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.

The price of the King's support

So, Tuku Morgan has revealed the price of the Kingitanga’s support*:

A former head of the Waikato-Tainui executive who plans to stand for the role of the tribe's parliament chair says he wants to change the way the tribe is governed so the Maori King has the final say over tribal decisions…

Mr Morgan says if he's elected he'll work towards making changes to the tribe's constitution.

He says members must never be able to go to court with tribal issues, and Kingi Tuheitia should be given the right to veto or dissolve a tribal parliament.

Gifting the King the power to dissolve tribal parliaments will not solve the political and structural problems in Tainui. At most, inserting the Kingitanga as the ultimate decision maker will only change the way tribal politics is played. So, rather than engage in legal plays**, ambitious tribal politicians will jostle for standing in the Kingitanga. Lobbying, not law, will be du jour.

As for the structural issues, elevating the Kingitanga will further complicate what is already an unnecessarily complex iwi structure. At the moment the King sits at the top of the line as the ceremonial head, Te Kauhanganui (TK) stands below as the decision making body, Te Arataura (TA) is lower still as the day to day manager and groups like Tainui Group Holdings (TGH) make up the base. It’s a loose Westminster model where the Kingitanga is analogous to the monarchy, TK to Parliament, TA to the Cabinet and TGH and others are analogous to arms of the executive. Under Tuku’s proposal the structure would not change, other than to take ultimate power away from TK and transfer it to the Kingitanga.

Well, under either model, the structure doesn't fit with the “fundamental principles (that) have emerged over the years as being relevant for most iwi in their structures”. These principles are:

• the need to establish a structure where the individual iwi members have ultimate control; 
• the legal capacity and powers of the structure are certain; and 
• ownership and management functions are kept separate, as are commercial and non-commercial objectives. 

Here are the problems: 1) Under Tuku’s model, the King could dissolve TK and override the will of the individual iwi members. Even then, it’s arguable that individual iwi members do not even have ultimate control over TK and Tainui decision making as it is. TK is not elected on an at large basis. Each Marae puts forward three members to sit on TK, yet those members are not elected on an at large basis either. Arguably, this is not a purely democratic model where “individual iwi members have ultimate control” 2) the legal powers of each body are not certain. A number of tribal politicians, including Tuku Morgan, have taken to the Courts to test the limits of their power and the power of their opponents. Given the hazy rules, a culture of litigation has developed in the tribe. From the beginning of the 2010 financial year through to 2012 Chapman Tripp collected over $1m in legal fees, Bell Gully collected almost $300,000 (including the 2009 financial year). Over four other firms cashed in as well 3) ownership (TK) and management (TA) are kept separate under both models. At least that’s one run out of three.

The troubles in Tainui are not tidy and while I don’t pretend to have all of the answers, I’m sure the answer is not to reduce democracy in favour of feudalism. Structural reform is the key, but that reform must be on democratic terms. Regardless of what you think of Tuku Morgan, Tania Martin or Kingi Tuheitia, I think everyone can agree on that.

*In a extraordinary letter to Tainui tribal members the King called on leaders in TK and TA to reaffirm their "mandate" and endorsed Tuku Morgan in his bid for the chairmanship of TK. 

**The Court has the final say over the interpretation and application of the rules that govern Tainui. As a result much of the political games that go on in Tainui are, essentially, legal games. Opposing parties merely attempt to strengthen their legal positions rather than cooperate, compromise and so on. 

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).

Missing the point on water rights

The government is missing the point, or muddying the waters, with their offer to pre-settlement iwi. From RNZ:

65 iwi are to be offered the chance to take shares in state owned enterprises.

The stakes will be available to tribes that have not yet settled their Treaty claims.

The Government says the scheme allows iwi more flexibility about how their settlement money is invested.

They would be able to get the shares up front - ahead of their final Treaty resolution with the Crown.

This is misleading. Iwi, minus a handful of iwi leaders, are not asking for market shares at market prices. Most iwi are asking for 1) the recognition of their water rights and 2) compensation for the use and breach of those rights. Market shares address neither point.

Shares-plus, an idea the government rejected, represented an adequate remedy on the second point. However, any move on the second point is largely pointless when the first point is left moot.

Shares-on-credit are an attempt to co-opt pre-settlement iwi and mitigate the government’s legal risk. From a political perspective, the iwi leaders who support the offer are salivating too early. The overton window keeps shifting. Rewind one year, preferential shares (which are really what shares on credit are) were considered unacceptable, or radical on the overton spectrum. Today, the offer is acceptable on the spectrum. Fast forward six months, say post a court win for the NZMC, shares-plus might be considered sensible on the spectrum – a compromise in exchange for Maori allowing the sales to go ahead. With this in mind, iwi would do well to wait before jumping at the government's half-baked offer.

