May 23, 2013

Rights come with remedies: on the Urewera raids

Police acted ‘unlawfully, unjustifiably and unreasonably”. Translating the bureaucratic-speak: the Police fucked up.

The Independent Police Conduct Authority has released a critical report into Police actions during the Urewera raids. Sir David Curruthers found that, although action itself was reasonable and justified, many aspects of the raids were “unlawful, unjustified and unreasonable”. Curruthers recommends that the Police “re-engage with Tuhoe”.

Fat chance. The report is welcome – if small – vindication. The Police were in the wrong. The hurt isn’t easily mended, though. Re-engagement must happen on Tuhoe terms and a remedy must be given.

The corollary of a right is that it comes with a remedy. In the Urewera raids the Police illegally stopped, searched and detained drivers and their vehicles. Personal information was requested and collected. School buses were stopped and, according to Tuhoe, searched with children on board. The Police illegally detained women and children in their homes – in some cases for hours. The Ruatoki Valley was left humiliated, wounded and intimidated.

The vicious symbolism of setting up road blocks on the historic confiscation line was lost on no one. Militarising the Ruatoki Valley was not only unreasonable and disproportionate, it invoked the ghosts of history. The parallel to armed raids of Maungapohatu was lost on no one too.

But where to from here? The Police actions don’t appear to be criminal (in a legal sense at least, whether their actions were morally criminal is another question). A further problem is that there are several statutory bars preventing claims against the Crown or the Police in tort. The Limitation Act might also be relevant too.

However, a Bill of Rights claim is open. The victims can sue the Crown directly for public law damages. Depending on the circumstances of the claimant s18, s21, s22 and s23 could be relied on. Compensation isn’t the primary focus of public law remedies, but in this situation compensation is necessary to vindicate the rights that were breached, deter the Police and express society's disapproval. Punishment needs to happen too.

Rights must come with remedies. Here, there were clear breaches. The report acknowledges as much (if not in those words). It’s banana republic stuff. Bainimarama stuff. New Zealand has serious issues of Police (and intelligence community) competence. The Police not only regularly disregard the law, but evidence continues to suggest that they have a base disrespect for Maori. They shut down, degrade and intimidate a Maori community. A community with a deep history of Police oppression. They prosecute Maori at a rate wholly disproportionate to other ethnic groups. Don’t start on the anecdotes about Police harassment of Maori who look dodgy. The Police must be held accountable.

Post script: Full credit to Te Ururoa Flavell who has been strong on this from the day of the raids to today. His latest press release is here. I've been critical of his electorate work in the past, but not here. Good stuff. 


  1. Is moral criminality different from immorality?

    1. I'm sure the Urewera 4 would say that the firearms charges they were convicted on were not immoral.

  2. "The corollary of a right is that it comes with a remedy."

    Um, that's "the correlative of a right is a duty". Remedies are what the law provides for a wrong. And by law, I don't mean the public policy that the Crown calls law.

    "But where to from here?"

    Repudiation of the Crown's assumption of sovereignty over Tuhoe, perhaps. The Crown uses the civil system, gazetteing would probably be the appropriate way of telling them.

    But the remedy depends on what kind of relationship Tuhoe wants with others. Perhaps Tuhoe can find allies amongst other tribes regarding keeping the Crown at arms length.

    A frank discussion of constitutional issues could also be of benefit. The VUW exercise isn't worth contemplating as any kind of real solution, but blogs like this one might work.

    1. There really is no grounds by which the Crown can be considered to have any degree of sovereignty over Tuhoe at all. And I don't just mean in the sense that they have a degree of sovereignty over, say, Ngai Tahu or Ngati Porou. There really is no reason other than geography that the Tuhoe and their territory should be part of New Zealand.

