Hard News by Russell Brown

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Hard News: Scuffling and screaming on The Left

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  • Stephen Judd,

    That seems a bit of a non sequitur Neil - what has that got to do with the justice, or injustice of a cause? Can we ignore a just cause because some of its advocates are unpleasant and bad? I don't think so.

    Wellington • Since Nov 2006 • 3122 posts Report Reply

  • Jeremy Andrew,

    What would you do in their position?

    That's why I asked.
    I'm assuming the Waitangi Tribunal itself wouldn't tell them to get lost because their name's not on the list.
    So it would come down to weighing ideology and pragmatism.

    The pragmatic side would need to work out if they thought they had a better chance of getting their desired outcome (presumably dominon over 'their' lands) via:
    1) a claim through the official channels, or
    2) by occupying it and claiming it by fait accompli, traditional ownership, that homefires burning thing, finders-keepers, and possession being nine-tenths of the law.

    Idealistically, if they maintain their position of not being a party to the treaty, than using any processes based upon it would seem hypocritical, which would limit them to option two above, or various other diplomatic solutions such as attempting to negotiate their own treaty with the crown on their own terms (which would at a glance seemed doomed to failure as the crown doesn't recognise their sovereignty).

    Hamiltron - City of the F… • Since Nov 2006 • 900 posts Report Reply

  • kmont,

    I agree most people would but agreeing with the need to make redress for colonisation does not mean being unable to question the motivation and judgement of some of the more strident advocates of Maori rights.

    At no point did I suggest that anyone was unable to question the motivation and judgement of some of the more strident advocates of Maori rights.
    I really do recommend that film, there is more than redress for colonisation at play, it is very topical because of the focus on subdividing costal land, foreign investment and camping damnit!

    Think of the campers ; )

    wellington • Since Nov 2006 • 485 posts Report Reply

  • kmont,

    Although the central issue clearly is about Maori ownership of the land, which is as it should be.

    wellington • Since Nov 2006 • 485 posts Report Reply

  • Neil Morrison,

    It doesn't have any bearing on the justice of the cause but it does have a bearing on what one finds accpetable being done in the name of that cause.

    It's a slight non sequiter, but it's a response to the view that not condeming State and Police action as terrorism implies a disregard for Maori grievances.

    Since Nov 2006 • 932 posts Report Reply

  • Stephen Judd,

    Jeremy, if I were a canny Tuhoe person, I'm sure I would go for both options. Certainly other iwi and hapu have.

    If you were were a black American in 1960, would you only confine yourself to legal strategies, because equal treatment was your legal, constitutional right? Or would you practise civil disobedience and break the law, which after all has failed to protect you and your rights? Or would you, shock horror, do both?

    Wellington • Since Nov 2006 • 3122 posts Report Reply

  • kmont,

    It's a slight non sequiter, but it's a response to the view that not condeming State and Police action as terrorism implies a disregard for Maori grievances.

    That is not my view. I don't think that is a widely held view. My example was simply put forward in case people wanted to check out that specific case for themselves. It doesn't have to do with Tame Iti but it does have to do with the wider context.
    I actually find quite easy to critisize the police without throwing the word terrorist around for rhetorical effect. I think focusing on the actual issues rather than the rhetorical florishes of people trying to make a political point is a lot more useful in understanding the issues.

    wellington • Since Nov 2006 • 485 posts Report Reply

  • Jeremy Andrew,

    Jeremy, if I were a canny Tuhoe person, I'm sure I would go for both options. Certainly other iwi and hapu have.

    If you were were a black American in 1960, would you only confine yourself to legal strategies, because equal treatment was your legal, constitutional right? Or would you practise civil disobedience and break the law, which after all has failed to protect you and your rights? Or would you, shock horror, do both?

    If the black americans had been making a point of saying the constitution didn't apply to them, because their didn't sign it, then they might have felt differently about using constitutional grounds.
    The Tuhoe (or the media on their behalf) are proudly pointing out that they didn't sign the treaty, so if the refuse to be bound by it where it suits them, then it seems hypocritical to to use the structures that the treaty has engendered to their benefit.
    Of course, pragmatically, the ends might justify the means, but I'd be interested in hearing the philosophy behind it.

