Tuesday 13 July 2021

Paper Victories.

When Things Turn Nasty: How does a commercial enterprise enforce a legal right against an ever-expanding body of human resistance, without the conflict escalating well beyond its original causes?

WILL THE MARINA at Kennedy Point (Pūtiki Bay) on Waiheke Island ever be completed? On paper, the answer is an emphatic “Yes!” The developer, Kennedy Point Boatharbour Ltd (KPBL) has ticked all the procedural and legal boxes right up to the Supreme Court. On paper, there is nothing to impede the construction of KPBL’s 126-berth marina.

On paper.

But this dispute, which in the week just passed flared into violent confrontation, is no longer taking place on paper. It is unfolding in the waters of Pūtiki Bay. On paper, Fletcher Building was authorised to build at Ihumatao. On the ground, the matter was not so clear-cut. If the images of burly construction workers flinging young Maori women into the sea, now viewable on Facebook and Twitter, bring a surge of supporters to the aid of the Ngāti Paoa protest movement, Protect Pūtiki, then KPBL will be faced with precisely the same dilemma as Fletcher Building. How does a commercial enterprise enforce a legal right against an ever-expanding body of human resistance, without the conflict escalating well beyond its original causes?

At both Ihumatao and Pūtiki Bay, the issues at stake are acutely political. Central to both is a series of increasingly controversial questions: Is the Law neutral? Is the Law colour-blind? Is the Law an instrument of colonial oppression? Is the Law, in any meaningful sense, compatible with the articles of the te Tirit o Waitangi?

In the eyes of tangata whenua, these are questions which the Law itself cannot resolve. How can the Law possibly judge its own legitimacy? Especially in a dispute where one side’s reliance of “the rule of law” is presented as a significant contributing factor to the conflict? A case of “Who guards the guardians?” and no mistake!

If this all sounds like an introduction to “Critical Race Theory” (CRT) the idéologie du jour, currently terrorising Republican Party-controlled legislatures all across the United States (and a number of political commentators here in New Zealand) then that is no accident. According to the University of California at Los Angeles’ Luskin School of Public Affairs, CRT “rejects the traditions of liberalism and meritocracy. Legal discourse says that the law is neutral and colour-blind, however, CRT challenges this legal ‘truth’ by examining liberalism and meritocracy as a vehicle of self-interest, power and privilege.”

The backstory to the Ihumatao stand-off certainly confirms this argument. The land in question was confiscated by the colonial government as it launched its armed invasion of the Waikato in 1863. It was taken from a sub-tribe deemed to be “in rebellion” for not swearing its allegiance to Queen Victoria with sufficient promptitude. That the land was then on-sold to Pakeha farmers certainly smacks of “self-interest, power and privilege”. The farmers’ claims to ownership of the land, while indisputably legal, would struggle to clear the hurdle of justice.

The dispute over who possesses Pūtiki Bay presents an even thornier set of questions. While the area remained in public hands, all the residents of Waiheke Island enjoyed equal access to its amenities, and the kororā (Little Blue Penguins) who nest in the adjoining breakwater stones came and went unmolested. It was only when the Auckland City Council effectively transferred the bay from public to private ownership that the trouble started. Critical race theorists would say that such a transfer was simply par for the course. City officials and regulators will always favour Pakeha business interests over those of the kaitiaki (indigenous guardians) of the “lands, forests, fisheries and other treasures” guaranteed to them under Article Two of te Tiriti o Waitangi. By CRT reckoning, the Law that made the alienation of Pūtiki Bay possible could never be either neutral, or colour-blind. Why? Because it was written by Pakeha, for Pakeha.

The stand-off at Pūtiki Bay, therefore, poses a much more dangerous question to the New Zealand state. It demands to know for how much longer the guarantees embodied in the articles of te Tiriti are expected to languish unheeded and unenforced, while Pakeha law continues to deprive Maori (and other New Zealanders) of what remains of their collective resources and treasures? There are no easy answers to this question because, ultimately, it is not a legal question at all. Ultimately, it is a political and constitutional problem.

It is no accident that the MP with responsibility for Waiheke Island, the Greens’ Chloe Swarbrick, is watching the stand-off at Pūtiki Bay with close attention. Ideologically sympathetic to the Maori campaign for radical constitutional change, she is also, as a committed environmentalist, acutely aware of how badly served Pakeha themselves continue to be at the hands of a legal system which seems irrevocably oriented towards power and privilege.

