OnPoint by Keith Ng

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OnPoint: AIA and Maori Seats

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  • Kyle Matthews,

    so maori have rights to "their fisheries", "their forests". this doesn't take anything from you, it just recognises that they have.

    Yes good point. But the treaty has been used to argue for things that Maori never had - airwaves for example. The particularly broad term 'taonga'.

    I still think 'more' is a valid thing to consider. Does article 2 (at least in theory) give Maori anything additional, stronger, or otherwise 'more' than that available to non-Maori. I suspect it does, part of the reason why it's been used in legal and quasi-legal arguments such as the Waitangi Tribunal.

    Since Nov 2006 • 6243 posts Report Reply

  • Che Tibby,

    @shep. afaik landcorp land was sequestered under the company during the privatisation days.

    @kyle. i think we're talking in circles. but, because this is making me exercise parts of the brain i thought were dormant, here we go...

    the language and airwaves one is difficult. i didn't agree with it until the reasoning was explained. it goes something like:

    1. english is the majority langauge, and because you hear it every day in the media it reinforces it as the national language.
    2. te reo is also a national language, but isn't heard every day, and is therefore at risk.
    3. providing a media channel to allow te reo speakers and learners to hear (and therefore practise) their language is a 'good thing'.
    4. this puts te reo on an equal footing to english.

    so you would argue there that providing the maori broadcasting channel (in this case a guaranteed maori radio spectrum) is not giving maori more rights, but ensuring that the right to speak your own language isn't assimilated away.

    i always thought it was a difficult argument (and like i say, there's bound to be someone who understands and can state it better).

    once again, it's not about a bigger share of the pie. it's about better enjoyment of something you should already have.

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

  • Graeme Edgeler,

    completely off-topic. But (on my computer at least) the "am"s and "pm"s listed on the front page under posts on the monitor and ourtube forums, are now in Arabic (or Persian) script.

    Wellington, New Zealand • Since Nov 2006 • 3207 posts Report Reply

  • Deborah,

    Here's another language / radio spectrum argument. Che, you will recognise where I am cribbing this from....

    1. English enjoys a massive subsidy from the government - road signs, official communications, letters from government departments, learn to read books in schools, language used all the time by pollies, laws, everything is written or spoken in English.

    2. Te Reo enjoys no such subsidy. In fact, Te Reo speakers have to fight hard for every little bit of support their language gets.

    3. Ensuring that there is a guaranteed Maori radio spectrum is one way of redressing the huge imbalance between the subsidy given to English, and the subsidy mostly not given to Te Reo.

    A language is a dialect with an army.

    New Lynn • Since Nov 2006 • 1447 posts Report Reply

  • Gareth Ward,

    Having said that, I would still prefer KIWISAVER bought 40% of AIA than the Canadian Pension Fund (or Dubai or whomever). And having said that, I'm still foggy on what 'Overseas Investment' brings to the table. Presumably they're just buying existing shares off existing shareholders, it's not like they're issuing new shares to increas capital. It's the existing shareholders who profit, not the actual airport? Or NZ?

    I too would prefer a Kiwisaver-based fund bought 40%. And I completely agree that the Canadians or anyone else aren't bringing anything more to the table - except that few million dollars in capital for shareholders that wasn't there before. Although, due to the way they wish to debt structure, there would be quite a lot more money available internally at the airport for growth. That's basically the directors stance too - they're not adding anything to the table, but then neither would anyone in NZ. If the hurdle for holding the biggest stake in AIA is industry expertise, then we still have to look offshore - Dubai airports was the perfect example of that sort of shareholder and we saw where that went.

    It's not so much a percentage question - as 40% of the company at least is currently held by foreign firms - as one of control. Hence the wording of Cullen's executive fiat. Yet CPPIB have actually structured their bid to downplay their control - they will have less control than their 40% ownership would normally allow them and as a long-term pension investor will not be gunning for extracting short term money many of the existing foreign shareholders. Hopefully all this will weigh positively in Cullen's eventual decision, but he certainly seems to be giving himself further tools to back him when he turns it down. As most people, I would not have been against general moves like this (with a specific statement of the companies limited under this law by being considered strategic) if they were properly consulted and over time - and not directed at an advanced-stage bid for a company long considered to be of an open register; a trait that made the government a premium when it sold it to that register back in the day.

    Oh, and no need for sheepishness on the NZCSD - it proves how murky AIA's shareholding really is.

    Auckland, NZ • Since Mar 2007 • 1727 posts Report Reply

  • Gareth Ward,

    And I've just realised that I don't think I've disclosed the fact that I'm a very very minor shareholder in AIA on this thread... So there you are.