      You'll hear a lot of calls for 'practicality' and 'realism' on this issue, even from people who are usually committed to indigenous rights. But the only justification for Crown sovereignty in NZ is Te Tiriti, which the Tuhoe did not sign. It's an open and shut case, and the Tuhoe should definitely be accorded the rights of a sovereign nation as separate from the NZ state as Tonga or Samoa - although not without being given the compensation they are owed for the long, illegitimate occupation of their land, starting in the 19th century and continuing (although sadly not concluding) with the 2007 raids.

    2. I agree, Te Tiriti is the moral basis for Crown sovereignty. However, Crown sovereignty over the entire country is a reality. Parliament and its law making power is a reality. When we drill down, like you say, sovereignty is tenuous - but a reality nonetheless. Tuhoe certainly appear to be stepping towards independence (Guyon Espiner did a great piece on this for 3rd Degree) and it's an independence that is long overdue.

    3. Hugh,

      Practicality and realism are euphemisms for not rocking the boat even if it is run by pirates. Sovereignty can refer to a state of honour or the recognition of independence.

      Another opinion is:

      "It now seems widely accepted as a matter of colonial law and international law that those proclamations approved by the Crown and the gazetting of the acquisition of New Zealand by the Crown in the London Gazette on 2 October 1840 authoritatively established Crown sovereignty over New Zealand."

      NZ Maori Council v Attorney General [1987] 1 NZLR 641 (Court of Appeal)

      This opinion is the basis of my suggestion that Tuhoe formally repudiate the Crown's proclamations. A lawful demand for settlement would then be a possible approach, and that approach would imply that an independent Tuhoe were dealing with the Crown on a level playing field. Much of the power of the Crown is simply assumed, so they are vulnerable to this approach. The problem with the current settlement is that it depends on the existence of a corporate entity, a legal fiction. Under such an arrangement the Crown would retain a controlling interest in the equity of settlement.


      I have no confidence in the Crown. The Canadian residential schools and the Kenyan concentration camps are two historical examples of the Crown's morality.

      As a contract the treaty suffers from two flaws: the ambiguity arising from the differences between the English text and the Maori text, and the absence of an exit clause.

      The legal doctrine of contra proferentem can be applied to the treaty in the Maori interest because the Crown produced the two texts. This means that if the Maori text could have been interpreted such that sovereignty was not ceded by the chiefs, then that is the preferred interpretation.

      As for the exit clause, there is a maxim of the common law that states that: "A clause in a law which precludes its abrogation, is invalid from the beginning." As contracts form law, and law is the perfection of reason, it follows that a contract that cannot be perfected by its own completion is void.

    4. @Morgan: The reality of Crown power certainly can't be denied - we saw that in its most blatant form in 2007 either. But then, the reality of Israeli power over the West Bank can't be denied either. To argue that Palestinians should put aside their aspirations to independence because of the 'reality' of coercive power would be rightly seen as spurious. It's the same with the Tuhoe. The reality of power and the moral justification of power are entirely separate. The Crown has plenty of one, and basically none of the other.

      I'd argue that Crown power is more than tenuous, it's nonexistent. It's tenuous for Ngai Tahu (just to pick an example) because, even though the agreement was dishonoured, mangled, ignored and forgotten, there was at least at one point a genuine intention by Ngai Tahu to submit to some form of Crown sovereignty. The same can't be said for Tuhoe. It's not tenous, it's non-existent, and the power that the Crown exercises over the Uraweras is based purely on the mechanics of power, not on any legal, much less moral, legitimacy.

      Having said all that I agree that practical independence for the Tuhoe is a long way off and may involve some form of compromise with the Crown. But that's all the more reason to be clear on the moral situation.

    5. @Hugh: The relationship between coercive power (eg 2007) and moral or lawful power is the law of nature, the natural order of things in which events are shaped by consciousness and good and evil. Natural law can be described like a science, i.e. in terms of facts and reason, but it is not limited to controlled and repeatable situations like orthodox science is. This rational examination of the relationship between custom, outcomes, intent, and the dimension of good and evil is called the law of the land, and is described by the maxims of the common law.

