BARRIE SAUNDERS: Exiting the constitutional rabbit hole

• Barrie Saunders writes – 

Very well-intentioned politicians, judges and others have taken New Zealand down into a Treaty rabbit hole, from which few know how to exit without creating more social divisions. The modern interpretations of the Maori version of Treaty have set aside a common understanding of a few decades ago, and there is now heaps of anxiety and aggravation.

We face the reality that some iwi leaders, academics and others, think the Treaty created a “partnership” between the Crown and Maori leaders, and they should have equal say in the governance of the country, even though the terms “partnership” was not in any version. Furthermore, the textual ambiguities in the Treaty have led to Parliament legislating for recognition of the “principles” of the Treaty for which it has not provided any definition.

There is an amazing amount of literature for such a short Treaty, which in itself shows up its practical limitations. To some it appears we have infinitely flexible avenues for iwi to ask for more.

THOMAS CRANMER: Act’s libertarianism comes under scrutiny with Van Velden’s bid for Auckland’s Tāmaki seat

——————————————–

Act’s focus on incumbent Simon O’Connor’s views on abortion exposes the limits of its philosophy and raises questions of political opportunism. 

——————————————–

• Thomas Cranmer writes –

Saturday saw the Act Party announce that its Deputy Leader, Brooke Van Velden would contest the National Party stronghold electorate of Tāmaki in the upcoming general election with the intention of unseating current MP Simon O’Connor, who has held the seat since 2011.

What was particularly noteworthy about the announcement was that Van Velden chose to begin her campaign by targeting O’Connor’s views on abortion.

“Over the past few years I’ve had a number of people in the Tāmaki electorate – especially women – say they do not feel represented by the local MP because of his anti-abortion views,” she said.

“I am pro-choice… I am pro-freedom… I want everybody in this electorate to feel like they can have choices over those fundamental rights.”

Leading with this issue seemed unusual, considering that New Zealand reformed its abortion laws in 2020 and the National Party leadership has made it abundantly clear over the past 12 months that they have no intention of revisiting the issue if they form the next government.

O’Connor was one of 51 MPs who voted against the abortion reforms three years ago. However, he faced criticism last year for a social media post in which he welcomed the overturning of the landmark US Supreme Court decision on abortion, Roe v Wade. Although O’Connor agreed to remove the post from social media at the request of his party leader, it briefly reignited the abortion debate in New Zealand.

At the time, Act Party leader David Seymour said he was confident that the reversal of Roe v Wade would not impact New Zealand’s recently reformed laws. However, he did observe that many of the MPs who voted against the bill in 2020 had left Parliament.

“If you look at it, in the last Parliament, the law passed by 68 to 51 and 26 of the MPs who voted against reforming our abortion laws and giving women choice two years ago have since left,” Seymour said.

“I think over time, New Zealand’s Parliament becomes more liberal, so I just don’t see a majority in our Parliament to tighten our laws.”

Seymour has been advocating for greater socially liberal influence over National for many years, as evidenced by his 2017 tweet that “abortion is an example where National needs a strong, socially liberal voice on their shoulder.” While National does have a strong liberal wing within its caucus, Van Velden’s decision to target O’Connor, in part, for his conservative views on abortion implies that Act sees this as a key issue for their campaign.

This does, however, suggest that Seymour’s philosophy may have two shortcomings.

The first is that whilst abortion law reform was well overdue in New Zealand, there were legitimate concerns raised from many quarters about some aspects of the new law. In his speech during the third reading of the bill, National MP Alfred Ngaro observed that, “The views of the people have been heard: 25,718 submissions, 91.6 percent oppose this bill. These are not just church people, these are medical practitioners, these are health professionals that are out there in the field, and these are everyday ordinary New Zealanders who’ve taken the time to write a submission.”

