Hard News: Right This Time?
378 Responses
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wondered whether either the Crown or iwi signatories intended to (or even could) extinguish this particular aboriginal title in the process of signing their Treaty, which granted new, explicit rights.
Yes, they could have, but no, they didn't. And the rights were neither new, nor granted, but rather affirmed - in the same way as done by the BORA.
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DPF,
You overlook the crucial element of dates.
Helen Clark announced she would legislate to overturn the Court of Appeal decision a mere 72 hours after it was made public.
That is the panic I was referring to. They should have just appealed. If Clark had announced an appeal, then all the other frothing would never have occurred, and the Privy Council may well have decided things differently.
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So anything we may have once deemed legally/socially/ethically useful as a society needs to be ignored once it passes some nebulous, agreed-upon use-by date? Like yoghurt?
Except its not agreed upon - its simply asserted by people with an axe to grind.
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Russell:
but I wondered whether either the Crown or iwi signatories intended to (or even could) extinguish this particular aboriginal title in the process of signing their Treaty, which granted new, explicit rights.
In short - no. The Treaty didn't cede any property rights to the Crown. It (arguably) ceded sovereignty, but direct use rights over land weren't affected by the Treaty.
And even if you argued that they did, there's a well-established doctrine of both contractual and treaty (which is basically a contract between nations) interpretation which states that, where there is ambiguity in the text, all other things being equal it is resolved in favour of the party who was in a weaker bargaining position. Contra preferentum. So if there was ambiguity as to whether rights were extinguished to low-tide or high-tide, that would be resolved in favour of Maori. Thus - high tide.
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Except its not agreed upon - its simply asserted by people with an axe to grind.
Ah, snap. I edited my original thought to reflect that issue just as you posted...
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But I agree that incorporating such principles into research is very fuzzy--other than providing consent forms in te reo Maori.
In the Uni of Canty biology department there's an iwi consultation process if any sort of work is being done with native species, I believe, especially those like the kotuku or kereru which have particular significance as taonga. And I wouldn't want to be the person who looked into anything involving any sort of genetic manipulation and native species, because I can guarantee you'd be looking at a very, very long consent process.
Seriously, who *are* you people? You are freaking my historian ass the hell out. :)
The sort who consider the past to be somewhere between boring, irrelevant, and inconvenient.
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Seriously, who *are* you people? You are freaking my historian ass the hell out. :)
The sort who consider the past to be somewhere between boring, irrelevant, and inconvenient.
And, rather curiously, appear to hanker for a perpetual NZ circa 1950.
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Hi David,
You overlook the crucial element of dates.
Helen Clark announced she would legislate to overturn the Court of Appeal decision a mere 72 hours after it was made public.That is the panic I was referring to. They should have just appealed. If Clark had announced an appeal, then all the other frothing would never have occurred, and the Privy Council may well have decided things differently.
I think you'll find that the frothing was most certainly underway before Clark's announcement about legislating, from Nick Smith, who on the Sunday was urging the government to legislate -- and the day before that from Stephen Franks.
They both declared that the ruling would "open the floodgates" for claims otherwise.
But even without noting that, it's a fairly thin point given what happened subsequently. If National wished the government to appeal to the Privy Council rather than immediately legislate, you'd think its leaders might have said so.
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The sort who consider the past to be somewhere between boring, irrelevant, and inconvenient.
The comparison with the US constitution is apt. They're documents that have ongoing relevance.
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So anything we may have once deemed legally/socially/ethically useful as a society needs to be ignored once it passes some nebulous, agreed-upon* use-by date? Like yoghurt?
Actually, yes. We do not live in a time warp where the world of 1840 has been locked in forever. Time is a valid and legitimate actor in history. Are you arguing we should forever be in thrall to the actions of our ancestors? There is coming a day when the idea of Maori (whatever THAT will mean in 2140, or even 2040) being seen as the only indigenous people will be regarded as a joke, a simple rejection of common sense and common fact. And that day, if it hasn't already arrived, is a lot closer than you seem to believe.
Sounds great, we could enshrine Te Tiriti in a written constitution - would that make you happy ?
No.
Or do you actually cleave to this quaintly colonial notion that it's OK for the state to embody Pakeha culture, but not OK for it to embody Maori culture ? IOW, Pakeha good, Maori bad ?