From all over New Zealand one hears the complaints of conservationists and local communities that the laws of the land are not being enforced by local and regional authorities. That, just as the rights of the indigenous people are overlooked and/or ignored, the rights of the poor, and the poorly-connected, are routinely brushed aside.

The explanation for this inconsistency has stood the test of time: “These decrees of yours are no different from spiders’ webs”, the Sixth Century BC Scythian prince, Anacharsis, is said to have remarked to the celebrated Athenian law-giver, Solon. “They’ll restrain anyone weak and insignificant who gets caught in them, but they’ll be torn to shreds by people with power and wealth.”

What could yet emerge from the Pūtiki Bay protests is something very similar to the convergence that left the Police and the Government so helpless at Ihumatao. Not Maori alone confronting developers and their minions, but younger Pakeha New Zealanders standing alongside them in solidarity against a system that, time and again, has proved itself profoundly deaf to their urgings for a gentler, greener and fairer New Zealand.

Perhaps it is time for a thoroughgoing reassessment of exactly where New Zealand now stands. For how much longer, for example, does the New Zealand state expect to get away with operating a legal and administrative system borrowed holus bolus from the United Kingdom, and used with ruthless efficiency to make permanent the dominance of British settlers and their descendants over these islands? For how much longer does the business community and the agricultural sector expect their interests to be accorded priority? For how much longer are those excluded from the world of the comfortable and the secure expected to remain silent – and peaceful?

The answer, on paper, is what it always has been: forever. On paper, Kennedy Point Marina will be built and return a healthy profit to its investors. On paper, those Ngāti Paoa protesters will be arrested by the Police, and fined by the courts, for trespassing on their people’s ancestral land. On paper, all the avenues of legal redress for what is happening at Pūtiki Bay have been closed-off.

But, although history is written on paper, that is not where it is made. It is made in the world of flesh and blood and human passion, by the sort of people who, when thrown off a developer’s barge, into the water, and kicked in the head, climb right back on. And, by the people who, outraged by what they have witnessed, decide to stand with them.

This essay was originally posted on the Interest.co.nz website on Monday, 12 July 2021.


Wayne Mapp said...

An interesting article. I have also been thinking whether the marina will ever be built. My guess is that there is no more than a 50/50 chance.

The videos that have been released, both by the protestors and the developers, show a very determined group of protestors. So what happens next? Will the police essentially enforce the developers right to go about about his business free from illegal intimidation. Well, they might for a while, but I suspect the numbers of protestors will grow to a point where the police will be overwhelmed.

If that happens, it will no longer be possible to develop the marina.

Do the police just give up on enforcing legal rights? Does the government or council step in the buy out the developer?

In my view the buy out option is quite likely, either voluntarily or compulsorily. Being a marine space, the Public Works Act might be invoked.

Some will say that this just means giving into illegal acts of protest. That the developers rights (which in this case went all the way to the Supreme Court) count for nothing. That might yet become the situation in many more cases than the present. If it becomes the norm that those opposed to development can simply stop it by illegal occupations, then the whole idea of enforceable legal rights becomes moot. If this became routine, then there will become a capital flight. Overseas investors, especially in natural resources, will give New Zealand a miss. This has already happened in the Far North. A lot of developments have not happened because of the level of protest. It has the effect of keeping the region poor. From what I can see up in the Far North, for many that does not matter.

It is too soon to say whether illegal but effective occupations will become the norm across New Zealand. At present it takes an exceptional set of circumstances for an occupation to succeed. The land has to have exceptional characteristics to engage such attention. But maybe not in the future.

Chris Morris said...

As a lot fuller video on the disturbance at the marina has now been released, it seems the protesters claims aren't backed up by the evidence. Colour me surprised. I suspect that they have lost a lot of local support. Many of the protesters seem to be blow-ins, rather than residents or ratepayers. That also harms their cause.
It doesn't seem the Government want to get involved. If that is the case, good. They might be learning from their past mistakes.

Anonymous said...

And yet the terrible legal system that exists in NZ, with its tolerance for peaceful protest allowed the Ihumatao protesters to win. These people might win as well, if they had better comms.

greywarbler said...

I have heard of a recent case about the police not supporting ordinary citizens wishing to walk on public land without harassment. Many people are working on the waterways and creeks around Nelson collecting rubbish, removing choking weeds and planting banks. There is always a strip of public land at the side of the streams. Yet in one case a resident whose property abuts the pathways has been harassing a friend who is part of the group that carry out this project.

