Undoing The State

Nation Building?: If a state is merely the institutional expression of territorial seizure, then the law is merely the state's way of justifying and entrenching the land-grab which gave it birth. By this reckoning, any State which recognises (let alone responds to) the claims of those who inhabited the territory prior to its seizure (viz The Marine & Coastal Area Bill) is committing an act of pure folly.

WHAT IS THE DEBATE over the foreshore and seabed really about? Is it simply an argument over who has the best claim to ownership (and, therefore, right-of-access) to New Zealand’s beaches? A dispute over the precise nature of "Customary Title" – driven by a dispossessed indigenous minority desperate to retain this last, vestigial margin of their patrimony? Or is it about something altogether more profound? Is the debate over the foreshore and seabed really about the nature of law, and the future of the state which enforces it?

Let’s not forget that this whole debate began when the Court of Appeal, overturning decades of what was believed to be "settled law", ruled that the customary rights of Maori to the resources of the foreshore and seabed had not been extinguished by the Crown. If those rights could be legally established, said the Court, full ownership of the designated land and resources could pass to the claimants.

The rest of the story is well known to us all, so let’s pause here and ask ourselves what, exactly, the Court of Appeal thought it was doing – or more accurately undoing.

A majority of the judges of the Court were clearly of the view that the New Zealand State was conceived in law and remains subordinate to legal principles and precedents. According to this view, the ownership rights of a country’s aboriginal inhabitants, if not formally and explicitly extinguished, remain in force.

But, as the excellent docudrama, Waitangi: What Really Happened, broadcast on Waitangi Day makes hilariously clear, New Zealand wasn’t conceived in anything except utter confusion. Such law as there was existed only where there was both the will and the means to enforce it. Hone Heke’s axe spoke eloquently and repeatedly on this subject.

Indeed, one could argue that the law – as a tangible and enforceable set of rules – only acquired a purposeful existence after the concrete foundations of the New Zealand State had already been laid.

That didn’t happen at Waitangi – or even at the inaugural meeting of the first New Zealand Parliament in 1854. New Zealand, in the sense of a related and co-ordinated set of institutions operating beyond the effective challenge of any other entity organised within the same territorial space, only came into existence when the settlers, assisted by several thousand imperial troops, invaded the lands and extinguished the authority of the Maori King.

That moment has been described by the legal historian, Professor Jock Brookfield, as "a revolutionary seizure of power" by the Settler State. Professor Brookfield’s description is consistent with the school of jurisprudence which holds that only when there is no other source of legitimate authority to challenge the means of its enforcement does law become real. In other words, law is a consequence – not a precondition – of state creation.

According to this view, the state is born out of what is essentially an act of territorial seizure: not to put too finer point upon it – a land grab. The whole state-building process being nothing more than an elaboration of the means required to hold onto and then manage the territory seized. The mechanisms we construct to do this are dignified by the name of "law". It is, however, dangerous to construe a legal system as anything other than the State’s creature. The law is only ever accidentally about justice. It’s always about politics.

Helen Clark understood all this very well. Her Foreshore & Seabed Act, which Maori quite accurately described as another raupatu – forcible seizure of territory - not only reiterated the "legitimacy precedes legality" formula for the benefit of the Court of Appeal, but also reaffirmed the brute historical reality that "New Zealand" was made by Pakeha, for Pakeha. If Maori were willing to become Pakeha, they could belong. If not – there’d be trouble.

I wonder if the Prime Minister fully appreciates what his Attorney General is undoing with the Marine & Coastal Area Bill – and how difficult it will be to refasten.

This essay was originally published in The Dominion Post, The Timaru Herald, The Taranaki Daily News, The Otago Daily Times and The Greymouth Star of Friday, 18 February 2010.

Now It's Time For Realism

Bernie Madoff in a Vee-Dub? There are times when good intentions simply aren't good enough. As the war poet, Siegfried Sassoon, wrote of another old man who cost people all they had: "'He's a cheery old card,' grunted Harry to Jack/As they slogged up to Arras with rifle and pack./But he did for them both by his plan of attack."

THE COLLAPSE of South Canterbury Finance (SCF) is just the latest in a long line of serious business failures. What’s different about the latest debacle is that, this time, it’s taxpayers who are picking up the tab.

More than $1.5 billion is being paid out to SCF investors – a sum greater than the entire amount set aside by the Government for new spending in the coming year.

The Finance Minister, Bill English, has been quick to reassure us:

"The up front cost to the Crown of repaying South Canterbury's depositors is about $1.6 billion, but we would expect to recover the bulk of that as the receiver sells the assets over time."

