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.

Trouble in the Maori Party: Act I

I don’t even know where to start with this (from 3 News):

A fight for the Maori Party’s leadership has begun at Ratana today, with MP Te Ururoa Flavell officially challenging incumbent co-leader Pita Sharples.

Former Te Tai Tonga MP Rahui Katene has also thrown her hat in the ring to replace Tariana Turia as both co-leader and Te Tai Hauāuru MP.

The challenges are the latest in an ongoing spat about who will lead the party into the next election, and what direction the party should take.

Ms Turia announced she will stand down before the next election to let new blood take over the party – and urged Dr Sharples to do the same.

But last week, Dr Sharples unveiled he had no plans to stand down, saying he’d continue to co-lead the party after next year’s election.

Today, as the Ratana Church celebrates its birthday, Mr Flavell confirmed he would launch a challenge against Dr Sharples and Ms Katene confirmed she wanted Ms Turia’s job.

Maori Party president Pem Bird says Mr Flavell’s challenge will be discussed this afternoon and the party’s constitution will be reviewed to see what now happens.

I said last week that the party’s troubles are symptomatic of deep dysfunction within the parliamentary and party wings. I was too optimistic; the troubles are symptomatic of an anaemic caucus and a debilitated membership.

After shedding two seats and halving the party vote, it became obvious that the formula wasn’t right. The issue for the party appeared to be a matter of ingredients. Was there a leadership problem, a policy problem, a procedural problem or some combination of those factors and others?

As per last week, I think Te Ururoa represents a generational change and a break from the political period that Turia and Sharples embody. However, the party’s problems run deeper than leadership and political symbolism. The party itself, including the party leadership, haven’t figured out where they fit in a fragmented political landscape. A permanent Mana Party, a resurgent Labour Party and a rising Green Party have changed the way Maori politics is played. The Maori Party can either reclaim ground lost on the left, drift in the centre, or acknowledge their role on the right. They cannot maintain the idea that a pan-Maori party is possible. The party must choose a political identity – one that caters to a realistic market. In a post-Marine and Coastal Areas Act world, the party must find its mojo again.

With that in mind, dumping Pita could be problematic. He and Tariana anchor the Maori Party’s support. It would be interpreted as a swipe against Pita’s supporters if he was forced out of the job on Te Ururoa’s terms. Adding Rahui Katene to the recipe isn’t a magic play either. Katene was rejected in 2011 and it's arguable whether or not she appreciates the real issues that the Maori Party faces. The issues are not cosmetic and cannot and will not be resolved with a change in leadership.

As for Hone, well, this is an opportunity squeeze blood from the corpse. The Mana Party is stable, comfortable in its own ideology and untainted by government. The Maori Party is unstable, unsure of its own ideology and tainted by the decisions of government and factional fighting. The choice, if Hone were to draw the dichotomy, is an easy one.


UPDATE: last night the party released a statement saying that Pita will remain at the helm - for now. That's a good move. It's probably not the best look to wash your dirty laundry at Ratana (in front of nearly every political journalist in the country). As we know, though, it's delaying the inevitable hand-over.
.

Post-script: Pita is increasingly isolated from Tariana, Te Ururoa and some in the wider party. It would be cleaner for him to step down, but after his long service to Maori and the party his supporters argue that that is undignified (and he still retains support in the wider party) . The driving faction is made up of Te Ururoa, Pem Bird (the party president) and their supporters in the Waiariki electorate. Rahui Katene, as far as factional politics goes, is an uncertainty. However, in Parliament she was often associated with Tariana. 

Quick comments on a Mana Maori Party

The Northern Advocate reports:

Some Tai Tokerau supporters of the Maori Party worried about leadership wrangles would like Hone Harawira back.

And Mr Harawira - who split from the Maori Party in 2011 to form the Mana Party which he leads - would be interested in a Mana-Maori coalition with him at the helm.

The Maori Party is now working its way through a leadership succession process with co-leader Tariana Turia not standing in the general election next year.

She expected co-leader Pita Sharples to also retire, clearing the way for Te Ururoa Flavell to take control.

But a spokesperson for Dr Sharples said the Maori Affairs Minister's electorate wanted him to contest the election and seek party leadership as it was considered a staged succession would help party stability.

Any union between Mana and the Maori Party wouldn’t work. The Maori Party is innately conservative. The party’s term in government is characterised by incremental change. Some of that change is structural, think Whanau Ora and the constitutional review, but it is change within the confines of capitalist democracy. The party’s overarching goal, captured in their “at the table” metaphor, is to insert Maori and Maori values into NZ power structures. The consequence of this is the normalisation of kaupapa Maori politics.

