Power: the Shane Jones edition

Labour leadership candidate Shane Jones

If you’re interested in Maori history, one of the most accessible books is Struggle Without End. But if you’re interested in the tool shed account...

Reducing it to its bones, our post-Treaty political history can be divided into four stages: the mid to late 19th century and the imitation of British political institutions, the late 19th century to the early 20th century and the flock to religion and its leaders, the mid to late 20th century characterised by urbanisation and unionism and the Treaty settlement phase with the adoption of a Maori model of Anglo-American capitalism.

The Treaty settlement phase hasn’t ended. But Shane Jones and his bid for the Labour leadership signals that that phase might be closing. The Treaty settlement era is characterised by the adoption of the neotribal model. Accumulating economic power was and is seen as the most effective way to achieve tino rangatiratanga. That might well be right, but Shane’s run for the leadership signals a new approach.

“Power is a lot like real estate. It’s all about location, location, location. The closer you are to the source, the higher your property value”.

That sums up Shane’s approach to achieving tino rangatiratanga: you have to get to the source of power. In this case, the Prime Ministership or a position close to it. The Cabinet controls the executive and (in our Westminster system) the Parliament.

The Maori Party has adopted the approach as well (in watered down form). Two of their MPs might hold ministerial warrants, but they’re not members of Cabinet. They’re on the periphery of power and their value is low as a result. In the government, the heavy lifting and influence is held in the top, say, five members of Cabinet. In the current government power seems concentrated in the Key/English/Joyce tripartite. Shane is aiming to form or be a part of an equivalent power group.

Shane’s run can’t be understood without the help of history. A supporter of Shane’s bid made an outstanding point this morning - Shane is the successor to Sir Apirana Ngata’s legacy:

E tipu e rea, mo nga ra o te ao,
Grow up o tender child in the days of your world,  

Ko to ringa ki nga rākau a te Pākehā,
In your hands the tools of the Pākehā,  

Hei oranga mo to tinana.
As means to support and sustain you.  

Ko to ngakau ki nga taonga a o tipuna,
In your heart the treasures of your ancestors,  

Hei tikitiki mo to mahunga.
As a plume for your head.  

Ko to wairua ki te Atua,
Your spirit given to God,  

Nana nei nga mea katoa.
The source of all things. 

Shane lives that. For that reason alone – casting aside the strategic significance of the bid – Shane might be worth supporting.

Post script: although I tautoko Shane’s run, I’ve already declared for Cunliffe. I’ve set out my reasons at The Daily Blog and I don’t retract them. This post is an attempt to put Shane's run in its proper context. Shane is polarising. My politics aren’t closely aligned with his (except on Maori issues) and I'm unsure how he will change the left. "Geldings", too. Enough said.  

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.

Te Tai Tonga, Sharples and Brash, Tainui and asset sales

I don’t have much time to blog this week so I’ll quickly comment on a few things I’ve missed over the last few days:


Te Tai Tonga

The latest Te Karere Digipoll puts Rahui Katene ahead of Labour’s Rino Tirikatene. Katene is on 46% to Tirikatene’s 35%. The last Te Karere poll put Tirikatene on 41% to Katene’s 34%. Hurricane Clinton Dearlove registers 9% support while the Green’s Dora Langsbury comes in with 10% support. I think the following has happened: 1) Katene has, realising it’s do or die, reenergised her campaign and reclaimed the momentum 2) Dearlove and Langsbury have siphoned more votes from Tirikatene than they have from Katene 3) Tirikatene is suffering from a swing against Labour. The seat is now 50/50. Whereas everyone was picking a win for Tirikatene, this isn’t so sure anymore. 

A Tirikatene win is certainly still possible. As Digipoll points out, Tirikatene’s older support base is far more likely to vote and younger voters, who strongly support Katene, usually change sides at the last minute. Jobs and asset sales also rank as important issues. This is where Tirikatene will be strong. No one can forget Katene going against the wishes of iwi in Te Tai Tonga, notably Ngai Tahu, and voting for the MCA Act as well. Meanwhile Katene is calling for better resourcing for Maori electorates. The Maori electorates are huge and there is a need for access to more staffers and more expense funding. Apparently Katene could do with three staffers. I say try six. Maori electorate MPs are allowed three staffers and an EA so I don’t know why Katene is saying she could do with three when she’s allowed three.


Pita Sharples vs Brash

The Maori Party continue the line that they need to be at the Cabinet table to oppose Don Brash. Firstly, the Maori Party sit outside of Cabinet – so they’re not really at the Cabinet table. If Act enter a formal coalition with National, rather than a confidence and supply agreement, then Brash will sit at the table (in a figurative and literal sense) to the exclusion of the Maori Party (because what are the chances they will enter a formal coalition). This makes the whole at the table rhetoric a little hollow.


Tainui support the Maori Party on asset sales

In an about turn Tuku Morgan has come out in support of the Maori Party’s stance on asset sales. Previously Tuku actively supported the sale of assets and iwi acquisition of those assets. However, Tuku now opposes asset sales, but should assets come on the market Tuku will look to invest. Tuku reckons that the Maori Party is looking out for the needs of Maori. If this isn’t an endorsement, then I don’t know what is. 

This is a blow for John Key. The Iwi Leadership Group were, at one point, one of the strongest advocates for asset sales. John Key is quickly losing his allies on this issue. Without Iwi support and the active opposition of Mana and the Maori Party the Nats won't be able to sell the idea to Maori. Not that they need Maori support.

Martin Cooper controversy

By all accounts Martin Cooper is a good guy and has done a lot for the community. Fair enough. He still abused his position and should suffer the consequences though. The Herald on Sunday followed up on their story from the week before this time revealing Cooper wanted to give some guy the bash or something.


