Friday 23 September 2016

Treaty Rights vs Conservation Values

Who Speaks For The Earth And Its Creatures? Breaking free from the romantic spell in which they have ensnared themselves will not be easy for progressive New Zealanders. Treaty fetishism has blinded them to the reality that human survival can now only be guaranteed by abandoning the manufactured distinctions of ethnicity and embracing the universal obligations of planetary rescue.
EARLIER THIS WEEK the Greens said “bon voyage” to their colleague, Marama Davidson. An international Women’s Peace Flotilla is planning to relieve the beleaguered Palestinian enclave of Gaza in early October, and Ms Davidson is determined to be on board.
All previous attempts to break the Israeli blockade of Gaza have been intercepted and halted by the Israeli Defence Force (IDF) and it is highly probable that the Women’s Peace Flotilla will suffer the same fate.
Being forcibly detained by the IDF may, however, present itself as a less daunting prospect for Ms Davidson than defending her party’s position on the Kermadec Ocean Sanctuary back home.
Her anguish is understandable. Reconciling the Sanctuary’s creation with the 1992 Maori Fisheries Settlement is an exercise akin to squaring the circle. The National Party, strongly supported by the Greens, wishes to protect the unique environment of the Kermadecs. Te Ohu Kaimoana (the Maori Fisheries Commission) has proclaimed its right to fish these waters “non-negotiable”.
Not according to Ms Davidson’s colleague, the Green Party’s co-leader, Metiria Turei. In a media release dated 20 September, Ms Turei assures New Zealanders that: “It is entirely possible to achieve environmental protection and uphold Treaty rights, and there are plenty of good examples where this has been achieved.” Unfortunately, she failed to supply a list. Nor did she explain how an ocean sanctuary, in which it was still possible to catch fish, could possibly be accepted as genuine.
Perhaps Ms Turei is anticipating that Te Ohu Kaimoana (TOKM) will surrender its property rights in return for some form of compensation. After all, that’s what usually happens in the Pakeha world whenever the state decides to appropriate private property for the public good.
Unfortunately, the willingness of TOKM to accept such compensation is doubtful. As a strategy for the tangata whenua’s long-term cultural and economic survival, exchanging Maori property rights for Pakeha money has not proved to be a conspicuous historical success. Redress, in the form of Treaty settlements, has been a long time coming for Maori. TOKM may not relish being the indigenous institution responsible for restarting the historically disastrous rights-for-cash exchange.
Alternatively, the Greens’ co-leader may be contemplating the imposition of a rahui (a form of sacred prohibition restricting access to, or use of, an area or resource by unauthorised persons) as the most acceptable resolution to the current impasse.
Once again, however, there are problems. In order to secure the protected status of an ocean sanctuary any rahui would have to be permanent. But, how would this option be distinguishable, in any practical sense, from the raupatu (confiscation) of which the National Government stands accused? Indeed, many Maori would argue that masking the extinguishing of Treaty rights with Maori words and concepts merely adds insult to injury!
Bringing about the reconciliation of Jew and Arab begins to sound quite straightforward compared to extricating Marama Davidson’s Green Party colleagues from their current predicament!
An Unacknowledged Consensus? World Wildlife Fund-commissioned poll data from Colmar-Brunton.
At the heart of the Greens dilemma lie two contradictory aspirations: defending the planet; and, upholding the Treaty of Waitangi. That the two objectives have been considered compatible for so long reflects the Greens’ deeply romantic and utterly ahistorical understanding of Maori culture.
Rather than regarding Maori as being no better or worse than any other human culture, the Greens insist that the tangata whenua enjoy a special relationship with the land. Left to themselves, say the Greens, Maori will never over-exploit a resource or despoil an environment. Unlike the soulless Pakeha, they understand the sacred character of mountain, river and ocean. To put it bluntly: Aotearoa’s indigenous browns are natural greens.
Except that they are nothing of the kind. The Maori fisheries settlement of 1992 did not see the participating tribal authorities institute an environmentally light-handed and culturally distinctive regime of harvesting the creatures of the sea. On the contrary, Maori fishing interests proved to be no less rapacious in their exploitation of New Zealand’s Exclusive Economic Zone than the very worst of their competitors – with whom they were soon in partnership.
Breaking free from the romantic spell in which they have ensnared themselves will not be easy for the Greens. Treaty fetishism has blinded them to the reality that human survival can only now be guaranteed by abandoning the manufactured distinctions of ethnicity and embracing the universal obligations of planetary rescue.
This essay was originally published in The Waikato Times, The Taranaki Daily News, The Timaru Herald, The Otago Daily Times and The Greymouth Star of Friday, 23 September 2016.


