The fastest legislature in the west strikes again!

In his book Unbridled Power, constitutional scholar (and future Prime Minister) Geoffrey Palmer described New Zealand's parliament as "the fastest legislature in the west" in reference to its constant abuse of process to speed legislation. Usually this is all-stages urgency, but recently we've had a problem with abbreviated committee processes as well, with tight deadlines used to ram laws through with a veneer (but not the substance) of democratic process.

This week's example is the Te Here ā Nuku (Nelson Tenths) Bill, which implements a court settlement over the state's theft of land from Nelson iwi and hapu. The bill was introduced to the house last Monday, and passed its first reading on Thursday. So far, so ordinary. Submissions on the bill are now open - but they close this Thursday, having been open for all of a week. And the bill will report back to the House by 29 July, having had just a month for select committee consideration.

Why the speed? Presumably because the regime has decided it wants it passed before the election. But its a bullshit process which leaves no time for real scrutiny or input. If there's a problem in the bill - if it is poorly drafted, or fails to properly implement the agreement, or whatever - then there's no time for anyone to notice, and no time for the committee to fix it. And no way to fix it afterwards, because the bill protects the state from all future claims in relation to the underlying proceedings or the settlement act itself.

While stemming from a different process, the bill covers similar ground to Treaty settlement bills. Those bills receive full process, with normal submission periods and committee consideration (and some then linger on the Order Paper for years, because there's no political urgency to actually implement Treaty justice). While on the one hand I'm pleased to see the government treating injustice against Māori with some urgency, this is not good legislative practice, and there are significant risks of getting it wrong. State-Māori relations are too important to be treated this way. Parliament needs to slow the fuck down, and make sure they get it right, rather than trampling on our democracy while risking serious and irreparable errors.

"Full and final" goes both ways

Last week National introduced its plans to privatise the conservation estate and allow miners free reign to dig up our taonga places. One of the ways it does the latter is by gutting the Conservation Authority and local Conservation Boards, which act as independent advisors to DoC and the Minister on a number of crucial decisions. But having Fucked Around, they're now about to Find Out, with Ngāi Tahu signalling that any change will require a renegotiation of their Treaty settlement:

Ngāi Tahu kaiwhakahaere Justin Tipa said the amendment strips power from the iwi “by turning those boards and the Authority into advisors only and handing decision-making powers to the Minister.”

“Ngāi Tahu was guaranteed a voice on the New Zealand Conservation Authority and conservation boards which currently hold decision making powers.”

[...]

“The Bill includes proposed arrangements to uphold Treaty Settlements, but it puts iwi in the position of being forced to renegotiate important parts of their settlements to fit within a narrow framework.

“Under the new regime, where elements of a settlement do not fit neatly within that framework, the Crown would only be required to meet them ‘to the greatest extent possible’. In no world does that align with a ‘full and final’ settlement.”

They're not the only iwi affected. The bill amends 57 different Treaty settlements to reflect the regime's preferred new way of doing things - unilaterally and without consultation. Those settlements are literally the work on an entire generation of politicians and iwi leaders. And the overall change - to remove iwi voices and make settlements binding only "to the greatest extent possible" - is an overall weakening of them. It is impossible to see this as anything other than the regime trying to cheat on its agreements, something that is both a clear breach of the state's duty of partnership and consultation under te Tiriti, and which invites renegotiation.

But that's not the only problem. Every settlement made has been negotiated against the backdrop of a strengthening web of Treaty clauses which have variously spelled out the state's obligations and embodied the Treaty principles of partnership, consultation, and active protection. These Treaty clauses have meant that a lot of things which might otherwise have been formalised in settlements has been able to be taken as read. And those clauses have been crucial in protecting Māori rights, including rights under Treaty settlements. For example, the Treaty clause in the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 was crucial in stopping seabed mining because it required decision makers to protect existing interests, which included customary interests.

The regime has already attacked these clauses and removed several (notably in the Oranga Tamariki Act, and Education and Training Act), and now they are coming for the rest. Which again seems to be cheating on the settlements, removing a key way for them to be enforced and protected. And that in turn invites renegotiation, including renegotiation on redress for losses. Because the redress you negotiate with a party which at least makes a show of working in good faith and wanting the settlement to endure is very different from what you demand from one which works in bad faith and gives every sign that it will cheat.