Tamaki Makaurau debate

Four strong candidates. I like picking winners, unlike Joshua Hitchcock who has blogged a brilliant summary here, but I genuinely can’t pick one. Each candidate was strong in certain areas. No candidate did them or their parties a disservice let’s put it that way.

6 topics, 1 post

A few quick points:

1. I have no idea why Hone did not show at today’s hui. I’m not even going to bother hypothesising. Attempting to understand the man’s mind is perhaps a futile task. He is hot and cold, hit and miss, yin and yang. One moment it appears he is calculated and considered while merely a breath later he may act erratically and with little lucidity. Hone will never sit around the Cabinet table if he cannot contain himself – he is politically unmanageable. Hone wants to become a minister, but he never will unless he displays some discipline. Hone Harawira, as he is today, is political poison. He will sink any government he is a part of. Hone needs to realise merit is only a small part of ministerial appointment, at the end of the day MP’s become ministers because they can be managed. Hone cannot be managed, therefore Hone cannot become a minister. Ultimately Hone acts on impulse and more often than not he is swayed by the last person he spoke to, normally his mother wife, or Tai Tokerau kaumatua and kuia. He needs to act with a view to the long term.
2. On a related note I am perplexed as to why the party decided to delay announcing the outcome of the hui – after all it was predetermined, right? At some point the hopeless Maori Party PR team needs to realise that nothing they do will kill the issue. A media ban is only so effective and a delay in proceedings is utterly impotent. People are not going to forget about this issue and nor will they cool over time. In the interests of resolution the party should be announce the outcome immediately. This is a circus that makes Maori look politically incompetent. UPDATE: The committee came up with “a range of options” which will be presented to the National Council. The final decision is in the hands of the NC. What a drawn out process.   
3. Peter Paraone intends to stand in the coming election. Yawn.
4. Te Arawa team Te Matarae i Orehu are national kapa haka champs.
5. Tariana Turia has released a video in defence of the party’s support for the MCA bill. It is pretty silly. It merely confirms the Maori Party has lost the debate. The best Turia can do is continue the ‘it’s not great but the best we can get’ theme. A self defeating narrative.
6. Second rate journalist Karl Du Fresne, no doubt channeling Peter Dunne, wants to deny our history. Karl wants to ignore the continuing struggle for equal rights. Karl wants us to forget about the fact that Maori are less likely to be offered and receive chemotherapy compared to our Pakeha mates. He wants us to forget about all that other discrimination, like when a Maori woman was denied a job due to her moko. Karl wants us to ignore our ugly history too. Forget about the fact that Maori received smaller relief payments during the depression. Forget about all that land confiscation. Gosh, that scorched earth policy is all in the past. Ultimately Karl just wants us to have a glorified wank over how great our country supposedly is. Get with the program Karl – this country has issues that need confronting. If you can’t appreciate that then go fuck yourself. (For a far more insightful, sober and articulate post on this issue see No Right Turn).    

UPDATE: I think I need to apologise for the strong language used at 6. I am not inclined to edit anything I have already written, therefore it will remain. I am very young and many issues make me very angry.   

Hekia Parata

 

There has been a fair bit of speculation surrounding the appointment of a new Cabinet Minister to replace Pansy Wong. Much of that speculation has surrounded Hekia Parata. Hekia grew up on the East Coast immersed in Ngati Porou tikanga, kawa and reo. She is of Ngati Porou and Ngai Tahu descent. She has led a very successful life as a senior public servant, small business owner and now politician. Not bad eh?

Personally Hekia turns me off; she comes across as rather arrogant and showed on the Q+A debate during the Mana by-election that she can be very rude and obstructive. However, she is immensely proud of her identity and is absolutely committed to Maori and the Mana electorate and I admire this. You cannot fault her on that count.

I have read over her maiden speech to try and gain a better picture of Hekia. The speech is largely promising and shows some insight and perception;

“I have grown up in a culture that walks through the present, with the constant companions of the past and the future; this practice prepares us particularly well for this parliamentary role I think – as we weigh actions of today against those of the past, and the implications for the future”

Kia ora;

“I have seen the very kinds of communities of my upbringing succumb to the disease of dependency where State intervention is the norm not the exception; where care givers, and providers, and facilitators, and sector workers replace aunts, uncles, neighbours and friends; where State welfare (rather than social welfare) is the first resort and the basis of an intergenerational life sentence rather than a lifeline; where despair and alienation are masked by drugs and alcohol and abuse; and displaced anger makes victims of children and their mothers; where low expectation in schools is predictably repaid with low achievement; where fault and blame laying has become the defence of failure… I feel called to Parliament to do something about this.”

She has identified the problems but, judging from the tone of this, I suspect her understanding of the underlying causes and her solutions are hori tory stuff. Please prove me wrong;

“We have slogged through the mire of compliance regimes and related costs. We have encountered the impervious official at the point of export, indifferent to the effects of inexplicable bureaucracy and the costs incurred”

This is where she begins to lose herself;

“We must liberate businesses”

Fail;

“Restore whänau and families as the cornerstones of our communities and our country, and mediate the role of the State through community based organizations, and through connected and coordinated support”

Shes back on track this is good stuff.  Does it sound a lot like Whanau Ora?

All in all it was an articulate address and a promising one at that and I certainly hope she is promoted.

(Unfortunately at the end of her speech she quotes Margaret Thatcher – It sent a chill down my spine)

UPDATE: Hekia takes over Women's Affairs as well as Ethnic Affairs. Excellent.