David Stone said...

Hi Chris
Yes indeed. The stealthy unannounced ,undiscussed let alone debated trick by which Geoffrey Palmer slipped a document that had been relevant to New Zealand law and life for a period of 5 or 6 years 150 years before, and ignored ever since , was either grossly irresponsible or downright mischievous. That's not to say it should not have been considered , and identifiable wrongs associated addressed as possible; but to try to impose it word for disputed word on us all 150 years later, as it is quite impossible to truthfully ever achieve, has caused and will continue to cause endless and increasing strife and bitterness as time goes on. There will never be settlements that are accepted by all. Especially since parallel to drafting the offending legislation the same man was drafting the legislation of neoliberalism that was set to begin the exclusion of a huge section of maoridom from the participation they had enjoyed up till then in our hitherto egalitarian society.
Whatever the intent of the sovereignty / governance ambiguity may have been, there is no ambiguity associated with how fisheries were dealt within the treaty, and the token settlement did not remotely cut it. The treaty guaranties maori their fisheries no ifs or buts, and fishing was what they did. it was who they were. Claudia Orange quotes a description of nets by Banks as being of cordage equal in quality to anything available in Europe at the time and far greater in extent. The creation of quota, (of which I have to state here I am a beneficiary ) and allocation to anyone but maori , while a practical (and successful) device to manage the resource was completely incompatible with the treaty. It can't be reconciled.
Cheers David J S

Nick J said...

It's the same narrow exploitative focus of a vested interest group. I don't care if the bunch claiming property rights are white brown or Martian. We all know it will be a small group empowered to take take take and damn the rest of us.

As with water and farmers I favour a Shylock judgement. They can have as much water or fish as they like BUT they cannot irrigate or catch. Tell the iwi they own the seabed and not the fish.

Guerilla Surgeon said...

"ignored ever since "

In my view, that was the irresponsible and/or mischievous part. Because one of the results of ignoring it, was the stripping from Maori of the economic base. Which has pretty much directly led to the situation we have now, where they are using the Pakeha system to try to claw back what they can. And given this is what Europeans do all the time, I can't bring myself to condemn it somehow. Seems to me that there condemned for being Maori, and yet condemned for adopting the European system, Bullshit though it may be. And of course they are a vested interest. New Zealand is run by vested interests, and I can't blame Maori for wanting to be one of them. It's not as if they get huge amounts of support from the political left anymore. If they ever did.

Jigsaw said...

Politicians of all shades- and the media have long credited Maori with some 'special' environmental qualities apparently not present in us lesser mortals. Astonishingly they are seemingly quite unaware of the racial overtones in what they say.
Nothing in politics is quite so fascinating as watching a party like the Greens grapple with policies that contradict.

David Stone said...

I don't disagree with any of that G S. If it had been worked with from the beginning we would have developed very differently and no massive injustice would have to be settled on anyone, but that wasn't what happened. If we can't go back to a pre 1984 economy we sure as hell can't go back to a pre 1856 one.
Cheers David

greywarbler said...

That tipping point that gets written about. I think Maori have reached it, and I wonder if some of them will be able to recognise it.

The climate change process and the bulldozing all over the world of human culture and community by the wealthy mad and the war mad all have joined into a sickness that is mega. Maori might have to abandon complete devotion to the old methods they have used to regain or preserve resources, and adopt extra, different processes when needed. Another string on their bow perhaps, to get more effective results and soon.

Charles E said...

Anyone like those Greens, with such strong prejudices based on wishful thinking, who still give time to the delusion that any people have a special relationship with the land should read the very well written and researched book by Tim Flannery called 'The Future Eaters'. And his other books and those of Jared Diamond. Nobody of any shade of green should miss such informative stuff. I expect many Greens have.