I've said before that Treaty settlements are only "full and final" by Māori goodwill, and whether they stick or not is a political question for each generation of Māori, no matter what the law says. In such a situation, the state would be wise not to call those settlements into question. If it wants them to have any chance of enduring, the state needs to uphold the settlements, including their wider context. Because "full and final" goes both ways, and if the government cheats, the settlements are neither.

More racism from National

When National voted down its own Treaty Principles Bill last year, they claimed it was because they understood that "seek[ing] to impose a particular interpretation of the Treaty of Waitangi by simple majority and referendum" was not an appropriate way to handle the foundation of our constitution. But the racist party never sleeps, and a year later, they're back, seeking to impose a particular interpretation of the Treaty of Waitangi by simple majority, without the referendum this time:

The Government has quietly agreed to repeal a number of references to the principles of the Treaty of Waitangi within laws, while amending others to be more specific.

Cabinet has also decided that, going forward, these provisions in legislation will reference both the Treaty of Waitangi and Te Tiriti o Waitangi.

[...]

The Herald learned of Cabinet’s decisions after discovering a memorandum filed by the Crown at the Waitangi Tribunal on March 12.

"Amending others to be more specific" of course means imposing a particular interpretation of the state's obligations under Te Tiriti, naturally without any consultation with the other party (or, for that matter, the public). Which is exactly what they were trying to do with the Treaty Principles Bill they denounced as illegitimate. But if the Treaty Principles Bill was illegitimate, then so is this - and so, if this passes, is the state. Because Te Tiriti is the fundamental bargain which legitimises the state in Aotearoa, and it is not one which can be unilaterally altered. A regime which reneges on that bargain cannot be regarded as having any legitimate authority over the country.

That's the sort of shit the regime is meddling with here, and why a sensible government wouldn't touch it. Meddling with the fundamentals of the state ought to be anathema to conservatives. But national is now dominated by radical white supremacist fundie weirdos, half of whom seem to have a hard-on for Armageddon. And if they're allowed to remain in power, then all of us are going to pay the price for their stupidity.

A victory for Māori in Nelson

Way back in 1839, the New Zealand Company bought the area that is now Nelson from local iwi and hapu. As part of the deal, they promised that Māori would retain their homes, fields, and burial grounds, and that in addition, 10% of the land in the planned township and surroundings would be set aside for them. The New Zealand state inherited this deal, and proceeded to break it systematically, refusing to allocate the land promised, and stealing that which had already been allocated. In 2017 the Supreme Court ruled that the state must honour the deal, and last year the High Court found that the state must return land and pay compensation. And after a year of negotiations, they've finally done it:

In Wellington on Wednesday, Attorney-General Judith Collins and Conservation Minister Tama Potaka announced that an agreement had been reached.

Under the agreement, 3068 hectares will be returned to descendants of the original owners, including the Kaiteriteri Recreation Reserve and the Abel Tasman Great Walk.

The agreement also includes a $420 million compensation payment to recognise land that has been sold by the Crown since 1839 and in recognition of the lost earnings and land use.

Which is pretty cheap for 180 years of back-rent and interest. There's also the quirk that a lot of the land being returned is coastal, while the regime, though its climate change policies, is ensuring that it will be flooded. Which seems like they're undermining the settlement even before it was signed. But that's the "honour" of the New Zealand state, I guess.

More racism from the regime

Another day, and more racism from the regime:

The government's decision to axe schools' obligation to give effect to the Treaty of Waitangi has shocked groups representing school boards, teachers and principals.

The government had been moving to change the emphasis on the requirement in the Education Act, but on Tuesday announced it would remove it altogether.

Education Minister Erica Stanford said the treaty was the Crown's responsibility, not schools'.

Except schools are agents of the state, and the law is how the state meets that responsibility. So what does repealing it - and all the other similar laws by which the state implements that specific responsibility - tell us about the state's future intentions towards meeting its obligations?

(Hint: look at climate change policy pre-Zero Carbon Act, where we had promises, but no implementation or accountability. Yeah, that...)

Worse: Rimmer says this will be enacted "by the end of the year". Which means no real select committee process or consideration, let alone public consultation. I guess their experience with the Treaty Principles and Regulatory Standards Bill has led them to double down on stomping on our democracy as well...