    Auckland, NZ • Since Mar 2007 • 1727 posts Report Reply

  • Kyle Matthews,

    @kyle. i think we're talking in circles. but, because this is making me exercise parts of the brain i thought were dormant, here we go...

    It's revenge for all those blog posts you did. As soon as you started talking about 'metics' my brain always started to hurt.

    Your four points there, have basically taken te reo outside the treaty. It's an argument for provision of broadcasting not because it's a protected treaty right (taonga), but instead because it's one of the two national languages. Unrelated to the treaty completely really in the way you've put it. Similar to protections that are in place in Quebec for French. Maybe other examples which have been directly related to the treaty are more appropriate.

    I still come back to this:

    I still think 'more' is a valid thing to consider. Does article 2 (at least in theory) give Maori anything additional, stronger, or otherwise 'more' than that available to non-Maori. I suspect it does, part of the reason why it's been used in legal and quasi-legal arguments such as the Waitangi Tribunal.

    If it doesn't, what is the purpose of article 2? Simply to convince Maori to sign, when in reality it offers no more than already given in article 3? To slip the Crown's preemtive right of purchase in, in a positive, rather than negative way? Do you see no positive for Maori in article 2 at all? If so... why is it so firmly embedded in so many Tribunal claims. If article 2 offers them nothing, then surely they would only pursue through article 3, effectively saying "by having our land taken off us we were not given the same rights as other British subjects".

    And (if you follow that line) - that's not a valid argument in most instances of land claims. Parliament is sovereign, so when parliament took land off Maori, it wasn't breaching their crown-given rights - parliament takes land off non-Maori and it's perfectly legal - civil works acts etc. If it wasn't breaching their crown-given rights under article 3, surely it we come back to article 2?

    Since Nov 2006 • 6243 posts Report Reply

  • Rich of Observationz,

    I don't see why broadcast spectrum stops being a treaty right just because it wasn't known about (by Maori *or* British people) when the Treaty was signed.

    There are NZ fisheries that weren't exploitable in 1840 because of lack of technology. Broadcast spectrum arguably goes with the land one is broadcasting over. Since government has chosen to treat it as a commodity, Maori should get part of that. (Even if it's unfortunate that some iwi treat it as purely a source of dollars rather than a cultural resource).

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • Jake Pollock,

    My understanding of the airwaves as Taonga is that the treaty extended British legal jurisdiction into New Zealand and provided a legal basis (such as it was) for property rights etc. to be developed there. All things in New Zealand that were to become part of that system needed to be appropriated into it, such as land, forests, seafood etc. They didn't automatically become part of it until they were surveyed, divided up, and sold. That's what article two says.

    The airwaves can be part of those claims because, although Maori didn't use them at the time, neither did the British. They were never appropriated from Te Ao Maori into the British legal system; they were just used, and divvied up into licenses by the government. What right did the government have to do that? Where did it come from? Insofar as all rights in New Zealand come from the Treaty (not because it says what they are, but because it allows them), new resources in New Zealand that were previously unknown (that aren't tied to something like land that has already been incorporated) shouldn't be assumed to be automatically appropriated by the state.

    Just taking them, in that context, was really a kind of land grab combined with a foreclosing on a common resource.

    Of course, my interpretation is based almost entirely on a very shallow reading of Locke, and is probably kind of ridiculous. I still prefer a (probably much stronger) juridical argument for this sort of thing though, as opposed to the 'giving Te Reo a fair crack' line, which, as pointed out above, is external to the Treaty, and not really consistent with the legal arguments which have guided the Treaty process for well over a century.

    Raumati South • Since Nov 2006 • 489 posts Report Reply

  • Ben Austin,

    I've always had a soft spot for turning the country's regional authorities/iwi into more of a canton like system in order to a) make some efforts as to sharing sovereignty (so much as it can be in a place like NZ), b) build a central government that better represents the various regional/communal interests of NZ and c) stronger regional governments might be better able to ensure their communities develop. So the cantons/regions/communities would become the constituent unit of the state - the country would be a collection of such cantons rather than whatever it is right now.

    Each Canton would be based on either a regional/unitary or Iwi unit, depending on demographics, cultural or geographical boundaries, so there could be a Canton of Auckland as well as a Canton of Tainui. It would be quite a complicated exercise to determine these cantons initially I imagine, possibly too difficult.

    Questions - 1) Would each Iwi get a canton, or would they be given what is effectively a local Maori/Iwi electoral roll in each canton where they are not a super majority? 2) How would the Canton relate to the district/borough councils? 3) What type of powers should a canton have? Should each canton have the same powers?

