Tuesday 20 September 2016

John Key's Kermadec Options.

Choices, Choices, Choices: Abandoning the Kermadec Ocean Sanctuary would inflame the already raw feelings of National Party’s more conservative supporters. Not because they are the world’s most strident environmentalists, but because they would interpret Key’s “surrender” as proof that the Treaty of Waitangi now constituted “superior law” – i.e. capable of preventing the Crown from over-riding its provisions.
JOHN KEY’S OPTIONS in relation to the Kermadec Ocean Sanctuary are many and varied. He could step away from the enabling legislation, postponing its final resolution until he’s safely re-elected. He could drive the legislation through Parliament with the support of the Greens and NZ First. He could waft a cheque in front of the noses of Te Ohu Kaimoana (TOKM) and watch their “non-negotiable” position melt into air. Or, he could simply abandon the Sanctuary altogether.
The latter option would be a gift to the Greens, NZ First and (to a lesser degree) Labour. James Shaw and Metiria Turei would characterise Key’s decision as a betrayal of New Zealand’s international commitment to protect at least 10 percent of its Exclusive Economic Zone from commercial exploitation. Winston Peters would condemn Key for surrendering in the most abject fashion to the Iwi interests behind TOKM. Labour, sensitive to its exposed position in the Maori seats, would attempt to persuade voters that National lacked both the will and the skill to negotiate a fair settlement of the Sanctuary dispute.
Abandoning the Sanctuary would also inflame the already raw feelings of National Party’s more conservative supporters. Not because they are the world’s most strident environmentalists, but because they would interpret Key’s “surrender” as proof that the Treaty of Waitangi now constituted “superior law” – i.e. capable of preventing the Crown from over-riding its provisions.
Quite rightly, this would be viewed as a radical recasting of New Zealand’s unwritten constitution. Rather than ultimate sovereignty being vested in the “Crown in Parliament”, as is presently the case, Key’s back down would be taken as proof that ultimate sovereignty now resided in the Treaty of Waitangi – as interpreted by the unelected judges of the New Zealand Judiciary.
Right-wing intellectuals, including such outspoken critics of the Treaty as Don Brash, Hugh Barr and David Round, would go further. Their question would be: What persuaded John Key to undertake such a radical recasting of New Zealand’s constitutional arrangements? Their answer, in all probability, would be that the Prime Minister was convinced that anything less was bound to provoke an unquellable Maori backlash.
Were this to become generally understood by the Pakeha electorate, an unquellable Maori backlash would instantly be relegated to the second biggest problem Key had to face. The extraordinary response to the then National Party leader, Don Brash’s, speech to the Orewa Rotary Club in January 2004 (National’s poll-rating surged 17 percentage points) still stands as the most telling evidence of latent Pakeha hostility towards the Treaty-based “Maori Renaissance”. Indeed, it is arguable that National’s easy dominance of twenty-first century New Zealand politics is traceable to Brash’s in/famous “Orewa Speech”.
Elite opinion in New Zealand airily dismisses the potential for a devastating Pakeha backlash. On this matter Sir Geoffrey Palmer, the politician most responsible for bringing the Treaty back from the dead in the 1980s, is unequivocal. In a speech to the Māori Law Review symposium on the Treaty of Waitangi and the constitution, held on 12 June 2013, Sir Geoffrey stated bluntly that:
“Insulation from the ravages of extreme opinion has been achieved. The settlements have become mainstream. We have travelled a long distance with the Treaty, and much of what was proposed by making the Treaty part of an entrenched Bill of Rights has been achieved. Yet the current position with the Treaty does not seem to me to be sustainable long term. It is half in and half out of the legal system. From a constitutional point of view the developments have been significant, because in many situations the courts are empowered to rule on treaty issues as to whether requirements have been met. The courts are better protectors of “discrete and insular minorities” than the majoritarian legislature, even under MMP.”
It is unclear if Sir Geoffrey is linking the democratically elected Parliament of New Zealand with “the ravages of extreme opinion”. What is very clear, however, is that the posture of New Zealand’s political elites has more than a little in common with the posture of the British elites in the run-up to the Brexit referendum. They, too, believed they were defending a “mainstream” position.
A failure to appreciate just how deeply Pakeha hostility to “Treaty issues” is imbedded in provincial electorates is what drove the liberal Mayor of New Plymouth from office. Perhaps Key should ponder Andrew Judd’s fate before goading his supporters into a similar electoral rejection.
Then again, this Prime Minister is almost certainly also pondering the likely electoral consequences of tapping into, rather than over-riding, anti-Maori prejudice. The likelihood of National emerging the loser from a “Kiwi versus Iwi” themed snap-election is not high.
That is the option TOKM should consider most carefully before reiterating its “non-negotiable” stance on the Kermadec Ocean Sanctuary. Some fish are best left uncaught.
This essay was originally published in The Press of Tuesday, 20 September 2016.