Which just means that this law is illegitimate, like the regime which passed it. And its just another thing which will have to go into the Treaty Restoration Bill which will have to be passed by the next government under all-stages urgency as its first order of business. Because we have an "undo" button too, and we will need to use it.

Raupatu

That is the only way to describe last night's passage of the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill. Drafted in a response to a Māori court victory over the foreshore and seabed, the bill changes the rules, making successful claims all but impossible, and forces already determined cases to be reheard under the new test. It is simply a confiscation. it is a violation of te Tiriti o Waitangi, the ultimate law of this land. It is immoral and it is wrong.

Like all raupatu, it must also be reversed. To their credit, the opposition are making the right noises about this, and you would hope that they will make it (and the reversal of National's other odious, Tiriti-violating legislation on Māori wards, section 7AA, the elimination of Treaty clauses, and the "de-Māorification" of the health and education systems) a high priority. Of course, mere reversal will not be enough: any cases reheard under National's racist new rules will need to be reheard under the proper ones. But that waste of judicial resources is squarely on the present regime, who apparently could not tolerate Māori winning in court even once.

Meanwhile, in another test of how racist the colonial parliament is, Speaker Gerry Brownlee is again threatening Te Pāti Māori for burning a copy of his regime's racist bill on Parliament steps. Which is interesting, because when Rimmer drove a land-rover up those same steps, Brownlee said he could do nothing. It simply was not a violation of Parliament's rules. Those rules have not been changed, so either Brownlee is going to have to invent some in order to punish his enemies in a nakedly arbitrary and racist way, or he will have to admit that what goes for the white supremacist also applies to Māori representatives.

Sadly, the former path can't be ruled out under this Speaker. But if Brownlee wants to set fire to Parliament's legitimacy and social licence, then I guess he can. And all future governments will pay the price for that.

National wants to eradicate Māori from the law

One of the major legal changes of the last fifty years has been the increasing recognition of te Tiriti o Waitangi and tikanga in law, both through statute and caselaw. The present white supremacist regime, with their Treaty Principles Bill, Oranga Tamariki (Repeal of Section 7AA) Amendment Act, and plans to repeal Treaty clauses, have made it clear that they want to remove statutory recognition. And now they're going after caselaw as well, threatening legislation to simply overturn decisions they don't like:

Justice Minister Paul Goldsmith says the judiciary is creating a “bespoke” legal system that’s not internationally transferable and could deter foreign investors.

These comments – made to an audience of lawyers at a Law Association function last week, and first reported by Law News – came with a commitment to create legislation that would essentially overwrite certain judicial decisions where tikanga and te Tiriti o Waitangi obligations are involved.

The Government is already doing exactly this in regards to its Marine and Coastal Area (Takutai Moana) Amendment Bill, which seeks to tighten the law around Māori claims to customary rights following significant court decisions.

And according to the Law News report, Goldsmith revealed at last Wednesday’s breakfast event that he planned to go further.

Which you'd think would be an even bigger threat to the legal system and deterrant to foreign investors than the "problem" Goldsmith purports to be solving. After all, a government which overturns decisions which benefit Māori could also overturn decisions which benefit foreign investors. But weirdly racists never think they'll be the victim (because white supremacy).

Not that there is actually a problem here to solve at all. A "bespoke" legal system? You mean a country's laws reflecting the society and historical circumstances of that country, rather than a foreign one on the other side of the world? Quelle horreur! And yet people have no problem accepting this when talking about the USA, or France, or Germany, or Canada, or pretty much anywhere else. It is only when they're only talking about Māori that it becomes a problem. And we all know why.

But Māori are the first people of this country, and tikanga is its first law. Under accepted and completely orthodox legal principles, that law remains until extinguished. And it is a matter of historical fact that parts of it have not been extinguished, and therefore effectively remain in force, to influence the rest of the legal system. This may offend the sensibilities of richwhite lawyers from the fancy suburbs of Auckland, but the fact remains. And if they don't understand it, maybe they should adhere to their professional responsibilities and learn, rather than seeking to eliminate it.

(As for Goldsmith's threat, if this gets to the stage of legislation and passes into law, it just goes on the list of things to be immediately repealed under urgency by the next government. We have a revert button too, and we will use it, so if you want "stability", then stop fucking around and let the judges do their job).

