The 9th floor – Jim Bolger

In the third The 9th Floor interview Jim Bolger is headlined as ‘the negotiator’ but is stirring things up on ‘neo-liberalism’ and race relations.

RNZ: The Negotiator – Jim Bolger: Prime Minister 1990-97

I think Jim Bolger might be about to spark a debate. Two debates actually. One on our economic settings and the other on race relations.

On neo-liberalism:

He says neo-liberalism has failed and suggests unions should have a stronger voice.

“They have failed to produce economic growth and what growth there has been has gone to the few at the top,” Bolger says, not of his own policies specifically but of neoliberalism the world over. He laments the levels of inequality and concludes “that model needs to change.”

So should we scrap neoliberalism?

Or fix what’s wrong and leave what is generally working ok?

On race relations:

He says Treaty of Waitangi settlements may not be full and final and that Maori language tuition should be compulsory in primary schools.

Indeed Bolger is at his most passionate speaking about Maori issues. He has a visceral hatred of racism and explains the personal context for that.

We asked him whether future generations will open up Treaty settlements again – given Maori got a fraction of what was lost – or whether they are genuinely full and final. He says it is a “legitimate” question and “entirely up to us”.

If Maori are still at the bottom of the heap “then you can expect someone to ask the question again because it means that society has failed”.

He is also scathing of former National leader Don Brash’s Orewa speech on ‘Maori privilege’. “It wasn’t anywhere near as bad as Trump but it was in that frame.” Of course Don Brash never made it to PM, replaced by John Key in 2006. ‘Gone by lunchtime,’ was the political phrase popular at the time.

Bolger also says it’s time to give power back to unions.

Being a more recent Prime Minister makes the issues he raises more pertinent to today’s debates.

Te Tira Whakaemi o Te Wairoa setlement

It’s good to see that a Treaty settlement between Te Tira Whakaemi o Te Wairoa and the Crown has been reached.

Newshub: Government signs $100m treaty settlement

The government has apologised to Wairoa iwi and hapū at the signing of a $100 million Treaty of Waitangi settlement.

Following a ceremony between the Crown and Te Tira Whakaemi o Te Wairoa at Tākitimu Marae in Hawke’s Bay on Saturday, Treaty Negotiations Minister Chris Finlayson said the settlement provided for a stronger cultural and economic future.

The settlement provides an acknowledgement, apology and reparation for the Crown’s historical breaches of the Treaty.

“The historical grievances of Te Wairoa iwi and hapū relate to the loss of the vast majority of their rohe, intense military campaigns and socio-economic depravation, the effects of which can still be seen today,” Mr Finlayson said.

The settlement – the fifth largest ever in financial terms – covers seven cluster groups of iwi and hapū in northern Hawke’s Bay, southern Gisborne, the town of Wairoa, Lake Waikaremoana and the Mahia peninsula. It covers more than 30,000 people.

It includes the assets of the Wharerata and Patunamu Forests, a number of Department of Conservation sites, and a social and economic revitalisation strategy in partnership with government agencies.

“This settlement has received overwhelming support from the claimant community. It will benefit the iwi and hapu of Te Rohe o Te Wairoa as well as the wider Wairoa region,” Mr Finlayson said.

Finlayson has done a lot to progress Treaty settlements, but this settlement has taken a long time.

From Te Tira Whakaemi o Te Wairoa website:

The progression of Treaty of Waitangi claims against the Crown has a long and significant history in Wairoa stretching back to the early 1980’s with the lodgement of initial claims across the Wairoa Inquiry District (the Waitangi Tribunal reference for the area between Tūranganui-a-Kiwa and Mōhaka). Many of our iwi and hapū tried unsuccessfully over the years to progress their Treaty of Waitangi claims, often being thwarted by changing Crown policies.

In response to this, a group of iwi and hapū with interests across the Wairoa Inquiry District came together at Rangiāhua Marae in 2002 to discuss how to work together to collectively resolve historical Treaty of Waitangi claims against the Crown.

Despite the fact that the Crown had (and continues to have) a policy of only negotiating with Large Natural Groupings (or LNGs), these iwi and hapū decided that our whakapapa and whanaungatanga, the kinship and family connections between us was a major asset in allowing us to work together to negotiate our historical claims with the Crown. This group of iwi and hapū were initially known as “The Wairoa Inquiry District Working Group” until it was renamed Te Tira Whakaemi o Te Wairoa, the name that stands today.

