Tuesday, September 26, 2006



Brash and Baragwanath

Yesterday's Herald reported that National Leader Don Brash had put his foot in his mouth again over Maori over a paper delivered to the Law Commission last month by Justice David Baragwanath. But rather than paying attention to his nonsensical claim that Maori don't exist (sorry, Dr Brash, but six hundred thousand Kiwis beg to differ - and those are just the ones who belong to that "nonexistent" group), I sat down and read the paper he was objecting to. And its clear after doing so that, despite pontificating upon it, Dr Brash hadn't even bothered to do that much.

The paper, What is distinctive about New Zealand law and the New Zealand way of doing law? New Zealand law and Maori [PDF], examines the topic of "how the law does and perhaps should treat Maori differently". The topic

embraces laws specific to Maori, laws that affect Maori, and the contribution of Maori custom and value to what Professor Frame calls "our common law with bicultural characteristics"

The sweep of the paper is rather broad, covering issues of international law (including New Zealand's position on the UN draft declaration on the rights of indigenous peoples [DOC]), domestic law, as well as the legal enforcement of economic, social and cultural rights in various jurisdictions. It also touches on the problem of the Foreshore and Seabed Act 2004, which Justice Baragwanath regards as an example of the "tyranny of the majority". According to Baragwanath, the law

accepts a lower standard of protection than the Australian Commonwealth Native Title Act 1993. It infringes the principles laid down by the Privy Council [of respect for aboriginal title and compensation for compulsory acquisition] and is discriminatory and will sooner or later run into a Quilter v Attorney-General [1998] 1 NZLR 523 declaration from the Courts to that effect. The decision could not have been reached under English law where article 14 of the European Convention on Human Rights protects even foreign suspected terrorists from discrimination and gives the courts power to strike down inconsistent legislation...

The latter point on the use of binding human rights instruments to protect the rights of the weak against government abuse and uphold basic standards of decency and the rule of law is a constant theme throughout, and Baragwanath clearly regards their absence as a significant flaw in our constitution. He notes:

We have traditionally assumed that, like the United Kingdom, our constitutional basics were protected by adherence to settled conventions. It has appreciated that they are not enough. Now that the final Privy Council link with the British Crown has virtually gone, we must not deprive our Supreme Court of tools to do justice as effective as those available in the jurisdictions which we benchmark ourselves. All New Zealanders, and not least Maori New Zealanders, are entitled to the protection of laws that meet international standards in content, as they already do in the quality of their drafting.

As for his conclusions, Justice Baragwanath does not suggest any "special rights" for Maori. Rather, he proposes amending the Foreshore and Seabed Act so that it conforms to those settled conventions, by (at minimum) allowing compensation to be awarded where ownership can be proven. We accept this principle with regards to Pakeha property, and we should do the same for Maori. And more generally, he argues that we need to

enact a measure equivalent to the European Convention on Human Rights to ensure that the words of our international obligations can be delivered on. Each of these would tend to remove a form of distinctiveness we can do without.

In other words, what Justice Baragwanath is proposing is "one law for all": universal human rights protection regardless of skin colour. I thought that would be something Don Brash would approve of...

10 comments:

Excellent work.

Posted by MERC : 9/26/2006 08:42:00 AM

I just skimmed the paper but it looks to me like quite a scholarly and subtle discussion of a vision of how New Zealand law could develop taking into account our uniqueness as well as our international obligations.

I'm not saying he necessarily had to agree with it but Brash's dismissal of it seems disrespectful, crude and inappropriate. What I can't really work out is whether what he says are his own views or views that he thinks will reasonate with "mainstream" New Zealand. If the latter I think it is sad he has such a low opinion of the mainstream.

People blame the media, who I think do share some of the blame, but the truth is we are never going to have high quality informed debate of issues in New Zealand if politicians don't take the lead.