National’s Agnes Loheni articulated the principal concern with the bill regarding late-term abortions as follows:

This has enabled the Minister to clumsily sidestep the real and worrying legal issues raised around this proposed legislation and, in particular, clause 11, because the debate before us isn’t on the legality of abortion and whether it should be allowed. Despite the clever albeit deceitful casting of debate as one of pro- or anti-abortion, the real debate is about a radical liberalisation to the existing abortion legislation. Clause 11 of this bill, by every reading of it, states that it will allow for abortions up to the moment of birth, and no amount of the Minister blocking his ears and saying “No, it doesn’t.” changes this. It is a broad, ill-defined, vague section with no regard to the unborn child. There is far more definition and substance in the provision on conscientious objection in this bill than there is around clause 11.

Clause 11 is the crux of this bill. It provides no medical boundaries as to when a post 20 week child up to birth can or cannot be aborted. It merely allows for a clinically appropriate test to be applied, which itself is not defined.

Although late-term abortions constitute only a small fraction of all abortions performed, they raise many ethical and practical issues. In making their recommendations on the bill, the Law Commission consulted with practitioners, some of whom supported gestational limits. The Commission also noted that practitioners are more willing to perform terminations at earlier stages, but that there are limited numbers of clinicians who are qualified and experienced to perform late-term abortions in New Zealand.

None of these concerns, however, resonated with Seymour at all. In fact, what is abundantly clear from the bill’s passage through Parliament is that David Seymour’s libertarianism prioritises individual choice over social responsibility and the common good, with no consideration for the type of society we want to foster or the role of community and family, and without acknowledging the impact of socio-economic factors on individuals. It is, in essence, one of the traditional criticisms of libertarianism.

By contrast, Labour’s Minister William Sio acknowledged the role of the community in the abortion issue, stating, “So what’s my message to my family? What’s my message to the Samoan, Pacific, and faith communities on abortion? First, teach our people the value of life. Teach them early and teach them often. Teach them in the home to value the life of the unborn child. We cannot bend the tree when the trunk is thick and sturdy; it will resist.”

The second shortcoming in Seymour’s position on abortion is his support for Roe v Wade. The decision remained controversial for the fifty years that it remained good law primarily because it relied upon a highly activist interpretation of the US Constitution that found that restrictions on abortion violated the Due Process Clause of the Fourteenth Amendment.

Despite being a longtime advocate for women’s rights, even former US Supreme Court Justice Ruth Bader Ginsburg had reservations about the decision in Roe v Wade, feeling that it went too far. She stated that she preferred that it “had not gone on, as the Court did in Roe, to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force.”

Last year’s decision by the Supreme Court in Dobbs v Jackson Women’s Health Organisation overturned Roe and effectively ended the constitutional right to an abortion in the United States. But by doing so, it merely returned that decision to each State legislature. Whilst some States have tightened their abortion laws following the Dobbs ruling, many others have maintained the same level of access to abortion services as previously guaranteed under Roe v Wade.

The irony for Seymour is that the activist interpretation that enabled the decision in Roe v Wade is similar to the interpretation used by some Treaty of Waitangi scholars to support their current reading of the Treaty, particularly regarding co-governance. Both rely on the idea that the Constitution and the Treaty are ‘living documents’ that should be understood in the context of modern events and perspectives, even though neither expressly mentions the right to an abortion or co-governance.

Despite this, Seymour takes a vocal stance against using a similar approach when it comes to the Treaty, advocating for a more limited ‘textual’ reading that adheres to the natural meaning of the Treaty’s words. This approach is more in line with the philosophy of the conservative majority on the US Supreme Court that overturned Roe.

Since Seymour was well aware of concerns regarding some aspects of New Zealand’s abortion law reform and clearly disagrees with the activist interpretation used in Roe, it’s difficult not to conclude that the decision to run Van Velden in Tāmaki is simply political opportunism that threatens to splinter the center-right vote in the electorate.

Supporting women’s reproductive rights does not necessarily mean supporting the most extreme elements of our recently reformed abortion laws or the judicial activism displayed in Roe v Wade.

It is possible to hold nuanced and reasoned positions on this complex issue. However, David Seymour’s brand of libertarianism appears to prioritise individual choice above all else, without considering the broader social implications or acknowledging the impact of socio-economic factors. This narrow ideology leads to a lack of consideration for the type of society we want to foster or the role of community and family. It also stands in stark contrast to his textual interpretation of the Treaty of Waitangi.

NOTE:  David Seymour’s response can be found among the comments below this article on  Cranmer’s Substack.

