Thank you, Grant, for raising this matter in the way you have.
At its core, I do sense we have to be most careful with our language, which means the way we formulate our very questions, since this will determine the kind of answers we can and cannot come to. It is always the case in any field of enquiry: the very form of the questions determines to a high degree the kinds of answers.
For example, already, when discussing principles, some comments also presuppose a partnership between two parties, namely the crown and Māori. Others speak of a partnership between Maori
and Pakeha. What’s all a bit loosey goosey is the failure to appreciate sufficiently the 1987 Lands case and the due language of the five Judges.
Here’s a link that might assist (and sure; while we’ve all got sundry provenances, I merely try to pay attention to many!):
Hi Art. Your message found me at a moment with some time to spare, so I've read Anthony Willy's article and I find it well reasoned and informative. I could have added in my own piece that the intent of "partnership" as used by the judges in the Lands case has been taken further than originally intended. So I agree there. But, by taking that concept further doesn't necessarily mean something wrong is being done. It's a matter for democratic decision-making now, and for parliament to guide us as to what these principles are in law, as the intentions of the courts are being extended in ways that are causing confusion, if not dissension. Thank you for alerting me to that article. Cheers. Grant
Thanks for getting back to me. Yet I must demur! When A is LIKE B, as in a simile (akin to), it is not an equivocation, A=B. There’s the source of our entire difficulties. IMHO, to crash any likeness into … well; what?!
ACT introducing a bill setting a version of the principles of Te Tiriti is fundamentally at odds with the principle that both parties to an agreement should, if necessary, clarify its content and implications.
I guess it's not direct negotiation in the sense you suggest. But then, parliament passed an Act to create the Tribunal and it passes law to approve settlements. So, parliament has a role here.
That answer fundamentally misunderstands the 30-40 years of jurisprudence on the principle of partnership, and who gets to decide the treaty relationship. It is the Crown, not Parliament with whom Māori have the relationship. If a bill, and an act is created, it cannot alter that, in the same way that no bill can overwhelm the constitutional settlement in the UK. The Crown would still be dragged into the courts when it acted contrary to existing precedent about how the Crown should act toward iwi, and other Māori political actors. Unless you think Parliament should step in and overrule judgements by the courts that were based on existing statute at the time?
But the law is startingly clear on these issues, at least as clear as any court law is given 40 years of court cases. Why do you think courts wouldn't have to continue to tease out the implications of the new act in particular cases.
Parliament may well choose to let things be worked out by the courts. Or, a new statute could affirm what the courts have found thus far, rather than adopt the ACT Party's version. I don't support Seymour's version in particular. Clarity is needed, I think.
What could bring more clarity than 40 years of court judgements. It's like asking for clarity on what the American Constitution means: you only get clarity for everyday life when the courts decide on a particular case.
BTW I'd be happiest if the principles were vanquished in most cases, since the principles hands power to the Crown to decide the limits of the constitutional bargain they strike with Iwi, hapu and other Māori political actors. I would like to instead use, as is appropriate at international law, Te Tiriti. But whatever statute you might put in, it's actual effect will only be known through case law.
We should expect our elected representatives - particularly those of Maori descent - to provide principled debate. They should be guided by the sovereignty of 'we the people' rather than our courts and the Waitangi Tribunal and they should heed David Lange's words in 2000: "Members of the executive branch of government are more than our representatives. They’re more than managers. They are, or should be, our leaders... Many on the left of politics who sympathise with Maori aspiration have identified with the cause of the treaty, either not knowing or not caring that its implications are profoundly undemocratic. I don’t think it any coincidence that the cause gained momentum in the eighties and nineties, when the government retreated from active engagement in economy and society and in doing so weakened the identification between government and governed which is essential to the functioning of a democracy. It isn’t in the least surprising that undemocratic ideas flourish when democracy itself seems to be failing."
Thanks for that, Mike. I hadn't seen that quote from Lange before. Often people argue (against the ACT bill) that "the courts have ruled this or that", forgetting that parliaments pass laws and then the courts apply them. It's time parliament took the lead on this – with due caution and consultation.