After coming together in 2002, we took three years to decide the best course of action to move our historical Treaty claims forward in consultation with our iwi and hapū. The outcome of three years of intense discussion was a decision to progress through direct negotiations with the Crown in seeking one comprehensive settlement for our historical grievances.

2005 then became a pivotal year for Te Tira Whakaemi o Te Wairoa where we began to formally interact with the Crown in setting the foundations for negotiations.

Sitting beside this was a firm commitment to our people in seeking their mandate to find a path to allow them to still have their stories told and recorded on the public record. This was a response to the fact that in deciding to proceed directly to negotiations with the Crown, we forfeited the right to hold a Waitangi Tribunal hearing.

Although the (milestones) and achievements made seem to have occurred over a long period, it is in fact quite typical of the Treaty settlement process whereby we have successfully navigated the checks and balances and stringent Crown requirements in between the milestones in moving through this process.

Written and unwritten constitutions

Debate over whether New Zealand should establish a written constitution continues, with Hamilton lawyer Thomas Gibbons having a say in NZ Herald: Written constitution unwanted and unwarranted

Sir Geoffrey Palmer and a fellow lawyer, Andrew Butler, have proposed a single written constitution, arguing that almost every other nation has a single written constitution, and – more importantly for these purposes – that such a document would be more accessible and enhance the public’s understanding of constitutional matters.

On this ground, the proposal is disingenuous. Even nations with an established single document called a “constitution” have a broader edifice of constitutional law. US constitutional scholars have come to talk of their own “unwritten” constitution.

They talk of a “thin” and a “thick” constitution: the latter being the full document, the former the part the public understands, which includes the Bill of Rights, and sometimes the Declaration of Independence, which is not part of the US constitution at all.

The reality of a written constitution:

Over the past 50 years, the US Supreme Court has invoked the US constitution in ruling on the legitimacy of abortion, the death penalty, affirmative action, political campaign donations, and various other matters.

They are not expressly covered by the constitution’s text. Rather, general constitutional provisions describing such matters of freedom of speech and cruel and unusual punishment are applied to specific situations. Constitutional questions are not resolved in an ether.

A constitution is a guide rather than a definition of everything.

If Palmer and Butler’s main goal is accessibility, and public understanding of the constitution, they could as usefully advocate for more teaching of civics in schools (something Palmer has suggested elsewhere, in law review articles), they could disseminate media on constitutional issues (something Palmer has done elsewhere, via National Radio), or they could publish a new book.

They have just published a book on establishing a written constitution, which has prompted this debate.

What they don’t need to do is promote a New Zealand Constitution in the sense of a single written document of four, 40, or 400 pages.

The can do that if they like. Promoting discussion on important issues is useful.

It won’t make our constitutional law more accessible. It might even expand the unwritten constitution, through cases interpreting this new document.

Some of us quite like a system that means issues like abortion, the death penalty, affirmative action, political campaign donations, and yes, even gun rights, can be decided by an elected Parliament, not unelected judges.

Elected Members of parliament versus unelected judges is an important point, probably the most critical consideration.

There is a lot of contentious debate in the US about the appointment of Supreme Court judges who get to decide on issues of major importance to the country.

The irony is that in suggesting something that is unwanted and unwarranted, Palmer and Butler are drawing public attention to the benefits of our current constitutional arrangements.

They have drawn attention to the options, which is a good thing in an open democracy.

Our current constitutional arrangements aren’t ideal, especially for a supposedly independent nation still linked to the monarchy of another country. But despite it’s imperfections it works fairly well.

It will be difficult to get popular support for a change to a written constitution. We couldn’t even engage in a sensible and civil debate over a flag change.

The Treaty of Waitangi and a New Zealand constitution would have to be inextricably linked.

I think avoidance of that debate along with apathy will mean nothing much will change constitution-wise in the foreseeable future.

“New Zealand doesn’t need a written constitution”

Dr Noel Cox, a barrister in Auckland, previously professor of law at Auckland University of Technology and more recently at Aberystwyth University in the UK, writes about Geoffrey Palmer’s campaign for a New Zealand constitution.

NZH: Noel Cox: New Zealand doesn’t need a written constitution

Former Prime Minister Sir Geoffrey Palmer is promoting a written constitution for New Zealand, arguing it is necessary because the current constitution is not readily accessible to the non-specialist.

Two principal difficulties immediately come to mind. The first is the question of a written entrenched constitution (one changeable only by a special process), and the second is the (not unrelated) issue of the Treaty of Waitangi.

Flexibility versus an entrenched constitution.

