The three mystic apes

The three mystic apes are a pictorial maxim. Together they embody the maxim “see no evil, hear no evil and speak no evil”. In the government’s case the three apes represent “see no Maori rights, hear no Maori rights and speak no Maori rights”. There is sometimes said to be a fourth ape that embodies the principle “do no evil”. In the government’s case the fourth ape represents “do nothing about Maori rights”.

Yesterday, in what was suspicious timing, the Prime Minister announced that:

The Government will not implement the Waitangi Tribunal’s ‘shares plus’ concept, or engage in further negotiations in relation to that concept, before the sale of shares in our energy companies.

The Government will proceed to remove Mighty River Power (MRP) from the State Owned Enterprises Act. We will prepare an Order in Council for Cabinet and Executive Council to consider and approve on Tuesday 23 October.

And there’s the niggle. The Waitangi Tribunal found that Maori “had rights and interests in their water bodies for which the closest English equivalent in 1840 was ownership rights” AND that the partial privatisation of MRP will affect the recognition of those rights and interests and breach the principles of the Treaty. With that in mind the government cannot partially privatise MRP without breaching their own legislation. Section 45(Q)(1) holds that:

Nothing in this Part shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).

Assuming the Waitangi Tribunal’s decision is right in law; the government will have to 1) recognise and compensate for the use and breach of Maori water rights and interests or 2) legislate. On the first point, there is room for the government to find a solution other than shares-plus. On the second point, the Prime Minister has backed away from legislating. However, if court action threatens the government’s timetable – and there is every indication that it will – then legislation will be needed to ensure certainty for investors and (most importantly) that the other SOEs can go to market before the 2014 election.

Tomorrow the NZMC will meet with iwi, Kingi Tuheitia and others to plan their way forward. Maanu Paul claimed on Te Kaea (not online yet) that the NZMC will go to Court, whether he had leave to say this I don’t know, but Sir Eddie Durie told RNZ that Court action is his preference.

I’ll continue to follow this issue closely. Assuming something comes of the NZMC meeting tomorrow, I’ll post something tomorrow or later in the week. I really should be getting ready for exams, but this is too important to miss.

Should the government guarantee settlements?

It’s a sad day for Ngati Tama, with the news going public that the tribe has lost almost everything:

One of Taranaki's largest private investment projects has gone horribly wrong, losing close to $20 million in a series of high-risk financial ventures.

The loss means Taranaki's most northern iwi, Ngati Tama, has shed all of a $14.5m Treaty of Waitangi payout it received in 2003.

Shocked iwi members learned of the financial disaster at a hui at Pukearuhe Marae this weekend.

Where, one should ask in the wake of this stuff-up, does the government’s obligations end. Treaty settlements are full and final. However, I don’t think - and I’m open to correction on this point - that the Waitangi Tribunal, Crown Law or Cabinet have ever interpreted full and final to mean that the government’s obligations end once settlement legislation is passed. Indeed, if the government knew a tribe’s settlement was close to collapsing, and did nothing, then the government would be liable for a contemporary breach of the Treaty under the partnership and active protection principles. So, despite the full and final aspect of settlements, the government retains on-going obligations under the principles of the Treaty. The full and final notion relates to, I believe, the redress component. It does not nullify other obligations the government has towards Maori.

With this in mind, does the government owe Ngati Tama compensation? Personally, I don’t think so, but I know other Maori think compensation is appropriate. From what information is in the public domain, the government had no idea of the situation and no hand in it. Ngati Tama’s loss came as a result of poor management. However, if the government can guarantee risky finance companies and, when they go bust, pay out sums well in excess of all treaty settlements combined, why can’t the government guarantee treaty settlements? A valid question and one I can’t find a compelling answer against.

It is negligent, on the government’s part, to absolve itself of responsibilities once treaty settlements are passed. After all, the government is in a sense making an investment. Therefore, the government should ensure appropriate mechanisms are in place to manage the settlement. Before a settlement can be transferred, a tribal organisation must be in place, but it is not a requirement that an adequate corporate arm is in place. This is inadequate.

