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”.

 

Impasse?

 

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.

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.

“So Long – And Thanks For All The Fish.” National Abandons Green For Brown.

Pristine And Unique: The Kermadec Ocean Sanctuary covers one of the most pristine and unique environments on Earth. Its 10km ocean trench is the second deepest in the world and is deeper than Mt Everest is tall, while its arc of 30 underwater volcanoes is the longest anywhere on earth. It is home to six million seabirds of 39 different species, more than 150 species of fish, 35 species of whales and dolphins, three species of endangered sea turtles and many other marine species such as corals, shellfish and crabs unique to this area. Prior to the arrival of Europeans in the Eighteenth Century, Maori never fished these waters.

 

JOHN KEY’S DECISION to suspend the passage of the Kermadec Ocean Sanctuary legislation marks an important turning point in the life of his government. Rather than pass Nick Smith’s environmentally vital bill with Green votes, the Prime Minister has, apparently, capitulated to the greed of rent-seeking Iwi leaders, and the schoolboy political philosophising of Act’s David Seymour.

 

Clearly, Key has his eyes fixed on the likely outcome of next year’s election, when the votes of his current Confidence and Supply partners may, once again, constitute the margin between victory and defeat.
 

In this respect, the fate of the Maori Party is of particular relevance. If Tukoroirangi Morgan can unite the Maori and Mana parties against Labour in the Maori electorates to claim Tamaki Makaurau, Te Tai Hauauru, Te Tai Tokerau and (if Nanaia Mahuta can be persuaded to step down) Hauraki-Waikato, then Key’s hold on power will likely endure.
 

That will most certainly not be the outcome, however, if the Kermadec Ocean Sanctuary Bill is made law over the loud objections of practically the whole of Maoridom. Hence Key’s determination to keep Maoridom (and the Maori Party) sweet.
 

It is even possible that Seymour’s posturing on the Bill is less about standing up for “the existing property rights of fishing operators” and more about providing some cover for Key’s capitulation to Iwi anger. Better to have National Party voters scolding Seymour for his disloyalty than upbraiding the Prime Minister for “pandering” to Maori interests.
 

Key will be especially keen that his electoral base is kept as far away as possible from the words of his own Environment Minister, Dr Nick Smith.
 

In a media statement released earlier today (14/9/16) Smith angrily rejected Maori criticism of the Kermadec Ocean Sanctuary Bill:
 

“We have tried very hard to find a resolution with TOKM [Te Ohu Kaimoana], with 10 meetings involving ministers during the past 10 months. TOKM wanted to be able to maintain the right to fish and the right to exercise that at some time in the future. We wanted to protect the integrity of the sanctuary as a no-take area.
 

“The claimed consequences for TOKM are way overstated. Māori have caught more than three million tonnes under the fisheries settlement since 1992, but not a single tonne in the Kermadecs. There are five fishing companies affected, none Māori, but who collectively have only caught about 20 tonne per year, out of an annual total fishing industry catch of 450,000 tonnes.
 

“The claim that this new sanctuary undermines the 1992 fishery settlement is incorrect. The Government always retained the right to create protected areas where fishing would be disallowed and has done so in over 20 new marine reserves, many of which had far more impact on settlement and customary fishing rights. New Zealand is a signatory to the United Nations Convention on Biodiversity and the Aichi targets of setting aside at least 10 per cent of our oceans in marine protected areas.
 

“The proposed sanctuary is part of a Pacific-wide effort to provide large-scale Marine Protected Areas, with the United States announcing the Eastern Hawaiian Islands Reserve and the United Kingdom proposing a large reserve around Pitcairn Island.”
 

Smith’s statement was released shortly after 1:00pm and betrayed not the slightest awareness that its author and his bill was about to be left twisting slowly in the wind by the Prime Minister. Less than an hour later, at 2:00pm, Seymour issued a media release announcing his party’s decision to pull its support for the Bill. By 3:00pm, Key was telling the Parliamentary Press Gallery that:
 

“We’re absolutely sure we can get the numbers with the Greens but we’re very disappointed that negotiations with [Te Ohu Kaimoana] have broken down at this point. The government would restart discussions with the Māori Party to see whether it would support the bill. So it is just going to take a bit longer.”
 

How much longer? The smart money would be on ‘Sometime After The 2017 Election’.
 

Key emerges from this whole episode with very little honour. Such craven compromising is a very long way from the extraordinarily bold behaviour of the John Key who took up the Opposition leader’s role in 2007. That John Key would have weighed the Greens’ 13 percent of the Party Vote against the Maori Party’s 2 percent and adjusted his strategy accordingly.
 

