The weight of numbers (and opinions) on the bench in Roe v Wade is instructive when we consider the meaning of “treaty partnership”

The way in which judges can grant rights – or remove them – has been glaringly illuminated by the leaked draft opinion of the United States Supreme Court that strikes down Roe v Wade.

A spokesperson for the Abortion Law Reform Association of New Zealand said the ruling was a stark reminder that women’s rights – and reproductive rights more broadly – were “vulnerable to erosion”.

True.  Or, on another day in another court, those rights might be expanded.

Roe v Wade had been a landmark decision in 1973, when the US Supreme Court ruled that the Constitution of the United States protects a pregnant woman’s liberty to choose to have an abortion without excessive government restriction.

As Wikipedia notes, this decision struck down many US federal and state abortion laws and fuelled an ongoing abortion debate in the United States about whether or to what extent abortion should be legal, who should decide the legality of abortion, and what the role of moral and religious views in the political sphere should be.

Critics of the ruling also contended it was an example of judicial activism Continue reading “The weight of numbers (and opinions) on the bench in Roe v Wade is instructive when we consider the meaning of “treaty partnership””

Let’s recall how NZ was surprised by signing of indigenous rights declaration – and how Mahuta criticised the Key govt’s secrecy

Announcing the completion of the first stage of the two-step engagement process to develop “a Declaration Plan”, Willie Jackson acknowledged the work was being done through race-tinted glasses.

Almost 70 “targeted engagement workshops” had been held mainly online, the Minister for Māori Development said.

“Māori rōpū represented diverse groups ranging from iwi, hapū, tāngata whaikaha Māori (disability community) and rangatahi, to groups interested in health, education, and the environment.

“There were 12 key themes from the Māori targeted engagement covering areas such as rangatiratanga, participation in government, equity and fairness. It ran from Sept 2021 to Feb 2022 and some engagement is ongoing. You can read the full report and other resources here.”

The drafting of the Declaration Plan would now begin in partnership with the National Iwi Chairs Forum’s Pou Tikanga and the Human Rights Commission

“… before being shared for public consultation later this year”.

Under the Government’s discriminatory consultation timetable, and at long last…

“All New Zealanders will get the chance to comment on the range of actions proposed in the draft Declaration Plan.”

And so the leaders of one ethnic group representing 17 per cent of the population, have been enabled over several months to give the Government a wish list which now is being curated by officials before being presented for discussion by the whole population.  Continue reading “Let’s recall how NZ was surprised by signing of indigenous rights declaration – and how Mahuta criticised the Key govt’s secrecy”

Dr Bryce Edwards:  Rotorua’s voting proposals and the polarising issue for Parliament of co-governance

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Announcing completion of the the first stage of the two-step engagement process to develop “a Declaration Plan”, Maori Development Minister Willie Jackson today said valuable feedback had been received to help with drafting the plan on indigenous people’s rights over the next few weeks before it is taken out to wider consultation. 

As stated previously, he insisted, He Puapua is not the Declaration Plan, nor is it Government policy.  Furthermore, the Declaration Plan will not just be about co-governance, he said.

But this does not necessarily mean co-governance is being lowered in the government’s considerations.   In this article, DR BRYCE EDWARDS canvasses the debate the co-governance issue has engendered …

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Co-governance is currently the most polarising issue in New Zealand politics. There’s something of a culture war over the concept of giving Māori voters or leaders a mandated equal political influence in public affairs. It’s an issue that has the potential to be socially explosive as plans are being developed and debated for how far the co-governance concept should be introduced in different areas of public life.

The co-governance issue of the day is whether local government elections could be altered so voters on the Māori electoral roll have the power to elect exactly the same number of councillors as those on the general role. The council in question is the Rotorua District Council, which has asked Parliament to give it legislative permission to introduce a new system for this year’s elections, allowing voters on the Māori and general rolls to elect three councillors each.

Critics point out that there are 22,000 voters on the Māori roll in Rotorua and 56,000 voters on the general roll, and that means voters on the Māori roll will have 2.5 times the electoral power as voters on the general roll. Continue reading “Dr Bryce Edwards:  Rotorua’s voting proposals and the polarising issue for Parliament of co-governance”

The co-governance debate – why Singapore would eschew such a model (and look how well the people of that nation are doing)

Peter Dunne, who was leader of United Future and served as a minister in former National and Labour governments, is right to remind us that “co-governance” is not a new idea, It has been at the heart of many of the successful treaty settlements of the past 30 years, he points out in an article posted on Newsroom.

“In the specific instances where it has been applied, it has generally worked well.”