On the other hand, Mana is inherently socialist. The financial transactions tax, 20,000 new state homes and “abandon(ing) the market-based provision of essential services” sit uneasily with the Maori Party’s approach in government. Mana advocates a systematic overhaul – they want to remake the table. Mana aims to empower the working class rather than insert Maori (mainly from the political and economic establishment) into NZ power structures.

Esoteric things aside, musing on a merger is a convenient way for Hone and Pita to goad Te Ururoa. In his quest for the leadership he and Pem Bird have driven Hone out of the party and, according to Patrick Gower, are attempting to mount another leadership challenge against Pita. The change needs to happen, but on Pita’s terms. Te Ururoa’s reckless ambition already led to the creation of the Mana Party, he must be careful not to let it lead to a death warrant for the Maori Party.

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.  

Sharples vs Flavell: the leadership edition

Some comments on Pita Sharples confirming that he will contest the 2014 election - as co-leader.

• This is a missed opportunity to implement generational change. The Maori electorate remains young (the media age for the Maori population is 23 compared with 37 for the NZ population as a whole) and the Maori Party should move to reflect this. 
• Sharples is a product of the Maori renaissance of the 70s, 80s and 90s. He embodies the ideas and ideals of that (fading) political period. Flavell, on the other hand, is a clean break from the period and a better representation of Maori post-foreshore and seabed.
• Having said that, as far as reaching across the racial and political divide goes, Sharples is the most effective Maori Party MP. But at some point Te Ururoa will have to become the party leader. With that in mind Sharples should step aside to give Te Ururoa time to bed in before the election. 
• From an operational point of view it makes sense to have Te Ururoa deal with party issues while Turia and Sharples deal with ministerial issues. Flavell needs sustained political coverage if he is to hold his seat against Annette Sykes.
• Given his service to the party and Maori, Sharples deserves to stand down on his own terms. However, that doesn't mean he should have an indefinite lease on the leadership. 
• This episode speaks to deep dysfunction in the party. One co-leaders calls for the other to step down, that co-leader refuses while the leader of preference refuses to, or is forbidden from, fronting on the issue. 
• Thoughts?

Post-Script: it's also worth remembering Flavell and Pem Bird's failed attempt to mount a leadership coup last year. The plan was leaked to One News and Flavell and Bird had to abort. 

The best of 2012, Maori need not apply and Rangatahi Courts

A few thoughts:

The best (and worst) of 2012 

I know I’m late to it, but here are my picks

Best Maori MP: Louisa Wall – for services to equality and old school lobbying.

Best Maori Minister: Paula Bennett – a competent manager, good communicator and is overseeing some innovative programmes.

Best Maori electorate MP: Parekura Horomia – for what he lacks on the national stage, he makes up for on the ground. His majority (the largest in the Maori electorates) wasn’t a mistake.

Most improved: Te Ururoa Flavell – after a shocking 2011 and despite a fail on education in 2012, Flavell has made up ground with his strong support for Tuhoe, competent debate performances and electorate work.

Most consistent: Metiria Turei – points for tireless advocacy for Maori, women and beneficiaries. Always takes a consistent and articulate line. Stand out performer in the Native Affairs debates.

Must do better: Pita Sharples – boxed in to a corner over cuts at TPK, the section 9 controversy and dismantling the Maori Policy Unit at MFAT. Choice: improve in 2013 or make way for Flavell and retire in 2014.

Could have been better: Shane Jones – said to the point of redundancy, but the man has potential. Skilled communicator and an intellect, but he has a blindspot for consequences.



Non-Maori need not apply

RNZ reports:

Te Aitanga a Hauiti claim the tribe is considering hiring candidates who are not Maori and not from Ngati Porou.

In protest, the people representing the marae have pulled their support for the annual Pa Wars - a major sports event that's due to be held on the third of January in Tolaga Bay.

The best person should get the job. More often the not, the best candidate is going to be someone from Ngati Porou. An ideal candidate will have knowledge of the iwi, their tikanga, language and so on. However, having the wrong whakapapa should not be a barrier. Insular recruitment practices are, in my opinion, holding iwi back. The Maori business, management and public service communities are small and can be difficult to source talent from.

Rangatahi Courts
RNZ reports that the first report on Maori Youth Courts has been released and the findings are positive. I’m not surprised. In my experience, young Maori often express a sense of pride and belonging in their membership of a gang, criminal clique or troubled social group. One of the best mechanisms to combat this is to replace that pride and belonging to a gang, criminal clique or troubled social group with a sense of pride in their taha Maori and a sense of belonging to their iwi and hapu. Judge Andrew Beacroft, former Chief Judge of the Youth Court, highlights that the most effective programmes for Maori offenders take a holistic approach (incorporate tikanga, whanau and the like), enhance pride in the offenders’ taha Maori and whakapapa and are tailored to the individual. Maori Youth Courts, for the most part, do this.

