Motorway madness

I blogged on Monday about the desecration of wāhi tapu that will occur if the planned motorway bypass in Kāpiti goes ahead, as looks likely.

Later that same day, the ruling of the High Court on the appeals of Save Kāpiti and the Alliance for a Sustainable Kāpiti were made public. They rejected the appeals on all grounds. This is a win for the Government, and the conservative Kāpiti Coast District Council that has been working in an alliance with NZTA.

David Farrar has blogged at Kiwiblog saying:

It was due to local input, that the Government ended up doing the Western Link Road. Originally what was proposed was basically four-laning the current State Highway 1, but many locals were opposed to that, and hence the long sought after Western Link Road was then changed in design from two to four lanes to become the new SH1, and the existing section will become a local road.

At best, this is Farrar being disingenuous. The initial proposal, which was so bad no one could it support it, was deliberately put up by the Government who knew it wasn't going to be accepted.

They then did a round of so-called consultation  that divided the community by proposing three different alternatives, all of which would have done significant damage to natural heritage, property values and the local economy in different areas of the Coast. It pitted local communities against each other, as you would expect.

In reality, the majority of Kāpiti residents are opposed to a four-lane motorway dividing their community. But we are represented by a conservative council that hasn't stood up for the interests of the local community. Mayor Jenny Rowan is now complicit in the damage that this project will cause. It is infuriating to see her laud the High Court's ruling. She should be representing the interests of the community and fighting for the tangata whenua.

David Farrar and other motorists in Wellington will apparently see 12 minutes cut off their travel times to Auckland if the entire Levin-Wellington corridor is built, but this is not justification enough for the project. Congestion in Kāpiti is minimal anyway. The real bottleneck areas are in Paremata and before Pukerua Bay.

Also, the numbers don't stack up at all, it has a cost benefit ratio of only 0.2! That is incredibly low. It will also significantly damage the local economy which has been built around the current SH1, and our attractiveness as an area of retirement and raising a young family. Who would want to retire next to a trucking bypass?

Councillor and mayoral candidate K (Guru) Gurunathan has said that Save Kāpiti has 'waged a heroic struggle' but that now we should stop protesting and let the Government get on with it. I know his wish won't be granted and the anti-expressway movement will continue to fight. An appeal to the Supreme Court is a possibility.

The Dom Post reports:

Te Atiawa ki Whakarongotai Marae chairman George Jenkins said he believed there would be protests by individual iwi members and members of the public when construction started.

Like George Jenkins I also expect protests, and probably land occupations. When our wāhi tapu are under threat, we won't sit meekly by and enable it's desecration.  In my view civil disobedience is now inevitable.

One thing I know for sure is that the bulldozers will have to get past me.


Post by Jack Tautokai McDonald

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.

Hannah Tamaki's run continues

Unsurprisingly, Hannah Tamaki is back in the running for the presidency of the Maori Women’s Welfare League. Tamaki took her case to the High Court after members of the League removed her name from the ballot papers amid fears that Tamaki, and by extension the Destiny Church, were attempting a hostile takeover. Justice Kos in his ruling on Wednesday held that Hannah Tamaki is entitled to run for President of the League. However, the Court also expressed concern around the creation of ten Destiny affiliated branches, in which Hannah Tamaki had a hand in creating, and held that those branches are ineligible to vote. Justice Kos held:
  

I find the manner in which the new branches have been established completely contrary to the practices and tikanga of the league.

Although, the Court did single out three branches with loose connections to Destiny as legitimate. The Court made it clear that Tamaki's religious beliefs do not preclude her bid. The MWWL is strictly "non-sectarian", this means the organisation itself cannot proclaim and/or take a religious stance. It does not mean that the organisations representatives are not entitled to hold personal, or more specifically, religious beliefs.