In the modern world New Zealand, together with the United Kingdom and Israel, are exceptional in not having a codified, usually entrenched, constitution. Unlike the United States, Canada and Australia – not coincidentally all federal systems – New Zealand cannot look to one single document embodying its constitution.

But, although the provisions of the Constitution Act 1986 are not entrenched, and major constitutional changes could legally be effected virtually overnight by a bare majority of the House of Representatives, the issue is not purely or even mainly the legal one of entrenchment.

The approach of the New Zealand constitution is one of flexibility. The written rules are underpinned by what are called conventions. These are rules of political practice which are regarded as binding by those to whom they apply.

Laws are enforceable by the courts, conventions are not. The major convention upon which the constitution is built is the constitutional principle known as the rule of law. This is based upon the practice of liberal democracies of the Western world. It means that what is done officially must be done in accordance with law.

In Europe, where an entrenched constitution is the touchstone for legitimacy of government, there might be a general grant of power to the executive, and a bill of rights to protect the individual. In the New Zealand tradition public bodies must point to a specific authority to act as they do.

Thus we rely upon numerous specific grants of authority to the various organs of government, a much more flexible approach.

Constitutions don’t prevent problems of governance.

An entrenched constitution is no guarantee of better government, nor necessarily an effective limitation on excessive legislative, executive (or judicial) independence. Those countries which suffer most from military coups, revolutions, putsches and similar upheavals normally have (ostensibly) entrenched codified written constitutions.

The Treaty of Waitangi is a key consideration.

A more important factor to consider, and one which might point the way to the adoption of a new theory of government (one in which entrenchment, should this be necessary or desirable, is possible) is the position of the Treaty of Waitangi.

The Treaty is now politically all but entrenched. It occupies an uncertain place in the constitution. Parliament has never doubted it had full authority despite the Treaty. There have been some signs this orthodoxy may be challenged, but it is difficult how this could be done in the absence of an entrenched constitution and a Supreme Court on the American model.

The Treaty is criticised a lot but is an important part of what modern New Zealand is.

Cox concludes:

As will be seen from this cursory examination of two issues, any serious revision of the constitution risks rapidly becoming an unmanageable exercise. Although the general public may not be overly concerned with esoteric concepts of constitutional theory – public involvement with the reviews of 2004 and 2013 highlighted this – any reform must first seriously consider the theoretical basis of our legal and political system. This is especially important in view of Māori claims for sovereignty.

It might be worthwhile looking at solutions within the existing structures, rather than to call for the codification and entrenchment of the constitution.

Unless they are prepared to wrestle with large issues, most contentious of which is the Treaty of Waitangi, or entrenchment, proponents of constitutional reform should tread wearily.

If it ain’t broke why try to fix it?

New Zealand functions relatively well under the current constitutional laws and conventions.

A Burr under the Green saddle

Lloyd Burr at Newshub echoes and highlights the hypocrisy of the Green Party over their apparently unconditional support of the Kermadec Ocean Sanctuary  at the expense of Māori treaty rights, something the Greens normally promote as sacrosanct.

Newshub: Greens have turned back on Treaty

By unconditionally supporting the Kermadec ocean sanctuary proposal, the Green Party is turning its back on the Treaty of Waitangi and its own Te Tiriti policy.

The Greens have always been a strong voice on Treaty issues and like to publicise that fact.

But its current support of the Kermadec legislation, which walks all over Māori rights, is a slap in the face for all its past rhetoric.

In fact, it’s hypocritical.

Burr details a number of issues where the Greens put a lot of importance on Te Tiriti.

  • The water rights debate during the asset sales saga? The Greens said “the Key Government’s rush to sell assets does not justify it ignoring its Treaty obligations”.
  • The  private members bill that would stop Māori land confiscations under the Public Works Act? The bill will “stop any more unfair confiscations of what is left of whenua Māori”.
  • Co-leader Metiria Turei’s Ratana speech a few years ago about how proud she was of the Green Party’s Māori policies? “We in the Green Party deeply believe in the benefits of honouring the Treaty,” she said.
  • The Greens saying it opposed the Trans-Pacific Partnership because “the damage it could do to Māori rights and the Māori economy”.

But the Greens, plus organisations closely associated with the Greens like Greenpeace – Māori versus the environmental lobby – see the Kermadec sanctuary as important enough to ignore rights negotiated by Māori under the Treaty.

The saga must be a kick in the guts for Green MP Marama Davidson who has been such a champion on Māori issues.

It must be a hard pill for her to swallow.

Where does co-leader Metiria Turei fit in to this? She makes a big deal about the importance of Māori issues. When it suits her.