A recent Stuff headline echoed this:  How co-governance is already working

The accompanying article began:

Co-governance is back in the headlines. Glenn McConnell looks at what it means and how it’s already working.

McConnell began by recalling the passage of the Waikato River Settlement Act in 2010 which (a) called for government funding to clean up the Waikato River and (b) established a co-governance board to manage the river’s restoration.

The resultant Waikato River Authority is governed by 10 board members – five appointed by the Crown, the other five from Waikato tribes.  Continue reading “The co-governance debate – why Singapore would eschew such a model (and look how well the people of that nation are doing)”

UK newspaper raises questions (of particular concern to NZ) about the future of the Commonwealth

How  long  will  the  Commonwealth   survive?  It’s  a  question  that  hasn’t  aroused  much  attention   in New Zealand, but  –  along with the  whole  relationship with  the  monarchy – it could  become a major issue.

Commonwealth membership and the role of the monarch have  a  special  importance  for  this country,  because the   Crown  is  at the  centre  of  this  country’s  constitutional arrangements.

So we can’t say we haven‘t  been warned when  the headline on a feature in The Guardian in  London asks:

After that disastrous royal tour, is the sun finally setting on the Commonwealth realms?

The  issue  could become  of greater  significance  as  the  debate  over  “co-governance”  broadens.

The  Guardian article is  written   by Moya Lothian-McLean, who  presents Human  Resources, a podcast  about Britain’s slaving  history. Continue reading “UK newspaper raises questions (of particular concern to NZ) about the future of the Commonwealth”

The PM urges sophistication in our thinking about democracy – to make it gel with co-governance (and unelected councillors)

Jacnd and Maori

Prime Minister Jacinda Ardern – answering questions in Parliament on Tuesday – ominously reinforced impressions she believes the Treaty of Waitangi entitles some New Zealanders to more political rights than others.

The entitlement of tribal leaders to appoint their own representatives to local authorities rather than stand for election, for example.

She was asked if she stood by her statement at Waitangi in 2019 that “Equality is our foundation”, and, if so, did she believe that our constitutional foundation should be equal political rights for all New Zealanders?

As Hansard records, she opted to address only part of the question:

Rt Hon JACINDA ARDERN: In answer to the first part of the question, yes.

The questions were asked by ACT leader David Seymour, who has  called for a public referendum on co-governance decision-making arrangements between Māori and the Crown.

In a speech to the Milford Rotary Club last week, he cited He Puapua, Three Waters and the Māori Health Authority as examples of co-governance principles being wrongly applied.

Presumably he hoped his questions in Parliament would flush out Ardern’s thinking on democracy, co-governance, the Treaty of Waitangi and so on. Continue reading “The PM urges sophistication in our thinking about democracy – to make it gel with co-governance (and unelected councillors)”

ACT makes commitment to a referendum on co-governance – but maybe it was too late for the capital’s morning newspaper

The Stuff team didn’t bring out the big headline type to report on a party political commitment of profound importance to anyone who cares about how and by whom we are governed. That – of course – should be everyone.

Stuff didn’t mention this commitment in the Dominion-Post (flagship of the Stuff fleet) – at least, Point of Order failed to find an account of it in our copy this morning, but maybe it was tucked away somewhere between some ads.  Or maybe the press release around 7:09 last night was too late.

An online Stuff report did report it but its headline brought the Maori Party’s highly predictable response into the reckoning:  New ACT Party policy branded ‘divisive’ and ‘bigoted’ by Māori Party

The online report opened:

A new ACT Party policy calling for “a referendum on co-governance” has been branded “divisive”, “bigoted” and “appealing to racists” by the Māori Party.

Thus the emphasis was heaped not on ACT’s announcement of a commitment to strengthening our democracy and to enabling voters to determine how we are governed.

Stuff opted, rather, to highlight the hostile position of a party whose leadership does not enthusiastically champion democracy.  

According to Newshub, Maori Party co-leader Rawiri Waititi has declared:

“We need to start looking at how Maori can participate more equally and equitably in that particular space in a tiriti-centric Aotearoa. Not in a democracy, because… democracy is majority rules, and indigenous peoples – especially Maori at 16 percent of the population in this country – will lose out, and we’ll sit in second-place again.” Continue reading “ACT makes commitment to a referendum on co-governance – but maybe it was too late for the capital’s morning newspaper”

The limits of compassion are clearer at a distance

As the PM’s staff start drafting her Harvard commencement address, they might want to allow for a more critical reception from the overseas media than say 18 months earlier.   The questions are getting more pointed.