He challenges their access as if it was his own land, and is aggressive and hostile. The police were called on but had nothing to say against this behaviour. The man has had a high-income job, retired early, and now seems unhappy with his achievements, spreading this feeling to everyone around him, including a neighbour who died recently who had been unhappy with the behaviour he received.

The predatory wealthy, wanting and willing to expand their own interests are on the increase in NZ, both among materialistic long-term citizens, and foreigners with money and prestige, western and otherwise who are attracted here under the ridiculous political system we adopted from 1984 on. I can't see a good end to the elite wanting to steal our taonga away from us, multiplying the threat to Maori lands and culture. I see Maori are unhappy with the extent of activity from the whizz-kid rocket company on the Mahia Peninsula. Did I see that they have rocketed into the pocket of a bigger group and are going to be listed on a USA stockmarket?

The elites and PMC are limiting us, cramping our style; our commons of footpaths for walkers disappeared, our ability to walk public land open to challenge. Maori are challenged when they limit access to their land with urupa on it near Nelson which gives access to a good recreational fishing launching site. This has been closed off, but the pleasure-meisters persist with their cries of 'foul', unfair.

Shane McDowall said...

Perhaps we need a Maori ethno-state where all Maori who believe in tino rangatiratanga, and their pounamu wearing Pakeha mates, can move to so they can be free of structural /institutional racism.

The Far North would be perfect. It already has a large Maori population and building a Berlin-type wall just north of Auckland would cost less than cycle bridge across the Waitemata.

For Pacifika who think their lacklustre economic performance is due to systemic/institutionalised racism, a one-way ticket to their indigenous sovereignty rich homelands is an obvious solution.

If you take the Polynesians out of New Zealand's employment, educational, and health statistics, this country starts looking positively Scandinavian.

Counterfactual history is interesting. Imagine if Polynesians had not found New Zealand c.AD 1300. It is likely that these islands would have become dumping grounds for the poor and the criminal of the British Isles in the late 1700s, rather than Sydney.

Of course the downside of this scenario is that I would not be here to share my opinions. Opinions that really get the goat of pale stale males who haunt this forum.

Andrew Nichols said...

...Many of the protesters seem to be blow-ins, rather than residents or ratepayers. That also harms their cause.... So what? I marched for Manapouri without living there.

John Hurley said...

Not Maori alone confronting developers and their minions, but younger Pakeha New Zealanders standing alongside them in solidarity against a system that, time and again, has proved itself profoundly deaf to their urgings for a gentler, greener and fairer New Zealand.
On The Nation Chloe called Winston xenophobic for suggesting immigration was a problem, so why is she able to stand (always) on the clean green side of the ledger?

Greg Clydesdale mused about Browns Bay and "gentle beach culture" in 2008. He was wiped out by the left "NZ's most racist economist"

John Hurley said...

Wayne Mapp
If this became routine, then there will become a capital flight. Overseas investors, especially in natural resources, will give New Zealand a miss. This has already happened in the Far North. A lot of developments have not happened because of the level of protest.
Look who is in the drivers seat

John Hurley said...

Mathew Tukaki seems to be counting is chickens

This push to make Recalling Aotearoa happen is just displaying the old truths that has been known for millennia: bi/multiculturalism isn't stable, because human's need a coherent moral order.

Having said that how did Brahmanism happen?

John Hurley said...

Eric Kaufmann points out that in multi-ethnic societies the politics revolve around ethnic politics.

It's a cockup.

The supposition is that we will all smile benignly at all the other ethnic groups. That is the expectation of our hate speech laws. But, as a member of an ethnic group you have an over-arching narrative and those narratives compete with those of other ethnic groups.

The metanarrative of New New Zealand is that we ["if you can't explain it to a 6 year old you probably don't understand it" and I'm in low gear going up this hill] came here and signed a treaty with Maori [true] but what that means is disputed. How many settlers or their descendants would have agreed to the notion that there are Iwi tribal areas that represent claims to territory - resources - political power - alternative systems over and above the collective citizen?

Not only that but while I agree with the positive liberty for males to transition to an appearance of womanhood or Muslims to wear hijab and letter boxes, Parr (2000) noted that "the views of New Zealanders are not conducive to the population of NZ becoming diversified globally". That is a violation of positive liberty.