Foreshore and seabed 3.0?

Back in 2003, in Ngati Apa v Attorney-General, the Supreme Court recognised that the settler government had not actually stolen all the beaches, and that (depending on the specific history of specific areas) some of them still might belong to iwi and hapu.

Naturally, the government went apeshit, passing a law to confiscate any remaining Māori property, with consequences we are still living with today.

Fast forward 22 years, and, in a case about rights over a specific part of the foreshore, the Supreme Court has recognised that the settler government hasn't actually stolen all the riverbeds either. The law the government relied upon to claim that it had - section 261 of the Coal Mines Act 1979 - didn't mean what they claimed it did, and in fact had essentially the same wording as the law the government relied upon to claim it had stolen the foreshore and seabed (section 7 of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977). The interpretation of that sort of law as not expropriating existing customary rights was settled by Ngati Apa, and it applies to purported expropriations of riverbeds just as it did to the foreshore and seabed.

Of course, whether any particular iwi or hapu still owns any particular riverbed is a matter of fact. But the government can no longer simply deny it as a question of law. I wonder how long it will be before they go apeshit and use it to open another front in their racist hate campaign against Māori? And will ACT, who back in 2003 claimed to be the "party of property rights" and opposed retrospective expropriation, support or oppose a racist law change?

"An illegitimate exercise of kāwanatanga"

That was the Waitangi Tribunal's assessment of the National regime's plans to gut the Marine and Coastal Area Act and steal the foreshore and seabed for its greedy fishing-industry donors. It found that the regime had violated te Tiriti of Waitangi by failing to consult iwi and hapu, and failed to identify any actual policy problem requiring the changes, and warned that continuing would "significantly endanger the Māori–Crown relationship".

So of course racist National are doing it anyway:

The government is forging ahead with plans to change the law governing New Zealand's foreshore and seabed, despite a Supreme Court ruling last year that appeared to undercut the rationale for the change.

The proposed legislation stems from a clause in National's coalition deal with NZ First, which promised to revisit the Marine and Coastal Area (Takutai Moana) Act.

That commitment was driven by fears that a 2023 Court of Appeal decision could have made it significantly easier for Māori groups to win recognition of customary rights over parts of the coastline.

[...]

On Tuesday, Goldsmith confirmed to RNZ that Cabinet had agreed to press ahead with the law change regardless and to pass it before October.

Let's be clear: the underlying motive here is racism, pure and simple. Māori were having their rights over the foreshore upheld by the courts, and the white supremacist government did not like that. Neither did their donors and cronies in the aquaculture and commercial fishing industries, who did not want to pay iwi and hapu rent for the coastal space they want to use, or face an iwi veto over that use (because apparently property owners shouldn't get to decide what happens on their property if they're brown). So, they're overturning the law, and forcing the courts to revisit and overturn their decisions (rather than letting settled decisions stand as usual).

I do not expect Māori to take this lying down. We've already seen one hikoi which outnumbered the entire NZ police force five to one; I expect there'll be another. And it won't just be Māori. Modern Aotearoa recognises that Te Tiriti is the foundation of our constitution. It gives the government its right to exist. If the regime wants to rip that up, they will effectively be ripping up their own legitimacy and undermining their own foundations. And that seems like a very stupid and dangerous thing to do.

One thing is clear: if we are allowed to have a free and fair election next year - something the regime has also put in doubt - then this government must go. Whatever it does must be reversed by the next, with the courts required to revisit (again) any decisions they have been forced to revisit in the meantime. Racism and corruption cannot be permitted to stand.

More constitutional vandalism

Since the national government embarked on its racist campaign against Māori, the Waitangi Tribunal has emerged as one of its chief adversaries, putting the impacts of its racist policies formally on the record so they can not be denied. National has responded by sabotaging it, replacing almost the entire membership with unqualified crony appointments. But apparently that's not enough, so they've decided to "review" the Tribunal to undermine it further:

Māori Development Minister Tama Potaka has announced a review will take place into Treaty of Waitangi Act 1975 and the Waitangi Tribunal, in a move the ACT Party says will “rein in [the] activist tribunal”.

The review comes as part of a coalition agreement between National and NZ First, and aims to refocus the scope, purpose and nature of the Tribunal’s inquiries back to its original intent, Potaka said.