PS: it was pointed out in the comments that Pita Sharples ("must do better") started running Rangatahi Courts out of Hoani Waititi Marae back in the day. 

Idle No More: missing the point and lessons from New Zealand

Perspective projection distortion is the misrepresentation of a three-dimensional space when drawn or projected onto a two-dimensional surface. In photography and cinematography, perspective distortion is where an object and its surroundings differ from what they would otherwise look like with a normal focal length. Sometimes, the same principles apply in politics and society. Distance and detachment alter perspectives.

As a non-Canadian, I’m suspicious of and slightly confused with the Canadian media’s portrayal of Idle No More. More often than not, the media have ignored or misunderstood the movement. The Walrus, largely considered one of Canada’s leading current affairs magazines, is silent on the issue. The Toronto Sun appears uninterested in the movement itself, instead focussing on Chief Spence, reporting protests and discussing political consequences for Prime Minister Stephen Harper. The Financial Post is scathing, shoving the blame on “native leaders” and their “resistance… to changes”.

Now, I’m in no position to argue against the Canadian media’s understanding of their politics and society, but I do think that they’re missing the real issues. Idle No More isn’t about hunger strikes, mismanagement on reserves or politicking: the movement is about respect for and recognition of First Nations’ sovereignty.
Calls for indigenous sovereignty (and decolonisation) have been periodic. What sets Idle No More apart from previous events, like the Oka crisis, is that the movement is overt push back against the Harper government’s assimilation plans. Dr Pamela Palmater, an indigenous scholar, claims that the government intends to assimilate First Nations’ people “We always knew action would be required at some point, but the legislation posed an imminent threat and required immediate mobilisation. That is how a movement was born”.

The government’s assimilation plans are not, however, confined to one or two pieces of legislation. Several bills, including two omnibus bills, will legislate against or undermine indigenous values and several policy measures will come into force. For example, First Nations regional and national political organisations will have their funding cut and capped making it harder for them to advocate on behalf of indigenous people.

The First Nations’ Strategic Bulletin says that the bills intend to end “First Nations pre-existing sovereign status through federal coercion of First Nations into Land Claims and Self-Government Final Agreements that convert First Nations into municipalities, their reserves into fee simple lands and extinguishment of their Inherent, Aboriginal and Treaty Rights”. The Harper government dubbed this approach a “modern legislative framework” which is code for “white man’s values”. For example, the First Nations’ Private Ownership Act will introduce private property ownership in reserves. With the imposition of western notions of property, collective ownership and aboriginal title are undermined.

Assimilation plans first emerged, at least prominently, in 1969 with the release of a white paper. The paper proposed a five year timetable, but the Trudeau government was, in 1970, forced to back down against fierce opposition. However, it is suspected that the timetable wasn’t dumped, but extended. In 1985 Cabinet documents were leaked to the media detailing the conservative government’s assimilation plans. However, in 1990 the plans were derailed thanks to the Oka crisis, increased awareness of indigenous issues and favourable decisions from the Courts. The perception is, rightly or wrongly, that the Harper government intends to continue the assimilation programme.

It’s with these concerns in mind that Idle No More has grown and calls for indigenous sovereignty have been sustained and intense. These are deep issues that play in to questions about the innate character of colonial governments (are they always imperialist?), the struggle for tino rangatiratanga (self-determination) and effectiveness of movement politics. Questions, I think, that many Canadians haven’t grappled with. Questions where the Maori experience may be instructive too.

The success of the Maori protest movement was, in many ways, a result of the political turbulence it created. Sustained action across the 70s, 80s and (to a lesser extent) the 90s helped reveal the oppressive and dishonest foundations on which the New Zealand state was built. The movement deployed a variety of political/protest strategies, involved a cross-section of Maori society and forged alliances with other sections of society, for example unions (It also helped that Maori had a political power base in the Maori seats and a long standing relationship with the Labour Party). From this, the Idle No More movement can take that a successful movement must be sustained (decades long if need be), diverse (in people and strategy) and connected to other power structures in society (unions, universities, political organisations etc). For the most part, these elements are already present. So, with distance and detachment from the issue, I remain optimistic of its success. 

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. 

#IdleNoMore

What’s Idle No More? Who is Chief Spence? Why is Stephen Harper tweeting about bacon and should we care?