——————————-

Thomas Cranmer is the pseudonym of a lawyer with over 25 years’ experience in some of the world’s biggest law firms.  He writes on Cranmer’s Substack (HERE) exploring issues facing NZ.   This article was first published there. 

Parker lauds lots of law school luminaries – but he shies from enlightening us on issues such as Treaty entitlements

Buzz from the Beehive

It’s the stuff David Parker didn’t discuss, when he addressed an audience gathered to celebrate the 150th anniversary of the Law Faculty of the University of Otago, that’s worth thinking about.

He did mention Britain’s 1688 Bill of Rights, for example, but steered clear of thorny constitutional issues such as the Treaty Partnership and co-governance.

Largely, he expressed his admiration for the Law Faculty’s output of graduates who have become members of the judiciary, academics, barristers, solicitors, public servants, diplomats, politicians…

In civil law, criminal, family, employment, Treaty, environment, human rights, international, or tax. Others who chose to devote their learnings and skills to the arts or other fields of endeavour – in business, for NGOs, sports or other causes.

We all carry with us what we learned here. This institution – which is the sum of its people over the last 150 years – has helped shape us, and through us the countries we live in.

Our predecessors include many luminaries. I’ll list a few, roughly in order of their time here. You’ll see how society and the legal profession has changed.

McAnulty comes clean on Three Waters – but Opposition MPs say his arguments for sinking our democracy just don’t wash

Buzz from the Beehive

Not for the first time, we have had to wait a few days for a minister to acknowledge that something vital was missing from a statement posted on the Government’s official website.

In this case, Local Government Minister Kieran McAnulty made no mention of “co-govern”, “co-governance” or “co-government” in the statement he issued last Thursday on a major shakeup which will see affordable water reforms led and delivered regionally.

The statement did set out plans to establish 10 new regionally owned and regionally led public water entities, to be owned by local councils on behalf of the public.  The entity borders would be based on existing regional areas, each entity would be run by a professional board, with members appointed on competency and skill, and strategic oversight and direction would be provided by local representative groups

“… with every local council in the country, as well as mana whenua, getting a seat at the table”.

Incomes are lifted for many Kiwis and Maori mountain managers in Taranaki get $35m – but “Egmont” is being expunged

Buzz from the Beehive

The big bread-and-butter issue of pay packets and weekly incomes was at the core of three ministerial statements since Point of Order’s previous monitoring of the Beehive website.

Andrew Little was earning his keep, meanwhile, by delivering a speech in which he discussed co-governance.

He was involved in a Treaty-based exercise aimed at having a mountain declared a person, for legal purposes, although it is not clear if we could sue it or have it arrested in the same way we can sue or prosecute real people.

But much more is happening, according to Little’s speech.

The main peak of Mt Taranaki/Mt Egmont will be renamed Taranaki Maunga and Egmont National Park/Te Papakura o Taranaki will become Te-Papa-Kura-o-Taranaki,

But whoa.  This is not so much a renaming but rather an excision of words rooted in colonisation like “Egmont”, “park” and “mountain”.

For good measure, the taxpayers who have had no say in this deal will provide $35 million for Taranaki tribes to do whatever they intend doing to restore their mana, exercise their sovereignty and so on.

The statements dealing with incomes are –

Over a quarter of New Zealanders to get cost of living relief from tomorrow

From tomorrow over 1.4 million New Zealanders are expected to receive a little extra to help with the cost of living as a result of changes made by the Government.

Thousands of community nurses getting April pay boost

Over 8000 community nurses will start receiving well-deserved pay rises of up to 15 percent over the next month as a Government initiative worth $200 million a year kicks in.

 Government takes next step to lift artists’ incomes

The Government is introducing a scheme which will lift incomes for artists, support them beyond the current spike in cost of living and ensure they are properly recognised for their contribution to New Zealand’s economy and culture.

The last of those announcements is worth closer examination.

Carmel Sepuloni, Minister for Arts, Culture and Heritage, recalled that – in line with New Zealand’s Free Trade Agreement with the UK – the government last year announced the Government was establishing an Artist Resale Royalty Scheme.

