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Dr Muriel Newman

Acting Without a Mandate

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There are turning points in public affairs when parliamentary parties cross an invisible line. We saw it when former Prime Minister Helen Clark forced her government to support the anti-smacking law against the wishes of the public. No, the sky didn’t fall in, but a resolve developed that ensured she lost her premiership.

Prime Minister John Key might have just crossed such a line by affirming the United Nations Declaration on the Right of Indigenous Peoples without any public debate and without public mandate. The move has been described as a sell out to the Maori Party – and the circumstances certainly seem to indicate that it was.

The secret deal was agreed by Cabinet over a month ago on March 22nd, but in spite of a “no surprises” agreement with ACT, the Party was kept in the dark. Not so Maori TV – it was notified on April 9th in time to get a film crew to New York – nor the twenty or so people who stood alongside Pita Sharples at the UN. Outside the loop and with no opportunity to have a say on the matter was the New Zealand public – those who will be forced to bear the cost of this recklessness.

The declaration, which had its genesis in a working group on indigenous issues set up by the United Nation’s Economic and Social Council in 1982, was adopted by the UN’s General Assembly in 2007 with 143 countries voting in favour, four against, and 11 countries abstaining. 34 countries were absent from the vote. Voting against the declaration were Australia, Canada, the United States and New Zealand. At the time, the Labour Government explained that on the basis of Crown Law advice, “We are unable to support a text that includes provisions that are so fundamentally incompatible with our democratic processes, our legislation and our constitutional arrangements. These provisions are all discriminatory in the New Zealand context.”[1]

Upon hearing that National was considering signing the declaration, law lecturer and Treaty expert David Round offered this advice, “It would surely be a safe rule of thumb that where the hand-wringers of the Labour Party decline to go, no more thoughtful and reasonable party should venture. If even fools decline to rush in, surely angels should fear to tread. That we might even be thinking of signing should fill us with alarm. And the very fact that the issue is so close to Mr Sharples’ heart may suggest that he and the Maori Party see the Declaration as not just meaningless lip-service, as it is sometimes represented, but as a tool for possible future use.”[2]

His prediction has come to pass. This week former Waitangi Tribunal Chairman and High Court Judge Sir Edward Durie wrote, “I would rank the day that New Zealand gave support to the declaration as the most significant day, in advancing Maori rights, since 6th February 1840.” In a letter of congratulations to the Maori Party he explained that “Important statements of principle established through international negotiations and acclamation filter into law over time, through both governments and the courts, which look constantly for universal statements of principle in developing policy or deciding cases”.[3]

Maori Party MP Hone Harawira agreed: “it is an important step in our process of heading towards self-determination. I can absolutely guarantee that those Tuhoe who are seeking sovereignty and those other iwi who will be lining up behind them will use the principles of the declaration to support their claims.”[4] Already a Northland Maori group has filed a claim to the United Nations under article 32 of the declaration for the 2,490 acres of land that comprises the Treaty grounds in the Bay of Islands. This is just a start – radicals like Hone Harawira will make sure of that. He has been quite open about the fact that the declaration will become a key tool in advancing the Maori sovereignty agenda.

For a start, Hone Harawira has promised to send every Maori household in the country a copy of the Declaration. No doubt he will be highlighting Articles 3 and 4, “Indigenous peoples have the right to self-determination” and “Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions”. And Articles 26 and 28 about claims for land (public and private) and compensation covering the entire country: “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired” and “the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent”? Then there’s Articles 19 and 32 about the rights of indigenous people to veto the actions of the government when it comes to matters affecting them or the country’s natural resources … and so it goes on.[5] Within the New Zealand context these Articles are explosive and will serve Hone Harawira’s purpose of not only turning Maori against non-Maori, but they will also give activist judges sufficient justification to create new laws based on racial privilege.

These realities fly in the face of the Prime Minister’s claim that the Declaration is a non-binding expression of aspiration that will have no impact on New Zealand laws or constitutional arrangements. His stance is naive. Does he not realise that the Treaty of Waitangi too had no standing in New Zealand’s law, yet through the sustained advocacy of Maori rights activists who hold the ‘aspiration’ of Maori self-rule, the Treaty is now delivering not only justice to those wronged by the Crown, but superior rights and privileges. And if further evidence is needed, the Prime Minister should take a closer look at the whole foreshore and seabed fiasco.