A constitution for Aotearoa New Zealand?

Establishing a constitution, no longer having the Queen as the head of state, locking in a four-year election cycle, and enshrining the Treaty of Waitangi are all proposed in book by Sir Geoffrey Palmer and  Andrew Butler that will be launched next week.

There is already a website set up: A CONSTITUTION FOR AOTEAROA NEW ZEALAND

Our proposal: a modern constitution that is easy to understand, reflects New Zealand’s identity and nationhood, protects rights and liberties, and prevents governments from abusing power.

NZH: Do we need a Queen anymore?

The short answer to that headline is no we don’t need a queen from the other side of the world who never comes here any more. The key questions are:

  • When will a majority of New Zealanders not want our country to be a monarchy?
  • When will our politicians give us the opportunity to become an independent country?

But the book is about a lot more than that. It aims to start ‘a conversation’ about important issues regarding the future of New Zealand.

Along with fellow lawyer Andrew Butler, Palmeris about to release A Constitution for Aotearoa New Zealand, a book that explains – in a surprisingly easy to understand manner – why New Zealand needs a written constitution and what a first draft of that constitution entails.

It has what some would call emotive elements – ditching the Queen as the head of state, locking in a four-year election cycle, enshrining the Treaty of Waitangi – but at its heart is a fierce commitment to both protecting the rights of all New Zealanders and ensuring we all, politicians especially, know and understand the rules by which we run this little club called New Zealand.

Constitution Aotearoa might sound eye-rollingly dry but the fact is New Zealand’s current constitution is, frankly, a mess

Because we have not had any major issues with being tied to the British monarchy and with not having a constitution politicians and many people have preferred to defer to the status quo.

Some people strongly believe in the monarchy being attached to New Zealand, others see that doing nothing is the easiest or cheapest option.

“In a democracy you ought to know what your rights and responsibilities are and you ought to know how the system of government works, you ought to know what the rules are,” Palmer says. “In New Zealand you can’t find out because the constitution is all over the place, it’s inaccessible.

“What you want is a document that sets out who the head of state is and what the head of state does, what the Parliament is, how it’s elected and what it can do and what the judiciary can do.

Sounds like a sensible tidy up but it is likely to be highly contentious.

Bizarrely, New Zealand is one of the few countries in the world (alongside Britain and Israel) that doesn’t have a written constitution. The fact we don’t have a clear set of rules to follow, or any of the checks and balances inherent in a written constitution, means our politicians can do whatever they like as long as they get a majority in the house.

Great Britain at least has the House of Lords to act as a checkpoint for legislation while Israel has 11 basic laws that set out how the country should be governed.

Without those rudimentary measures, New Zealand is open to a worst case scenario where one powerful person could influence Cabinet, which in turn controls Parliament, which enacts laws the courts cannot overturn … if you think it sounds like a dictatorship you’re not far wrong.

Those who call John Key a dictator will feel vindicated.

The potential for that dictatorship has been muted by MMP but “New Zealand is still very friendly to executive power”, Palmer says, meaning Cabinet can turn anything it fancies into law.

“There are considerable dangers in that,” he adds. “Parliament can easily be dominated by the governing party, and Parliament will do what the governing party wants. The system we call parliamentary sovereignty, which means Parliament can do whatever it wants, becomes, in New Zealand, that the executive [Cabinet] can do whatever it likes.”

Most of our Cabinets have been reasonably responsible, but many will remember Rob Muldoon’s increasingly messy attempts to mould the economy and country by his dictat – the country ended up teetering on the brink of going broke.

And some on the left still wail about the reforms of Roger Douglas and the Lange led Labour government that supposedly imposed a neo-liberal disaster.

Head of State

Palmer believes it’s inevitable New Zealand will become a republic – in fact, he argues that we are already a “de facto” republic in as much as the Queen doesn’t exercise any power here. What power she does have, the so-called royal prerogative, is described as “shadowy”, “murky” and so poorly defined it may as well be abolished.

Palmer rules out an elected president, saying it’s too contrary to our national personality and character. He rules out the Prime Minister taking on the largely ceremonial role as he or she is overburdened as it is.

In the end, Constitution Aotearoa lands on an updated variant of the Governor-General, appointed by Parliament for a term of five years. A public vote on the Head of State is rejected for the simple reason there would be no power invested in the role. Plus, he adds, if the public voted for a head of state it risks becoming a political process.

The Royal Family, as a result, would remain “popular celebrities” and New Zealand could send a message to the world – and to ourselves – that we are a mature and independent nation, but one that stays within the Commonwealth, maintaining our historical links to Britain.