An expectation is not, of course, a guarantee. Time alone will tell whether Mr English’s sanguine response to SCF’s collapse is based on fact or folly.

Right now, however, it’s time to face the brutal fact that New Zealand’s business community has become this country’s biggest liability.

For the best part of thirty years business-people have been telling us that all they need to restore New Zealand’s prosperity is for the State to get out of the way and let them get on with the job.

Labour’s Roger Douglas and National’s Ruth Richardson took them at their word.

And even though it cost us of tens-of-thousands of well-paid jobs and scores of thriving communities, we stoically and selflessly "bit the bullet" of radical economic "reform".

By the time Rogernomics and Ruthanasia had run their course, New Zealanders had lost control of their finance sector, most of their news media, and much else besides. Valuable state assets, the product of more than a century of public investment, had been sold-off to foreigners for a song.

Undeterred, we kept on chewing the business community’s ammunition. Why? Because they’d successfully brainwashed us into believing that the "long-term gain" would, ultimately, be worth the "short-term pain".

Unfortunately, "ultimately" turned out to be a moveable feast.

And while we waited for that ultimate pay-day, things went from bad to worse. The 1987 Stockmarket Crash revealed not only that New Zealand’s business titans had feet of clay, but that some them were also just plain, old-fashioned crooks.

If we’d been smarter, we’d have realised back then, in the early 1990s, that the entire neoliberal project was one almighty scam: a weird sort of political Ponzi scheme in which the early converts reaped all the benefits, and the late-adopters paid all the bills.

And pay we did – with the Employment Contracts Act.

The ECA absolved the business community of all responsibility for learning the lessons of the excesses of the 1980s. Instead of upgrading their technology and upskilling their workforce, New Zealand’s businesses spent the 1990s stripping their staff of hard-won conditions and allowances and putting an end to penal rates.

By the turn of the century thousands of New Zealanders were living off their credit-cards just to make ends meet. Indeed, the whole New Zealand economy seemed to be adrift on a limitless ocean of debt. Like Tennessee William’s fragile heroine, Blanche DuBois, New Zealanders had become hopelessly dependent on "the kindness of strangers".

Also, like Blanche, they no longer wanted Realism – but Magic. And, as it has done so often in our history, this unwavering faith in the "unseen hand" of the market, and the superhuman powers of entrepreneurial capitalists, has led thousands to financial ruin.

"Kindness" and "Magic" are certainly the operative words in the tragic demise of Alan Hubbard’s empire. How else should we explain the quaint anachronism of a man who, in an age of instantaneous data and light-speed capital flows, was still willing to put his faith in the unwritten contract of a handshake; the reliability of a Canterbury cockey’s spoken word?

Now it’s time for realism.

From Vogel to Muldoon, the growth and development of New Zealand’s economy has not been driven by the daring visions and fluctuating fortunes of individual capitalists, but by the cautious intelligence and financial solidity of successive New Zealand governments.

Over and over again, throughout our history, we’ve had to learn this lesson. That we are too small to let big things fail. And that the only institution with both the collective resources and the collective wisdom to make big things succeed - is the New Zealand State.

Who else could have rescued SCF?

This essay was originally published in The Dominion-Post, The Timaru Herald, The Taranaki Daily News, The Otago Daily Times and The Greymouth Evening Star of Friday, 3 September 2010.

Coming Apart, Or Holding Together?

Ethnic Defection - Balkan Style: The fate of the former state of Yugoslavia offers a tragic rejoinder to all those New Zealanders (Maori and Pakeha) who see no dangers in posing the question: "Why not apart?"

IT WAS the NZ Political Review’s most unorthodox article. Written by Roger Openshaw, then a Senior Lecturer (now an Associate Professor) of Education at Massey University, "Why Not Apart?" was published in July 1992 and called for the deliberate, carefully managed, dissolution of New Zealand’s unitary state.

In Openshaw’s utopian scenario, an implausibly disinterested "interim" government would, "invite the tending of charters on behalf of any group or syndicate for the setting up of an independent successor state somewhere within the present boundaries of New Zealand." None of these "successor states" could have a population of less than 15,000, or more than 100,000, citizens.

I was never quite sure whether Openshaw was pulling the collective leg of NZPR’s readers, or whether he was offering them a serious constitutional alternative. All I would say now is: "Be careful what you wish for!"

Because until John Key rather belatedly slammed the door in the Tuhoe negotiators’ faces, Openshaw’s deconstructed New Zealand was on the point of becoming reality.

