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.