Guerilla Surgeon said...

" watch their “non-negotiable” position melt into air."

Given that this is a stand based on property rights rather than principle, then I can't see a great deal wrong with accepting some compensation for the usurpation of said property rights. But in fact as I understand it all they are asking for is consultation. And although I'm not privy to the ins and outs of this, I would have thought that it would be a lot cheaper for the government to do this than to throw money at them.

Charles E said...

Very interesting politics I agree.
It is clearly a chance for a win win win for some, by which I mean Key/English, Fox & the Planet.
Best thing the left can do is be quiet. Labour could lose some Maori support or support from its soft caring environmental edge. Greens could lose Maori support too, not that it has much of it.
For that other lot, Winston First, who are a mix, indeed mixed up, they probably would like to pick up more that small beer bigoted bunch who think the Treaty settlements are a 'rort' (they love that ugly little word).

Polly said...

I feel very uneasy about the Maori claim on the Kermadecs, particularly given the facts that not only in pre-European times could they have never fished there also in recent times they have never fished there.
However I can understand John Keys desire to keep the Kermadecs as a sanctuary and believe he will get an agreement with both the Maori party and the claimant tribes which will probably pander to both Maori politics and Maori tribal greed.

Labour and the Greens will make noise from the side-lines.

I say rubbish to MMP and the pox on all who sail with her, Labour was conned big-time into supporting MMP and they are now paying the price, the two leading NZ expert practitioners of MMP, John Key and Winston Peters will laugh all the way to victory in 2017.

peteswriteplace said...

I think John Key and his 'advisers' may have bitten off more than they can chew.

Alan said...

Hang on Chris. You seem to have herded all of those who have a problem with the Treaty of Waitangi interpretations into one place. Phew!! That’s a lot of different fish under one ‘Right wing anti-Maori prejudice’ net.
Perhaps it is not the original Treaty of Waitangi that is the problem, but the twisted interpretations of it being paraded through the Waitangi Tribunal and some of the Tribunal’s own mischievous takes on it which have the dual purpose of breathing endless life into the settlement process and creating unsupportable interpretations that morph into law.
Perhaps it is not really the Treaty at fault with its fairly simple message of granting British citizenship to all and establishing a rule of law in an increasingly lawless land, well expressed by Hobson’s greeting to each signatory chief, in Maori, ‘Now we are one.’
Perhaps it is this view of the Treaty that honours the unifying spirit and intent of the Treaty, the only founding document we have, more than the divisive and ridiculous and unworkable ‘partnership’ view that would make a mockery of Hobson’s greeting and that nothing in the Treaty supports. Just perhaps it is these twisted interpretations that mock the Treaty that Brash, Barr, and Round are opposing, and if it is they are right, whatever their other political of social views may be.
Effectively the ‘Treaty of Waitangi’ being genuflected to by the Tribunal, and by Iwi, and by people like the Mayor of New Plymouth and the Maori King and others, is a mythical monster of separation, of apartness, of applied racism. The simple real Treaty of 1840 lies buried beneath the Separatist tangle of thorns of that has developed apace in the last 40 years.
For those tempted to disagree, I would refer you to Sir Apirana Ngata’s take on the Treaty in the 1920s.
It is those thorns of Iwi greed and Government cowardice that is now endangering the popular concept of the Kermadec Ocean Sanctuary, and the bent interpretations of an unambiguous Treaty underpin all this..
The need to ‘Honour the Treaty’ doesn’t belong to the deceit and fraud of what you smoothly call a ‘Treaty-based Maori Renaissance’ Chris, which isn’t. It means honouring the concept of citizen equality respecting the rights of all people before one law… the promise of the real Treaty of Waitangi, not the multi-headed Hydra of today.
Alan Rhodes

Guerilla Surgeon said...