Why should Parliament take the lead Grant? There are 40 years of jurisprudence on the principles of the treaty (so they are really really clear), and Parliament has set those parameters and continually delegated it to the the courts to decide, in the same way that it does with much of what it legislates on when it wants it to be stable and settled and not subject to the whims of partisan politics. The principles are incredibly kind to the Crown, and those it represents who are non-Māori, since they ensure the Crown retains law and tax etc, and at their most adventurous (in the RMA), allow Māori to have a voice in planning after 150 years of being locked out local government planning. Given Māori have never been able to contest in courts the 94% of the land that was expropriated in various ways, and continue to receive treatment in state institutions that has worse outcomes than for non-Māori, do you really think that parliament should, and is appropriately resourced to take on the task of increasing the legitimacy of the Crown and parliament in Māori eyes.
That’s an opinion, or ideological position that can be contested at all times. See Quentin Skinner’s lecture on what is the state?
It’s a particularly troublesome ideology in NZ or Australia where that supposed legitimacy has allowed awful treatment of indigenous peoples (and many others besides). And often the Crown does not act within the law (hence the Royal Commission on the Earthquake Commission, or in Britain, the postmaster scandal).
I have to agree with you there, Lindsey. There's nothing fixed in stone about norms of statehood. Indeed, I've written on these matters in my most recent book. Cheers, Grant
Can you explain how trying to get iwi, hapu and Māori property rights and rights not to be discriminated against is somehow against 'we the people'. And why do we have to chose we the people? Because you think so? Indeed why can't we follow other quotes from across 8000 years of different types of governments. Why do you think, following Lange, that the Treaty is fundamentally undemocratic? Isn't it just as fundamentally undemocratic that Māori have never been allowed to contest land sales in court? Explain to me why I should accept your view, when you talk of 'Māori descent', and so invoke the blood quantums and race laws that went with them. Perhaps it is your view that is fundamentally undemocratic, since you seem to be implying that government has done things wrong, when surely it is acting as the 'voice of the people'.
Hi Lindsey. My use of the words 'we the people' is a protest against rule by tribunals or the courts. Parliament is the cornerstone of our law making, not a tribunal or the courts. It is also wrong - and contrary to Article 3 of the ToW that people 'of Maori descent' have been allocated more voting power than those without such lineage. I think that invoking co-governance on that basis is a road to ruin. I am totally in favour of correcting past injustice and clearly defining the principles of the ToW - and Parliament is the forum to do it.
Mike, Parliament doesn't do the governing in NZ, Cabinet does. Most of what touches you in your daily life is decided by Cabinet regulations (fees, licence regimes, building standards, food safety standards etc etc). Parliament is supreme in law, so if the tribunals or courts are making decisions they do so because Parliament has decided that they are best placed to make those decisions. The Waitangi Tribunal, have no ability to rule you or anyone else, it issues recommendations, that sometimes are taken by the very Parliament you think should be in charge. In sum, Parliament is in charge, completely and utterly of everything. If you think it is not deciding something in the right way, then get involved. But don't think Parliament is undermined by anyone except those who are its members ie MPs.
Finally, show me exactly where I have more voting power than you? And why would you think your Parliament would allow that to happen?
You realise without the wards that Māori candidates, and Māori political organisations, or actors, find it almost impossible to be elected. That is why the RMA put in special provisions for Māori in planning; for last 100 years Māori were unable to get beyond about 3% representation across local country. So your democratic system excludes 10-20% of the population from being able to elect someone who may represent their particular whanau, hapu or iwi interests in planning decisions. Rates without representation seems pretty undemocratic to me.
It is well understood that democracy mixed with longstanding cleavages can create a permanent political disadvantage (just ask the slaves in the Greek or Roman slaves). To deal with this about 1/3 of all parliaments around the world have special provision for minorities based on geography, identity, nationality or ethinicity. See: Reynolds, A. (2005). Reserved Seats in National Legislatures: A Research Note. Legislative Studies Quarterly, 30, 301–310. To think that Aotearoa New Zealand doesn't need special measures is to think that local government does not have a legitimacy deficit with Māori. It is local government over the last 100 years that has been allowed to run roughshod over Māori land, because it was unaccountable to its Māori citizens.
Why do Maori stay home at election time? Seems to me that If Maori can't be bothered to exercise their democratic rights they don't deserve special representation. To demand otherwise is patronising nonsense. Google tells me there are 27 Maori MP's today - that high representation hardly implies that Māori deserve different political rights.
Thank you, Grant, for raising this matter in the way you have.
At its core, I do sense we have to be most careful with our language, which means the way we formulate our very questions, since this will determine the kind of answers we can and cannot come to. It is always the case in any field of enquiry: the very form of the questions determines to a high degree the kinds of answers.