    Hamiltron - City of the F… • Since Nov 2006 • 900 posts Report Reply

  • Stephen Judd,

    Well, I wouldn't push the analogy too far. I guess that strictly such a strategy IS hypocritical, which in my mind only goes to show that there are worse things than hypocrisy.

    Oddly, your position can be summed up in a classic feminist quotation (Audre Lorde): "The master's tools will never dismantle the master's house."

    Wellington • Since Nov 2006 • 3122 posts Report Reply

  • Jeremy Andrew,

    That is a good quote, I'll add it to my files...

    Its not really my position though, although it could well be Tuhoe's. I was just wondering if Tuhoe do use the Tribunal, and if that makes their position on not having signed the Treaty less tenable.

    Depends if you view the Tribunal as having sprung directly from the Treaty, or if its more a part of the overall legislative framework of the country. If you are going to try to work within the system, that's the system you'd be stuck with.

    Hamiltron - City of the F… • Since Nov 2006 • 900 posts Report Reply

  • Stephen Judd,

    I was just wondering if Tuhoe do use the Tribunal, and if that makes their position on not having signed the Treaty less tenable.

    Remember the whole flag shooting incident? That was when the Tribunal were visiting to hear Tuhoe claims. So yeah, they definitely are using it. You could write to the Waitangi Tribunal registrar and ask for a copy if you want (scroll to bottom).

    I have no idea whether there is a Tuhoe consensus on the treaty or not. I'm not sure how the average Pakeha would easily find out, either.

    Wellington • Since Nov 2006 • 3122 posts Report Reply

  • Kyle Matthews,

    The Tuhoe (or the media on their behalf) are proudly pointing out that they didn't sign the treaty, so if the refuse to be bound by it where it suits them, then it seems hypocritical to to use the structures that the treaty has engendered to their benefit.

    From a perception perspective... yes OK.

    From a practical perspective? I dunno.

    It's not the treaty that gives the crown sovereignty over Tuhoe people and their land. The treaty was the first step, and effort was made to get as many Maori chiefs to sign it, but sovereignty came by other means. It was an act of the NZ parliament passed shortly after the treaty, claiming all the territory for the crown. It always seemed strange to me that you could go to a set of islands, set up a parliament subject to the crown, and then pass an act claiming sovereignty over the islands, and that this would have force under international law, but apparently it works.

    One thing that people often forget about the treaty, is that it conveys additional rights to Maori, in return for which Maori recognised the Queen as their sovereign etc. Those rights - I'll paraphrase - undisturbed ownership of land, forests, fisheries, and taonga - are on top of law that applies to everyone else. How much those additional rights have been enacted in New Zealand...

    But, obviously Maori, as subjects of the crown, have as minimum, the same rights under law as everyone else. Generally every act of the NZ parliament applies to them as much as it does to every non-Maori. Some of the laws apply a lot more to them obviously.

    The exception (I'm answering my own question here eventually) is that laws have been passed setting up things such as the Native Land Court, the Waitangi Tribunal etc. So where certain rights have applied to Maori, they've been dealt with differently. Often as a result Maori have got completely screwed. But my point is, these courts/tribunal etc, stem from the sovereignty of the NZ parliament, not from the Treaty of Waitangi, which has never been accepted as any sort of constitutional document.

    So if a Tuhoe person went to make a claim about land taken off them illegally in a historical sense, they would either be sent to a native land court of the waitangi tribunal. How they'd deal with the latter I don't know. But I'm not sure if there would be another court that they could take historical land grievances etc to. I would presume the high court or the supreme court wouldn't hear the case, though it does get involved in tribunal hearings in other ways.

    So I think it's simplistic to say that just because they didn't sign the Treaty, they shouldn't use the Tribunal. While the Tribunal uses the treaty, I presume it also uses international and local law. And it's not a court, it just makes recommendations.