Once settlement legislation is passed, it is on iwi to make what they will of the settlement. However, many of the smaller iwi, have no experience, expertise or knowledge in and of commercial matters. The larger iwi tend to do okay, for example Ngai Tahu and Ngati Awa, but the smaller iwi often do not have expert tribe members to draw on. This isn’t universally true, I should add, Tainui came close to bankruptcy a few years ago.

I agree with Richard Jones who says that “an extra layer of due diligence is necessary when planned investments are outside the traditional areas such as the primary sector and property”. Maori tend to do very well in primary industries and property, yet no so well in the sort of investments Ngati Tama made. In fact, I think it is almost unprecedented for an iwi to invest heavily in an overseas company, and a software company too.

Ultimately, Ngati Tama had too much exposure to what were a handful of very, very risky investments. I can understand the desire to make something of a miserly settlement, but I don’t think Ngati Tama’s leaders kept in mind that management of treaty settlements should be conservative. The settlements are meant to be sustainable and intergenerational; it’s not for current generations to milk it for all it’s worth with risky investments. Having said that, I shouldn’t speculate on what was motivating Ngati Tama leaders and what, I suppose, really happened.

I think the CEO of Ngati Tama, Greg White, and the Board owe the people of Ngati Tama an apology.

Kohanga hearing begins

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

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

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

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

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

Flavell swings behind Tuhoe

The Maori Party are coming down strong on the, for want of a better term, Urewera issue. From RNZ:

The Maori MP for Bay of Plenty is talking to the Tuhoe tribe about taking a new claim to the Waitangi Tribunal, arguing the police 2007 raids in Ruatoki breached the Treaty of Waitangi.

The member for Waiariki, Te Ururoa Flavell, says the Crown should be answerable, particularly for the way people were innocently caught up in the actions - and for those who've now had charges against them dropped.

The Maori Party MP says his caucus and Tuhoe are looking for more than an apology.
He says he and his colleagues have talked about compensation, given some people have had to bear the brunt of criticism and the stigma associated with the raids.

Mr Flavell says the issue is so big his party is looking into asking for a commission of inquiry of some kind.

At the conclusion of this saga a commission of inquiry will be mandatory – whether the remaining defendants are found guilty or not. I think the option of civil suits is closed in this instance, I certainly don’t say that with certainty though. Te Ururoa has highlighted two options for some kind of relief/accountability (a commission of inquiry and the Waitangi Tribunal) and other options exist as well including the Independent Police Conduct Authority. On another note it amazes me that Helen Clark, Michael Cullen and the then Police Minister (Annette King I think it was) have managed to escape criticism for their role in approving the raids and subsequent legal battle. Surely the buck stops at the top, and this went straight to the Prime Ministers Office.

I expect to see Hone Harawira dive all over this issue. Tuhoe is one of Maoridom’s staunchest Iwi, if not the staunchest, and is Mana’s for the taking. However, if Hone remains quiet and leaves the issue to Te Ururoa Tuhoe may not tag along with Mana so willing. Tuhoe people have long memories. This is where Mana needs someone like Annette Sykes and her skills as a lawyer and as a wahine toa.

Implement Wai262

The Dom Post highlights why the recommendations in the Wai262 report need to be implemented immediately: 

Maori are fighting a flood of cheap, mass-produced “Maori” souvenirs entering New Zealand before the Rugby World Cup, saying the tacky trinkets will leave tourists with a bad impression.

Contemporary Maori artists are banding together to hit out against overseas-made products, which they say mimic Maori tradition despite manufacturers having no links to the culture.

Iwi Art Gallery owner Tia Kirk (my whanaunga might I add) said lack of regulation meant “cheap and inferior” versions were easily available.

“This raises some concern for genuine New Zealand artists and creators of authentic Maori art whose work takes time to create and develop.” However, discerning tourists would easily be able to tell the difference, with real Maori artists using techniques that had evolved with years of training and expertise”, she said.

The WAI262 claim report from the Waitangi Tribunal, issued last month, recommended a commission be set up to hear objections about the use of taonga-derived works on art, with the power to stop commercial use if it was deemed “derogatory or offensive”.