The simple "real" treaty was not that simple – it was vague and badly written. Not the fault of Maori, who didn't write it. Seems to me you have to suck that up. If it's open to interpretation as all treaties are to a greater or lesser extent, bad luck. What's mythical are the "twisted interpretations", and iwi greed. Not to mention the fact that whenever there's negative comment about Pakeha, we never hear about their race. Funny, I never heard about "Pakeha malfeasance" when I lost a measurable percentage of my net wealth to incompetent or unconscionable actions by managed fund managers.

Alan said...

Yes Guerilla Surgeon there is a bucketload of "Pakeha malfeasance" in the corporate management of this society,. and its facilitators in Government. For sure.
But the only reserved seats for anyone in this Parliament are not Pakeha seats, but Maori; apologies for having to use the word. It is this, and the Maori Party ..apologies again..that a cynical Government is hiding behind in not advancing legislation extending protection to the Kermadec seas.
Unfortunately GS the Treaty is being fraudulently misinterpreted, and the Kermadecs nonsense is one of the outcomes. There will be others. As you correctly noted, Maori didn't write it, but chiefs did assent to it, and 1840 signatories reaffirmed that assent in the 1860s.
If there is anything to be sucked up GS it would have to be the opinions of the great Maori scholars of the early part of last century; men fluent in Te Reo who would have conversed with living signatories to the 1840 Treaty.
Apart from recommending that everyone actually reads the Treaty of Waitangi, I would also recommend reading the very full scholarly opinion of Sir Apirana Ngata at the address I gave above.
Then, GS, you may be a little wiser...
Alan Rhodes

Nick J said...

I like your Brexit analogy Chris. The efette political elite there assumed that their ideas of reality aligned with the reality others lived. My son in Liverpool saw this first hand. His street is predominantly Romanian and they are proving not particularly reasonable or nice neighbors. The locals consequently move out. For this they are labeled racist and xenophobes. Those doing the labeling have neither come to look or lived next door.

Similarly here in NZ across the political classes percieved reality is rarely tested by actual experience. We refuse to see dualities, often contradictory. According to ones own position reality must be made to conform. This is called expedient avoidance and it contains the seeds of conflict as it does not attempt resolution. Maori Pakeha relations are full of this.

Dennis Frank said...

I've been getting the impression that the Maori claim on the Kermadec fishery derives from something the Bolger govt legislated. Understandably, the media don't feel like researching this origin. Reporting Maori waving the Treaty red herring is easier.

If so, Key's quandary is whether his govt feels obliged to honour whatever deal Doug Graham negotiated back then, or legislate any over-ride necessary to create the sanctuary. Since the state is sovereign, any government can overturn any status quo created by a prior government, right?

It would be refreshing for all if Key exhibited some moral authority along with his pragmatism. Just point out that Treaty rights pertain to a status quo of 1840 and any legislation of a previous National govt that could be construed as extending those rights further needs legislative amendment, and creation of the sanctuary is a common good initiative.

Maori sectarians out to boost tribal interests at the expense of our common interests may feel betrayed by the Nats but deserve a lesson in realpolitik. Key should give it to them.

Guerilla Surgeon said...

"I would also recommend reading the very full scholarly opinion of Sir Apirana Ngata at the address I gave above."

Ngata could not speak for all Maori. For some reason many Pakeha think that Maori are some sort of unified bloc. Ngata pretty much made a career out of supporting Pakeha governments. Not saying he was a evil or anything, but he had his agenda, and his interpretation of the treaty reflected this. Perhaps if you read a little more widely then you might be a little wiser.

Barry said...

I think Alan Rhodes is right.

Chris Trotter said...

Pure Treaty fetishism, GS. Pure Treaty fetishism.

The only people in NZ who have ever possessed the power to define the Treaty of Waitangi are the people who wrote it: the Pakeha.