I agree that a powerless figurehead should be appointed by Government rather than voted on.

I shudder to think how bad the bitching would become if we had a chance to vote for John Key or Helen Clark as head of state, the petty bitterness against both is entrenched.

Treaty of Waitangi

Constitution Aotearoa has the Treaty of Waitangi unambiguously at its heart. In fact, Palmer, argues, it is effectively New Zealand’s first constitutional document and the Government’s “moral and political claim to democratic legitimacy rests of the Treaty”.

By its nature as a founding document and in the way it is now interwoven in modern society, the Treaty is integral to New Zealand’s current (unwritten) constitution. But like that complex and confusing constitution in the clouds, the Treaty itself is shrouded in uncertainty and “jagged legal recognition”. In other words, it has no independent legal status.

Palmer wants to give the Treaty “clear and certain” status.

A Supreme Court, acting under the new constitution, would also bring thoughtful analysis of how the Treaty works in modern New Zealand, ending the current “ungainly, unclear and untidy” legal treatment of the Treaty.

How we treat the  Treaty is also certain to be highly contentious but the reality is we have the Treaty of Waitangi and need to work out how to deal with it sensibly and fairly.

Constitution Aotearoa will officially be released at Parliament on Wednesday and has a complementary website where Kiwis can make submissions. Palmer says the book and website should be seen as the “start of a conversation”.

Once the submissions have been taken, he and Butler will write a revised version. After that it would be up to government to take hold of the issue. Palmer’s hope is that within five years New Zealanders will be voting in a referendum on whether to adopt Constitution Aotearoa.

“New Zealand is relatively well governed compared with a lot of countries but it could be a lot better.”

A Constitution for Aotearoa New Zealand, by Geoffrey Palmer and Andrew Butler, Victoria University Press. Available September 21. $25.

www.constitutionaotearoa.org.nz

The proposed Constitution: the full text

I’d like Your NZ to be a part of the conversation. Whether we end up changing anything or not we should seriously talk about it.

Greens, Kermadec sanctuary, Treaty of Waitangi

When the Government announced the Kermadec ocean sanctuary the Greens applauded it.

But the Greens are usually also staunch about Treaty of Waitangi issues, and so far they appear to be virtually silent over the Maori protest about the lack of consultation over the sanctuary and the scrapping of fishing quota given as part of a Treaty agreement.

Greens applaud great start by Government over Kermadecs

The Green Party is excited by the news that the Government is creating an ocean sanctuary at the Kermadecs and hope that more is to come.

“We’re delighted the Government has picked up the Kermadec ocean sanctuary concept that has been in a Green private member’s Bill drafted by Gareth Hughes several years ago,” said Green Party environment spokesperson Eugenie Sage.

“The Green Party has plenty of other great initiatives and ideas and we’re more than happy to work with any party to get the best outcome for New Zealand and its people.

Last month in parliament Sage pushed for more sanctuaries:

Eugenie Sage questions the Minister for the Environment about deep sea marine protection

Eugenie Sage: Given the widespread support for the Kermadec Ocean Sanctuary, is he really convinced that his new marine protected areas legislation cannot provide a simple process to create new marine protected areas in the exclusive economic zone, which comprises 94 percent of our ocean environment?

Two weeks later…

Eugenie Sage speaks on the Kermadec Ocean Sanctuary Bill first reading

The Green Party is very pleased to be supporting the Kermadec Ocean Sanctuary Bill, establishing a new marine reserve in New Zealand’s exclusive economic zone around the Kermadec Islands. We have had a member’s bill in the ballot, prepared by Gareth Hughes, for some time, to establish a marine protected area at the Kermadecs. We congratulated the Government when it announced its intention to create this ocean sanctuary at the United Nations in the run-up to an international oceans conference last year.

We are very pleased to support the bill.

Sage went on to praise the bill and the sanctuary, but did raise a concern about the lack of “engagement with Māori interests prior to it being announced”.

There was one concern: the departmental disclosure statement did note that because of the secrecy around the project, there was not engagement with Māori interests prior to it being announced.

That was disappointing, but we note that there has been extensive consultation with Ngāti Kurī and Te Aupōuri subsequently.

Te Ohu Kaimoana has raised a concern about the potential impact on fishing rights allocated to iwi under the fisheries settlement, but I would note that there has been no fishing undertaken in the Kermadec region using the settlement quota in the past 10 years, so Te Ohu Kaimoana seems concerned about the potential fishing rights rather than the actual ones—and the biodiversity values far outweigh the fishing values.