The Waitangi Tribunal recommends the establishment of a commission with the power to regulate the use of Maori art and make decisions surrounding the traditional knowledge that underpins Maori art. According to Carwyn Jones the Tribunal distinguishes between taonga works and taonga derived works. Taonga works have whakapapa (ancestry) and, as a consequence, mauri (life force) and kaitiaki (guardians). Think along the lines of Haka, Waiata and art works. On the other hand taonga derived works possess a Maori element but are generalised, adapted or combined with a non-Maori element. Think along the lines of generic tattoos incorporating koru patterns.

The Tribunal is looking to strike a balance, and a delicate one at that. However, I tend to think the Tribunal is placing too much emphasis on private property rights rather than seeking to properly protect tangata whenua rights to our taonga. I take the view that Maori should have absolute authority over our taonga and matauranga (knowledge). At the end of the day the ability to control imported rip-off Maori art should suffice. Maori should also have the power to regulate domestic supply as well.

If you take a walk around the Rotorua CBD you’ll come across a multitude of cheap, shitty souvenir stores selling fake pounamu and other rip-off Maori art pieces. The same is true of Wellington. There is one store in particular that really pisses me off with the fake items they sell. If you are in Wellington, or plan on visiting, the best place to purchase Maori art is Iwi Art on Tory Street. However, they will be moving to the corner of Willis Street and Manners Street in a few months time.      

Release of the Wai262 report

Yesterday was a significant day for Maori across the motu (New Zealand). Firstly, Saturday marked the signing of a “relationship agreement” between Tuhoe and the Crown. Treaty Settlement negotiations between the two parties fell apart last year when John Key ruled out the return of Te Urewera National Park and then, quite gratuitously, insulted Tuhoe at a dinner in Ngati Porou. Hopefully the agreement marks the final stages in settlement process for Tuhoe. Secondly, but most significantly, the Waitangi Tribunal released their findings on the Wai262 claim. The report, titled Ko Aotearoa Tenei, deals with a series of potentially explosive issues including the legal nature of tangata whenua relationships with native flora and fauna.

The Wai262 claim was originally lodged in 1991. All but one of the original six claimants have passed on. For a good overview of the history of the claim see this post at Ahi-ka-roa. Today I want to deal with the political ramifications of the report.

Firstly, I must preface my comments and let you know that I have not read the report. I intend to, but then again my intentions do not always translate into action. Give me a break though – the report is massive and doubt that I will have time to even sift through it. Anywho, the Wai262 claim has always been something of a sleeper issue. No one really knew what to expect. Would the claim result in radical recommendations that would challenge the nature of our legal system and challenge the assumptions New Zealanders hold regarding Maori and Maori relationships with their resources and taonga?  Or would Maori, as is usually the case, come out disappointed and the status quo is maintained?

In my opinion, the status quo has been maintained. Of the recommendations I have seen nothing strikes me as innovative or, indeed, effective. The recommendations are certainly sweeping, for example the report calls for action on issues as dissimilar as Maori intellectual property rights and Maori health, yet nothing appears that strong. The report speaks of advisory committees and compulsory consultation, but these are recycled and, in many cases, failed ideas from the 80’s and 90’s. Many Maori, including myself, were hoping for a fundamental shift in the nature of the Maori/Crown relationship and an innovative approach to recognising Maori interests. Advice and consultation are glorious notions and can be effective when the conditions suit and both sides are willing to engage. However, more often than not, Advisory Committees and compulsory consultation relegates Maori to secondary partners. Maori and the Crown, or whoever it may be, never met on equal footing. Advice and consultation is merely a box to be ticked – not a serious step in the process.

Having said that, Maori must realise that the Tribunal is constrained. The Tribunal, and by extension Maori, must work within a Western legal framework. Maori must work for recognition on Pakeha terms, we cannot be recognised on our own terms and seeking to do so does not serve an overarching practical purpose. We cannot expect a system that does not reflect our values or our traditional systems to satisfactorily recognise our rights and interests. The Waitangi Tribunal must also work within the international legal system. The tribunal cannot recommend actions that may offend international legal norms. A good example of Maori rights failing to gain proper, or what we as Maori deem as proper, recognition is the foreshore and seabed. Maori possess mana whenua over the foreshore and seabed and this is recognised by the New Zealand legal system as customary title. Under a Maori system our mana whenua would manifest as complete authority and control over the foreshore and seabed. But under the Western legal framework which Maori operate within mana whenua manifests as rights to perform traditional activities and sometimes rights to control how resources are used. This is unfair, but Maori must also realise that there are competing interests in the foreshore and seabed, as well as other areas where Maori are concerned, and sometimes Maori interests are not dominant.

