Wednesday, April 03, 2019

Pure sophistry

The Canterbury Regional Council (Ngāi Tahu Representation) Bill will be going before the House today. The bill would create two unelected positions on ECan for Ngāi Tahu, giving them 12.5% of the representation for 3% of the population. Except its worse than that, because the positions aren't elected - so in practice iwi management will get to decide.

You'd expect such a bill would raise obvious Bill of Rights questions. But the Attorney-General says it is no problem whatsoever. But not for any reason you'd think:

Ethnicity is a prohibited ground of discrimination under s 21 of the Human Rights Act. The Bill proposes to confer rights on Māori that are not conferred on other people, by providing Ngāi Tahu with non-elected representatives on the Council, in addition to their vote for elected members. On face value, this appears to breach s 19 of the Bill of Rights Act

Notwithstanding this, we consider that the Bill does not limit the right to freedom from discrimination affirmed by s 19 of the Bill of Rights Act. Under s 19, discrimination arises only if there is a difference in treatment on the basis of one of the prohibited grounds of discrimination between those in “comparable circumstances, [that] when viewed in context...imposes a material disadvantage on the person or group differentiated against”.

In the context of the provisions within this Bill, no other persons or groups can be considered to be in comparable circumstances to Ngāi Tahu and no persons or groups will be materially disadvantaged by the passing of the Bill.

I am struggling to think of a more appalling act of legal sophistry. And if taken seriously, it renders s19 BORA utterly meaningless. After all, if you can define comparator groups at will like this, then you can define them so as to remove discrimination entirely. I'd expected them to maybe argue "good faith measures" under s19(2), or a justified limitation under s5. The fact that they have not tells us that they do not believe those arguments to be sustainable.

The natural comparator group in this bill is "Canterbury voters", whose representation will be diluted by the presence of unelected members. And that is unquestionably a disadvantage, just as Māori would be disadvantaged if the government were to return to granting disproportionate voting power to pakeha (as it did pre-1996 by limiting the number of Māori seats).

I support guaranteed Māori representation on regional councils, but it must be democratic: elected and proportionate. There's some wiggle room on the latter to guarantee a voice. But this is setting up Ngāi Tahu to wield unelected, disproportionate power, like the British House of Lords, or Tonga's laughable noble seats. And that simply is not democratic.

Update: The bill was voted down 66-54. Good riddance. And now maybe ECan can pursue a democratic plan instead.