In any event, the most important thing is that the pre-settlement iwi do not let the offer create a wedge between themselves and Maori seeking the recognition of our rights rather than commercial redress. Even Winston Peters is calling the government’s offer “divide and rule” and pointing out that “it’s designed to try and corrode support for the Maori Council's action”. Wedge politics, essentially.

The most important thing is rights recognition. Commercial redress is a secondary concern. That’s why I support the NZMC’s court action. That’s why iwi should. And all praise to the Maori Party for supporting rights recognition before commercial redress. Oh, and iwi who are willing to let the sales proceed would do well to remember that 88% of Maori oppose, key word oppose, asset sales. Only 8% support the sales. Something to keep in mind.

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.

In praise of Hone Harawira

In a democratic society, the right to protest is a fundamental freedom. When we restrict or demonise civil resistance, we’re doing our democracy a disservice. 

Photo courtesy of Lisa Gibson

News broke last night that Glen Innes Police moved to arrest Hone Harawira, MP and leader of the Mana Party. A number of other protestors were arrested as well. According to John Minto, the Mana Party spokesperson, Hone parked his car behind a removal truck and refused to move. The Police wanted to tow the car, but they had to remove Hone first. The Police smashed “at least one window” and arrested Hone for “failure to remove a vehicle”. 

Judging from the reaction from some on the right, you’d have thought Hone rammed a cop. Well, he didn’t. He was exercising his right to protest. A right that we as a society should not demonise or take for granted. The Bill of Rights Act 1990 provides the “freedom of peaceful assembly” and a “freedom of expression”. The right to protests is, in my opinion, a manifestation of the right to peaceful assembly and the right to freedom of expression.

Having said that, there is no right to break the law and break the law is what Hone did, apparently. Well, that’s not for you, I or the Police to decide. In any event, Hone clearly lacked criminal intent. And isn't minor and technical law breaking an accepted aspect of civil resistance? From the civil rights movement in the US to Bastion Point in NZ.

Hone is known for pushing the boundaries of what is acceptable in a democratic society. After all, he comes from a proud activist tradition. I think there is something noble and uniquely New Zealand in an elected MP opting to risk arrest for the rights of the powerless. In his own words, Hone says:

I didn't go there to get arrested. I went there to show solidarity and support… I went with my wife. To show her the commitment of the families of GI.

These are families who have been there since just after the Second World War, and they are being pushed out of their house.

Good on ya, Hone.

Free advice: framing the fundamentals

It’s fashionable to comment on and critique Labour Party strategy. On Twitter this morning Lew Stoddart added his thoughts:

(the) NZLP need to find ways to inspire the same public enthusiasm in other areas as we saw for marriage equality. It can be done. Framing matters.

Well, it’s hard to disagree with that. However, Craig Ranapia and Giovanni Tiso argued that framing is a secondary concern when the “picture inside is crap” and when “the party has nothing to communicate”.

Without wanting to cop out, I agree with both views. Framing is important, but not possible where there is nothing to frame. Having said that, I think we’re missing the point here. Framing does not have to be understood in terms of policy, but on a more basic level.

Essentially, Labour has failed to draw a meaningful contrast between themselves and National. National stands for cutting the deficit and, well, so does Labour. Labour wants to target beneficiaries and, well, so does National. National wants to boost employment and, well, so does Labour.

David Shearer needs to position Labour against National on the fundamentals. Yes, Labour can stand for cutting the deficit, but that idea needs to be presented from a left wing perspective. For example, Labour will grow our way out of the deficit. Shearer must then juxtapose Labour’s position against National’s ‘let’s cut our way out of the deficit’. An unsophisticated example, I know, but it illustrates the point I’m trying to make.

Helen Clark drew an interesting contrast between Labour and National in (I think) the 2005 election when she told Breakfast, and I paraphrase, that the National Party doesn’t stand for anything except power. It was a powerful contrast (ignore the pun). Clark painted National as unprincipled and willing to push divisive policy for the sake of power. On the other hand, Labour was painted as the party of principle - the party of Working for Families and so on. Framing on that fundamental level matters, framing policy comes second. Labour might be running on a different policy platform, but it makes little difference when the party stands, or is seen to stand, for the same goals as National.

In August Kelvin Davis wrote that “It's like they're more comfortable being ignored than criticised”. Correct: Labour fears being seen as different on the fundamentals. They don’t want to risk offending the orthodoxy. To use the above example, they fear being seen as opposed to deficit reduction – or the orthodox approach to deficit reduction (i.e. cuts). The party fear being seen as a party for beneficiaries. However, if the leadership had more political nous they would frame themselves as the party for the poor. Instead, in a clumsy attempt to inoculate himself against beneficiary sympathising David Shearer delivered the infamous beneficiary on the roof speech.

Unless Labour reframe themselves on the fundamentals, there’s little reason to vote for them. In this respect, Labour can take their lead from John Tamihere. This may seem counterintuitive, but Tamihere has taken a lead role in attacking the government’s “shonky economics”. On Q&A last week Tamihere explicitly rejected neoliberalism. Tamihere contrasted himself against National on a fundamental point – the economy.

