Race-based rights are increasingly enabled in legislation, promoted by Labour Government politicians, academics, public servants in key positions, and supported by most mainstream media. Opposing voices are silenced through publication bans, disruption of meetings, threats to careers, and Orwellian racism accusations.
A strategy to weaken New Zealand’s democracy involves attacking its foundations. These are the electoral system itself, Parliamentary processes, the education system, the science system, and the rule of law. The Labour Government has progressed fundamental constitutional reforms in secret, for example the He Puapua report (Charters et al 2019). It assured the public this work was on hold even while it was still energetically progressing it. This suggests contempt for open government and meaningful consultative processes.
Scrutiny of legislation– one of Parliament’s core roles – has at times been derisory. For example, on 28 August 2023 the Government proceeded with the Electoral (Lowering Voting Age for Local Elections and Polls) Bill. This establishes a new category of electors, named ‘youth electors’, and makes way for 16-year-olds and 17-year-olds to be registered on a youth electoral roll to vote in council elections. It was given only a few seconds of time for the title to be read out in Parliament and the Bill tabled!
The compulsory school history curriculum teaches a partial view of New Zealand history. Colonisation is demonised almost exclusively, despite its many benefits. New Zealand’s achievement as one of the most socially progressive and economically successful small democracies is not celebrated. The New Zealand Wars are covered, however the most violent chapter in our history – the Musket Wars from about 1807 to 1838 is largely ignored.
The inclusion of mātauranga Māori (Māori “ways of knowing”) in the school science curriculum, and giving it equal status with international science, will weaken our science education and turn many students off science. Significant science research funding is now based on whether researchers have Māori ancestry and/or have committed to mātauranga Māori”. These “ways of knowing” (or rather believing) may have little scientific content that would be recognised internationally. As a result, New Zealand science has become subject to sceptical international scrutiny and some ridicule. Some of New Zealand’s greatest scientists and technologists such as Garth Cooper and Ross Ihaka are Māori. Had they studied mātauranga Māori rather than international science, New Zealand and the world would be much the poorer.
Much of the race-related debate has focused on “co-governance”, which is not well defined. Co-governance can encourage subsidiarity – that is delegating decision rights to those closer to the action and to where the results fall. For example, a “wrap around” whanau ora initiative can see effective service delivery through co-governance involving government agencies and iwi. However, co-governance can also involve parallel government and legal systems and separate institutions that divide the community.
Co-governance in the Water Services Entities Act 2022 and the Water Services Amendment Bills, and in the Natural and Built Environment 2023 are racialist. In the Water Services legislation, the governance system and a requirement to give effect to Te Mana o te Wai statementsgive iwi and hapū effective control over New Zealand’s water resources.
The Natural and Built Environment Act includes regional planning committees with Māori members appointed by iwi and hapū groups, a National Māori Entity, and requirements for anyone exercising powers, functions, or duties under the Act to give effect to the principles of te Tiriti (despite the fact that there are no principles in te Tiriti.)
Laws are rules which must be obeyed by all, and the law binds the Crown.
In New Zealand the Fitzgerald v Muldoon case in 1976 saw a junior public servant (Paul Fitzgerald) challenge the legality of Prime Minister Robert Muldoon abolishing a superannuation scheme put in place by the previous Labour Government. Fitzgerald’s challenge was upheld by the judgment of Chief Justice Sir Richard Wild. The law bound the Crown and the rule of law prevailed. However, in July 2023 the New Zealand Law Society (NZLS) abolished its Rule of Law Committee. This suggests that the rule of law will in time be weakened.
One form of attack on our democracy is to effectively call the New Zealand government or even the nation unlawful or illegitimate.
The Waitangi Tribunal’s 2014 report into the first stage of its WAI 1040 northern Māori inquiry claimed that Māori did not cede sovereignty: “We have concluded that in February 1840 the rangatira who signed te Tiriti did not cede their sovereignty. Rather, they agreed to share power and authority with the Governor.” This “big lie” that never dies despite overwhelming evidence against it, raises serious consequences. It gifts a moral licence to any criminal to argue that they broke no legitimate law. In extremis, it may spark or psychologically enable “sovereign citizen” movements, white supremacists, far-right Māori nationalists and entitled tribalists.