Posted by Make Tea Not War : 9/26/2006 09:04:00 AM

Baragwanath's paper consists of a long series of commendations, i.e., commending various passages or ideas to our attention, interpersed with a scattering of semi-learned observations of occasional interest but no real moment. But he doesn't argue for *anything*, there's no real thesis, hence no attempt to clarify anything, and no consideration of possible objections (to what?). Blimey.

i/s is right that there's nothing there that Brash has to disagree with. I don't think there's anything there for *anyone* to have to disagree with.... (To clarify: by the end of the paper you sort of know what Baragwanath likes/wants on a whole lot of fronts and it's possible to disagree with some that stuff. But precisely because those wants/likes are conveyed largely by a process of scholarly drift rather than by rational adjudication of the issues the significance of what Barag. wants/likes is mainly auto-biographical/political not rational/logical. E.g., if you don't like written constitutions or entrenched legislation or whatever it is, well now you know you have Barag. against you, but you've been given no additional reasons to revise your views on these topics, reasons that you must now disagree with and try to find ways to reject).

Unless I've missed something!

Posted by Stephen Glaister : 9/26/2006 09:18:00 PM

I don't know why anyone is surprised Brash is dog whistling on race again. Brash's comments are just a continuation of his quite deliberate tactics since obtaining the National leadership of Americanising our politics. He continually seeks to find wedge issues that divide New Zealanders into an us and them. He's already discovered that race is a deep vein he can mine for for votes. Its just par for the course for the man.

He appears to stupid - or naive - to understand the forces he may unleash if he ever does get to power on the back of Maori bashing. The only reason Maori are in the position the are today is because of their firece resistance to colonisation. What makes Brash think they will sit back and let him try and turn the clock back 50 years if he ever makes it into power?

Posted by Sanctuary : 9/26/2006 09:26:00 PM

I/S havent you misquoted Brash?

Brash said maori are no longer pure. his argument (valid or not) is that maori are not a well enough defined group genetically so you can't give rights that are attributable to a race to a person who is a fraction 'of that race'.

That is obviously different from "maori dont exist".

One answer is the one drop rule (if you are one drop maori you can be maori (great for mixed bloods!).

BUT the counter argument used seems to be "those who feel maori are maori", which means brash or gilan could be maori if they wanted (which may or may not be valid). Still.... I wonder what the rules are for being maori and who picked them...

And if, for example, I match regardless of what I might say on the census.

Posted by Genius : 9/26/2006 09:45:00 PM

Maoriness is established by whakapapa and other cultural attributes.
Maori long ago rejected the notion that Pakeha science would define us as a people. Brash is an ignorant man, and he leads ignorant people. If National gains power next election and if they persist with their policies against Maori - I suspect Maori will react with a cathartic stream of vehement protest and civil disobedience.

Posted by Hine Te-Po : 9/27/2006 12:51:00 AM

This is at least Brash's fourth comment on this theme over the last 18 months:

http://bloggingitreal.blogspot.com/2006/09/brash-on-those-maoris-iv.html

I suspect it plays well in talkback land, where seeing "race" as a biological absolute, defined by (proportions of) "blood", is still du jour.

Posted by dc_red : 9/27/2006 08:10:00 AM

There's a comment in one of the Flashman's (Flash for Freedom, I believe): funny how a drop of black blood in a white person makes them black, but no amount of white blood in a black man will make him white...

That's a paraphrase I have to admit, Flashy is more likely to have used the N word in the actual quote.

His point is that the whole notion of race being determined by the amount of blood you have is complete rubbish. We have a very good definition of "Maori-ness" in this country: if you have a whakapapa and you identify as Maori then you are one.

Still if Brash is going to persist in burning bridges with potential coalition partners, then who am I to complain.

Posted by PabloR : 9/27/2006 10:05:00 AM

The Don is not stupid. He knows how to play the race game - whether he's talking about Maori in an Orewa speech or trailling his spouse around the Asian community proudly announcing "My Wife is From Singapore." Hell she must feel expoited just like Maori

Posted by Neville : 9/27/2006 01:56:00 PM

There is no genetic basis for "race" anyway; ethnicity is about culture.

Posted by Anonymous : 9/28/2006 01:56:00 PM