The Maori seats: submit!

Here's my submission on the Maori seats. Feel free to use this as a guide but please don't copy and paste. My submission on the Bill of Rights (posted the week before last) is here with a few rules for submission writing. 

This is the draft version. I need to expand in places, reference, add macrons and so on. The guts of it is here, though. 

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1.    The Maori seats must be retained.

1.1  The Maori electorates embody the Treaty partnership between Maori and the Crown.

1.2  The Maori electorates represent constitutional recognition of Maori as tangata whenua and act as a constitutional safeguard for Maori interests.

1.3  The Maori electorates are, after 146 years in existence, an inalienable right and are part of the fabric of Te Ao Maori. 

1.4  Retention or abolition is a decision for Maori voters.

1.5  The Maori seats are not an affirmative action measure. The Maori seats are an expression of the guarantee to “rangatiratanga” in Article Two of the Treaty of Waitangi.

2.    The Maori seats must be entrenched.

2.1  Entrenchment will insulate the Maori seats against majority tyranny or the unprincipled use of an ordinary Parliamentary majority.

2.2  The provisions in the Electoral Act 1993 that regulate general electorates are entrenched. The provisions regulating Maori electorates are not. The difference in treatment cannot be justified.

2.3  Dr. Ranginui Walker argued that the Electoral Act 1956 – which did not entrench the provisions regulating Maori electorates but did entrench the provisions regulating general electorates – was “perhaps the most discriminatory measure of all in the application of the law to Māori representation”. He was right and the criticism also applies to the Electoral Act 1993. (Walker, 1992).

2.4  In obiter remarks in Taiaroa v Ministry of Justice McGeChan J held that the Maori electorates are a “Treaty icon” and are “entirely consistent with the Treaty”. That is correct. As an expression of the Treaty, the Maori electorates must be entrenched.

2.5  The provisions regulating the Maori electorates are constitutional provisions. Constitutional provisions must be afforded the highest protection (i.e. entrenchment).

3.    The Purpose of the Maori electorates must be clarified.

3.1  There is a misconception that the Maori electorates are concerned with achieving equal representation for Maori (i.e. electoral equality). This is not the Maori electorate’s contemporary rationale.

3.2  The Maori electorates protect Maori interests in the electoral system and are an expression of the Treaty partnership.

3.3  The Maori electorates allow Maori to participate as Maori in an electoral system that is, in all other respects, a western system.

3.4  Maori have been beneficiaries of MMP, though only in the sense that Maori representation in Parliament is equal to and in some Parliamentary terms greater than the Maori share of the population. However, proportional representation has not guaranteed that Maori interests are adequately protected. The Maori electorates have.  

4.    The Maori option must be extended.

4.1  The existing five month window too short. The window should be extended to six months or longer.

4.2  A provision imposing a positive obligation on the government of the day to “effectively” (rather than “reasonably”) advertise the Maori electoral option must be enacted.

4.3  I support in principle the private members bill from Te Ururoa Flavell MP that would automatically enrol New Zealanders of Maori descent on the Maori electoral roll.

5.    Dedicated Maori representation in local government must be investigated.

5.1  I accept that it would be wrong in principle to impose dedicated Maori representation on local governments.

5.2  However, dedicated representation must be discussed. Maori interests are not adequately protected at local government level.

5.3  Provisions regarding Maori input in the Local Government Act 2002, the Resource Management Act 1991 and so on are inadequate. Maori interests must not only be heard, but be afforded the appropriate weight.

5.4  Where dedicated Maori representation is rejected, local governments must be compelled to investigate alternative methods that include Maori perspectives in the decision-making process.  

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.

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.