In short the actions of the League were unlawful, but perhaps justified in the sense that the League is attempting to protect its history and mana. Hannah Tamaki should have the opportunity to stand, however her minions should not have the opportunity to vote. Hannah Tamaki has, according to the Court, conducted her bid lawfully. She has not, however, conducted her bid with integrity. Rigging the competition is not on and if Tamaki has any sense of fairness she should stand down. I have said it again and again: Destiny Church wants to secure social services contracts. The government has, on a number of occasions, refused to award contracts to Destiny Church. Clearly the Church cannot secure contracts under the Destiny mast. Consequently, the Tamaki’s have identified the MWWL as a potential vehicle for their new money spinner, i.e. providing social services. The MWWL is one of the most respected Maori organisations in New Zealand and can run on their record promoting Maori wellbeing. The MWWL provides an attractive prospect for the Tamaki’s.

I doubt Hannah Tamaki will win. Many League members are fiercely opposed to her candidacy and will make voting against Tamaki a priority. I guess Tamaki’s play has been good one respect: the MWWL appeared to be in decline, however Tamaki’s play for the presidency appears to have energised the League and spurred renewed interest in the League and what it stands for.

Justice denied

As you probably know the Court of Appeal has affirmed the findings of the High Court concerning the so called Urewera 18. 15 of the accused have been denied a jury trial. This, in my opinion, can be politely termed a judicial atrocity.

Both the High Court and the Court of Appeal have suppressed their reasoning, no doubt in an attempt to deflect criticism. It is absolutely unconscionable that the Court can to decide to deny a fundamental democratic right without offering the public any justification.

One of the primary functions of a jury is to act as a safeguard against the arbitrary exercise of government power. Given that the Urewera 18 were the victims of arbitrary government in the first instance the Court should, in theory, act as a check against that arbitrary power. However, in reality the Court has, and I do not make this accusation lightly, colluded with the executive (the Police) in ensuring that the government comes out of this process having saved face.

This case, right from the original terror raids in 2007, has been a source of considerable embarrassment for the Police. It gradually became apparent that the Police acted on a fragile and misconstrued basis. Those arrested ranged from small-time rural crack-pots to people who call for the protection of snails to pohara Maori-rights activists. The Solicitor-General slapped down the possibility of charges under the Terrorism Suppression Act and the media revealed just how wild the basis for action was. The Police allowed their childish imagination to cloud their objective reasoning. The majority of the accused now face firearms charges as opposed to anything ‘terror” related.

I’ll conclude this post with a quote from I/S over at No Right Turn (he puts it far better than I could):

The blunt fact is that without a jury, there can be no public confidence in the outcome of a trial such as this. Only with the bullshit detector of 12 random people scrutinising the case can the rest of us believe that justice was done. But I guess a fair process we can have confidence in is just too risky for the police.

UPDATE: For the two best pieces of analysis see this posting from Pablo at Kiwipolitico and this piece from Fran O'Sullivan.

Williams CJ?

Apparently one or two appointments will be made to the Supreme Court within the next year. I have no idea who will be appointed but I would like to see Justice Joe Williams considered. Williams is Maori, but that is not the sole reason why he should be appointed. Appointments should be based on merit and merit alone. However, were a situation to arise where one has two equally qualified candidates, one of whom happens to be Maori, then a compelling case exists to appoint the Maori. As far as I am aware Williams is a well respected legal mind. As former Chief Judge of the Maori Land, former head of the Waitangi Tribunal, the first Maori law lecturer at Victoria and current High Court Justice, Williams is most certainly qualified.

From my quick research into William’s background I think it is fair to say he is undeniably Maori in outlook, yet conscious and accepting of the fact that Maori must operate under a Pakeha framework. He is realistic. I would classify Williams as something of a tino rangatiratanga advocate, however not in an ideological sense. He does not believe in Maori self government and all those other unrealistic expectations and desires. Rather he believes in the pragmatic notion of tino rangatiratanga – enhanced wellbeing as opposed to self rule.

Ultimately, the decision on who to appoint sits with the Attorney-General. I am fairly confident Justice Williams will not be overlooked by either Chris Finlayson or, if Labour is in power, David Parker. It is something of an anomaly that in New Zealand, in 2011 might I add, that Maori are absent in both the Court of Appeal and the Supreme Court.   