All are guilty. All (even vegetarian Tibetans & spare populations of Aboriginals!) but some of the more local and tragic examples of exhausting resources were the Stone Age Polynesians employing basic but very effective technology. Some populations so depleted their environments they became extinct, probably with the last desperate bunch eating each other. Similar but less significant disasters even happened in cut off places like Greenland.

So you may have thought so-called Maori leaders might have taken the cue of their fellow Kiwis including those with some Maori ancestry (84% of them was it?). Nearly all of us of this land (we have no other) wants this sanctuary (and more of them). Imagine how their standing would have been enhanced if they had instead stood tall straight away and said: ‘Great idea and we give free to the world all and any claim to that area forever’. Then only the mean would then point out it is not theirs anyway. No human owns it.

Guerilla Surgeon said...

"Being forcibly detained by the IDF may, however, present itself as a less daunting prospect for Ms Davidson than defending her party’s position on the Kermadec Ocean Sanctuary back home."

Given the number of people who were killed when the Israelis stopped the Turkish ship Mavi Marmara, probably not. Unless you think Metiria Turei is more dangerous than Israeli commandos.:)

Guerilla Surgeon said...

David, thank you for a very civilised reply. But I can't help but disagree with the idea that you can just abandon a treaty without returning to the status quo ante. Not ethically anyway. I'm not quite sure what the answer is, but it's not unilateral abrogation of the treaty obligations.

Alan said...

I sometimes think that what has happened in this country has a parallel in what has happened to Christianity. On some simple messages from an historical figure complex edifices of interpretation have grown, and on these have been grafted ‘revealed truths’ like the Bodily Assumption of the BVM that cannot be found in the original messages. Embellishments and add-ons from one-true-truthers are the source of a thousand angers and a thousand wars .

The Treaty is all we’ve got. Hallelujah!, The Tribunal is the church charged with its divine interpretation, and what hidden revelations it has churned out. Apparently in the Treaty depths are concepts of ‘partnerships’ leading inevitably to separate sovereignties, both as contradictory to the clear message of the Treaty, as heretic burnings were to Christianity. Words like ‘forestries’ and ‘fisheries’ are now invested with sweeping meanings, even though they don’t occur in the last English draft or the subsequent Tiriti o Waitangi that was translated from it.

The inventive interpretive mischief that has piled up lies at the very heart of the stalled Kermadec Ocean Sanctuary. How on Earth can ethnically reserved seats be justified in an MMP democratic legislature? Where in the messages below can be found any justification for Maori to claim some overarching right to the fish of the far-off Kermadecs?

February 4th 1840 ( The Final Draft Treaty of Waitangi)
"Her Majesty has accordingly been pleased to appoint Mr. William Hobson, a captain in the Royal Navy to be Governor of such parts of New Zealand as may now or hereafter be ceded to Her Majesty and proposes to the chiefs of the Confederation of United Tribes of New Zealand and the other chiefs to agree to the following articles.
"Article first
"The chiefs of the Confederation of the United Tribes and the other chiefs who have not joined the confederation, cede to the Queen of England for ever the entire Sovreignty of their country. ( 'Sovreignty' a Busby spelling error..)
"Article second
"The Queen of England confirms and guarantees to the chiefs and the tribes and to all the people of New Zealand, the possession of their lands, dwellings and all their property. But the chiefs of the Confederation of United Tribes and the other chiefs grant to the Queen, the exclusive rights of purchasing such lands as the proprietors thereof may be disposed to sell at such prices as may be agreed upon between them and the person appointed by the Queen to purchase from them.
"Article third
"In return for the cession of their Sovreignty to the Queen, the people of New Zealand shall be protected by the Queen of England and the rights and privileges of British subjects will be granted to them.
"Signed, William Hobson
"Consul and Lieut. Governor.
"Now we the chiefs of the Confederation of United Tribes of New Zealand assembled at Waitangi, and we the other tribes of New Zealand, having understood the meaning of these articles, accept them and agree to them all. witness whereof our names or marks are affixed.
Alan Rhodes

Guerilla Surgeon said...

Why don't you quote the Maori version of the treaty? One of the problems is that there were substantial differences because of bad translation.
It seems to me that with regards to the treaty that either – Maori would have if left to themselves eventually discovered and exploited the Kermadecs – or made them into a wildlife refuge. Or – Maori should not have had their land taken off them in contravention of the treaty.

Scott Hamilton said...