I don't recall commenting on this. You seem to be trapped in the twentieth century. Do you wish to trap us forever divided between Pakeha and Maori? perhaps it is time for you to move on? Intermarriage and time will see inevitably the blending of peoples that has already created something new, and that will in turn evolve into something else. "Pure" Maori culture died on the 6th October 1769. The rest has been the story of New Zealand.
We still recognise the Magna Carta, signed in 1215
Actually, Magna Carta is instructive of how I think the treaty should be approached. No one seriously seeks to limit the application of Clause 29 to those who can trace their ancestry back to 1297, or deny it to Welshmen and Scotsmen, which is what a literal interpretation would do. Magna Carter nowadays establishes a series of important PRINCIPLES around the limitations of Royal perogative and the right of Habeus Corpus. For example, to my thinking, article two of the treaty of Waitangi will eventually simply establish the rights of those who are New Zealanders to their sovereign rights to their land. To think otherwise is to apply an intellectually bankrupt and reactionary straitjacket that flies in the face of reality in New Zealand 170 years after the signing, let alone what the country will be like 200 or 300 years after the signing of the treaty of Waitangi.
And, rather curiously, appear to hanker for a perpetual NZ circa 1950
I think you'll find I hanker for a New Zealand Republic circa 2140. The reactionaries of the elite left are the ones who want to freeze us into an 1840 time warp.
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Prendergast is dead. Get over it.
I thought you meant Kerry and was trying to find where the street party was happening!
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The treaty is between Maori and the British crown and its successor.
The elephant in that room are four million people who now simply call themselves New Zealanders, and who are not addressed in the treaty.Wrong!
The four million New Zealanders elect the government known as the "crown" and are hence party to the treaty, just as the eighteen million Brits were in 1840.
The treaty is not, and never was, a personal treaty between the Windsors and Maori. It was a treaty between the British government (and it's successors, e.g. the government of NZ) and Maori.
Trying to argue that somehow the "crown" refers to a distant figure in a north European castle is just a trick to avoid the real issues.
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I'd prefer to stick to worshipping ghosts, quite frankly, because they're less likely to chop my head off.
You worship them because they're powerless to chop your head off? Personally I worship nothing and no-one, and look after my own head, both on the outside and the inside.
So anything we may have once deemed legally/socially/ethically useful as a society needs to be ignored once it passes some nebulous, agreed-upon* use-by date? Like yoghurt?
Now there's an idea. A use-by-date on laws. Sometimes absurd suggestions aren't so absurd after all.
Only problem is that part of the mentality of ghost worship is the understanding that we will one day join the ghosts, so our only chance at earthly immortality is NOT to put a use-by date on our impositions on future generations.
Seriously, who *are* you people? You are freaking my historian ass the hell out. :)
I'm the ghost of Thomas Paine, speaking through my earthly conduit. Fall to your knees and worship, lest you pass your use-by date unrepentant.
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The point, Tom, is that if Maori don't accept your profoundly Pakeha-privileged vision of a Brave New World, or want to assimilate tidily into your 'one people' paradigm, you can't force them into it. That's not what partnership means.
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Tom said lots of stuff that neatly summarises my position.
I'm a bit leery about comparing the Treaty and the US Constitution for a whole bunch of reasons, not least of which is that the Constitution was explicitly written to be an adaptable document. The Treaty was, to put it crudely, a business arrangement. The Crown offers these things, the Maori offer those things in return, deal done. Drafted with an explicit recognition of the ongoing relationship? Not so much.
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There is coming a day when the idea of Maori (whatever THAT will mean in 2140, or even 2040) being seen as the only indigenous people will be regarded as a joke, a simple rejection of common sense and common fact. And that day, if it hasn't already arrived, is a lot closer than you seem to believe.
Mr. Angry waxes prophetic. Must be full moon.
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"Pure" Maori culture died on the 6th October 1769. The rest has been the story of New Zealand.
Show me where the definition of "culture" involves "purity". No culture is "pure", if by that you mean untouched by outside influence; but Maori culture is damn well extant, and vibrantly so.
. Drafted with an explicit recognition of the ongoing relationship? Not so much.
Surely a document which defines stuff like governance is inherently about an ongoing relationship? And, if nothing else, it's what we've got. Te Tiriti, and the keeping - or mostly not keeping - of it, have defined our history. Trying to just put it down and move on pretty much ignores how the history of New Zealand has played out, how a lot of people feel about it, and how far we still have to go.