    (Disclaimer: I'm not a lawyer, though I studied a little law in this area some time ago. I might be misremembering it, or taking it too far).

    Since Nov 2006 • 6243 posts Report Reply

  • Neil Morrison,

    Or would you practise civil disobedience and break the law, which after all has failed to protect you and your rights?

    Civil disobedience I have no problem with if other avenues fail. (I'm especially impressed by it if it isn't accompanied by endless self pity).

    There was I think even justification for the (armed) Black Panthers at the start when they formed to police the streets of black LA neighbourhoods because the police weren't doing their jobs in those areas. But that sort of thing does have a habit of going of moving into strange territory.

    Since Nov 2006 • 932 posts Report Reply

  • Kyle Matthews,

    There was I think even justification for the (armed) Black Panthers at the start when they formed to police the streets of black LA neighbourhoods because the police weren't doing their jobs in those areas.

    That also wasn't illegal, as California at the time didn't have a law against the carrying of what was some fairly serious weaponry around the streets.

    They did have a law against bringing said weapons onto the floor of the state house of representatives, which caught them out in 1967 when the BPP went there to protest a law banning the carrying of weapons in public (ironic really).

    Since Nov 2006 • 6243 posts Report Reply

  • Jeremy Andrew,

    It's not the treaty that gives the crown sovereignty over Tuhoe people and their land.

    Thanks, Kyle, that makes sense.

    Hamiltron - City of the F… • Since Nov 2006 • 900 posts Report Reply

  • Che Tibby,

    It's not the treaty that gives the crown sovereignty over Tuhoe people and their land.

    tricky one that, as kyle indicates.

    a similar situation applies in australia, where the British occupied the place, then passed laws to 'legalise' their occupation. the basis of this was that aboriginal people didn''t "till the soil', and were therefore incapable of owning the land. this put it up for grabs.

    the famous mabo case demonstrated that torres strait islanders did, and it almost undermined the entire legal structure of the australia federal system (i'm abridging somewhat).

    the difference in nzl is that the treaty granted sovereignty to the british crown (which was subsequently passed to the parliament). all those that didn't sign are usually considered under its sway subsequent to the pointing of a musket, or due to the "continual operation of nzl government, to which they has assented by not dissenting".

    it's a crazy, mixed up bag.

    the back of an envelope • Since Nov 2006 • 2042 posts Report Reply

  • Michael Fitzgerald,

    Might want to look at the growth of the Scott Parliment as a possible future course of action here.

    I wouldn't expect too many in Tuhoe want boarders up but a bit of self determination.

    RMA section 33 was written with a view to give power to bodies other than the govt , such as iwi, over various resources. The whole FSSB was an election grab IMHO and certainly didn't need to happen.

    The path forward has been written just the last 5 or so years we've learched to the right and really need a broom to clear the path for a better future.

    Since May 2007 • 631 posts Report Reply

  • Sara Noble,

    A lot has happened here since 2 o'clock this morning. Just quickly now because I only have 10 minutes:

    There are other arguments for and against an Iwi being able to claim that they never ceded sovereignty and making claims to the Waitangi Tribunal. There are so many contradictions that of course all sides have to make pragmatic decisions and only time will tell how much redress is ultimately gained. The two biggest contradictions, to my mind, are:

    That the English language version of the treaty states that Maori give sovereignty to the Crown, while the Maori version does not. So by making claims under the treaty Maori are using a mechanism set up on the assumption that the Crown is Sovereign, potentially to assert their own Sovereignty, and

    That the Waitangi Tribunal itself, though the best thing we have at the moment, and doing a great job, especially in the area of retaining detailed, grass-roots history, can not really be considered as having the mandate of the Maori people. In effect, by imposing the Waitangi Tribunal on Maori as the mediator of their grievances, the Government has again breached the Treaty!

    So it is a matter of doing the best with the tools you have at the time. The idea, however, that settlements set down by the government, whether Iwi sign them or not, are full and final is nonsense. For a contract to be legally binding the parties have to be equally empowered to negotiate the contract and not be under duress. ANY and EVERY time the government IMPOSES a decision on Maori it is in breach of the Treaty.