A National Party that was serious about a fourth term would have welcomed the chance to do something environmentally important with the support of the Greens. In a century defined and dominated by environmental perils, the political salience of Green Party issues can only increase. In recognition of that salience, Labour has been willing to forfeit any chance of recovering its former electoral dominance. That is because Labour understands what Key clearly does not: that a party which rejects every opportunity to govern with the Greens, will eventually render itself incapable of governing at all.
 

This essay was originally posted on The Daily Blog of Wednesday, 14 September 2016.

Let Sleeping Fish Lie.

Prominent Maori Fire A Shot Across The Crown's Bow: Objections to the Kermadec Ocean Sanctuary, though couched in terms of the sanctity of contract, are much more likely to be motivated by the political and constitutional implications of the Government’s unilateral action. If the Crown is permitted to arrogate unto itself the power to decide when it is obligated to negotiate with the Maori elites, and when it is not, then the growing economic and political influence of those elites will stand exposed as, at best, conditional; and, at worst, reversible.

 

WHAT HAS a Nineteenth Century Waikato village called Rangiaowhia got to do with the price of fish? As an example of Maori and Pakeha talking past one another – quite a lot. As the current impasse over the Government’s creation of a Kermadec Ocean Sanctuary, and Maori fishery rights, attests, the scope for misunderstanding, even conflict, between Maori and Pakeha remains ominously latent in New Zealand’s constitution.

 

These latent difficulties are often made worse by the well-intentioned interventions of  Pakeha New Zealanders. Historians, in particular, seem especially keen to atone for the sins of their nation’s colonial past. All too often this manifests itself in professional historians affixing an academic seal of approval to what can only be described as outlandish and historically unjustifiable claims.

 

At Rangiaowhia, for example, Maori and Pakeha clashed in a confused military encounter that ended with the deaths of ten Maori civilians and three Pakeha soldiers. Even advantaged with the far more exacting standards of the Twenty-First Century, the lawyers of today would struggle to convince a court that what happened on the morning of Saturday, 20 February 1864 was a war-crime.

 

The New Zealand History website of the Ministry of Heritage and Culture cites the judgement of historian, David Green, who rejects the notion that what happened at Rangiaowhia was ‘a premeditated massacre’, arguing instead that it was the result of ‘a breakdown of discipline among troops who had psyched themselves up to face much stronger resistance.’”

 

The Military Engagement At Rangiaowhia, Saturday, 20 February 1864

 

If “premeditated massacre” can be ruled out, then using the word "genocide" to describe the tragic loss of life at Rangiaowhia – as a senior New Zealand historian, Jock Phillips, did on the 2 April broadcast of TV3’s The Nation – is simply insupportable.

 

The nationwide furore which engulfed the former Maori Party co-leader, Tariana Turia, when she used the word “genocide” to describe the fate of Taranaki Maori – especially those forcibly evicted from the settlement of Parihaka on 5 November 1881 – should have deterred any further use of such historical hyperbole. The only recorded case of genocide in New Zealand history occurred in the Chatham Islands in 1835. Pakeha were not responsible.

 

It is, however, entirely understandable that Maori continue to avail themselves of every opportunity to paint their dispossession in the most lurid of historical hues. To recover even a small fraction of the resources seized by New Zealand’s Settler State, the tactic of inducing the maximum possible degree of Pakeha guilt and remorse is indisputably necessary – and has proved astonishingly successful.

 

Such recovery as has been made, however, could not have been accomplished without the collusion of Pakeha elites. The price of their cooperation? That the transfer of Crown resources to Maori can only be from one collection of elites to another. The result, Neo-Tribal Capitalism, has shielded the Crown from the much more radical Pan-Maori Nationalism with which it was briefly threatened in the 1980s and 90s. The Iwi Leaders Group is a much more congenial partner for the Crown than a revolutionary Maori parliament – or army.

 

Even so, the increasingly close relationship between the Crown and the corporate entities arising out of Treaty of Waitangi-based settlements, is beginning to encroach upon the freedom-of-action of elected governments. The National-led Government’s announcement of the Kermadec Ocean Sanctuary, which has elicited furious protests from Te Ohu Kaimoana (the Maori Fisheries Commission) is a case in point.

 

The Commission’s objections, though couched in terms of the sanctity of contract, are much more likely to be motivated by the political and constitutional implications of the Government’s unilateral action. If the Crown is permitted to arrogate unto itself the power to decide when it is obligated to negotiate with the Maori elites, and when it is not, then the growing economic and political influence of those elites will stand exposed as, at best, conditional; and, at worst, reversible.

