Hard News: Scuffling and screaming on The Left
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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.
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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).
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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.
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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).
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It's not the treaty that gives the crown sovereignty over Tuhoe people and their land.
Thanks, Kyle, that makes sense.
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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.
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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.
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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!
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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.
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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.
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Kyle in part it already has with the nationalisation of Ngai Tahu Fishing quota becoming Maori fishing quota. Another wild act of JT.
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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.
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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.
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So the Scotts shudn't have their own Parliment then Neil?
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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.
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So the Scotts shudn't have their own Parliment then Neil?
You're asking someone with a name like Neil Morrison?
In some circumstance serperate governace makes practical sense although I do think the Scottish parliament is only weakly justified. And they do have oil.
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BOP have geothermal , tourisim, timber, & farming as an economic base but I feel this is off target a bit.
Che - To think soverignty is the same as to secede from NZ is erroneous. I haven't heard anyone call for seceding from NZ. Even if this was the case we still have a colony fully supported by NZ. Not to mention the state isn't paying rent for forests they're contract to already. -
merc,
Wairoa has oil,
http://www.gns.cri.nz/news/release/jul7eastcoast.html -
Hey MH, I haven't forgotten that you asked what "fair dealing with Maori" might actually involve. I wrote up my manifesto a couple of nights ago and then my server glitched and I lost it all. I'll do it again on the "this just in" thread which seems to have taken over from here. But not just now - later tonight.
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Sorry if it's already posted.
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Oh noes! Someone stuffed the ballot...
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