agreements, but it is my understanding that Ngai Tahu and Tainui can invoke the relativity clause and that gives them the right to return to the negotiating table. I believe they can only negotiate a top up cash payment as opposed to the return of more land, management agreements or anything else.

An extra payout will have interesting political consequences. Many New Zealanders will be baffled that the already rich, and that is a subjective term, Ngai Tahu and Tainui can double dip. Non-Maori New Zealanders will ask aren’t settlements meant to be full and final. What I’m getting at is that a redneck backlash will occur. Maoris this Maoris that sort of stuff. The sort of stuff that will give the Tories, and the Labour Party too, the shivers.

No government wants to be perceived to be pandering to Maori. As a result the government has engaged in some creative accounting in an effort to avoid exceeding $1 billion and, consequently, avoid reopening a political can of worms. However, the government, no matter how they twist it, cannot avoid exceeding the very low threshold that is $1 billion – especially with the looming and large Nga Puhi and Tuhoe settlements.

I hope the Ngai Tahu and Tainui return to the negotiating table soon. Both Iwi accepted paltry sums ($170m), then again they couldn’t be expected to squeeze out much more in the circumstances. Hopefully a top up payment gives the two Iwi the financial power they need to form the buying consortium that Tuku Morgan is pushing. Tuku is looking to form a sort of Maori conglomerate in response to assets sales. The plan is that Iwi will combine their purchasing power in an effort to acquire sizable chunks of New Zealand’s strategic resources. I must admit, this is one of Tuku’s better ideas (not saying I agree with asset sales because I don’t). Ngai Tahu will also need a cash injection if they want to play a lead role as a private investor in the Christchurch rebuild.

The rise and rise of Iwi is inevitable. Tainui and Ngai Tahu are already the economic powerhouses of their regions (Waikato and the South Island respectively) it is only a matter of time before Iwi like Nga Puhi, Tuhoe and Ngati Porou become the driving forces behind their regional economies. Makes you wonder when all Maori will benefit from the strength of Iwi. 

Iwi and investment

Closeup ran an interesting story on Wednesday night around the use of treaty settlement money. The show invited John Tamihere, as CEO of the Waipareira Trust, and Tuku Morgan, as Chair of Te Arataura, to discuss whether or not Iwi are using their settlement funds appropriately. The gist of John Tamihere’s argument was that more money should be directed towards the people and, as a consequence, preventing Maori entering the health system, the prison system and so on. Tamihere would rather see money directed towards social services as opposed to “buying assets”. Tuku Morgan, on the other hand, thinks Iwi do not have the economies of scale to make a major difference. Tuku also pointed to the fact that Iwi investment in, for example, the Te Awa mall in Hamilton is creating employment for Maori.

I agree with both men here. It is not the role of Iwi to stand in place of government. The provision of social services is, first and foremost, the role of government. Having said that, there are cultural obligations on the part of Iwi to help their people, think whanaungatanga. Rather than have Iwi use their own capital to invest in the provision of social services, I would like to see more Iwi pursue government contracts. This is a plausible avenue given the implementation of Whanau Ora.

The primary role of settlement money should be to level the playing field. Iwi should, and are, using settlement money to increase Maori economic power and, as a result, Maori political power. Iwi are attempting to move into a position where they cannot be ignored. Hence Tainui’s interest in strategic assets (e.g. Auckland Airport, electricity companies and Air New Zealand).

I think this is a debate that needs to occur. Are Iwi fixated with growth at the expense of ordinary Maori or is growth a means to an end?