Maori Statutory Board refuses to back down

Relations between The Maori Statutory Board and Len Brown, and I guess by extension council, are strained. The board has rejected Len’s offer to negotiate and will instead proceed with Court action. This is unfortunate but understandable.

The council has acted in bad faith. The board engaged an independent consultant and worked alongside council officers in an attempt to formulate a reasonable budget. The budget was then approved by the finance committee. The council, after taking into consideration the political ramifications rather than what is fair and reasonable, then slashed the board’s funding. It is interesting to contrast the behaviour of the council with the good faith in which the Maori Statutory Board acted, up until their budget was savaged of course.

The board will obviously have misgivings about dealing with council again, given the council’s regrettable behaviour. The board will also realise that the council must work within certain political confines. However, the court is not beholden to the uninformed opinions of a few Auckland voters. The council is, for the most part, fixed to the opinions and desires of the majority, whether those opinions and desires are just is less important, comparatively speaking. This is the reality of politics. Given that public opposition to the board’s funding was almost significant, the council will not risk igniting a backlash. With this in mind it is obvious why the board is pushing ahead through the Courts. The Courts will determine the issue according to the facts and the law. No politics. On the other hand the council will take the option likely to cause the least electoral damage.

This should have never been an issue in the first place. The board took adequate steps to ensure their budget was reasonable. The sad reality is that the majority of New Zealanders perceive any Maori empowerment as some sort of unjustified hand out. Privilege if you will. And what is even sadder is that instead of challenging this notion politicians are willing to perpetuate it for political gain.   

Maori lose - again

I sympathise with the Ngati Rangitihi people of Matata. They have, as a collective, appealed against some terms of the resource consent granted to Carter Holt Harvey and Noske Skog – the two companies that operate the Tasman Mill in Kawerau. Specifically the length of the consent (25 years) and the amount of waste that can be discharged into the Tarawera river. The appeal was dismissed by the Environment Court and on further appeal the High Court. Ngati Rangitihi has now expressed intention to appeal to the Court of Appeal.

Realistically, they have slim hope of a favourable ruling. An appeal can only be made on points of law so Ngati Rangithi must prove that the hearing commissioners or previous Courts erred in the application of the law. I do not think they did. The High Court judgement is, in my opinion, reasonable given the special circumstances. However, I think the Court and the hearing commissioners strayed in relation to Maori viewpoints. Adequate weight was not given to the views and concerns of tangata whenua. Lip service was paid but the decision did not reflect the deeply held concerns of the Maori communities affected by the decision. This situation is not uncommon in local government and judicial decisions largely because the decision makers have little understanding of Te Ao Maori or any sympathy for and connection to Maori communities. Indifference usually characterises high level decision making as well. People become units, the whenua becomes a resource and taonga becomes an opportunity cost.

Unfortunately further Court action poses a risk to the Mill and the 500+ jobs it sustains. Carter Holt Harvey must upgrade its recovery boiler by March 21 and they will not do so unless they have long term operational certainty. If Carter Holt Harvey closed then Noske Skog would in all probability follow suit consequently the sawmill would suffer a huge drop in domestic demand and theoretically SCA (tissue manufacturers who operate at the Mill) would have no reason to operate from an isolated, empty mill. This would be a huge blow to Kawerau and the Eastern Bay. The Mill keeps household rates in Kawerau comparatively low, sponsors community events and provides jobs for the Eastern Bay of Plenty (most Mill workers live outside of Kawerau in lifestyle towns like Ohope). The Mill is also a triumph of unionism – wages are high thanks to strong union action over the past 50 years. The Eastern Bay economy would be nothing without the companies that operate from the Mill.

Therefore, I think the Judge was correct in dismissing the appeal on those grounds, however I still do not like the content of his ruling. The term should have been reduced by five years, allowing for long term operational certainty yet giving effect to the concerns of tangata whenua, and discharge restrictions should have been further tightened over time. I feel sorry for Ngati Rangitihi, they are only acting as kaitiaki yet they do so with little chance of success and sadly some ignorant people in the community see them as trouble makers rather than caretakers.