As ACT's response shows, this is simply more constitutional vandalism, intended to eliminate one of the few checks and balances on our overpowered executive. And its moving in completely the wrong direction. The lesson of this regime is that the Tribunal needs to be strengthened, not weakened, with stronger protections against government fuckery.

Hopefully Labour, the Greens, and Te Pāti Māori will make it clear that they will reverse whatever the racist dogshit regime does, and restore and strengthen the mana of the Tribunal. As for the government, it needs to think about it this way: it can either resolve claimed Treaty breaches calmly and quietly through a Tribunal, or it can resolve them through protest, occupation, and confrontation, with all the consequent impacts on the legitimacy of the state. Lawyers and historians, or Ihumātao everywhere. Their choice.

Good fucking riddance

National's racist and divisive Treaty Principles Bill was just voted down by the House, 112 to 11. Good fucking riddance. The bill was not a good-faith effort at legislating, or at starting a "constitutional conversation". Instead it was a bad faith attempt to stoke division and incite racial hatred - the legislative equivalent of a bucket of shit dumped on the table. And you can't have any sort of conversation over that.

The politicians who inflicted this on Aotearoa, who conspired to divide communities and whip up hatred, are scum, and should be reviled forever. They should have no role in the future of our country. We should vote them out on their arses and never let them back into politics.

The dishonest crown

The High Court has just ruled that the government has been violating one of the oldest Treaty settlements, the Sealord deal:

The High Court has found the Crown has breached one of New Zealand's oldest Treaty Settlements by appropriating Māori fishing quota without compensation.

It relates to the 1992 Fisheries Settlement, commonly known as the Sealord Deal, which funded the purchase of a 50 percent stake in Sealord and protected Māori fishing rights and interests in perpetuity.

The court found the Crown had breached the 1992 settlement and by extension the Treaty of Waitangi.

The full ruling is here. The breach is due to the technical details of the government's quota management system, but it basically meant that Māori quota was stolen by the crown and reallocated to other fishing companies to pay off its debts. Its been going on for decades, so the amount of quota - and therefore money - involved is substantial.

But while the court has found a breach, it hasn't ordered any relief, so the obvious question is what the government will do next: enter good-faith negotiations to make good its breach and compensate for the wrong? Or pass "fuck you" legislation because they don't really think Treaty settlements are binding on them? And if the latter, what do they think it will do to all the other settlements - and their claims of being "full and final" - that they have passed?

The people have spoken

The Justice Committee has reported back on National's racist Principles of the Treaty of Waitangi Bill, and recommended by majority that it not proceed. So hopefully it will now rapidly go to second reading and be voted down.

As for submissions, it turns out that around 380,000 people submitted on the bill - 75,000 of them as part of a "collated" (template) submission which were counted as one per group. This included 31,200 for racist political party ACT and 24,706 for white supremacist group Hobson's Choice. While the committee officially accepted only ~37K submissions (the others will be accepted and entered into the parliamentary record at a later date), they took the unusual step of getting the Ministry of Justice to analyse the rest before they were accepted. The result found overwhelming opposition to the bill, with 90% of all submissions opposed, and only 8% in favour. The people have spoken very loudly on this, and you'd expect Parliament to listen. If they refuse, or try and subvert it, then you can expect the sort of discontent we had with the political system in the early 90's, and a similar movement to further constrain and humiliate politicians.

With so many people submitting, this could have been a signal moment for democratic engagement. Instead, National turned it to shit, by trying to throw our submissions in the bin to meet their arbitrary, self-set timeline. That should have consequences too. Most obviously, by voting them out at the next election. But also, the political elite are currently pushing for a four-year term, to make themselves less accountable to us. Absurdly, they are predicating this on giving greater power to select committees. Given what we've just seen about how a government majority can abuse that process and nullify any real scrutiny of a bill, we should be telling them to get absolutely fucked. And if you'd like to do that, you can do it here.

Again, this government needs to be voted out. The National Party needs a good electoral decimation to teach them a lesson. They agreed to this hateful, racist bill in order to gain power. Not a single one of them crossed the floor to vote against it, showing them all to be a pack of racist arseholes. Then they abused the select committee process to try and shut down opposition and silence submitters. They agreed to it, they own it. And we should hold them responsible for this entire shitshow, and never let them - or anyone else - forget what they did. They are a racist, white supremacist, anti-democratic party, and they should bear that label forever.