So Sage expressed ‘disappointment’ that there was no Māori consultation but doesn’t refer to any Treaty of Waitangi commitments, instead saying simply that that “the biodiversity values far outweigh the fishing values”.

What about the importance of a fishery quota agreement made with the Government?

Yesterday six prominent Maori leaders slammed the decision to create the sanctuary, saying they weren’t consulted and it takes fishery quotas off them that they were given in a Treaty of Waitangi agreement with the Government.

See Kermadec sanctuary and Treaty of Waitangi

So far Greens appear to have commented very little on this.I can’t see anything on their website in News or on their blog. Nothing on their Facebook page.

Leader Metiria Turei has a ‘Protect our deep oceans’ image prominent on her Facebook page but no mention of the Maori protest there.

Eugenie Sage did link to Māori leaders fight Kermadec sanctuary plans on her Facebook page yesterday, but added these comments:

Currently at Kermadec science symposium where speakers are outlining the many wonders of the Kermadecs. We need to keep parts of our oceans for nature, free from fishing, mining and drilling and other exploitation. Not sure how TOKM thinks that will be achieved without the law changes. Is TOKM saying that quota rights are absolute ?

TOKM refers to the Māori fisheries trust Te Ohu Kaimoana which filed a case against the sanctuary in the High Court in Wellington last month.

There has been a big public discussion about the value of protecting the last six years and as Harry Burchardt of Ngati Kuri said this morning, the establishment of a Kermadec Ocean Sanctuary and protection of Rangitahua, the stopping place is a decision equivalent to making Aotearoa nuclear free.

Greens are usually staunch about doing things properly when there’s any Treaty of Waitangi issue.

Except when there’s something that’s more important to them, like a marine sanctuary?

Kermadec sanctuary and Treaty of Waitangi

Prominent Maori leaders have criticised the creation of the Kermadec maritime sanctuary, saying that it was done without consultation and without proper regard to the Treaty of Waitangi.

This will reignite tensions between Maori and National, but also puts the Greens in a potentially tricky situation. They are usually staunch about any Treaty of Waitangi issues but welcomed the Kermadec sanctuary announcement.

NZ Herald reports: Maori blast sanctuary move

Six leaders of Maoridom – including three knights and two dames – have slammed the Government’s decision to create a huge ocean sanctuary around the Kermadec Islands without consultation on the Treaty settlement it affects.

Sir Tipene O’Regan was joined yesterday by Dame Tariana Turia, Sir Mark Solomon, Sir Toby Curtis, Dame Iritana Tawhiwhirangi and former Labour minister Koro Wetere (via video) at the headquarters of Te Ohu Kai Moana Trust, which is legally challenging the Government’s lack of consultation.

The Government made the decision in secret so that Prime Minister John Key could announce it at the United Nations in September last year.

Sir Tipene said the Government had been pressured by international lobby groups to set up the sanctuary.

“We’d like to see them … stand by the agreements which a previous National Government solemnly entered into.”

Agreements on fishery quotas given to Maori as party of a Treaty of Waitangi deal.

The deal gave the Maori Fisheries Commission 20 per cent of all quota and $150 million to be used to acquire part of Sealord.

The Government has introduced a bill that would extinguish the 840 million shares for quota stock in the Kermadec fishery management area without consultation or compensation – on the basis that Maori have not used their fishing rights there.

Sir Tipene and Te Ohu said whether or not they used them was not a reason to extinguish the right.

I think that’s a fair point.

If someone buys a piece of land and does nothing with it for a few years the Government has no right to just take it over and use it for something else, no matter how laudable the use.

“This unilateral action [is a] straight-out traducing of the indigenous right to development … we have been cut off before it can take place.”

Environment Minister Nick Smith said the group was “overstating the impacts in respect of fishery and Treaty settlement obligations and under-estimating the opportunities for economic and scientific gain”.

This may be an unpopular Maori protest. I think most people will see the  sanctuary as generally a good thing, and I suspect the Kermadec area was not a significant indigenous area, but I think there should have been appropriate consultation.

There is no argument that the Government’s proposed enlargement of the Kermadec Sanctuary cuts across aspects of the 1992 Treaty of Waitangi Fisheries settlement and does so without consultation. The only question is if it is justified.

Conservation zealots believe conservation trumps everything.

Others who have taken a close interest in Treaty settlements in the past 25 years are variously appalled, and gutted the Government could have made such a decision without reference to the affected party.

