Posts by Mark Bennett
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Weston,
I pretty much agree. A couple of thoughts.
(i) Culture and politics:
In principle, I believe that our governmental structures should not politically or economically discriminate between cultures. I tend to think of this as a moral imperative.
We do this already. Our laws discriminate in favor of the 'Pakeha culture' to everyone who lives here. Ok, it is equal treatment - 'one law for all', but the point is whose law is it? It is simply not the case that all cultures embrace the same political (eg democracy, rights, responsibility, criminal, family) and economic ideals. Unless we deny that culture has any impact on one's preferred economic and political order, then we have to accept that 'one law for all' privileges some culture's norms over others'. That's why we have states that have different laws, and not a liberal boilerplate.
You may have already read them, but if not, Will Kymlicka's Liberalism, Community and Culture or Multicultural Citizenship have the best 'liberal' arguments for why culture might be important in a liberal democracy. There is a summary of his position in these books here.
(ii) Ngati Apa
I agree that politics explains the reaction to Ngati Apa. A huge counterfactual fear arose, based on the possibility that exclusive use would have been recognized in areas that were publicly used for generations, and that this exclusivity would have been exercised. We could have easily dealt with any problem after the decisions came out. Yes, fear drove Labour to do what it did. But, like you, I like my politics to appeal to principle, not fear.Incidentally, the Ninety Mile Beach decision on which the orthodoxy rested was the only case that I remember my property law professor treating with incredulity. The government should have seen the reversal coming, as was pointed out on Public Address at the time. If the government had made clear, say in the 80s when the legal questions were being raised, that recreational use of the foreshore and seabed was protected, we could have been spared the fear-mongering and the iwi/kiwi billboards... but that might have been taken as a nod to customary rights... they can't win...
Cheers,
Mark
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Great post, thanks!
The Treaty is, no doubt, a collection of old musty rat-eaten parchments. No people should or can be bound to words on paper that are not somehow relevant to their collective self-government. The big 'but' is that the Treaty does have some pretty important and widely-subscribed to principles of collective self-government relevant to a nation that is the result of colonisation. Many people act like the Treaty is no longer relevant, and the upshot is that we can now live in a colour-blind liberal democracy. That might work if the people who entered into the political relationship under the Treaty consent to this, or no longer exist. If not, then what Tully would say is that an intercultural dialogue must take place from equal bargaining positions to create a new political relationship. If you don't think that's ever going to happen, you might be a little reluctant to abandon you're old political bargain.People reading this may be interested in this article by Paul McHugh on some of these issues.
More specifically, those who want to know more about the Foreshore and Seabed Act might look at this article on the provisions and this article on the CERD report.
(All from the good ol' Victoria University of Wellington Law Review, I might add).
For more background on the legal position prior to Foreshore and Seabed Act, the Waitangi Tribunal Report is a good (free, online) start. Also, while you're there you might want to take a look at some of the other classic reports, for example Orakei (esp Chp 11) and the generic claims.
The government's analysis of the submissions it received about the effect of the F&S Act is here.
Funny how quickly this fell of most people's radar. Well, most people whose rights weren't affected, eg people who were scared that the great New Zealand beach lifestyle was at threat. But if you want a(nother) nice example of a majority acting to ensure it's interests aren't threatened, here it is. I would have thought that asking for consent before further divestment of the few remaining vestiges of the rights retained by Maori - stemming from English common law and political practice - would be the just thing to do. I hope that such a principle (requiring consent) might be applied to the other vestiges of this political relationship... eg the Maori seats.
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Che - generally agreed. But the whole intermixed thing is not a big problem for establishing small territorial enclaves, which is surely what many marae are, de facto, at the moment. 'Off reservation' is the problem for liberals; how do you imagine that we can give effect to your interpretation of the Treaty - 1. crown's in charge, 2. maori get the final say over their own culture and things they think are important, 3. everyone has equal rights. - in a way palatable to the majority. I'm not sure that's possible apart from those methods we have at the moment, given that they themselves are so unpopular. Also, interpreting the Treaty may not be rocket science, but neither is it 3rd form English.
Lyndon - the 'disappearing Indians' definition is in the Indian Act, section 6. It's 'explained' here. It's needed because 'Indians' get federal benefits, which the federal government obviously wants to limit. If tribes have power, then they can determine membership themselves - for example, here. The tribal government will also limit their membership, but they're far less likely than the federal government to exclude people who would be included under tribal law.
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Ben,
The problem with the Canadian example is that so long as the Supreme Court (or whomever your final arbiter of choice is) is selected by a federal government that is not representative of all the streams of political authority then the rights / authority of the minority streams are in effect really at the gift of the federal government.
sure, that's why the Supreme Court doesn't really want to decide what self-government is, and why it didn't. It wanted to leave those negotiations to the federal, provincial and tribal governments. Which then came to a compromise, and created self-government agreements that hopefully do represent a confluence of the streams of political authority in their parcelling out of sovereignty between these three levels of government. Whether the self-government agreements really recognise the political authority of First Nations to an acceptable degree really depends on the kinds of bargaining chips that they have over the other governments - in British Columbia, it was probably a combination of some sense of the justice of self-government, combined with the looming fact of huge tracts of unextinguished aboriginal title.