Now it is introducing a Bill that will ensure creators of visual arts are recognised and rewarded when their work is resold on the secondary art market.

She said:

“Artists have some of the lowest median incomes in New Zealand and have limited opportunities to benefit from their work on an ongoing basis.

“It will establish an Artist Resale Royalty Scheme, which ensures a five percent royalty is collected every time an artist’s work is re-sold, meaning artists will benefit from their creations on an ongoing basis.

More than 80 countries, including Australia, the UK and all EU nations, have a similar royalty scheme in place for their artists.

Another new ministerial statement deals with Pacific language weeks –

Dates announced for 2023 Pacific language weeks

Minister for Pacific Peoples Barbara Edmonds has announced the 2023 Pacific Language week series, highlighting the need to revitalise and sustain languages for future generations.

When (we wonder) will the Government launch Mandarin Language Week, or Hindi Language Weekk, or Urdu Language Week – or umpteen other possibilities to consume public funding and keep bureaucrats in work?

And then there’s Andrew Little’s speech, delivered as Minister of Treaty of Waitangi Negotiations –

Speech to Taranaki Chamber of Commerce and TOI Foundation breakfast

Today is an important day for Taranaki, and for all of its people – including this boy from New Plymouth.

Little was speaking about the Crown’s agreement with Taranaki tribes that would result – later this morning – in Okaiawa, Ngā Iwi o Taranaki and him (as the Crown representative) initialling the final historical Treaty of Waitangi redress deed affecting the Taranaki region.

This  is the Taranaki Maunga Collective Redress Deed, Te Ruruku Pūtakerongo,

The main elements:

• The Crown will make an apology for its historical breaches of the Treaty of Waitangi. The apology will include:
  • The Crown is sorry that the promise of partnership that arose in 1840 so quickly became a history of conflict, confiscation, and neglect;
  • The Crown will profoundly apologise for its confiscation of Taranaki Maunga in 1865;
  • The Crown hopes that through this apology the connections to ngā maunga can be restored and strengthened, so that future generations might again look to Taranaki as a symbol of resilience and hope, rather than of loss.
• Next, the official name of the national park will be changed. It will be Te-Papa-Kura-o-Taranaki, meaning ‘the highly regarded and treasured lands of Taranaki’. The name Egmont will be removed completely. The main peak will be known as Taranaki Maunga.
• Other ancestral peaks on the mountain and across the ranges will also be recognised: Pouākai, Patuhā, Kaitake and Panitahi (Fantham’s Peak).
• The Mount Egmont Vesting Act 1978 (under which the mountain was vested in the Taranaki Māori Trust Board and then gifted back to the Crown) will be repealed and a new legal framework established for the mountain. This framework involves recognising the mountain as a legal person, and other structures created to support governance and kaitiakitanga  of it).
• The national park will continue to be administered under the National Parks Act 1980.
• There will be a $35 million contribution made to the iwi collective entity, Te Tōpuni Ngārahu, to assist in exercising its statutory functions and support the health and wellbeing of the maunga.
• The deed also includes an agreed historical account which sets out in more detail the history of Crown Treaty breaches in relation to Taranaki Maunga and the surrounding lands.

Little explained that the eight Taranaki tribes will have a new collective body, named Te Tōpuni Ngārahu, to act on behalf of them all.

The national park including the mountain and the surrounding peaks will be vested in its own legal entity named Te Kāhui Tupua, meaning ‘the collective of ancestors’.

This will have all the rights, powers, duties and responsibilities of a legal person – a similar arrangement to what has been done before, such as with the Whanganui River and Te Urewera, which tells us a powerful precedent was set with the Whanganui settlement. The river became a living person, legally, without much murmuring of dissent.

Little said:

And as has been the case with those previous examples, a representative entity will be established to act as the human face and voice of Te Kāhui Tupua (which, remember, is the mountain, the national park, and the surrounding peaks).

That representative body will be made up of four Crown appointees and four iwi appointees, all of whom must act in the best interests of the maunga. This entity will be named Te Tōpuni Kōkōrangi.

What these new arrangements mean is that the responsibility to care for this most special of places rests with us all. It reflects the mana of local iwi over their maunga.