Douglas Murray, writing in London’s Daily Telegraph for example, comparing the paths taken by Jacinda Ardern and Justin Trudeau, asks:

Who knew that empathy wasn’t enough?”

And follows with:

Continue reading “The limits of compassion are clearer at a distance”

Democracy or partnership? A critical issue revisited

Guest post by Barrie Saunders

Last year I posted an article about democracy or partnership and asked which of the two do we want – because we can’t have both.

Since then, the partnership and co-governance concepts have gained legs with the Three Waters proposals and the twin health authorities.  In addition, at local government level in the same vein, we have seen non-elected appointees given voting rights on council committees.

PM Jacinda Ardern uses the “partnership” term frequently and in a TVNZ interview with Jack Tame, National Leader Christopher Luxon also equated the Treaty with partnership.

When starting a journey, it is useful to know where it will end;  otherwise one can end up in an uncomfortable zone, from which retreat is difficult.  Somehow, I suspect few political leaders, other than the Maori Party and ACT, have really thought through the partnership concept, and we are heading for a rough time, unless there is a course correction.

Continue reading “Democracy or partnership? A critical issue revisited”

Protecting our precious democracy: professors tutor PM on governance (and how “Treaty partnership” has been misinterpreted)

Dame Anne Salmond, a Distinguished Professor in anthropology at the University of Auckland and 2013 New Zealander of the Year, had good advice for the Ardern government in an article on the Three Waters plan and The Treaty.

She was writing about the comprehensive Three Waters reform and the manner in which it is being imposed on local authorities, making nonsense of any notion they and the citizenry are being consulted.

This must be an opportunity for listening, not for a government imposing its view of water as ‘assets’, she urged in an article which concluded:

“In dealing with the Three Waters debate, the Sixth Labour Government should learn from the mistakes of the Fourth, and not try to operate by executive fiat.

“Democracy is too precious to be set aside, even by those with the best of intentions; and waterways are not ‘assets,’ but the lifeblood of the land.”

A fellow academic, Elizabeth Rata, has expressed concerns, too, about governance and the country’s constitution in an article  for The Democracy Project.  

Professor Rata, a sociologist of education in the School of Critical Studies, Faculty of Education and Social Work at the University of Auckland and Director of the Knowledge in Education Research Unit, wrote that the debate triggered by the He Puapua report showed New Zealanders are at a constitutionally critical crossroads.

“We will have to decide whether we want our future to be that of an ethno-nationalist state or a democratic-nationalist one.”

Ethno-nationalism (Rata explained) is based on racial classification and the belief that our fundamental identity – personal, social and political – is rooted in our ancestry.

Under that system the past determines the future. Identity, too, is fixed in that past.

Democratic-nationalism has one political category – that of citizenship – justified by the shared belief in a universal human identity. 

Then  we found Graham Adams, a journalist, columnist and reviewer who writes for The Democracy Project and for this blog, was advising the PM and her government against edging the country towards ethno-nationalism.  

 As voters become more aware of the stealthy implementation of a Māori separatist agenda, he contends, the political risks for the government will rise sharply.

He is supposing – of course – that she can’t move fast enough to replace our democracy with Treaty-based constitutional and governance arrangements before the next general election. 

But a year ago she mentioned her aim for “foundational change” which Adams argues is being effected through the steady remaking of the nation’s constitutional arrangements via a radical interpretation of the Treaty as a 50:50 partnership.

The two professors have pertinent points to make about this partnership.

Salmond says the logic underpinning ‘Three Waters’ seems to hark back to the 1980s, when both central government and the courts ran roughshod over democratic conventions.

“From 1984 onward, inspired by neo-liberal ideology, the Fourth Labour Government radically restructured key institutions – government departments, schools, universities, crown research institutes, hospitals and the like – as businesses run along corporate lines, rather than as public services.

“In the 1987 ‘Lands’ case, provoked by the creation of ‘State Owned Enterprises’ and a debate over the ownership of ‘assets,’ the Court of Appeal effectively rewrote Te Tiriti. Setting aside the original text, the judges ruled that Te Tiriti established a ‘partnership between two races’ based on ‘fiduciary’ principles, not unlike a business partnership.

“The logic of Three Waters governance seems to arise from this neo-liberal rewriting of Te Tiriti, rather than the original agreement itself. In Te Tiriti, there is no mention of ‘races,’ or ‘partnership,’ or ‘fiduciary principles.’ It speaks of taonga, not ‘assets.’