Following the Court of Appeal’s bombshell decision in 2003 that allowed Maori to go to the Maori Land Court with customary claims over the foreshore and seabed, the word was spread by Maori sovereignty activists that the Court had ruled that Maori, not the Crown, essentially had ownership rights. Within a month of that Court of Appeal decision, claims had been lodged for more than 5 million hectares of the foreshore and seabed. That led the Labour Government in 2004 to pass the Foreshore and Seabed Act which vested ownership in the Crown, re-asserting the situation that had existed since British common law was first adopted in New Zealand.

Now, unbelievably, the National Government is colluding with the Maori Party (no doubt as part of a strategy to secure long-term tenure as the country’s leading governing party) to claim that there is such massive public discontent with the present Foreshore and Seabed Act, that the law as it stands needs to be changed. This is a blatant lie. By far the vast majority of New Zealanders are quite comfortable with the current law.

The reality is that the Government is now attempting to railroad New Zealanders into allowing an effective Maori takeover of the foreshore and seabed. Under their proposal Maori will be given development rights and mining rights to the foreshore and seabed, the right to demand levies and royalties from coastal operators, and the right of veto over any other development – with no rights of appeal.

The present call by Maori for a moratorium over the planned tidal power generation project in the Kaipara Harbour is a case in point – no doubt the project would be able to eventually go ahead, but only once Maori have received their “cultural compensation”. National is laying out a future of legalised race base graft, and the wider public is blissfully unaware of the dangers.

The only ones who want to see a law changed are those Maori groups who stand to gain control of the foreshore and seabed, and the immense riches that will follow. Unless the public speak up, the Government will get away with their deception. That’s why last week I launched an on-line petition to ask the Prime Minister to extend the submission deadline for the foreshore and seabed review for a further two months. The timeframe of 20 working days is far too short for a change of this magnitude. Clearly the Government does not want to risk the public backlash that would ensue if people really understood what is going on. But in a democracy the government is there to serve the people – all people, not just Maori.

In the six days since the petition was launched, almost 4,000 people have signed. It is not like a petition to Parliament or a referendum that needs to be signed in person. It is a display of public support for the request that New Zealanders be given sufficient time to properly understand what is being proposed so that they can prepare and submit a meaningful submission. There is no necessity for the government to rush this issue – the only urgency is political.

Politics is a numbers game and the Minister driving these reforms, Chris Finlayson is banking on receiving more submissions from those who want to see the law changed than from those who want the law to stay as it is. That’s why he has been working so closely with Maori up and down the country for several months, to ensure they will come out in force to support a law change.

If the Prime Minister declines our request for an extension of the submission deadline, we need to ensure that he is aware of your views. The Prime Minister is on record as saying that he will not change the law unless there is sufficient support. That’s why you need to also send a simple email submission to foreshoreseabedreview@justice.govt.nz (to arrive no later than 5pm Friday) stating your name, address and the fact that you oppose making any changes at all to the 2004 Foreshore and Seabed Act (it should be left as is, not repealed) – because you believe the present law is working well in the best interests of all New Zealanders … or words to that effect.

It is vitally important that you do this if you can otherwise future generations of New Zealanders will not only be subjected to the nightmare of demands arising from the Prime Minister’s decision to affirm the Declaration on Indigenous Rights, but also from claims and counter claims over our precious foreshore and seabed as well.

This lack of consultation by the government with the wider public over issues that will cause sweeping changes to New Zealand is the theme of the opinion piece “Democracy or Dictatorship?” by this week’s NZCPR Guest Commentator, the former Member of Parliament and Kiwi Party Leader, Larry Baldock. Larry, who helped organise the referendum on smacking that won the support of over 87 percent of the public but was ignored by the Prime Minister, is presently on the road collecting signatures for his new Citizens’ Initiated Referendum calling for the results of Referenda to be binding. Larry writes:

“More and more New Zealanders are coming to the conclusion that our democracy now consists of just having the privilege of electing a new dictator every three years! In our system of representative democracy if those we elect are not listening to and carrying out the wishes of those that have elected them, then what democracy do we have?”

These are troubling times. The government that we thought was going to end the racial divide in New Zealand is now acting in a way few anticipated. The wave of hope and aspiration that brought them to power is rapidly dissipating and being replaced with the stark realisation that we have simply replaced one arrogant regime with another.

1.UN, General Assembly Adopts Declaration on Rights of Indigenous Peoples 
2.David Round, The United Nations Declaration on the Rights of Indigenous Peoples 
3.Herald, Declaration secures Maori Party treasured place in history 
4.Herald, Bitter outburst follows backing for UN move 
5.UN, Declaration of the Rights of Indigenous Peoples