And it upholds the Crown’s obligations under the Treaty, on behalf of all New Zealanders.

Little proceeded to discuss the Crown’s obligations under the Treaty of Waitangi.

The Treaty was not an agreement between Pākeha and Māori, he said – it was an agreement between the Crown and Māori, he said.

Making the agreement work required finding ways through difficult issues together.

This led to Little bringing co-governance into considerations.

Some call joint arrangements “co-governance”. Others just call it partnership. Mostly I – and I know my predecessors of various political stripes in this portfolio – have found it’s really just about working together to make New Zealand better.

This agreement is just the latest of many examples of partnership.

Co-governance arrangements are a form of partnership with groups of special standing or expertise. They are about governments working together with communities, experts or other partners to provide direction over a sphere of shared interest to achieve better outcomes.

They have taken many forms, and have been used to get the best outcomes for our land, resources and for our communities.

That’s why successive governments have entered into them, and why they have endured.

Little then drew attention to the views of Christopher Finlayson, his predecessor in the Key Government, on the important role that co-governance agreements play.

He makes the point that government is not the only source of wisdom and knowledge. If we want the best decisions then we need the best possible input, including the longstanding historical links tāngata whenua have with our natural resources.

Little proceeded to discuss some of the larger and better-known examples of the Crown working in collaboration with Maori tribes around New Zealand.

He mentioned  the Te Urewera Board, established in 2014. Its board comprises six Tūhoe appointees and three Crown appointees who act as the representative of that legal person and oversee the activities in Te Urewera;

But he opted to focus on and enthuse about the success of the Waikato River Authority, established in 2010, represented by five Crown members and five iwi members.

Chris Finlayson, let the record show, recently wrote an article for The Listener about power sharing.

There have been “teething problems” and “a few controversies”, he acknowledged.

Perhaps he had been reading Point of Order (HERE and HERE)

He said that, in hindsight…

I think one major thing went wrong. The word “co-management” morphed into “co-governance” I do now know they.  It was never intended to mean anything different, but in hindsight, it was regrettable.  The problem is that the word “governance” is too close to the word “govern”.

Finlayson insisted “co-governance” was meant to describe the agreements he discussed in his article,

… subject in nearly all cases to local authority control.  No more, no less.

He noted that National leader Chris Luxon has spelled out out what a National Government would to with regard to partnership with Māori tribes to deliver services.  Luxon favours the tribes providing leadership at a local level rather than being over-governed from Wellington.

Hipkins responded by accusing Luxon of stoking fear (“an accusation reported uncritically by most of the media”) and told him to reflect on his behaviour.

In contrast to Luxon, Hipkins has provided no detail about his view on co-governance, and wasn’t even asked to provide one. How depressingly predictable.

Finlayson concluded that co-governance is a limited, successful concept intended to address treaty grievances.

But it has morphed into a source of genuine concern for some New Zealanders

These people are owed an explanation by the government as to why it has allowed this situation to arise, Finlayson says.

THOMAS CRANMER: Challenging progressivism in New Zealand’s culture wars

• Thomas Cranmer writes

 Like it or not, the culture wars have entered New Zealand politics and look set to broaden and intensify.

The culture wars are often viewed as an exclusively American phenomenon, but the reality is that they are becoming increasingly prominent in countries around the world, including New Zealand.

Some may believe that they are immune to their influence, but the truth is that these battles have already entered New Zealand politics and are being enthusiastically fought by the Labour government and the political left. Instinctively, right-leaning parties in New Zealand have shied away from culture war issues, preferring instead to focus on their traditional core policies. But whether we like it or not, the game is afoot, and we are all players.

So, what exactly are the culture wars? In essence, they are political conflicts that revolve around social and cultural issues, such as gender, race, sexuality, religion, and identity. The term was coined in the United States during the 1990s to describe the heated debates that were taking place between conservatives and progressives over issues like abortion, affirmative action, and gay rights. However, the scope of culture wars has since expanded to encompass a wide range of issues, from free speech and cancel culture to critical race theory and the role of the media in shaping public opinion.

