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Anthony Willy

Constitutional Double Dealing

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Anybody who has studied the collected laws of Murphy will understand that it is always a mistake to assume that things can’t get any worse.

And so it has proved to be with the latest antics of the  government surrounding the implementation of their pet project to pass over effective control, and all of the indicia of ownership of our fresh waters to a small group of Maori tribes.

I decline to use the term “elites.” That should only be applied to a group of people who by qualities of character, intellect and hard work stand above the rest of us not to greedy rent seekers . None of that can be said of those who comprise the leadership of the tribes who will become the beneficiaries of the billions of dollars’ worth of assets which are currently owned by the local authorities throughout New Zealand. Assets which were paid for by ratepayers either outright or by way of interest on loans. Standing alone this amounts to the greatest government theft of private property in New Zealand’s history and all sold on the derisory notion that it will improve the quality of drinking water and reduce rates bills.

This coupled with the transparently false notion that the document signed in 1840 by a few Maori chiefs somehow made them partners with the Sovereign in Parliament. It is also in crass ignorance of the legal position that water cannot be owned by anybody. Bad enough but not terminal we are entitled to think because the next Government  comprising National and ACT will repeal this legislation at the first opportunity on taking office.

This possibility must have entered the dim recesses of the brain of the Labour/Greens Government and Murphy to the fore somebody came up with the novel idea of ensuring that no subsequent government would be able to repeal the maorification of the one substance upon which all life depends leading in due course the imposition of royalties, a bonanza that even the greediest had hitherto not thought of.

It is difficult to imagine that the idea originated with M/s Sage whose understanding of world events appears to be conditioned by the notion that the planet will explode in a fireball unless we all take to walking and cycling.

Is it possible that the Maori caucus did not want to be seen as the author of this constitutional outrage and did some sort of a deal with the Green Party to suffer the massive public outcry, which was sure to, and did follow.

The humble voter will probably never know but what is certain is that this assault on Parliamentary democracy was taken against the advice of those charged with attempting to keep this government on a semblance of the straight and narrow but at the time of writing to no avail. It would appear that this is such a giant step too far even for this lot that the Prime Minister is having second thoughts. This will not be a simple process because she will have to disappoint her Maori caucus which is currently keeping her in office and without which she will loose her majority and participate a general election.

To be fair to her, she may not have been informed of these machinations. She was after all away on state business in the Chatham Islands disbursing some fourteen million of our money to the descendants of the Maori tribe who in times past travelled there on a hi jacked English vessels and slaughtered and cannibalised most of the peace-loving inhabitants. While there she will have taken time to visit the beautifully preserved Maoriori Marae with the column recording with a cross the names of those who were slaughtered and an additional cross for those who were eaten by the invaders.

That said it may well be that now she is aware of the massive political fallout from this ill-conceived proposal (I doubt the constitutional significance will trouble her.) Perhaps she will summon up the courage to face down the proposers of this attempt at entrenchment. It is after all a short but disastrous political suicide note. Time will tell.

That said what is extraordinary is that the whole grubby scheme is doomed to fail from the outset. Inconveniently for the government we still cling to our Parliamentary democracy. This lot don’t seem to understand that in the Westminster system of government the King in Parliament is sovereign, and no government of the day can bind the hands of its successor. This is constitutional Law 101. Here is what we learned at law school about the supremacy of Parliament. In the words of Professors ECS Wade and GG Phillips:

Within the limits of physical possibility Parliament can make or unmake any law whatever… there is no Act which Parliament cannot repeal. The Bill of rights could be cast overboard by the same process as the prevention of damage of pests Act namely by repealing measures passed in ordinary form. Parliament can override the decisions of the Courts, if necessary, with retrospective effect. (Something that an incoming government will need  to do in relation to the decision of the Supreme Court elevating Maori customs to the status of Common law)

I recall hearing these words from our Constitutional law lecturer Dr. Patrick Kilbride many years ago and for some reason they stuck. Perhaps at an early stage they gave comfort that the will of the people will always prevail even in relation to the most sacred entrenchment provisions of a seventy five percent majority to be found in the Electoral Act protecting our democracy.

How can this lot be so stupid as to not understand this fundamental constitutional principle, or perhaps they do.

Worryingly it is all part of the same cynical “partnership “ interpretation of the Waitangi document which is crucial to the agenda of the Maori caucus, and they simply don’t care if it has any basis in fact or reason.

It will be good theatre watching them twisting in the winds of public opinion.

Update: 4 December 2022. Stop the presses. It’s not often Murphy gets it wrong, but sanity will emerge in the most unexpected places. Entrenchment found to be not a good idea going into an election year. I wonder how the Maori caucus will respond to this latest colonist outrage.