For example, already, when discussing principles, some comments also presuppose a partnership between two parties, namely the crown and Māori. Others speak of a partnership between Maori
and Pakeha. What’s all a bit loosey goosey is the failure to appreciate sufficiently the 1987 Lands case and the due language of the five Judges.
Here’s a link that might assist (and sure; while we’ve all got sundry provenances, I merely try to pay attention to many!):
https://www.nzcpr.com/fairy-tales-for-the-gullible/
Hi Art. Your message found me at a moment with some time to spare, so I've read Anthony Willy's article and I find it well reasoned and informative. I could have added in my own piece that the intent of "partnership" as used by the judges in the Lands case has been taken further than originally intended. So I agree there. But, by taking that concept further doesn't necessarily mean something wrong is being done. It's a matter for democratic decision-making now, and for parliament to guide us as to what these principles are in law, as the intentions of the courts are being extended in ways that are causing confusion, if not dissension. Thank you for alerting me to that article. Cheers. Grant
Thanks for getting back to me. Yet I must demur! When A is LIKE B, as in a simile (akin to), it is not an equivocation, A=B. There’s the source of our entire difficulties. IMHO, to crash any likeness into … well; what?!
Fair comment, thanks Art. Perhaps this all just goes to show why parliament ("the highest court") should clear the matter up for us!
ACT introducing a bill setting a version of the principles of Te Tiriti is fundamentally at odds with the principle that both parties to an agreement should, if necessary, clarify its content and implications.
That’s where parliamentary debate and public submissions to select committee come into their own
How is that direct negotiation between the two parties to the contract that is Te Tiriti?
I guess it's not direct negotiation in the sense you suggest. But then, parliament passed an Act to create the Tribunal and it passes law to approve settlements. So, parliament has a role here.
That answer fundamentally misunderstands the 30-40 years of jurisprudence on the principle of partnership, and who gets to decide the treaty relationship. It is the Crown, not Parliament with whom Māori have the relationship. If a bill, and an act is created, it cannot alter that, in the same way that no bill can overwhelm the constitutional settlement in the UK. The Crown would still be dragged into the courts when it acted contrary to existing precedent about how the Crown should act toward iwi, and other Māori political actors. Unless you think Parliament should step in and overrule judgements by the courts that were based on existing statute at the time?
Yes. Not to overrule the courts but to clarify the law.
But the law is startingly clear on these issues, at least as clear as any court law is given 40 years of court cases. Why do you think courts wouldn't have to continue to tease out the implications of the new act in particular cases.
Parliament may well choose to let things be worked out by the courts. Or, a new statute could affirm what the courts have found thus far, rather than adopt the ACT Party's version. I don't support Seymour's version in particular. Clarity is needed, I think.
What could bring more clarity than 40 years of court judgements. It's like asking for clarity on what the American Constitution means: you only get clarity for everyday life when the courts decide on a particular case.
BTW I'd be happiest if the principles were vanquished in most cases, since the principles hands power to the Crown to decide the limits of the constitutional bargain they strike with Iwi, hapu and other Māori political actors. I would like to instead use, as is appropriate at international law, Te Tiriti. But whatever statute you might put in, it's actual effect will only be known through case law.
We should expect our elected representatives - particularly those of Maori descent - to provide principled debate. They should be guided by the sovereignty of 'we the people' rather than our courts and the Waitangi Tribunal and they should heed David Lange's words in 2000: "Members of the executive branch of government are more than our representatives. They’re more than managers. They are, or should be, our leaders... Many on the left of politics who sympathise with Maori aspiration have identified with the cause of the treaty, either not knowing or not caring that its implications are profoundly undemocratic. I don’t think it any coincidence that the cause gained momentum in the eighties and nineties, when the government retreated from active engagement in economy and society and in doing so weakened the identification between government and governed which is essential to the functioning of a democracy. It isn’t in the least surprising that undemocratic ideas flourish when democracy itself seems to be failing."
Thanks for that, Mike. I hadn't seen that quote from Lange before. Often people argue (against the ACT bill) that "the courts have ruled this or that", forgetting that parliaments pass laws and then the courts apply them. It's time parliament took the lead on this – with due caution and consultation.