Those same negotiators expressed "surprise" at Key’s intervention in the Treaty settlement process. According to their spokespeople, Tuhoe and the Crown were only a few days away from announcing the return of the Urewera National Park to the Tuhoe "nation". The tribe’s negotiators were also confident of securing a large measure of mana motuhake – self-government – for Tuhoe.

As one of the very few tribes not to have signed the Treaty of Waitangi, the ultimate objective of Tuhoe leaders was to oversee the creation of an independent tribal polity alarmingly akin to Openshaw’s "successor state".

Well, I’m surprised they were surprised. How’s it possible that grown men and women, living in a sophisticated, unitary and democratic 21st Century state, could seriously entertain the notion that their Government was about to voluntarily surrender its sovereignty over 200,000 hectares of national territory?

They may say they were encouraged to hope for such an outcome by the Prime Minister, or the Treaty Negotiations Minister, Chris Finlayson, or both. But that only deepens the mystery. Regardless of what was said to them by the Crown’s negotiators, Tuhoe should have known enough about their Pakeha compatriots to realise that any decision to hand back the territory confiscated by Settler Governments during the 19th and 20th Centuries wouldn’t be allowed to stand.

The fate of Yugoslavia (still in the brutal process of unravelling at the time Openshaw wrote "Why Not Apart?") stands as a stark warning of what can happen (even to a federal state) when ethnic defection is permitted to gather momentum. No sooner had Slovenia been allowed to secede from Yugoslavia, than Croatia – emboldened by its neighbour’s success – followed suit. Serbia, intent upon protecting Serb interests in the defecting entities, mobilised its superior military resources. The Bosnian Muslims, caught geographically between Orthodox Serbs and Catholic Croats, had no option but to declare their own independence. The cost in terms of human suffering was immense.

But can anyone doubt that something very similar would have happened here, had the National-led Government’s Treaty negotiators not been reined in by the Prime Minister?

Had Tuhoe been granted mana motuhake, could Tuwharetoa (who, like Tuhoe, never signed the Treaty) have demanded anything less? And if self-government was granted to Tuhoe and Tuwharetoa, how long would it take Tainui to reassert its rights in the Waikato? Certainly no less time than it would take the largest Maori tribe, Ngapuhi, to reassert its rights across the whole of Northland.

In their current presentations to the Waitangi Tribunal, the Ngapuhi people are already advancing the argument that, because the Northern Chiefs never surrendered their sovereignty to the British Crown, the New Zealand State’s writ should no longer, strictly-speaking, be permitted to run in Ngapuhi territory.

If such challenges to the sovereignty of the New Zealand State are not forcefully refuted – and soon – life in New Zealand is destined to take a very decided turn for the worse.

Not that Pakeha should blame Maori for attempting to recover what was taken from them by force or fraud over the course of the past 170 years. On the contrary, they should ask themselves what they would do if a foreign power began buying-up their turangawaewae: farm by farm, mine by mine, business by business? Wouldn’t they resist?

Interestingly, Openshaw’s argument in "Why Not Apart?" is that the unitary state constructed by Pakeha New Zealanders since 1840 is simply not worth defending:

"[I]f we should indeed decide to dismantle our failing unitary state, we will be able to exploit the one considerable advantage New Zealand has over other countries; namely that there is no strong national culture. There is no genuine New Zealand nationalism nor is there any New Zealand people in the sense that there is a French people, an American people or even an Australian people."

This view is more common among the deracinated left-wing intellectuals of New Zealand academia that many of their compatriots may realise. And it is matched on the Right by the neoliberal conviction that the unstoppable processes of globalisation have made the nation-state a historical anachronism. In the current round of Treaty negotiations these two world-views have come together – with potentially disastrous results.

Because, as the Foreign Minister, Murray McCully, who reportedly led the charge in Cabinet against the signing away of the Urewera National Park, understands – there is a New Zealand people, and they do have a national culture, and they will not sit idly by while their country and their culture is casually dismembered and thoughtlessly destroyed.

The Prime Minister is to be congratulated for heeding the advice of his more experienced Cabinet colleagues. And his party was no doubt hugely relieved to hear him say: "there is no room for separatism in New Zealand".

Now all he has to do is convince his allies in the Maori Party that they have reached the outer limits of what is politically "workable".

For make no mistake, if New Zealand is Yugoslavia, then the Pakeha are the Serbs. And just as Yugoslavia was the historical achievement of the Serbs, New Zealand is the historical achievement of its settlers and their descendants who built it, and defended it, and who still, in spite of separatists and globalisers, love it.

Why not apart?

Because New Zealanders, Maori and Pakeha, only have a future – together.

This essay was originally published in The Independent of Thursday, 20 May 2010.