The continuing misrepresentations of Polynesian history don't help debate about the Kermadecs. I commented recently here about the widespread and demonstrably false idea that Maori didn't sail to the Kermadecs in the centuries before they encountered Europeans; now we have generalisations about Polynesians with primitive agricultural techniques supposedly devastating their island environments and starving themselves to death.

It is not clear to me that Charles, who makes these charges, has actually read the books he cites. He mentions Jared Diamond, but Diamond's book Collapse is in part a paean to the technological sophistication and ecological wisdom of the Polynesians of Tikopia, who have managed to thrive for thousands of years on a couple of square kilometres of mountainous island. Diamond talks about the decline of Rapa Nui, and attributes this to bad environmental stewardship, but his claims have been disputed by many scholars, who point out that rats released by passing European vessels could have wrecked much of the island's flora and also point to the impact of the enslavement of many of the island's people in the 1860s.

The agricultural techniques of the Polynesians were both diverse and sophisticated. Patrick Vinton Kirch has written at length about the intricate irrigation systems that enabled dry parts of islands like Futuna and Maui to thrive.

I too await Alan Rhodes' analysis of the Maori version of the Treaty, which is the document that the chiefs actually read or heard before signing, when they read or heard anything (many signed on the basis of a summary of the text from friends).

If the Treaty really brought the rule of one for all to New Zealand, as Alan claims, then it is rather curious that the British were so keen on separate justice systems for Maori and Pakeha during the thirteen years when they ruled New Zealand directly. As early as 1841 they were creating separate courts for Maori and Pakeha with the Juries Act. A few years later Governor Fitzroy was happy to pass a law that allowed Maori to avoid prison sentences if their iwi paid a fine on their behalf. And the Constitution Act that Britain bequeathed to New Zealand explicitly allows for Maori legal autonomy in Maori-dominated regions.

If the Treaty had been perceived as a call for the subordination of Maori to British law, then it would have been invoked by colonial governments and denounced by Maori during the wars of the 1860s. But in fact the Treaty was condemned by leaders of those wars like Premier Alfred Dommett as irredeemably pro-Maori and pro-separation, and praised by some of the Maori belligerents as a document that supported tino rangatiratanga. To say this is not to claim a single and finite meaning for the Treaty: just like the US Constitution, and indeed all historical documents, it breeds, by its very nature, all sorts of interpretations. It is uncontrollable.

Scouser said...

The contradictions within and poor positionig of Maori in relation to this matter are interesting to behold. On the one hand we repeatedly hear about the Maori desire to cherish the environment, weld in their further involvement in all things envirnomental to ensure, protect etc etc. On the other side of wanting the ability to utilise (I could be mischievous and say exploit) the very same environment that normally the "bad white man" is charged with ravaging. That unexpected protector of the milieu, National, are difficult to paint as the black hats for once.

This is being viewed as either tremendously cynical of Maori (desire for $) or of throwing their toys out of the cot by those of a non-political bent in the circles I inhabit. Obviously not definitive but I expect it to be repeated elsewhere. It's difficult to see why Maori are potentially wasting a decent chunk of political capital on this issue when from a preservation perspective they are on the wrong side. Points of principal rarely win votes. And yes, that's political capital among those who don't vote Maori, so arguably less important but it does severely damage the reputation they have gained of a remarkable level of pragmatism to get things done. Losing that is more likely to cause bleeding of votes to Mana or Labour I estimate.

Maori (that sub-bunch who are affected by this) could always gift their rights, which they acknowledge they're not using. They could then spin this as being the good guys while highlighting how "honky" continues in his oppressive desecration of and blindness to all things Maori. I do think they're quite p****d off by this, thus their actions but they're badly misjudging this.

Charles E said...

GS if two versions of a contract clash, often the thing is a nullity in law, so that is a perfectly legally valid view of this treaty. Indeed I believe a superior Court here said so once.
And no, if it is a nullity you don't go back to prior positions if that is not possible, as here. The Crown as it was is not as it is now. Now it is effectively the independent NZ government, which is democratic, and Maori are part of that so on both sides, which cannot work. And Maori are all now bicultural, i.e. Pakeha and Maori, both culturally and racially. So perhaps Maori today are very much as intended actually by the treaty, which surely was just a transitional statement of what was going to occur from then on: New Zealanders, primarily one people under one law, one Sovereign.
But their (all people of NZ, so non Maori too) property at the time, which really is just land I think, remains theirs until alienated. I see it said Maori lands should only be sold to the Crown so I guess they breached that and still are if you think this documents still lives. It does not need to be alive to be important though. I reckon trying to make a constitution out of it as that twit Palmer and that busy body Morgan think, will definitely kill any life left in it. Palmer gave us the RMA! Enough said.