Harvard is great. If you like reading and writing yourself to death...
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Ben, you're right that our current structure of government isn't conducive to personal jurisdiction or territorial autonomy. We don't have federalism, so dividing up sovereignty seems dangerous to us. And so all that's left are the Maori seats, devolution, corporate structures and any non-state authority that the state does not subvert. Politically, for the 'foreseeable' future, that's the most that we can expect.
In terms of starting afresh, Canada had a little turn around in its policy towards First Nations when it finally figured out that they had unextinguished aboriginal title rights, and after an assimilation policy fell stillborn from the press (well, actually it was torn apart by Harold Cardinal in The Unjust Society and others). The result, after a long period of constitutional soul searching, was the constitutional protection of treaty rights and aboriginal rights, a federal self-government policy, a Royal Commission, and eventually, the negotiation of self-government agreements. Of course, the situation was different, and it was more like a crisis in many ways. Like you say, it's not going to happen here anytime soon.
But (i) it is an example we might point to that the sky doesn't fall on liberal democracy if there is a little (or even quite a lot of) differentiated citizenship, and (ii) it's weird we never mention it in our constitutional debates, given we took a lot from Canada's example when creating our Bill of Rights Act 1990.
Che- Nice detective work. I am doing an LLM at Harvard. -
Deborah,
I agree, up to a point. Nations don't seem to do that well where they have sharply individuated cultures. But that is not the case here. There are diverse cultures, some more isolated than others, but none so isolated as Kukathas imagines. Like he and you suggest, cultures are not billiard-balls that crash off each other when they come into contact. They're more like... er... balls of paint, which... um... come into contact and take some of the colour of the other, or might merge to create another colour completely. Speaking totally metaphorically.
The major problem I see with our current debates is that these commonplaces about cultures are being used to discredit the Treaty and Maori rights, when nothing of the sort flows from them. Cultural apartheid is a bad idea; therefore we must abolish the Maori seats (note who 'we' is...), and so on.
What Brash/English et al argue is that there can be only one stream of political authority in a nation. What the Treaty recognises is (a) that political authority can be conditional, and (b) that a nation can have multiple streams of political authority, so long as they can ultimately be reconciled. There is nothing inherently illiberal or undemocratic about the Maori seats and they acknowledge that many people in New Zealand still belong to a culture that sees itself as part of the wider nation, but only because that nation gives (minimal) recognition of one of their continuing streams of political authority. If you look at the demands of indigenous people around the world, you see the same demands for political autonomy. And if you look at the legal and constitutional position in the US and Canada, you see that that's roughly what they get, to a far greater degree than here.
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Che,
I wasn't suggesting that Sharp is a liberal assimilationist, nor would I even suspect that he 'doesn't like Maori'. I haven't read his book properly in a few years and I have a brain like a sieve, but it seemed to be more descriptive and analytical than stating his own views, and as pretty respectful of Maori conceptions of justice. He is certainly not a fan of putting too much store in the Treaty, but does not argue that Maori cannot justify differentiated rights. One (very readable and concise) example of some of his arguments is here.
I don't really see what distinction you are drawing between the English line and the Brash line - they both want a homogeneous liberal democratic citizenship "one law for all", in a diverse (ethnically, religiously, etc) society. Which obviously means that the dominant ethnie will impose its cultural mores on the others, unless the minorities can bargain for some respect of their own.
Don't know exactly what you mean about "common law/black letter law" approach in Australia, as the common law has given some protection of native title there: government legislation and policies is the main problem. I definitely don't disagree with your conclusions - Australia is the place that we would be hard-pressed to find any policies worth replicating here. Though it would be useful as an example of strategies to counter odious governmental policies. Again, McHugh Aboriginal Societies and the Common Law provides a comprehensive analysis.
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As for serious analysis of the Bill English treaty analysis: not necessary. It's been done before.
The view he espouses is just another version of the 70s and 80s Pakeha liberal arguments, which exhaustively described and analysed (alongside the Maori counter-arguments) by Andrew Sharp in Justice and the Maori. The 'debate' which English 'presents' in his lecture plays out in quite an interesting way in the book he mentions - Sharp and McHugh (eds) Histories, Power, and Loss. (Which, incidentally, has been used in at least one university course, and I would hazard far more than that).
The lecture presents itself as a cool, calm, balanced, evenhanded look at the Treaty in our public life. But it is polemical. All the standard liberal arguments against indigenous rights are presented lovingly, as the common sense wisdom of ordinary New Zealanders. All the "treatyology' arguments - that that the Treaty might bind the Crown or found our political society - are 'ideological', 'specious', history-worshiping, guilt-tripping, separatist, and implicitly racist. And all cooked up by Lord Cooke in the 80s. Ok, the stuff about devolution is nice, but haven't we heard that somewhere before... oh yeah, in the 80s.
It's better than what Brash and Bassett presented us with. But surely we can do better than just trot out the tired old arguments again and again. Why not look at what is being done overseas - the US, Canada, Australia (eg see McHugh Aboriginal Societies and the Common Law). Or actually engage with the nuanced historical/political arguments the academics (eg, cited above) are making - what are they for if they do not influence our public debate.