MICHAEL BASSETT: Kelvin Davis exposes the flaws in Labour’s Maori policy

• Michael Bassett writes –

When Kelvin Davis addressed a conference of indigenous Australians yesterday it is doubtful whether the Minister for Maori Crown Relations intended to damage the credibility of his government’s Maori policies, but that’s what he did. If the New Zealand Herald is to be believed, first, he used an incorrect translation of the Treaty of Waitangi instead of the Sir Hugh Kawharu translation that the previous Labour government celebrated at the 150th anniversary of its signing in 1990. Davis claimed that Article Three of the Treaty guaranteed Maori “the same rights and privileges of British subjects”.

In fact, Article Three guarantees Maori “the same rights and duties of citizenship”. Small difference in wording, I agree, but the mention of “duties” is significant when it comes to Maori rights. These days all too many Maori spokespeople prefer to interpret the Treaty as promising Maori an armchair ride to prosperity rather than something they have to work for, like other New Zealanders.

Davis is one of them. In his speech he went on to explain that under the Treaty Maori had

‘… the right to an education that led to outcomes as good as those of any other New Zealander, and the right to a health system that allowed Maori to live as long as any other New Zealander. The focus had to be on equity of outcomes, not just equality”.

PAUL MOON: Shaping things to come: New Zealand’s new history curriculum

• Professor Paul Moon writes –

For decades, our secondary school students have been undernourished when it comes to the country’s history, and so the appetising prospect of New Zealand’s history being made compulsory is one that many of us have keenly anticipated.

History is more than a rote-learned chronology that it is sometimes perceived to be. In fact, it is part of the architecture of our identity. And collectively, there can be no true sense of citizenship without a knowledge of history. Dismissing what has gone on before leaves us with little more than a succession of snapshots of the present, with each one deleted as soon as it is seen – a sort of Instagram existence devoid of any greater context.

History is where memory and materiality mingle, and where social and cultural meaning is largely derived from.

What’s in the curriculum and what isn’t?

There is much in the new history curriculum that addresses the current deficit in how we see ourselves, but to an extent, the positives are undermined by some inexplicable failures. The first of these is the content selection. At some point, it seems that the impossibility of addressing everything in a curriculum became a pretext for making some deleterious decisions on topic choice.

Jerry Coyne applauds the pushback by academics against the rollout of Govt’s schooling plan to control what we think

Jerry A. Coyne, Emeritus Professor in the Department of Ecology and Evolution at the University of Chicago, this week published an article headed Proposed New Zealand school curriculum and some strong pushback from four academics.

Not for the first time, he has commented on the reform of New Zealand’s curriculum for secondary schools.

Right now – he points out – the New Zealand Government’s Ministry of Education has begun rolling out “proposals,” documents that outline the curriculum area by area.

The Ministry is soliciting comments from the public on these areas, with the intention of implementing a final curriculum by 2026.

The first document, 61 pages long, deals solely with mathematics (including statistics) and English, and has apparently already been subject to comments.

Coyne has provided a link for his readers to click on it if they want to read it.

He warns that the document is heavily larded with untranslated Māori words and phrases.

Graham Adams: Has government money corrupted journalism?

The debate over co-governance draws attention to the role of the $55m media fund in shutting down dissenting views.  GRAHAM ADAMS writes…

The last cohort of winners from the contentious $55 million Public Interest Journalism Fund will be announced on 17 April. However, it appears the programme’s death will be a drawn-out affair. NZ on Air has told The Common Room that the fund will have

 “… a ‘long tail’… with a number of projects that won’t be delivered for some time after the fund itself closes, and roles that will run on for some time”.   

Set up by the government to aid “at-risk” journalism, the fund started dispensing cash in 2021.

It has three principal aims: supporting approved journalism projects; directly paying for staff in newsrooms around the country; and funding “industry development” projects such as cadetships (with an emphasis on hiring Māori and “diverse” recruits).

Former MediaWorks news director Hal Crawford, who helped design the PIJF, was aware that the three-year project he was ushering into existence had its risks. He warned in a newsletter:

“There will inevitably be criticism of PIJ funding schemes from those who miss out on the money, or from critics who see them as props for failing businesses. The NZ government and its agencies will have to brace for that.”