In a 2019 paper “The elephant in the courtroom: An Essay on the Judiciary’s Silence on the Legitimacy of the New Zealand State” Dr Claire Charters accused the judiciary of “silently upholding the myth of the legitimacy of the state”.
I stress that Claire Charters is intelligent, multi-lingual and malice-free – she is not one of what Helen Clark termed the “haters and wreckers” within Māoridom. I’m sure that Dr Charters is aware that very few countries would put up with their judiciaries challenging the state’s right to exist!
Taking a more oblique line, Dr Charters has argued that court recognition of tikanga implicitly signals that Crown sovereignty is not absolute. However, since Magna Carta and the development of English common law Crown sovereignty has never been absolute.
In pre-European times, warring Māori tribes owed obligations not to a state and its laws but to kinship and custom (tikanga). However, without a written language, Māori customs and social rules could not be formalized as written statutes or common law. Tikanga disappeared when it lost relevance or acceptability – cannibalism is an example. Some other tikanga such as rahui retain wide support, though may be difficult to enforce. Much tikanga is limited to traditional Māori cultural settings.
In a 2017 paper titled ‘Use It or Lose It: The Value of Using the Declaration on the Rights of Indigenous Peoples in Māori Political and Legal Claims’ Dr Charters argues:
“The value of using international norms as a means to increase their compliance pull on states over time, even when they may be resistant to the norms or the norms are not binding, is supported by theories on constructivism, transnational legal process theory and social movement theory. At heart, these theories share the proposition that there are methods to embed norms in the domestic and legal landscape in such a way that states view conformity with them as ordinary and rationally-appropriate behaviour or, conversely, contravention as politically and legally illegitimate.
This sounds noble. However it could be interpreted as a strategy to advance elite interests in a roundabout way. This paper was published in 2017 and foreshadows the He Puapua report two years later.
The thinking in He Puapua hearkens back to the times of aristocratic tribal elitism in Europe and in New Zealand. It brings to mind the work of Carl Schmitt in Germany who undermined the Weimar Republic and made possible its overthrow. He Puapua has within it some traces of fascist thinking.
What New Zealand needs is whakakotahitanga (unity) on such core principles as equal citizenship rights and the rule of law, while fostering the diversity that comes from multi-culturalism and individualism. This unity amidst diversity has socio-economic and equity implications. Without productivity growth there is neither prosperity nor social mobility, and without these our democratic foundations become shaky and perhaps the state’s legitimacy will continue to be questioned.
New Zealanders will not over the long term accept being assigned to racial categories with different rights fixed at birth. You can already see this in the reaction to race-based surgical prioritisation, and to the burning of huts in what was once an iconic Urewera National Park that belonged to all, not to the Crown or a tribe.
It is within our power to strengthen democracy while becoming a higher productivity and more equitable economy. After all, te Tiriti is colour-blind and the Crown commits to equal rights for all New Zealanders: – “nga tangata maori katoa o Nu Tirani.”
Perhaps some spindrift could be gathered from He Puapua’s breaking wave and be shaped into something unifying in the spirit of whakakotahitanga and of Leucothea (the Greek goddess of spindrift). Maybe a team of Claire Charters, David Seymour, Chris Trotter and a hard-headed economist such as Bryce Wilkinson might be charged with this most difficult and most valuable task?
References
Charters et al, 2019: He Puapua. Report of the working group on a plan to realise the UN Declaration on the rights of indigenous peoples in Aotearoa New Zealand.Wellington, TPK.
Charters, C: 2019: ‘The Elephant in the Court Room: An Essay on the Judiciary’s Silence on the Legitimacy of the New Zealand State.’ In: Max Harris and Simon Mount (eds) The Promise of Law: Essays marking the retirement of Dame Sian Elias as Chief Justice of New Zealand (Auckland, Lexis Nexis, 2019).
Charters, C. 2017: ‘Use It or Lose It: The Value of Using the Declaration on the Rights of Indigenous Peoples in Maori Political and Legal Claims’. Forthcoming, International Indigenous Rights in Aotearoa New Zealand.
Dr Peter Winsley has worked in policy and economics-related fields in New Zealand for many years. With qualifications and publications in economics, management and literature. This article was first published HERE
Scrutiny of legislation– one of Parliament’s core roles – has at times been derisory. For example, on 28 August 2023 the Government proceeded with the Electoral (Lowering Voting Age for Local Elections and Polls) Bill. This establishes a new category of electors, named ‘youth electors’, and makes way for 16-year-olds and 17-year-olds to be registered on a youth electoral roll to vote in council elections. It was given only a few seconds of time for the title to be read out in Parliament and the Bill tabled!