    Each canton/area would be given a number of seats in a new upper house - this Upper House would be more like the German Upper House (Bundesrat) rather than say the US Senate in that the members would be elected or appointed by the Canton government (although I don't like the idea of immediate recall). This would give the Canton a real stake in the central government and ensure that regional interests are properly represented in government.

    Questions to be answered here would be 1) Should each canton get the same amount of representatives, or should each canton get a share based roughly on their size/power? 2) Should the Upper House get to vote on everything, like the US Senate, or maybe just some things, like the Bundesrat? 3) Should each canton be roughly of the same size, or should it be more about communities than operational effectiveness (for an example of the former see the land of the Swiss)

    The potential problem with any federal system is that it can make the central government too weak and in a small country like NZ that would be a bad thing I think. Conversely a federal central government can become too strong. However since the cantons would control the Upper House we could retain a strong central government that would still be accountable to the cantons.

    London • Since Nov 2006 • 1027 posts Report Reply

  • Kyle Matthews,

    Insofar as all rights in New Zealand come from the Treaty (not because it says what they are, but because it allows them),

    I don't believe that's true. The treaty isn't a constitutional document, and hasn't been embedded in any such legislation in NZ. Rights in NZ come from laws and from the crown - mostly our parliament, though some come to us from Britain. The right to do so without embedding the treaty is from international law, which states that parliament is sovereign. Essentially the newly created NZ parliament declared itself ruler of NZ and the surrounding waters under the Crown.

    Or at least that's what I was taught in a postgraduate Maori Studies/Law class.

    Since Nov 2006 • 6243 posts Report Reply

  • Shep Cheyenne,

    I would argue the TOW is a constitutional document, and acknowledge it hasn't been ratified into NZ Law, but is now Part of our Common Law.

    With references to the TOW in various acts and those acts having been ruled upon in favour of including the TOW provisions Judge Skelton on an aspect of the RMA being the 1st one that came to mind. Established TOW as Common Law in NZ.

    Since Oct 2007 • 927 posts Report Reply

  • Kyle Matthews,

    Well even if that's true, that doesn't make it a constitutional document. Lots of legislation doesn't actually refer to the treaty, it refers to principles which supposedly relate to the treaty.

    Either way, it certainly doesn't mean that all rights in NZ come from the Treaty. They come from parliament which wrote the legislation that you're referring to, and the Crown.

    Since Nov 2006 • 6243 posts Report Reply

  • Shep Cheyenne,

    Why would ref to the TOW (priciple) be included if it wasn't a Consitutional Document?

    The kindness & good will of benevolent Govts?

    Once legislation is ruled upon in Court to abide by the TOW (priciples or word) as done by Judge Skelton it becomes Common Law and the TOW was used as a Constitutional Document, judgements made because of that status.

    I'm not a lawyer but this is my clear understanding.

    Sorry fumbling around preping for tomorrow - can't find court no.s etc.

    But here's a wiki link

    http://en.wikipedia.org/wiki/Constitution_of_New_Zealand

    Since Oct 2007 • 927 posts Report Reply

  • Kyle Matthews,

    The common law you've referred to relates to principles, not the text of the treaties that were signed. Perhaps you mean that the principles listed are a constitutional document.

    The Treaty itself doesn't fulfil any of the requirements for being some sort of constitution that I'm aware of. It doesn't have any higher powers over the crown, parliament, or indeed, basic law. Any law can breach the treaty legally, and the treaty itself doesn't have any power or is upheld, except when it is through some other law.

    While some of the rights and responsibilities listed in the treaty are of a constitutional nature, the treaty is by a large a powerless document. The primary law that it's written into is the Treaty of Waitangi Act, and then only by reference - that Act doesn't enforce the treaty as some sort of constitution, it just uses it to address breaches through the tribunal and negotiation procedures. The principles of the Treaty are mentioned several times in law, but not defined. A set of principles has been defined by the judiciary, but that's not the same thing as the text.

    Since Nov 2006 • 6243 posts Report Reply

  • Jake Pollock,

    I see what you mean. I wasn't trying to argue that the Treaty contains any rights or is a constitutional document, but that, historically, the Treaty is what allowed the declaration of sovereignty in the first place. Without it, or some other legal reason for declaring sovereignty (right of conquest or discovery, for instance), they simply couldn't have done it.

    Which is not to say that the Treaty has any role in legislation. It doesn't. But without it, there couldn't have been a moment when New Zealand passed into British sovereignty, and thus all rights come from it in the sense that it allowed, historically, the extension of British laws and rights, and made parliament's declaration of sovereignty possible.