The Tribunal had 20 years to formulate ideas, policies, mechanisms etc to adequately recognise Maori interests. Of course the Tribunal was, as I have said, constrained. But our legal system allows a fair amount of flexibility. After all Parliament is bound by no one but itself, and even this is debateable, and the Courts are fluid and, for the most part, responsive to social change. The Tribunal did not have to work so unimaginably within existing norms.

Politically speaking, I think the report will fizzle out. We are now witnessing the initial bang, for example Joshua at Maori Law and Politics points out the notorious redneck shedevil Muriel Newman was all over Radio New Zealand spitting anti-Maori venom in every direction, but over time the venom will lose its sting. The report is not, in my opinion at least, radical enough to excite widespread concern among the rest of New Zealand. Don Brash and Winston Peters will do their best to whip up a frenzy, however the conditions a not right. John Key currently leads a wildly popular government with the Maori Party. New Zealanders appear comfortable with the idea of a right wing/Maori government and comfortable with the idea of advancing Maori rights. The best example is probably the signing of the UN Declaration of the Rights of Indigenous People. The UNDRIP was a major and, if you care to read the text, radical step forward in terms of Maori rights. However, New Zealanders were and are comfortable with it. Furthermore, the media treatment of the report is, by my estimate, overall net positive and this will contribute to the public mood.   

The Maori Party and the Mana Party will also make a political football out of the issue. The competition for the tino rangatiratanga vote will largely come down to who can spin the most attractive rhetoric. Hone will almost certainly call for the implementation of all recommendations – he may even rubbish the report as weak. Whereas the Maori Party will probably run the line that they will push for the implementation of the recommendations “at the table”. Both parties have to make the case that they can give better effect to the report. I tend to think the tino rangatiratanga vote will tend towards the harsher rhetoric that Hone adopts. Judging from what I have seen and heard from prominent tino rangatiratanga advocates they are disappointed. Moderate Maori will tend towards the Maori Party rhetoric that stresses result. Although the result may not be all that is hoped for, progress is progress I guess.

Labour’s reaction to the report will be interesting. I have no doubt the Maori Caucus will want to give effect to the report, but the Leaders Office will probably be running scared. Labour will have to pick their position carefully. The party cannot risk scaring off the blue collar redneck vote, while at the same time the party needs to maintain their share of the Maori vote. I guess the compromise position is to welcome the report, but not commit to anything specific.

Once again I have written far more than I intended. For excellent analysis of the report keep your eye on Carwyn Jones at Ahi-ka-roa and Joshua Hitchcock at Maori Law and Politics. These guys are more qualified to speak on the report than I.

Williams CJ?

Apparently one or two appointments will be made to the Supreme Court within the next year. I have no idea who will be appointed but I would like to see Justice Joe Williams considered. Williams is Maori, but that is not the sole reason why he should be appointed. Appointments should be based on merit and merit alone. However, were a situation to arise where one has two equally qualified candidates, one of whom happens to be Maori, then a compelling case exists to appoint the Maori. As far as I am aware Williams is a well respected legal mind. As former Chief Judge of the Maori Land, former head of the Waitangi Tribunal, the first Maori law lecturer at Victoria and current High Court Justice, Williams is most certainly qualified.

From my quick research into William’s background I think it is fair to say he is undeniably Maori in outlook, yet conscious and accepting of the fact that Maori must operate under a Pakeha framework. He is realistic. I would classify Williams as something of a tino rangatiratanga advocate, however not in an ideological sense. He does not believe in Maori self government and all those other unrealistic expectations and desires. Rather he believes in the pragmatic notion of tino rangatiratanga – enhanced wellbeing as opposed to self rule.

Ultimately, the decision on who to appoint sits with the Attorney-General. I am fairly confident Justice Williams will not be overlooked by either Chris Finlayson or, if Labour is in power, David Parker. It is something of an anomaly that in New Zealand, in 2011 might I add, that Maori are absent in both the Court of Appeal and the Supreme Court.