 

At Rangiaowhia, the contingency of the Maori people’s freedom-of-action was demonstrated with deadly force. The Kingitanga’s (Maori King Movement’s) assertion of its people’s economic and political autonomy, under the formula of two flags and one treaty, was met with the unanswerable rejoinder of fire and steel. If contemporary Maori leaders do not wish to see their hard-won partnership of elites similarly dissolved, then it might be wiser for them to acquiesce in the matter of the Kermadec Ocean Sanctuary – and let sleeping fish lie.

 

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, 15 April 2016.

Refusing Sanctuary: The Dangers Of Reflexive Left Syndrome.

Something Fishy Going On: The furore surrounding the Kermadec Ocean Sanctuary offers a powerful example of the political difficulties into which Reflexive Left Syndrome can lead a progressive political party. Almost overnight, the significant benefits to the global environment represented by the Kermadec Ocean Sanctuary have been put at risk for no better reason than that a determinedly commercial entity like Te Ohu Kaimoana wishes to reserve the right to harvest the Kermadec fishery.

 

THE LABOUR PARTY is at serious risk of, once again, succumbing to Reflexive Left Syndrome (RLS). Simply put, RLS causes progressives to respond predictably (and all-too-often counter-productively) to every issue affecting the Left. Those suffering from RLS do not wait for the facts; nor do they pause to consider whether their support for one part of the Left might put them at serious odds with another. Positions are fixed with precipitate haste, and room for subsequent manoeuvre and compromise is severely restricted. RLS nails its victims to the political spot: positions they frequently cannot abandon without incurring serious damage and/or ridicule.

 

The latest example of Labour succumbing to RLS involves the party’s position on the Kermadec Ocean Sanctuary.

 

At the First Reading of the legislation establishing the sanctuary, the vote in favour of this internationally acclaimed measure of marine conservation was unanimous. So far, so good. But, all it took for Labour to announce that it was “reassessing” its support for the legislation was a claim that it contravened the Maori fisheries settlement.

 

Te Ohu Kaimoana, the Maori Fisheries Trust, had announced that it was challenging the Crown’s actions in the High Court. Labour’s six Maori MPs, feeling obligated to defend their constituents’ rights under the Treaty of Waitangi (Fisheries Claims) Act of 1992, immediately began applying pressure to their Pakeha colleagues. References were made to the Seabed and Foreshore Act of 2004. With the party registering just 28 percent in the latest One News/Colmar brunton poll, Labour’s Maori Caucus wanted to know if it was intending to alienate their people’s electoral support all over again?

 

With typical haste, Labour succumbed to RLS. On 12 April, David Parker, Labour’s Environment spokesperson, and Kelvin Davis, its spokesperson for Maori Development, jointly issued a press statement declaring: “The lessons of foreshore and seabed must not be forgotten and the Crown should not by legislation run rough-shod over Māori interests.”

 

Exactly which Maori interests were being run roughshod over was not specified by Parker and Davis. That a number of “prominent Maori” (including Sir Tipene O’Regan and Dame Tariana Turia) had spoken out against the sanctuary was all that was needed for RLS to kick-in.

 

But, Parker and Davis were not the only people to issue a media release on this issue. The former leader of Mana Motuhake, and Alliance Cabinet Minister, Sandra Lee, had some very different thoughts to offer on Te Ohu Kaimoana’s attempt to prevent the establishment of the Kermadec Ocean Sanctuary.

 

“Te Ohu Kaimoana have a poor conservation record”, said Lee. “They openly supported illegal Japanese whale hunting in the United Nations Southern Ocean sanctuary when I was Minister [of Conservation] and probably still do. Perhaps they could focus their energy on helping our own unemployed rangatahi  [young people] to get on the water fishing their own quota instead.”

 

Certainly, Sir Tipene O’Regan’s response to Pakeha concerns about the fate of what he labelled “charismatic megafauna” [whales] could hardly be described as supportive.

 

The furore surrounding the Kermadec Ocean Sanctuary offers a powerful example of the political difficulties into which RLS can lead a progressive political party. Almost overnight, the significant benefits to the global environment represented by the Kermadec Ocean Sanctuary have been put at risk for no better reason than that a determinedly commercial entity like Te Ohu Kaimoana wishes to reserve the right to harvest the Kermadec fishery.

 

The Neo-Tribal Capitalist character of the forces pushing for the scrapping of the Kermadec Ocean Sanctuary has not been lost on Sandra Lee. Nor has the need for all the peoples of the Earth to challenge the right of commercial interests to plunder the planet’s living resources without let or hindrance. But Labour, rather than balancing carefully the respective claims of a vulnerable ocean eco-system, and a commercial Maori entity, has allowed its response to be dictated by RLS. They have rushed in like fools – and not in the defence of angels.

 

This essay was originally posted on The Daily Blog of Thursday, 14 April 2016.