“The text of Te Tiriti describes a network of relationships among Queen Victoria, the Governor, the rangatira, the hapū and ordinary people based on chiefly gift exchange, and a promise of absolute equality between settlers and maori (which meant ‘ordinary,’ at that time) and their tikanga.”

Salmond insists the 1980s rewriting of Te Tiriti is overdue for critical examination

“… and this time it should involve all parties to the original agreement, including ordinary citizens, both Māori and non-Māori.

“Open debate is the key to good governance, on the marae as in a healthy democracy.”

Rata draws attention to the pace of the politicisation of ethnicity and to the He Puapua report’s championing of ethno-nationalism. She asks:

“Why has this racial ideology become so accepted in a nation which prides itself on identifying and rejecting racism?”

In answering that question, she brings the role played by a politically potent judiciary into the picture:

“Apart from the success of culturalist intellectuals in muddying the waters between inclusive and exclusive biculturalism, activist judges have played a significant role.  New Zealand’s democratic system is based on political decisions made by elected representatives who are accountable to the people.

“The judiciary is required to interpret laws made by politicians. However, the Court of Appeal’s 1987 reference to the Treaty of Waitangi as ‘akin to a partnership’ set in motion the development of principles for such a partnership and for their inclusion in legislation.

“From this time, judicial activism in Treaty matters has influenced political decisions.”

Rata notes that  the He Puapua report unquestioningly accepts and promotes an activist role for the judiciary.

“Its writers  suggest that the co-governance structure would require a Tiriti body or court to regulate jurisdictional boundaries between the respective governance entities’.”

 Adams’ focus is on the co-governance arrangements that increasingly flow from the Ardern government’s pernicious promotion of the dogma of “partnership”. 

He seems confident there are limits to how far the government can go with its programme of foundational change.  

“Unfortunately for those pushing determinedly but quietly for Māori co-governance to be established in many spheres of New Zealand’s national life — including in the conservation estate, local government, the health and education sectors, water infrastructure, and the Resource Management Act — the headwinds are getting stronger and heavier.”

Adams cites opposition to the iwi roadblocks in Northland fronted by former MP Hone Harawira (made legal by a late change to Covid legislation) and to Three Waters (so vociferous that Local Government Minister Nanaia Mahuta has delayed introducing the enabling legislation from December to the end of March to give her time to soothe the anger of voters and councils).

He then brings the science controversy into considerations – the debate triggered by proposals to give matauranga Māori equal status with physics, biology and chemistry in the NCEA science syllabus – and explains: 

“What voters have not been told clearly is that these three seemingly unrelated events — road blocks (as an expression of rangatiratanga over traditional territories); iwi co-governance in Three Waters; and giving matauranga Māori parity with science in the education system — are all part of an overarching programme to implement a radical view of the Treaty.

“Call it a strange coincidence if you like but all three were foreshadowed clearly in the revolutionary document He Puapua that was presented to Nanaia Mahuta in November 2019 but kept from the public (and Winston Peters as Deputy Prime Minister) until after the 2020 election.”

Adams recognises that most voters are unaware the co-governance model outlined in that revolutionary document is being steadily implemented in a wide array of domains.

But he senses voters are starting to have their suspicions – alerted, for example, by the revelation in November that Cabinet had agreed in July that Three Waters would be compulsory.

“Now it is clear that opting out of a programme that would transfer ratepayers’ assets to four regional entities — and share governance equally with iwi — had never been a real possibility since at least July.”

Moreover, Health Minister Andrew Little is pushing ahead with the overhaul of our health system at a cost of $486 million, in the middle of a pandemic, when our hospitals are short of ICU beds and the nurses to staff them.

An integral part of the reforms will be setting up a Māori Health Authority as an independent statutory entity (an idea recommended in He Puapua). This will enable the Maori representatives of 16 per cent of the population to wrangle on an equal footing with Health New Zealand, which will represent the other 84 per cent of citizens, and with the right to refuse to agree to any proposal.

Adams concludes with observations that echo Rata’s concerns about the country’s being edged towards ethno-nationalism:

“As opposition to Three Waters continues to flare, the question of whether the public wants to venture further down the path towards an ethno-nationalist state or fight to retain a democratic-nationalist one is set to inflame political passions and debate this year.

 “Ardern may decide she can ride out the storm by jettisoning some of the separatist agenda. However, whether such a tactical retreat would now steady the ship of state is an open question.

“There is a real and growing risk that this year even bigger waves of opposition to Ardern’s co-governance agenda will swamp her administration and she will be swept overboard at 2023’s election.”

Democrats will hope he is right.

But when will the National Party declare its position on the choice between Treaty partnerships and Democracy?