Alan said...

Heavens above GS, no, the translation was excellent. The Treaty in Maori very closely accords to the English draft I’ve put on this blog. It is the other English version the Tribunal uses quite inaccurately that includes the words ‘forestries’ and ‘fisheries’ and does not include the words ‘and all the people of New Zealand’ in Article Two.

Arguments over understandings of ‘chieftainship’ and ‘sovereignty’ in the two languages are relatively recent, and are utilized to support the idea of separate sovereignties which is as much a patent, impractical absurdity today as it would have been in 1840. Suffice to say signatory chiefs meeting at Korareka 20 years after Waitangi reaffirmed their support for the Treaty, and its message of unity.

So did scholars like Sir Aparana Ngata, and Sir Peter Buck and others. Yes. They. Did.

However by the time we have analyzed, evaluated, and framed the Treaty of Waitangi in its historical and cultural perspective, then qualified our views of it by acknowledging our own political/racial/educational prejudices, we’ll all be cross-eyed, cerebrally constipated, and unenlightened.

Learned exchanges on the meaning of words like ‘sovereignty’ can certainly create heated debate. But the winner is likely to be the last one awake.

The Treaty is a simple document. Its message is an inclusive one; one citizenship under one law for ‘..all the people of New Zealand’. You can’t provide this without one over-arching, law-enforcing, sovereign authority, not two!

Read it! Understand it! It is a cornerstone of this one nation’s development under one law.
Alan Rhodes

Scott Hamilton said...

You seem to have been getting the so-called 'Littlewood Treaty', which is a rough draft of the document, confused with the real thing, Alan. It's the Littlewood document, and not the Treaty that was actually signed in 1840-41, which contains the phrase 'all the people of New Zealand'. You appeal to Apirana Ngata as an authority on the Treaty, but Ngata never read the Littlewood document, which was only discovered in 1992. The Littlewood text is touted as the authentic version of the Treaty not by any scholar but by the fringe right-wing groups like the One New Zealand Foundation. Here's a useful introduction to this issue:

You're not going to convince many people of the simplicity of the Treaty by confusing the document with a quite different text that nobody ever signed.

Guerilla Surgeon said...

Funny, you both sound so confident, whether talking about the Treaty or Rapanui, when your version of events is at the very LEAST a matter of dispute between scholars. Several books in my possession by very well respected historians mention the differences in translation. I have already mentioned Ngata's agenda. Rapanui - the subject of its decline has been discussed at some length in National Geographic for God's sake, and it is also the subject of some scholarly debate. And while I don't claim to be an expert, I think somehow that the international law on treaties is just a little different from contract law.

Alan said...

Scott the last Treaty draft is dated 4th February 1840, is in Busby's handwriting on watermarked paper traceable to the 1930s Bay of Islands... and we know Busby was involved in the drafting process. More importantly, of the English variants, it accords most closely with the wording of the actual Tiriti o Waitangi in back-translation. Yes it does.

If it looks like a duck, quacks like a duck...

Does it matter? Well not really. As you say Ngata never read this 4 February 1840 English draft since it was then lost. He read the draft used by the Tribunal, which is not as accurate a translation of the Maori. And he still said what he said. So did Buck.

Whichever English version floats your boat, neither can support the separatist interpretations being teased out of the Treaty, and that is the issue. Alpha and Omega.
Alan Rhodes

Alan said...

...the watermarked paper traceable to the 1930s Bay of Islands I mentioned in my last submission should have read '1830s Bay of Islands'pretty obviously. Mia Culpa!

Perhaps Hobson, whose English draft was translated into the Maori Treaty, should have the last word. Each Maori signatory was greeted by him with the words: "He iwi tahi tatou". 'We are now one people.'

Alan Rhodes

Jigsaw said...

'We are one people'- a great introduction to Hobson's Pledge Trust.