The compulsory school history curriculum teaches a partial view of New Zealand history. Colonisation is demonised almost exclusively, despite its many benefits. New Zealand’s achievement as one of the most socially progressive and economically successful small democracies is not celebrated. The New Zealand Wars are covered, however the most violent chapter in our history – the Musket Wars from about 1807 to 1838 is largely ignored.
The inclusion of mātauranga Māori (Māori “ways of knowing”) in the school science curriculum, and giving it equal status with international science, will weaken our science education and turn many students off science. Significant science research funding is now based on whether researchers have Māori ancestry and/or have committed to mātauranga Māori”. These “ways of knowing” (or rather believing) may have little scientific content that would be recognised internationally. As a result, New Zealand science has become subject to sceptical international scrutiny and some ridicule. Some of New Zealand’s greatest scientists and technologists such as Garth Cooper and Ross Ihaka are Māori. Had they studied mātauranga Māori rather than international science, New Zealand and the world would be much the poorer.
Much of the race-related debate has focused on “co-governance”, which is not well defined. Co-governance can encourage subsidiarity – that is delegating decision rights to those closer to the action and to where the results fall. For example, a “wrap around” whanau ora initiative can see effective service delivery through co-governance involving government agencies and iwi. However, co-governance can also involve parallel government and legal systems and separate institutions that divide the community.
Co-governance in the Water Services Entities Act 2022 and the Water Services Amendment Bills, and in the Natural and Built Environment 2023 are racialist. In the Water Services legislation, the governance system and a requirement to give effect to Te Mana o te Wai statementsgive iwi and hapū effective control over New Zealand’s water resources.
The Natural and Built Environment Act includes regional planning committees with Māori members appointed by iwi and hapū groups, a National Māori Entity, and requirements for anyone exercising powers, functions, or duties under the Act to give effect to the principles of te Tiriti (despite the fact that there are no principles in te Tiriti.)
Laws are rules which must be obeyed by all, and the law binds the Crown.
In New Zealand the Fitzgerald v Muldoon case in 1976 saw a junior public servant (Paul Fitzgerald) challenge the legality of Prime Minister Robert Muldoon abolishing a superannuation scheme put in place by the previous Labour Government. Fitzgerald’s challenge was upheld by the judgment of Chief Justice Sir Richard Wild. The law bound the Crown and the rule of law prevailed. However, in July 2023 the New Zealand Law Society (NZLS) abolished its Rule of Law Committee. This suggests that the rule of law will in time be weakened.
One form of attack on our democracy is to effectively call the New Zealand government or even the nation unlawful or illegitimate.
The Waitangi Tribunal’s 2014 report into the first stage of its WAI 1040 northern Māori inquiry claimed that Māori did not cede sovereignty: “We have concluded that in February 1840 the rangatira who signed te Tiriti did not cede their sovereignty. Rather, they agreed to share power and authority with the Governor.” This “big lie” that never dies despite overwhelming evidence against it, raises serious consequences. It gifts a moral licence to any criminal to argue that they broke no legitimate law. In extremis, it may spark or psychologically enable “sovereign citizen” movements, white supremacists, far-right Māori nationalists and entitled tribalists.
In a 2019 paper “The elephant in the courtroom: An Essay on the Judiciary’s Silence on the Legitimacy of the New Zealand State” Dr Claire Charters accused the judiciary of “silently upholding the myth of the legitimacy of the state”.
I stress that Claire Charters is intelligent, multi-lingual and malice-free – she is not one of what Helen Clark termed the “haters and wreckers” within Māoridom. I’m sure that Dr Charters is aware that very few countries would put up with their judiciaries challenging the state’s right to exist!
Taking a more oblique line, Dr Charters has argued that court recognition of tikanga implicitly signals that Crown sovereignty is not absolute. However, since Magna Carta and the development of English common law Crown sovereignty has never been absolute.
In pre-European times, warring Māori tribes owed obligations not to a state and its laws but to kinship and custom (tikanga). However, without a written language, Māori customs and social rules could not be formalized as written statutes or common law. Tikanga disappeared when it lost relevance or acceptability – cannibalism is an example. Some other tikanga such as rahui retain wide support, though may be difficult to enforce. Much tikanga is limited to traditional Māori cultural settings.