The other side of the argument (as used by Helen Clark) is "well we did it but we were up in the polls down the track" or "85% agree society should be made up of different ethnic groups", but that is not consent. You wouldn't get away with that if the charge was rape?

If you look across the landscape they will find sunny places where post-ethnic cosmopolitanism is working (the university cafe or the tech company) but in North and South Magazine a journalist wrote about widespread vaccine misinformation on Chinese media sites. Much of it was anti-Western and their newspapers (Chinese Herald) are much better subscribed than ours).

What has Labour delivered (that 1987 government). While we openly discuss economic reforms, the other is so bad we can't even go there?

Nick J said...

I have a lot of sympathy with Mr Tukaki and his response. That said I get angry with the Australian government doing just that to 501 deportees. Seems to me that theres some not too subtle racism applied to Maori and Pacifica there. So maybe Mr Tukaki we take it on the nose and set a better example.

PS to stick it to the Aussies on 501s the NZ government should pay the fees to become Aussie citizens and become elligible for the same benefits as all Aussies.

Nick J said...

Shane, fine idea. I hate flying, I'd be able to drive to the winterless North for winter holidays. Added bonus is that I could bring my stale pale mates along (in the boot of course) for subtle re-education by seeing what they are missing.

Nick J said...

Grey, I trout fish and have regularly had landowners challenge access to Crown river beds and Queens chain. In my experience if you ask for access to Maori land you rarely get refused but they might advise where not to go. Farmers are generally user friendly. Foreign owners bring an attitude of privatisation of public resources, as do wealthy Kiwis.

I'd like to see access issues given real protection for the public, the Tiriti process may be a good avenue to pursue to ensure all Aotearoans access to our land.

Nick J said...

Wayne, good points, we seem stuck with a dilemma. I think we have sufficient precedents to refer to however. We are both old enough to remember Dame Whina and her hikoi, and Bastion Point. These both demonstrated for the first effective time that the interests of Tangata whenua and the state didnt align especially legally. And that these needed fair and equitable resolution.

I do think that we can rely on the Courts to allow legitimate or throw out spurious claims. Justice needs to be demonstrable to all parties.

Harold said...

I lived in Sydney for over 25 years, and I can assure Nick that the reasons for 501 deportations have nothing to do with racism. A very large chunk of the aussie working class and lower middle class population (including immigrants with brown skins) have had a gutful of the depredations of foreign born criminals irrespective of skin colour or nation of origin.
The reality is that Kiwis make up a very large proportion of the Oz immigrant population, it stands to reason that a large proportion of deportees are kiwi. It also dosn't help when NZ pollies and media begin special pleading on their behalf. They don't highlight the many 501 deportees being sent to other countries. Its been argued that some of the deportees were babes in arms when they went to Oz and that it is not fair to deport them. Legal systems are always imperfect. What is fair is that the law is enforced impartially and applies to all.
Given how popular 501 deportations are in Oz, no political party is going to reverse policy on this issue.

Nick J said...

I see your point Harold. I too lived in Syvdney for many years and Id still contend that theres racism at play, based upon observation of Aussie attitudes to Maori coworkers. Dont mention the comments about abos or the tea towels either. Of course law and order appeals and makes this a popular policy, and all the more so if they are people not seen as "real Aussies".

Really though, nl law being perfect as you say its richly ironic to see a nation of transportees in favour of legal transportation.

Wayne Mapp said...

Nick J,

Agree about Bastion point. Dame Whina's march was not an illegal occupation.

There will always be special cases where an occupation will override the owners interest. Frequently it involves a public entity. Think of the Erebus memorial, or Bastion Point.

However the Waiheke Marina is a bit different. The developer has already gone to the Supreme Court, at no doubt considerable expense. Certainly the police seems to have thought a Supreme Court decision can't simply be ignored.

The jury is still out on this one. Will the numbers of protestors increase to a point where the police can't enforce the law?

If that happens, I think the Crown and Council will be duty bound to compensate, presumably by purchase.

But that will be a huge precedent, bigger than Ihumatao, which in my view was highly case specific. Waiheke would be a more general precedent.

As such, it would encourage many more occupations, to the general disadvantage of the rule of law. New Zealand has always said, both to ourselves and to overseas investors that we have a predictable and reliable legal system. It was one of the benefits of the Treaty of Waitangi. Will we still be able to say that in the future, at least when land and natural resources are concerned?