Charles E said...

I don't think this is really much about that much abused treaty. It is firstly about Maori political fights & attention seeking, and secondly property rights. The government would be happy to just pass the law but has spotted a chance to either bolster the mana of a coalition party, which could be very useful in the next election in probably just under a year, or alternatively very useful to take the moral high ground (environmentally) & dump on the greedy rent seeking minority of stroppy Maori, which would get them loads of votes directly. And perhaps an early election, ‘forced on us’ by those same old ‘greedy stroppy Maori politicians’. They cannot lose. To his credit, Key has first decided to look at the first option. He’s a dealer, but as any good dealer does, has options. Smith clearly favours the second option as he has a history of always putting the environment before Maori interests, and that is a point of view most environmentalists share. I do too. No race or culture should be seen as caring more for the planet than any other, and just being the first to exploit it certainly gives one no mana or custodial rights. But I’d talk to the rent seekers first, just to see what they really want, if nothing else.

Guerilla Surgeon said...

"The only people in NZ who have ever possessed the power to define the Treaty of Waitangi are the people who wrote it: the Pakeha."

Fortunately, the convention says otherwise. At the very least, all over the world, the convention is that one party's interpretation should not be privileged over the other. Particularly if a treaty is written in more than one language. The Canadian Supreme Court decided in 1990 that treaties "must therefore be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians."

Chris Trotter said...

Dear me, GS, if you believe that decisions of the NZ courts are not a part of the Pakeha power structure, then there's a bridge in Brooklyn I'd like to show you.

Political power is only to be understood intelligently by analysing what DOES happen - not what SHOULD happen.

Guerilla Surgeon said...

My bad. I misread your comment. In my defence, I was only just up.

Jigsaw said...

National will do what it's always done in negotiations with Maori - buy them off -works every time, the iwi leaders 'principles' evaporate with enough cash.

Jigsaw said...

Alan Rhodes has it exactly right and to read that GS thinks Maori are not a unified block -made me laugh out loud-that is exactly what he has been saying for ages...

Alan said...

With regards to the cynical government position on the Kermadecs.Charles E said 'I don't think this is really much about that much abused treaty. It is firstly about Maori political fights & attention seeking, and secondly property rights.'
Isn't the latter based on Treaty interpretations?
I'd suggest the Kermadec issue has its genesis in the interpretations and weightings placed on that Treaty by the Tribunal, the Maori Party, and an increasingly strident separatist lobby.
Alan Rhodes

Guerilla Surgeon said...

"the iwi leaders 'principles' evaporate with enough cash."

Yes, they have unfortunately earned all too well from conservatives.

Charles E said...

Alan yes the treaty claims based on the false idea of a partnership are a great source of mischief. So the idea Maori have to be separately consulted on everything is not only constitutionally wrong it is very unfair, even racist as it says some people born with certain blood in them are special.

But no I don't think property rights need any treaty backing at all. Indeed I think Maori should loudly proclaim their property rights stem from the same laws that apply to all here irrespective of their origin (the laws and the people).

Look at it this way, if your ancestors and extended Rhodes family in 1865 owned say a large high country station, freehold, or even half an acre in the Wellington CBD, and the NZ government or the Welly Council, took it, you'd be on quite sound grounds to go to Court to get redress, even decades later. The same may just apply, but less clearly to a bit of the coastline or even the sea but those are more 'fluid' property types which all people should today give up claims to as they are depleted and in great need of conservation by all for all.

Guerilla Surgeon said...

"The same may just apply, but less clearly to a bit of the coastline or even the sea but those are more 'fluid' property types which all people should today give up claims to as they are depleted and in great need of conservation by all for all."

The Public Works act covers the government taking your land for public works. The government is obliged to compensate you, you don't need to go to court. Unless you disagree with the sum that you are offered. Unfortunately much Maori land was taken without compensation. Like the Raglan golf course. Decades later as you say. But I'm glad to see that you think people should give up claims to the coast, because a lot of it is owned by Pakeha. I'm sure that everyone would be quite happy to see you put in charge of organising this. On the other hand, the Maori right to go to court to test their claim to coastal land was overridden by a conservative Labour government.