In a 2017 paper titled ‘Use It or Lose It: The Value of Using the Declaration on the Rights of Indigenous Peoples in Māori Political and Legal Claims’ Dr Charters argues:
“The value of using international norms as a means to increase their compliance pull on states over time, even when they may be resistant to the norms or the norms are not binding, is supported by theories on constructivism, transnational legal process theory and social movement theory. At heart, these theories share the proposition that there are methods to embed norms in the domestic and legal landscape in such a way that states view conformity with them as ordinary and rationally-appropriate behaviour or, conversely, contravention as politically and legally illegitimate.
This sounds noble. However it could be interpreted as a strategy to advance elite interests in a roundabout way. This paper was published in 2017 and foreshadows the He Puapua report two years later.
The thinking in He Puapua hearkens back to the times of aristocratic tribal elitism in Europe and in New Zealand. It brings to mind the work of Carl Schmitt in Germany who undermined the Weimar Republic and made possible its overthrow. He Puapua has within it some traces of fascist thinking.
What New Zealand needs is whakakotahitanga (unity) on such core principles as equal citizenship rights and the rule of law, while fostering the diversity that comes from multi-culturalism and individualism. This unity amidst diversity has socio-economic and equity implications. Without productivity growth there is neither prosperity nor social mobility, and without these our democratic foundations become shaky and perhaps the state’s legitimacy will continue to be questioned.
New Zealanders will not over the long term accept being assigned to racial categories with different rights fixed at birth. You can already see this in the reaction to race-based surgical prioritisation, and to the burning of huts in what was once an iconic Urewera National Park that belonged to all, not to the Crown or a tribe.
It is within our power to strengthen democracy while becoming a higher productivity and more equitable economy. After all, te Tiriti is colour-blind and the Crown commits to equal rights for all New Zealanders: – “nga tangata maori katoa o Nu Tirani.”
Perhaps some spindrift could be gathered from He Puapua’s breaking wave and be shaped into something unifying in the spirit of whakakotahitanga and of Leucothea (the Greek goddess of spindrift). Maybe a team of Claire Charters, David Seymour, Chris Trotter and a hard-headed economist such as Bryce Wilkinson might be charged with this most difficult and most valuable task?
References
Charters et al, 2019: He Puapua. Report of the working group on a plan to realise the UN Declaration on the rights of indigenous peoples in Aotearoa New Zealand.Wellington, TPK.
Charters, C: 2019: ‘The Elephant in the Court Room: An Essay on the Judiciary’s Silence on the Legitimacy of the New Zealand State.’ In: Max Harris and Simon Mount (eds) The Promise of Law: Essays marking the retirement of Dame Sian Elias as Chief Justice of New Zealand (Auckland, Lexis Nexis, 2019).
Charters, C. 2017: ‘Use It or Lose It: The Value of Using the Declaration on the Rights of Indigenous Peoples in Maori Political and Legal Claims’. Forthcoming, International Indigenous Rights in Aotearoa New Zealand.
Dr Peter Winsley has worked in policy and economics-related fields in New Zealand for many years. With qualifications and publications in economics, management and literature. This article was first published HERE
6 comments:
This is all so incredibly toxic and depressing. No wonder kiwis are leaving in their thousands. What the government is doing seems very deliberate in regards to tanking our economy and democracy, because it has all happened so quickly.
Thanks Peter, very thought provoking.
Shred He Puapua, undo any and all co-governance arrangements, get rid of the apartheid Maori seats the apartheid Waitangi Tribunal the 1975 TOW Act and all other statutes which give explicit recognition to the Treaty.
Mr. Winsley, thank you for a great summary of how our democracy is being undermined.
The question is how when seemingly all political will is so weak do we as citizens retain it?
Is it like the old saying, 'you vote your way into socialism but you have to fight your way out of it'?
What do 86% plus of a population do when they are turned into second class citizens?
A glimpse across the global spectrum at countries where this has occurred and the result is always bloody.
The Waitangi Tribunal is quite simply executing the development of apartheid New Zealand.
It is happening right now.
I disagree that Claire Charters is without malice. Her cool academic demeanour disguises her radicalism. If you want mnlice though, look to Tina Ngata
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