At the moment Labour looks like the National Cabinet in red ties – I don’t want to vote for that and I suspect most on the left don’t want to vote for that.

Hiatus

My exams are creeping up so expect irregular posts from me. However, on the upside, Karla Akuhata from By Microwave and formerly of the Waikato Times will be joining us. I'm stoked to have her on board and look forward to her posts.

John Tamihere: National MP for Waitakere

You read that right: John Tamihere is eyeing up the wrong party. Let’s list his positions:

• Supports asset sales 
• Supports charter schools 
• Opposes marriage equality 
• Has attacked welfarism and advocated for the privatisation of welfare delivery 

First of all, let me be clear about a few things; I like John Tamihere, I think he's an outstanding communicator, a strong advocate for urban Maori and I’d welcome his return. However, he’s a poor fit for Labour 2012. Tamihere’s economic liberalism and social conservatism will sit awkwardly with Labour MPs and members. I struggle to see how Tamihere can reconcile his values and beliefs with Labour values and policies. As one example, in 2010 Tamihere rejected class politics writing that:

The large number of so-called working class people have now migrated to the middle class. As a consequence, describing your politics in a class way is no longer sustainable.

Well, this may have held true under Clinton’s America, Blair and Brown’s Britain and Clark’s New Zealand, but following the global economic downturn the left is tilting back towards class politics. Barack Obama, and to a greater extent Ed Miliband, are staking their re-election on class politics. Obama’s strategy in, for example, Ohio is aimed squarely at winning “blue collar workers” (what we call the working class). Miliband’s strategy is aimed at amplifying class tensions and painting the Conservatives as governing for their own class. If the economic situation in New Zealand worsens, the safe bet is that Labour will follow suit and pivot towards the working class. This would further marginalise Tamihere. However, as an identity politician Tamihere can find common ground with some of his colleagues. He sits well with Labour on Treaty and Maori issues. Having said that, that’s where it ends.

In any event, it’s all academic. Even if Tamihere were a lefty liberal Carmel Sepuloni has the Waitakere branch stitched up, Nanaia Mahuta has rejected his return (and I’m not surprised why) and David Shearer appears lukewarm. If Tamihere cannot win the support of Labour’s West Auckland branches he will need to win the support of the Maori caucus and David Shearer to ensure he receives a winnable list position. Unlikely.

Another route to return for Tamihere is Tamaki Makaurau. But, again, that’s a poor fit. Not because he won’t or can’t win, but because Willie Jackson will want that seat if he decides to stand. However, if Auckland becomes two separate Maori electorates then both could stand; Tamihere in the electorate that incorporates West Auckland and Jackson in the electorate that incorporates South Auckland. What, you ask, happens if West and South Auckland form part of the same electorate? Well, then one of either Tamihere or Jackson would have to stand down or it’s back to aiming for Waitakere or a list position. Whatever way you look at it, Tamihere’s route to return will be very, very rough.

UPDATE: Tamihere gave an excellent interview this morning. He rejected "Rogernomics", read neoliberlism, and spoke of a need to "regrow activism" and change New Zealand's macro economic settings. A clear tilt to the left and an attempt to reconcile his views with the views of the Labour Party.

Internal politics and self preservation

John Hartevelt reports:

Labour leader David Shearer is eyeing a possible reshuffle of key portfolios before the end of the year, with his entire front bench subject to scrutiny.

Two factors reduce the odds of a significant reshuffle; 1) internal politics and 2) self-preservation. Some portfolios are wedded to their MP, for example Maori Affairs is welded to Parekura Horomia and earthquake recovery is married to Lianne Dalziel, while other MPs retain a right to a ranked position through service (remembering Labour ranks their major MPs from 1 to 20).

The second point, which is a consequence of the first, means David Shearer must avoid offending his MPs. Say, for example, he demotes Nanaia Mahuta and Jacinda Ardern. Both MPs have failed to land hits on two of the government’s most vulnerable MPs, but would demotion give Mahuta cause to push for mutiny and Ardern cause to switch to camp Cunliffe? Probably not, but is it a risk worth taking when your leadership is vulnerable? Probably not. Hartevelt continues:

Nanaia Mahuta may be under threat in the education portfolio, although she has insisted she is not going anywhere and appears to have redoubled her efforts.

Despite what others say, I’m not convinced Nanaia is a non-performer. According to DPF’s opposition performance statistics, Nanaia is the 10th most effective Labour MP – ahead of deputy leader Grant Robertson and rumoured replacement Chris Hipkins. However, I readily admit those statistics are quantitative.

If I were heading a reshuffle I’d promote Chris Hipkins to the front bench and give Louisa Wall and Andrew Little a top 20 ranking. Moana Mackey and David Clark should also receive more significant portfolios.