Idle No More is an indigenous movement calling on the Canadian government to protect the environment, honour First Nations sovereignty and respect the “Nation to Nation” relationship. The movement appeared in response to Bill C-45, an omnibus bill that doesn't recognise aboriginal fishing rights and reduces environmental protection. The Bill, for example, alters the Navigable Waters Protection Act. The Act requires environmental assessment for 2.25 million rivers and 32,000 lakes. Under Bill C-45, environmental assessment will only apply to 62 rivers and 97 lakes. First Nations people were not consulted and believe that the changes reduce environmental protection. The movement also opposes a suite of other omnibus bills including the proposed First Nations Private Property Ownership Act and the First Nations Financial Transparency Act. The first act would allow private property ownership within Reserve boundaries*. The second act would impose standards on First Nations governments that far exceed standards for municipal, provincial and federal officials. For example, First Nation‐owned businesses (unlike non-First Nations' businesses) will be required to publicly report income and expenses. The proposed legislation is based on the racist assumption that First Nations’ officials are corrupt. But beyond the racist assumptions and unilateralism is a more sinister motive – the assimilation of First Nations people and the destruction of their culture. A 21st century way of continuing God’s work – well, Duncan Campbell Scott’s work - of eliminating the “Indian problem”.

Although these bills acted as the catalyst, the movement speaks to deeper themes: sustainability, the subjugation of indigenous values, laws and systems, a partnership between the Crown and First Nations that is only respected where it is expedient and… te tino rangatiratanga (self determination). These issues aren't peculiar to Canada, or New Zealand, or anywhere else. They’re part of a global story arising wherever Europe collided with indigenous cultures.

In many respects Canada was years ahead on indigenous rights. Much of the New Zealand case law on Maori rights is developed from reference to the Canadian authorities. In the Muriwhenua case** President Cooke made extensive reference to the Canadian cases and commented that the Canadian common law was, in respect of indigenous rights, “more advanced than our own”. However, Maori have pulled ahead of our First Nations tuakana (seniors). From 1840 onwards Maori have, generally speaking, maintained and exercised a greater degree of political power. As a political body, First Nations people are marginal players. Power in a capitalist democracy is contingent on several factors including numerical strenth and economic power. First Nations have neither, as a result their values, laws and systems have remained subordinate to the Queen in Right of Canada***.

However, Idle No More might represent a permanent shift in Canada’s power dynamics. Stephen Harper has bowed to pressure and agreed to meet with Chief Teresa Spence, an Aboriginal leader whose hunger strike helped inspire the movement, but being a classy Tory Harper first tweeted “mmm… Bacon” while Chief Spence was striking and stood by his flimsy claim that “Canada has no history of colonialism”. These actions have fed further domestic protests, including the disruption of key economic routes, and international solidarity is increasing. Importantly, the Idle No More movement is taking ques from the Occupy Movement, the successful Quebec Student Movement**** and utilising social media to organise near instantaneous demonstrations and spread information. The movement is also maintaining a level of intensity and coordination unfamiliar to Canadians and their government. The Ottawa Citizen compares the movement to an event in 1969:

1969 was the last time the federal government put forward an assimilation plan for First Nations. It was defeated then by fierce native opposition, and it looks like Harper’s aggressive legislative assimilation plan will be met with even fiercer resistance.

It is important to remember that First Nations people were never conquered. The Crown derives its authority through the Treaties they signed with the First Nations people. Although each Treaty is different, the core promise is that a partnership exists between First Nations and the Crown and that the wealth of the land will be shared equally. Relations are conducted on a “Nation to Nation” basis. However, as in other Westminster democracies like New Zealand, the Crown only recognises its own sovereignty*****. First Nations are considered intra-nations with a lesser form of authority devolved from the sovereignty of the Crown. Its legal, political and cultural imperialism at its zenith.

The oppressive and discriminatory conduct of successive governments has meant that only one treaty partner has seen any wealth. While the minerals and other resources from traditional First Nations’ lands have been used to give Canadians one of the highest standards of living in the world, the indigenous people remain at the bottom of every indicator and the needle isn’t moving.

I remain optimistic about Idle No More and the First Nations’ struggle for tino rangatiratanga. Chief Spence’ hunger strike is, I think, somewhat symbolic of what has and will happen to the First Nations people. For every day that Chief Spence did not eat, she withered and weakened like her people have for the past three centuries, but after winning a dialogue with Harper, his government and the Governor-General, Chief Spence gains in strength and mana and so do her people.

Post-script: Big ups to Te Wharepora Hou for their support of Idle No More and props to Te Karere and Te Kaea for covering the movement too. It is also important to note the role of women. Idle No More was created by four women and is led, in spirit, by Chief Spence, a female chief of huge mana. In New Zealand the strongest support has come from Maori women.

*Aboriginal property is held collectively, consistent with their values, legal system and the stated goals of many First Nations. The Act would also open land to non-Aboriginal buyers.

**See Te Runanga o Muriwhenua Inc v Attorney-General (1990)

***The Queen in Right of Canada is used to express the sovereignty of the Crown, or more simply the Parliament.

****The Quebec Student Movement involved thousands of students taking direct action to defeat proposed fee hikes.

*****See the orthodox doctrine of parliamentary sovereignty.