It looks like the sanctuary is a good idea but done badly by Nick Smith and the Government.

It could be that Maori end up supporting the sanctuary, but Smith seems to have stuffed up – again – and some serious repairing of damage needs to be done and seen to be done to sort this out.

Sanctuaries are important, but so is sticking to agreements made by Governments.

A written constitution?

Constitutional law expert (and former MP and Prime Minister) Sir Geoffrey Palmer has said that it is “time for New Zealand to draw up its own constitution and a 40-page document would be enough”.

Perhaps it is time to seriously consider a constitution but the 40 page suggestion seems a bit odd. A constitution should be as long as it needs to be.

Stuff: Time for a 40-page New Zealand constitution, says Sir Geoffrey Palmer

Palmer has long advocated greater attention to the country’s constitutional laws but said he had reached “a new plateau”.

In Nelson to address the Spirited Conversations group on this subject, he said he hadn’t before advocated a full written constitution.

The architect of the 1986 Constitution Act and the 1990 Bill of Rights Act, he said an entrenched bill of rights was no longer enough.

“I think you have to look at the basic institutions of government, define their powers and set them out.”

“It would have to be easy to understand. You don’t want it written in legal gobbledegook. It has to be an instrument that ordinary people can get to grips with.”

“The difficulty with our existing arrangements is that they are the the preserve of a constitutional elite who look at these things and understand them and argue about them, but no one else is involved.”

Palmer said the flag debate – he advocated change but didn’t like the new design on offer – showed how passionately New Zealanders cared about national identity.

“It is very interesting to me as a constitutional lawyer to see this quest for identity.

“If you want to know what sort of country you are, the first place you look is your constitution. We haven’t got one in that sense.”

If the flag debate leads on to a serious discussion about whether we have a constitution or not, and if we have one what it should cover, then it will have been a worthwhile exercise and worth the effort and the expense.

Palmer delivered this paper to the Māori Law Review in 2013:

Māori, the Treaty and the Constitution – Rt. Hon. Sir Geoffrey Palmer QC

Conclusion

These developments, and indeed later developments, have meant that substantial grievances of the Māori minority have a good chance of being handled in a principled fashion. 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. I remain of the opinion that the Treaty, like the Bill of Rights, should become part of New Zealand’s new superior law Constitution.

We now know a great deal about how the courts will go about the task of interpreting the Treaty, just as we know how the courts go about interpreting the Bill of Rights Act.

We have had more than twenty years’ experience of both. The Supreme Court decision on Mighty River Power in 2013 raised barely a ripple. We cannot go backward on these issues, but we need to summon up the political courage to go forward.

Edited text of an interview with Bill Moore prior to Palmer’s Nelson address:

What will you be talking about tonight?

Sir Geoffrey Palmer: The need to modernise New Zealand’s constitution. The first thing about the constitution is that we never discuss it,  and one of the reasons is that you can’t find it anywhere.

We’re very unusual in that respect, almost all countries in the world except three have a written, codified constitution. We don’t.

If we want to find the constitution, first you’ve got to look in New Zealand’s statute book. Then you’ve got to look at some ancient English statutes which are in force here.

Then you’ve got to look as well at very curious instructions to the Governor-General, because that is part of the constitutional structure, the Letters Patent.

Then you’ve got to look at a whole lot of court cases. Then you’ve got to look at a whole lot of commentary. It’s hardly surprising that we have a low level of civic virtue when we can’t find the constitution – and indeed neither can the specialist.

That means in substance that we have a political constitution. It evolves with events. Political events change the constitution. It has very insecure foundations.

We do have more of it written down than we used to, we have the Constitution Act of 1986, we have the New Zealand Bill of Rights Act 1990.  What I am saying is, we should write more of it down and we should therefore have some place where people can find out what the fundamental rules of Government are.

Then, when they can read it, you can use that as an instrument of educating people. New Zealanders have no idea what the constitutional arrangements of the country are.  They just don’t know.

So how can you have a useful, relevant discussion about the adequacy of your constitutional arrangements if no one knows what they are?

Now that is the fundamental point, and the fundamental argument that I make is that you should write it all down in one place.

One of the things that’s been so interesting in recent months has been the flag debate. What it has said to me is, New Zealanders are very interested in their own identity. They debated it with great passion. It is very interesting to me as a constitutional lawyer to see this quest for identity.

If you want to know what sort of country you are, the first place you look is your constitution. We haven’t got one in that sense.

Then you have to have a debate about what should be in it, then about how you would adopt it. That’s a long debate – but it seems to me that the flag debate has opened up these issues and that is to be encouraged.