    I'll tell you some of my fabulous ideas for solving all of this later... and all fingers and toes crossed that Russell's tip is right!

    Auckland • Since Nov 2007 • 127 posts Report Reply

  • B Jones,

    For a contract to be legally binding the parties have to be equally empowered to negotiate the contract and not be under duress.

    Tell that to my bank manager. Or my employer. Or real estate agent. Or power company. We sign contracts all the time with unequal bargaining power because we decide that having electricity is better than not, even if we're not thrilled about the terms in which it's provided. That doesn't void the contract.

    Wellington • Since Nov 2006 • 976 posts Report Reply

  • Kyle Matthews,

    The idea, however, that settlements set down by the government, whether Iwi sign them or not, are full and final is nonsense. For a contract to be legally binding the parties have to be equally empowered to negotiate the contract and not be under duress. ANY and EVERY time the government IMPOSES a decision on Maori it is in breach of the Treaty.

    I think a lot of iwi have been pretty happy with the Waitangi Tribunal and treaty negotiations process. Nothing's perfect, but I'm not sure if you can consider the fact that the government has the assets/land/money that an iwi wants as 'duress'. No iwi has been forced to sign anything, they just negotiate and either sign or don't.

    I think parties on both sides would be concerned that you've decided that negotiations that they've both entered into in good faith and signed up to aren't legally binding.

    In particular Ngai Tahu will spew if their settlement gets ripped up and they have to return their big pot of cash, and all the profit they've made from it since.

    Since Nov 2006 • 6243 posts Report Reply

  • Michael Fitzgerald,

    Kyle in part it already has with the nationalisation of Ngai Tahu Fishing quota becoming Maori fishing quota. Another wild act of JT.

    Since May 2007 • 631 posts Report Reply

  • Sara Noble,

    Sorry Kyle, you misunderstand my point. I imagine that some Iwi are pretty happy about the progress that has been made under some settlements, but I think it is quite possible that at some time in the future we will get to the point where we consider that we didn't go far enough under this legislation and that further actions of redress could be considered. I think it is possible that this could be spurred on by Iwi questioning the present mechanisms and calling into question their intent, process and outcomes.

    Also a contract can not be legally nullified by the more powerful party using this principle, so Ngai Tahu are not at risk on this basis.

    This is not something that I just made up. It is a view that is expressed by a few Pakeha legal experts in the area and by some Maori. In terms of the present context, yes it is an extreme view. It is somewhat ideologically purist which, to my mind provides a perspective check, not a guide for current action.

    BJ, in terms of your relationship with banks, electricity suppliers etc look up the "Doctrine of Prime Necessity" and the Commerce Act for the legal mechanisms and precedents that are supposed to protect consumers in monopoly situations. Ask anyone with the beginnings of an understanding of contract law and they will confirm the principle. Then it comes down to the interpretation of duress etc, and I strongly disagree with your position on that. The government has Maori over a barrel in these "negotiations." In the end it is take it or leave it (and get nothing). When Maori disagree too vociferously they just legislate.

    Auckland • Since Nov 2007 • 127 posts Report Reply

  • Neil Morrison,

    it's a crazy, mixed up bag

    indeed, it's all about lines we construct when really there aren't any. I don't object in theory to some sort of Tuhoe sovereignty, what I do object to is the notion that it would solve more problems than it caused. Their sovereignty would be just another construct and partitions don't have a great history.

    Since Nov 2006 • 932 posts Report Reply

  • Michael Fitzgerald,

    So the Scotts shudn't have their own Parliment then Neil?

    Since May 2007 • 631 posts Report Reply

  • Che Tibby,

    I don't object in theory to some sort of Tuhoe sovereignty, what I do object to is the notion that it would solve more problems than it caused

    they'd loose state funding for starters.

    that's a very old tactic for undermining secessionists.

    the back of an envelope • Since Nov 2006 • 2042 posts Report Reply

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