The fix is in

So, having broken its promise to the nation, and dumped 85% of submissions on the Treaty Principles Bill in the trash, National's stooges on the Justice Committee have decided to end their "consideration" of the bill, and report back a full month early:

Labour says the Justice Select Committee is expected to report back on the Treaty Principles Bill on Friday - more than a month ahead of time.

Parliament set down a deadline of the 14 May, and a Cabinet minute shows the committee was set to consider it until 16 May.

But Labour's Justice spokesperson Duncan Webb - who had previously sought an extension to avoid thousands of public submissions being excluded - now says the timeline has been moved up.

"The committee finished more than a month ahead of the 14 May deadline set by Parliament with the report expected to be presented and available tomorrow (Friday)," he said.

Webb said the Committee had "rammed it through with outrageous haste" and the early report would exclude those thousands of submissions.

There is absolutely no reason for this haste. The original May deadline was set by the government, and could easily have been moved to allow for full analysis and consideration of the submissions. Especially as National has repeatedly said publicly that they will be voting the bill down at second reading. So I guess we can conclude from this that the fix is in, and Rimmer is going to get the racist referendum (and associated hate-crimes) he is thirsting for. And National is going to collude with him on this.

As I said earlier, this is not democracy. National's abuse here makes it clear that the entire parliamentary process is a sham and a fraud. It undermines the legitimacy of parliament, and of our democracy. And that is something no government should do. We need to vote these tyrants out at the first opportunity.

This is not democracy

When National introduced its bullshit "Treaty Principles Bill", the public reacted with outrage. Over 300,000 of us - more than 5% of the entire population of Aotearoa - submitted on the bill, crashing parliamentary servers. But now, National's stooge committee has decided to dump two-thirds of those submissions in the trash unread:

Labour's Justice spokesperson Duncan Webb says thousands of submissions on the Treaty Principles Bill are set to be excluded from the Parliamentary record.

He said it was not a matter of submissions arriving after deadline, but that the committee staff do not have enough time to process the unprecedented number of written submissions - including more than 200,000 online and 12,000 hand-written.

"The committee's working but they've made it very clear that there's no way that they can process all of the submissions by the time the committee is due to report back, and if they're not processed ... they kind of fall off the end and don't become part of the record," he told RNZ.

National has consistently used short submission periods in an effort to stifle public opposition to its bills, but simply throwing out submissions unread is a new low. Previously we've seen it on security legislation, steamrolled through under quasi-urgency to meet "urgent" deadlines set by spy agencies. Here its being used on a normal bill, one which was promised a full parliamentary process. Except oh no, that's too much work, so National has decided to dispense with it.

To echo my words from a previous abuse: this process is a sham and a fraud. It is not democracy. It shames our parliament and brings it into disrepute. And as someone who spends a lot of time encouraging people to submit on parliamentary processes (and who submitted themselves and whose submission is apparently among those dumped), I feel once again that my good faith has been abused and that I have been made a party to National's democratic fraud. Rather than encouraging people to participate peacefully within the system, maybe I should have been encouraging them to burn the whole rotten shitpile and the clique of arrogant-self-serving arseholes in it to the ground.

...because that's the clear message this sends. If a government makes peaceful change impossible, it makes violent change inevitable. Maybe our politicians should think about that, before telling people so loudly that peaceful, democratic participation is a waste of time.

Te Tiriti needs a guardian

This year, we've seen a radical, white supremacist government ignoring its Tiriti obligations, refusing to consult with Māori, and even trying to legislatively abrogate te Tiriti o Waitangi. When it was criticised by the Waitangi Tribunal, the government sabotaged that body, replacing its legal and historical experts with corporate shills, historical illiterates, and swivel-eyed weirdos.

This radicalism is unacceptable to the people of Aotearoa, who overwhelmingly support te Tiriti and want it to be honoured. And it's producing pushback. We've already seen a proposal from Te Pāti Māori to strengthen the Waitangi Tribunal and protect it from government fuckery, and now they've gone better, with a proposal for a formal parliamentary guardian for te Tiriti:

Te Pāti Māori will demand the establishment of a new parliamentary commissioner with the power to overrule Parliament if proposed legislation violates Te Tiriti o Waitangi, should they form part of a government.

