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.  

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.