      An example of the conflict between the Crown and the common law is the Crown's misrepresentation of the common law as simply being case law, when in fact English common law originated with King Alfred the Great's legal code, which began with the ten commandments.
      A further example of the conflict is Christianity as applied by the Church of England (Anglican) in the Canadian residential schools. The core problems with Christianity are outlines in the following links:

    6. @Ugly: Your links appear to be entirely irrelevant to the discussion, so I won't indulge your derail beyond noting this. Thanks for playing.

    7. @Hugh: I was responding to your call for clarity on the moral situation. The relevance of the links to morality is the common factor of Crown religion (Anglican) and also of Crown misrepresentation of the common law. The common law describes the relationship between custom and morality, among other things.

    8. Ugly Truth sez "As a contract the treaty suffers from two flaws: the ambiguity arising from the differences between the English text and the Maori text, and the absence of an exit clause."

      HOWEVER, there is no ambiguity about the Treaty.

      The “Littlewood Treaty’ draft matches the Te Tiriti word for word.
      There is no exit clause because the treaty was written for that time in the 1800’s to bring about an end to tribal warfare, slavery and cannibalism in return to Maori ceding sovereignty to the Queen and as a means to quell troublemakers and criminals amongst non-Maori (escapees and AWOL seamen in the main).

      The Tiriti is the only True Treaty and a false English draft is currently written into law and the so-called five principles of the treaty are nothing other than the fabrication of a socialist lawyer.

      This has given rise to applicants to the TOW Tribunal interpreting ‘meanings’ of Te Tiriti words in a manner that gives them maximum benefit in respect to compensation and power to the detriment of NZ as a whole in many of its’ decisions.

      You know this, it is well documented . . . it is a shameful fact that Dame Orange has allowed only parts of the Littlewood Treaty to be shown in Te Papa.
      The treaty clause that states Maori cede sovereignty to the Queen and the date of this final English draft are obscured.
      Because part of the draft is obscured, it isn’t obvious (unless you can read the Tiriti in Maori) that ownership of forestry and fishery wasn’t given to Maori.

      In fact it is debatable whether the Tiriti is a viable document in the present day. I for one am more interested in a country where needs are foremost not race.

      So long as we have Tribal Leaders looking backwards with their hand out whilst ignoring the plight of many of 'their' people and appeasing non-Maori who do not see NZ as a country where equality for all its citizens’ reigns we will remain divided

    9. Well, haven't you just demolished decades of historical scholarship and jurisprudence...

    10. yea like Dame Orange's historical efforts eh; she's been "too busy" since 1989 to look into the Littlewood Treaty as it'll upset Maori claimants.

      Despite it being the 'missing document' that historians have known was missing for years.

      It'll create a furore to give it the importance it deserves but so long as the Te Tiriti is seen as a document important to today's world we should be honouring that not a false draft or made-up principles.

      Don't overlook that although Tuhoe may not have signed the Tiriti the Crown gained sovereignty militarily as well as by the treaty...which is how Maori determined ownership and authority 300 years ago according to "historical scholarship".

    11. @Carol

      The ambiguity is between the English text "full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties" and the Maori text "ki nga tangata katoa o Nu Tirani te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa" where tino rangatiratanga can mean absolute/unqualified chieftainship i.e. sovereignty.

      There is no such thing as the "Littlewood Treaty", the document is a draft and there is no reason to believe that the chiefs agreed to it.

      As well as there being no exit clause, the chiefs of the confederation did not speak for the other chiefs and any representations regarding the other tribes are fraudulent.

      The call for equality is wrongful because it seeks to reduce the status of Tuhoe and any other non-signatory tribes to the status of British subjects.

      The Crown did not gain sovereignty militarily. If it had done so there would be have been no reason for it to attempt to acquire it by fraud.

  3. If the Police were to raid Remuera they would find many more unlicensed firearms. But we all know Maori have lower constitutional rights than non-maori.



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