[...]

In a statement released alongside the media stand-up, Waititi and Ngarewa-Packer said their party would campaign on creating an independent Parliamentary Commissioner, who they described as an “advocate ensuring that Te Tiriti is honoured across all government policies and decisions made in Parliament”.

“The commissioner would have the role of auditing the government in being honourable of Te Tiriti o Waitangi. It will provide independent advice to Parliament, and ensure Māori voices are central to decision-making processes,” Ngarewa-Packer said.

[...]

The pair explained the commissioner would be able to assess proposed legislation before the House and scrap any bills that did not align with Te Tiriti, describing the role as a “Te Tiriti auditor” and distinct from advice Parliament already received on bills impacting Te Tiriti.

Te Pāti Māori argues that a guardian should be able to do this because te Tiriti, as the foundation of our country, is superior to Parliament. I think most kiwis would agree with them. And if you asked them "should Parliament be able to ignore te Tiriti?" - well, you can see the public's response to that in the hikoi, and the overwhelming rejection of the Treaty Principles Bill.

As with Te Pāti Māori's proposal to make Waitangi Tribunal findings binding on the state, if we take te Tiriti seriously, then a guardian to audit proposed legislation for Tiriti compliance and prevent breaches from advancing is absolutely where we need to be going. Whether we get there all at once, or spend some time in a section 7 BORA-style advisory half-way house is an open question, but the destination should not be in doubt. As for those who point to America and say that judicialised solutions don't work, they work fine in Canada, Germany, and South Africa; so maybe America's problem is just American exceptionalism.

Still, it is worth remembering that there are no permanent solutions in our system. Parliament can over-rule the courts, and even disestablish them if they want to. A future parliament could simply replace a Tiriti-guardian with a racist crony (as National has done to the Waitangi Tribunal), rewrite the rules to prevent them from reporting honestly or over-ruling legislation, even disestablish them entirely. The only durable solution is to build strong norms which make such things unthinkable, and which make allying with norm-violating radicals like ACT political poison.

In a quasi-Westminster system, all "safeguards" are really just constitutional tripwires. But that doesn't make them useless. Tripwires send clear signals to the public that it is time to take action (escalating from protests all the way to a complete and violent rejection of the regime). And they can help strengthen the norms we need. We've seen this process with the BORA, originally casually disregarded, now with an increasing presumption that parliament will not legislate against it, and a formal mechanism making parliament accountable to the judiciary when it does (still, National wants to backslide on both jury trials and prisoner voting). A Tiriti-guardian can do that for te Tiriti. And that's what makes it worth doing.

We deserve to know who chose this bullshit

Oral submissions on National's racist, ahistorical Principles of the Treaty of Waitangi Bill are being heard today, and in addition to the expected iwi, academics, lawyers, and constitutional experts calling bullshit, there's been a succession of racist, swivel-eyed loons spewing hate. You might think that that's the luck of the draw, but it wasn't. Submitters in the first week were specifically chosen by the political parties:

In a press release yesterday, the committee confirmed it will hear 80 hours of oral submissions across four weeks. A full day of oral hearings will be held on January 27, with a further two hours being heard on January 30.

Submitters in the first week will be nominated by the members of the committee, which features politicians from all six of the parties in Parliament. It’s understood each party will be able to pick 25 submitters each.

So when you see some racist conspiracist fruitbat using the committee hearings as a platform to monger hate, keep in mind: some party chose them. Some party thought their constitutionally and historically illiterate contribution would be "valuable". Someone thought their voice needed to be heard more widely. And we deserve to know who, both so we can ask them what the fuck is wrong with them, and judge them at the ballot box.

Sabotaging te Tiriti

The Waitangi Tribunal has been one of the most effective critics of the government, pointing out repeatedly that its racist, colonialist policies breach te Tiriti o Waitangi. While it has no powers beyond those of recommendation, its truth-telling has clearly gotten under the government's skin. They had already begun to sabotage it, with a crony appointment of racist former ACT leader Richard Prebble in October. And on Friday they gutted it completely, replacing almost the entire membership:

Māori Development Minister Tama Potaka has confirmed a major refresh of the Waitangi Tribunal, as he replaces half of its members.

The coalition Government started a major overhaul in October, appointing former ACT Party leader Richard Prebble to the Tribunal alongside Ken Williamson, whose background is in insurance and corporate leadership.