    Raumati South • Since Nov 2006 • 489 posts Report Reply

  • Shep Cheyenne,

    "The common law you've referred to relates to principles, not the text of the treaties that were signed."

    Kyle I'm pointing to the Judge made law that includes the TOW & so makes Common Law.

    "The Treaty itself doesn't fulfil any of the requirements for being some sort of constitution that I'm aware of."
    & then
    "While some of the rights and responsibilities listed in the treaty are of a constitutional nature," = Snookered :P

    "that Act doesn't enforce the treaty as some sort of constitution, it just uses it to address..." - We don't have a single Constitution but our Constututional Convention includes the Treaty of Waitangi & agreed it is not given the weight it shud but Common Law has used it as such and I expect this to increase due to the precident now set.

    I would be keen to hear what you think makes up our Constitution Kyle.

    Two non-lawyers bickering over our Nations Constitution. One thing is clear it needs a rewrite.

    Since Oct 2007 • 927 posts Report Reply

  • Kyle Matthews,

    "The Treaty itself doesn't fulfil any of the requirements for being some sort of constitution that I'm aware of."
    & then
    "While some of the rights and responsibilities listed in the treaty are of a constitutional nature," = Snookered :P

    My point is, I could write a constitutional document on the back of a napkin. It still wouldn't fulfill any of the requirements for being a constitution, because it's not enforceable in law. The various treaties that were signed on and after 1840 are also not enforceable in law.

    Kyle I'm pointing to the Judge made law that includes the TOW & so makes Common Law.

    Unless you're looking at a different section than me, you're not:

    Indeed, references to the "Principles of the Treaty of Waitangi" appear in a number of statutes, although the principles themselves have not been defined in statute. They are instead defined by a common law decision of the Court of Appeal from 1987...

    The principles defined by the Court of Appeal might be enforceable in law, but they're not the same thing as the Treaty, they're a judge's interpretation of it.

    It's a very different situation from say USA, where the constitution, with all its language quirks and out-of-date terms, is enforceable in law.

    Since Nov 2006 • 6243 posts Report Reply

  • Shep Cheyenne,

    "The various treaties that were signed on and after 1840 are also not enforceable in law."
    & then
    "The principles defined by the Court of Appeal might be enforceable in law,..."

    So you agree the Treaty is a Constitutional Document & (in some capacity) has been enforce by NZ courts?

    Since Oct 2007 • 927 posts Report Reply

  • dave crampton,

    And what has all this got to do with the Maor seats? The Maori seats have NOTHING to do with the Treaty. Maori seats are not a treaty right. Maori seats would still have happend had their never been a treaty.

    Keith you wrote:

    Maori Party gets all 7 Maori seats, with 3% of the party vote.[snip] the Maori Party could reverse a 6-seat gap with 3% of party votes.

    I thought any gap would be reversed with the electoral vote, not the party vote. Perhaps you meant that the Maori party would reduce the gap *as* it gets 3% - not *because* it gets 3%.

    welli • Since Jan 2007 • 144 posts Report Reply

  • Shep Cheyenne,

    Dave the Maori seats are a sop to the Crown by the Seattler Govt instead of observing the true obligations the Crown entered into with Maori in the TOW.

    Since Oct 2007 • 927 posts Report Reply

  • dave crampton,

    Shep, perhaps you could explain what would have happened to get maori representation in the 1800s without specific Maori seats after the Treaty was signed...

    welli • Since Jan 2007 • 144 posts Report Reply

  • Kyle Matthews,

    So you agree the Treaty is a Constitutional Document & (in some capacity) has been enforce by NZ courts?

    No that's specifically what I'm not agreeing to. The 'principles of the treaty as defined by a court in 1987', and the 'the treaty/ies' are not the same thing.

    If the treaty had been enforced by NZ courts as it was written then I think our country would look pretty different these days.

    Since Nov 2006 • 6243 posts Report Reply

  • dave crampton,

    Enforcing the treaty - as opposed to teh prinicoples - in our courts is problematic. Imagine if there were two different wordings of, say, the Crimes Act, written in different languages - and both had equal standing in law.

    Heh,Imagine if one had a reasonable force provision in Section 59 and the other one didn't..

    welli • Since Jan 2007 • 144 posts Report Reply

  • Shep Cheyenne,

    Dave - A Maori Parliment operating over vast tracks of Maori land and people. As happened in a regional form at Parihaka.
    The need for a Treaty on the Maori side was for the Brits to control the rabble that had arrived like rats from passing ships to NZs shores.

    Kyle but that's the joy of Common Law & with the existing precident it has started to impact on NZ - watch this space.

    Since Oct 2007 • 927 posts Report Reply

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