Why should Parliament take the lead Grant? There are 40 years of jurisprudence on the principles of the treaty (so they are really really clear), and Parliament has set those parameters and continually delegated it to the the courts to decide, in the same way that it does with much of what it legislates on when it wants it to be stable and settled and not subject to the whims of partisan politics. The principles are incredibly kind to the Crown, and those it represents who are non-Māori, since they ensure the Crown retains law and tax etc, and at their most adventurous (in the RMA), allow Māori to have a voice in planning after 150 years of being locked out local government planning. Given Māori have never been able to contest in courts the 94% of the land that was expropriated in various ways, and continue to receive treatment in state institutions that has worse outcomes than for non-Māori, do you really think that parliament should, and is appropriately resourced to take on the task of increasing the legitimacy of the Crown and parliament in Māori eyes.
Parliament is supreme, and elected representatives give some political legitimacy to the law. The Crown acts within the law.
That’s an opinion, or ideological position that can be contested at all times. See Quentin Skinner’s lecture on what is the state?
It’s a particularly troublesome ideology in NZ or Australia where that supposed legitimacy has allowed awful treatment of indigenous peoples (and many others besides). And often the Crown does not act within the law (hence the Royal Commission on the Earthquake Commission, or in Britain, the postmaster scandal).
I have to agree with you there, Lindsey. There's nothing fixed in stone about norms of statehood. Indeed, I've written on these matters in my most recent book. Cheers, Grant
Can you explain how trying to get iwi, hapu and Māori property rights and rights not to be discriminated against is somehow against 'we the people'. And why do we have to chose we the people? Because you think so? Indeed why can't we follow other quotes from across 8000 years of different types of governments. Why do you think, following Lange, that the Treaty is fundamentally undemocratic? Isn't it just as fundamentally undemocratic that Māori have never been allowed to contest land sales in court? Explain to me why I should accept your view, when you talk of 'Māori descent', and so invoke the blood quantums and race laws that went with them. Perhaps it is your view that is fundamentally undemocratic, since you seem to be implying that government has done things wrong, when surely it is acting as the 'voice of the people'.
Hi Lindsey. My use of the words 'we the people' is a protest against rule by tribunals or the courts. Parliament is the cornerstone of our law making, not a tribunal or the courts. It is also wrong - and contrary to Article 3 of the ToW that people 'of Maori descent' have been allocated more voting power than those without such lineage. I think that invoking co-governance on that basis is a road to ruin. I am totally in favour of correcting past injustice and clearly defining the principles of the ToW - and Parliament is the forum to do it.
Mike, Parliament doesn't do the governing in NZ, Cabinet does. Most of what touches you in your daily life is decided by Cabinet regulations (fees, licence regimes, building standards, food safety standards etc etc). Parliament is supreme in law, so if the tribunals or courts are making decisions they do so because Parliament has decided that they are best placed to make those decisions. The Waitangi Tribunal, have no ability to rule you or anyone else, it issues recommendations, that sometimes are taken by the very Parliament you think should be in charge. In sum, Parliament is in charge, completely and utterly of everything. If you think it is not deciding something in the right way, then get involved. But don't think Parliament is undermined by anyone except those who are its members ie MPs.
Finally, show me exactly where I have more voting power than you? And why would you think your Parliament would allow that to happen?
I find the concept of Maori wards paternal and undemocratic. That's all.
You realise without the wards that Māori candidates, and Māori political organisations, or actors, find it almost impossible to be elected. That is why the RMA put in special provisions for Māori in planning; for last 100 years Māori were unable to get beyond about 3% representation across local country. So your democratic system excludes 10-20% of the population from being able to elect someone who may represent their particular whanau, hapu or iwi interests in planning decisions. Rates without representation seems pretty undemocratic to me.
It is well understood that democracy mixed with longstanding cleavages can create a permanent political disadvantage (just ask the slaves in the Greek or Roman slaves). To deal with this about 1/3 of all parliaments around the world have special provision for minorities based on geography, identity, nationality or ethinicity. See: Reynolds, A. (2005). Reserved Seats in National Legislatures: A Research Note. Legislative Studies Quarterly, 30, 301–310. To think that Aotearoa New Zealand doesn't need special measures is to think that local government does not have a legitimacy deficit with Māori. It is local government over the last 100 years that has been allowed to run roughshod over Māori land, because it was unaccountable to its Māori citizens.
Why do Maori stay home at election time? Seems to me that If Maori can't be bothered to exercise their democratic rights they don't deserve special representation. To demand otherwise is patronising nonsense. Google tells me there are 27 Maori MP's today - that high representation hardly implies that Māori deserve different political rights.