On Friday, Potaka confirmed sweeping changes to the Tribunal’s membership. He announced another eight new appointments, and said he was renewing the warrants of just five existing members.

Those new appointments included political pundit Philip Crump and former NZ First minister Ron Mark.

The latter makes it crystal clear what is going on: qualified academics and historians are being replaced with corporate shills, racists, and swivel-eyed weirdos. Its the same tactic they have used to sabotage human rights. And the solution is the same in both cases: the next government should immediately sack National's unqualified cronies, for being unable to properly perform the functions of the office.

Once that is done, there is a clear need to insulate the Tribunal against further fuckery from future right-wing governments. We already do this for judges: their independence is guaranteed by lifetime appointments, protections against removal, and protections against defunding. The Waitangi Tribunal is effectively a constitutional court, embodied to rule on the ongoing partnership which founded our nation. Once constitutional normality is restored, its members deserve the same protection.

300,000!

Over the holidays, there was a rising tide of calls for people to submit on National's repulsive, white supremacist Principles of the Treaty of Waitangi Bill, along with a wave of advice and examples of what to say. And it looks like people rose to the occasion, with over 300,000 submissions received so far:

Initial estimates showed that over 300,000 submissions have been lodged online. The committee said more than half of those submissions came on Tuesday, which caused the site to crash.

The previous record for submissions was just over 100,000 on the conversion therapy legislation in 2021.

Assuming that they're all kiwis, and not foreign MuskBots, that means more than 5% of the population of Aotearoa felt strongly enough about this bill to speak up about it. Which is a massive level of mobilisation.

We don't know yet - and won't know for months, given the numbers - whether the balance of submissions favour or oppose the bill. But Luxon's hopes of being able to vote this down at second reading and put the issue to bed quietly are clearly dead. No-one is going to be talking about anything else for as long as this bill is before the house, and even once it is voted down or voted through, people are not going to forget. Especially if it is voted through, because there's clearly enough of a motivated base of activism here to drive a significant anti-government protest movement if National passes this law, and to push for it to be reversed (I'm less concerned about the other case, because while there are clearly some motivated racists - the National and ACT caucuses, for a start - its not like there were a hundred thousand of them in front of parliament calling for the Treaty to be abolished).

Given the numbers - three times the previous record - its no wonder the parliament website melted under the load. The good news is that the Justice Committee has done the right thing, and extended the submission deadline for another five days. So, if you haven't already, Submit!. History is watching, and like the Tour, people in twenty or forty years time will want to know which side you were on. Are you going to do your part, or stay silent in the face of white supremacy?

Submitted!

Submissions on National's racist, white supremacist Principles of the Treaty of Waitangi Bill are due tomorrow! So today, after a good long holiday from all that bullshit, I finally got my shit together to submit on it.

As I noted here, people should write their own submissions in their own words, so I'm not going to post the thing. But in keeping with the idea of not wanting to waste my time on what is essentially a disgusting ACT trolling exercise, or in trying to compete with recognised Tiriti and constitutional experts who will say things better than I ever could, I kept it short. My key point was that the bill effectively unilaterally abrogates te Tiriti without consultation with the Tiriti partner, let alone negotiation or agreement, and that this is deeply dishonest and dishonourable. Sadly, I failed to include a Darth Vader reference, but that's probably for the bests. ACT would probably think being compared to one of SF's most notorious villains is cool, because like sad little incels they took all the wrong lessons from those movies.

I also pointed out that Parliament has shamed itself and undermined its own legitimacy by even considering the bill, and that it needs to make restitution for this. Most obviously, this means killing the bill dead. But they need to do more: apologising to Māori and the people of Aotearoa for even considering this bullshit, publicly censuring the Minister for bringing the bill to the House, and putting safeguards in place to prevent similar actions in future. I suggest a BORA-style mechanism to help prevent unwitting Tiriti breaches, as well as legislation similar to Tākuta Ferris' Treaty of Waitangi (Empowerment of Waitangi Tribunal) Amendment Bill (currently in the biscuit tin) to ensure Parliament is well-informed and prevent executive interference in the Tribunal's functions. I don't expect the current pack of racist arsehats to consider either option - but hopefully the opposition will be more committed to protecting the basis of our constitution from racist meddling.