I wish New Zealanders would think about these rules under which politics are conducted. They don’t. Most people see the government decision. They don’t really care how it was arrived at.

But the process of arriving at it, the rules of the game are very important, and we on the whole don’t know what they are.

How succinct could that document be?

Sir Geoffrey Palmer: I think 40 pages, I think it could be easily done in that space. It would have to be easy to understand.

A constitution has to belong to the people. We sort of don’t think that here, we think there’s them and us, the governed and the governors, we don’t quite get that this is a democratic government, it’s self-government by us, and that’s how a representative government should work.

Most countries get their constitutions through some sort of crisis.

We don’t have crises here – we’re a pretty well-governed country by international standards. It just could be better, and it would be much better if people understood where they stand in relation to the government. And they tend not to.

What would the fundamentals be?

You would have to set out what the powers of the Parliament are, and what the powers of executive government are. Often in New Zealand people think they’re the same thing. They’re not.

Then you’d have to set out what the powers of the judiciary are. Those are the three main branches of  government.

Then you’d have to set out what the powers of the head of state are.

Then you’d want to have the Bill of Rights in it.

How does the Treaty of Waitangi fit in? 

Sir Geoffrey Palmer: Well the treaty is, as Lord Cooke once said, the founding document of New Zealand. It actually makes government here legitimate, otherwise it’s a massive conversation.

So you have to give recognition to that. It’s a very controversial subject. When we extended the range of the Waitangi Tribunal back to 1840, I never got as many letters in politics on any subject as on that.

If the treaty means anything, it means that Maori have to be consulted. That’s the essential obligation of it.

 

 

More on Te Tiriti o Waitangi

A comment on Korero about Te Tiriti o Waitangi is worth a separate post, from TMG:

We may never know exactly what rangatira might have thought about kawana and what the attributes of kawanatanga might have meant in practice, but since rangatiratanga and kawanatanga were carried over from He Whakaputanga (the Maori text of the Declaration of Independence) we have a very good idea as to how the terms relate to each other by examining how they are used in the first two articles of that document.

I have enclosed the relevant key words in [brackets].

Article First

Ko matou, ko nga Tino Rangatira o nga iwi o Nu Tireni i raro mai o Hauraki kua oti nei te huihui i Waitangi i Tokerau i te ra 28 o Oketopa 1835, ka wakaputa i te [Rangatiratanga] o to matou wenua a ka meatia ka wakaputaia e matou he Wenua Rangatira, kia huaina, Ko te Wakaminenga o nga Hapu o Nu Tireni.

We, the hereditary chiefs and heads of the tribes of the Northern parts of New Zealand, being assembled at Waitangi in the Bay of Islands on this 28th day of October, 1835, declare the [Independence] of our country, which is hereby constituted and declared to be an Independent State, under the designation of the United Tribes of New Zealand.

Article Second

Ko te [Kingitanga] ko te [mana] i te wenua o te wakaminenga o Nu Tireni ka meatia nei kei nga Tino Rangatira anake i to matou huihuinga, a ka mea hoki e kore e tukua e matou te wakarite ture ki te tahi hunga ke atu, me te tahi [Kawanatanga] hoki kia meatia i te wenua o te wakawakarite ana ki te ritenga o o matou ture e meatia nei matou i to matou huihuinga.

All [sovereign power] and [authority] within the territories of the United Tribes of New Zealand is hereby declared to reside entirely and exclusively in the hereditary chiefs and heads of tribes in their collective capacity, who also declare that they will not permit any legislative authority separate from themselves in their collective capacity to exist, nor any [function of government] to be exercised within the said territories, unless by persons appointed by them, and acting under the authority of laws regularly enacted by them in Congress assembled.

Conclusion: However “function of government” may have been understood, it is undeniably a delegated authority, and a delegated authority is by definition a lesser form of control. Article second is absolutely clear about where sovereign power and authority reside in relation to this delegated authority.

In view of these relative meanings, the ‘confusion’ over the inherent contradiction between the first and second article of Te Tiriti which exists when it is read in relation to the corresponding English text treaty disappears when read in relation to He Whakaputanga. By the first article of Te Tiriti, the chiefs’ delegate some authority to the Crown, while retaining political independence and authority by the second article.

Te Tiriti does not cede sovereignty to the Crown; it reaffirms the original declaration of independent sovereign status and authority held by the chiefs and is effectively an extension of the provision of article two of He Whakaputanga in the exercise of public power.

– TMG