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you can't force them into it.
My Dad is half Maori, there didn't seem to be a lot coercion in the creation of me.
Assimilation is always taken as given that it means obliteration. I am not so sure. maybe it can mean creation. I was at a BBQ in London the year before last and the New Zealanders, all white, were doing fire poi in the backyard, and they had put down a hangi. I was walking down Queen Street a few years back and I saw a Maori girl arm-in-arm with a Chinese one, in that way Asians do, as naturally as if we've always done it here. I've recently had a newly arrived Polish girl introduce me to her sister as her "Whanau."
The point, Danielle, iis that in another hundred years from now no one and everyone will be a "Maori".
Whither then the "principles of the Treaty of Waitangi?"
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The four million New Zealanders elect the government known as the "crown" and are hence party to the treaty, just as the eighteen million Brits were in 1840.
One million. In 1840 the UK was a long way from universal suffrage, and only 20% of the adult male population could vote.
Nitpicking aside: the Treaty is certainly subject to ongoing consent, as is any political arrangement or constitutional document (the social contract is an ongoign arrangement). And its worth noting that every NZ government in recent memory has consented to it. Whether this is a sign of popular consent or a failure of representation I guess depends on whether you are a racist or not.
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So let us say that the Treaty is a business deal: business deals can't be altered by one party unilaterally, not even 160-odd years down the track.
Magna Carter nowadays establishes a series of important PRINCIPLES around the limitations of Royal perogative and the right of Habeus Corpus
No, that's not true. There are parts of Magna Carta that have the force of law, and they remain law in the full sense, and then there are other parts that have been replaced and refined by Act of Parliament, and then there are parts that have been abrogated by Act of Parliament or similar. But it isn't that the passage of time has done anything to Magna Carta; forces greater than it have acted upon it and changed it. And of course Parliament has the right to change the law, that's what it is there for.
You seem to be proposing that we alter the Treaty unilaterally without reference to the other party, which is, well, there's enough of the North European pagan in me to call it oathbreaking.
(If no-one and everyone is both Maori and not, then the matter is moot; they will all then be entitled to the protections of the Treaty, and so-forth. At the moment that is not the case, so let us stay away from metaphysics.)
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@Lucy Stewart:
My point is that since 1769 the story of Maori has been the story of their response to contact and colonisation. the idea that the Maori Culture of today is a pure artifact of that of 1769 - or 1840 - is nonsense. What is Maori culture today has to be an evolution of what it was 240 years ago in 1769, similarly, what will be vibrant Maori culture in the year 2249 will be quite different to what it is now.
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There are parts of Magna Carta that have the force of law, and they remain law in the full sense,
Agreed. But they apply to everyone in the UK, not just Anglo-Norman freemen or people who can trace their family tree back to 1215. Do you see my point?
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But that's because either they never did, or the English/British -- OK, the Crown-in-Parliament or possibly just the Crown back when it was all a wee bit constitutionally laxer -- changed their meaning.
The New Zealand Crown can't do that to the Treaty because it has no right to edit it, but the English/British had every right to edit Magna Carta. There is a fundamental difference.
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(the social contract is an ongoign arrangement).
And it's still not worth the paper it's not written on.
Nitpicking aside: the Treaty is certainly subject to ongoing consent, as is any political arrangement or constitutional document
Yup and Tom is suggesting that we could fail to consent to it. If there was consent, by modern standards of that (women would, for instance, be part of the decision, as would people who were not of chiefly descent), then perhaps he'd fall into line.
And its worth noting that every NZ government in recent memory has consented to it.
That's the weirdest take on the Foreshore and Seabed Act I've ever heard. From what I could tell, Labour were simply ignoring the Treaty.
I don't think that was a wrong thing to do, necessarily, but I think the way it was done was wrong, for such a massive decision. Now could be the time to do it right.
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I see your point Keir.
But King John's father is the first post-conquest king known to have spoken the English language, and wasn't until Henry IV 450 years after the conquest that an English king spoke in English as his native tongue.
John's first language would have been French. John would have seen himself as a Frenchman. Magna Carta was an agreement between the Anglo-French ruling elite which didn't include the conquered Anglo-Saxons.
The idea that Magna Carta applied to ENGLISHMEN came later.
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