Undermining the Rule of Law

New Zealand Centre for Political Research

The New Zealand Centre for Political Research is a web-based think tank that takes a research-based approach to public policy matters and encourages the free and open debate of political issues.

Democracy is based on four key elements – free and fair elections, the active participation of citizens in politics and civic life, the protection of human rights, and the upholding of the rule of law. 

By ensuring all citizens are treated equally, the rule of law prevents discrimination on the basis of race, religion, ethnic group, or gender.  With an independent judiciary to ensure that no-one – not even a monarch or elected ruler – is above the law, upholding the rule of law is a safeguard of crucial importance for the citizens of any modern democracy.

This week’s NZCPR Guest Commentator, Judge Anthony Willy – a retired District Court Judge and former Canterbury University Law Lecturer – has examined the state of the rule of law in New Zealand and shares his concerns. In his briefing paper, Privilege and the Rule of Law, Judge Willy explains that nothing is more important to the preservation and enjoyment of the freedoms we take for granted than the protection of the Rule of Law:

“The purpose of this brief and of necessity incomplete excursion into the constitutional significance of the Rule of Law is to examine the constitutional health of New Zealand in 2014, a country which any informed commentator will assert pays careful attention to the observance of the Rule of Law. We certainly have all of the trappings: a democratically elected Parliament with universal franchise, a strong Judicial tradition, the members of which enjoy guaranteed tenure, and are independent of Parliament and the Executive, the process of judicial review by which the decisions of officials and Parliament can be tested for legality and due process, a Bill of Rights which enshrines all of the content of the rule of law in unambiguous terms. So it would appear that constitutionally all is rosy in this garden of ours.

“And so it is with one worrying exception and that is the growing trend in some areas of public policy towards preferring the economic and civil rights of Maori people above those of non Maori, for no better reason than their ethnicity. No other ethnic group is seeking privileges not available to all, but the same arguments would apply if one should emerge.”

He argues that while reverse discrimination initiatives introduced over the years in the name of improving Maori health, education, and welfare, have been widely accepted by the public, it is the more recent demands for the ownership and control of public resources – and the sharing of sovereign power – that are causing concern.

“Maori are embarked on making more and more strident claims to unequal treatment based solely on their ethnicity. Among the more worrying are: Claims of a political nature for example to share in the sovereignty of New Zealand,[i] claims to unelected representation as of right on a number of public bodies such as Regional and District Councils, claims to the right to occupy increasing areas of the fore shore and seabed to the exclusion of other members of society, claims to a rent from assets such as geo thermal steam, and increasingly to share in the value of river water where it is of some economic significance. There are also claims to intellectual property rights to vegetation which grows commonly in New Zealand, and to the air waves, on the basis these are treasures which are protected by the Treaty of Waitangi. These claims are facilitated by the growing trend towards provisions being inserted into plans prepared by regional authorities under the Resource Management Act giving emphasis to often vaguely worded Maori rights and claimed privileges.”[ii]

Judge Willy explains that, “The basis for these claims rests solely on the proposition that the claimants are to some extent of Maori descent. If successful therefore they are thus in clear breach of a fundamental component of the Rule of Law. If such claims are to be granted solely on the basis of race, then what next. No member of the society any longer has the protection of the equal treatment component of the Rule of Law, and as a concept regulating the conduct of the affairs of society The Rule of law is fatally compromised. The inevitable consequence is that New Zealand will cease to be a society in which the Rule of Law is paramount, to one in which race based privilege or some other criterion depending on which group is seeking the privilege, becomes the deciding factor in who gets what benefits from society, and what opportunities are open to whom.”

The never-ending demands by iwi and the continual appeasement by governments are clear indications that New Zealand’s political system has been captured by an interest group pushing for Maori supremacy. Fundamentally, Maoridom’s elite have persuaded politicians that their genetic inheritance guarantees them superior status to all other citizens. Dressed up as bogus claims of Treaty partnership and sovereignty rights, successive governments have knowingly compromised the rule of law by granting special privileges based on superior race demands.

This is extremely dangerous.

Corporate iwi are now claiming their genetic inheritance gives them the right to become a ruling class in New Zealand. They are demanding reserved seats so they can sit at the ‘top table’ alongside the government – without having to be elected. Yet reserved seats are an anathema to democracy – they not only undermine the rule of law, but they also corrupt the one-person-one vote principle on which our system of government is based.

In a 2010 speech, the Minister of Maori Affairs Pita Sharples, revealed a deep disdain for democracy, calling “one vote for one person” and “democratic elections”, “artificial political concoctions”. He explained that, “The Maori kaupapa were principles that promoted ‘equity’ and ‘inclusiveness’, surely the ideals of a ‘civilised’ society. We must begin to recognise that democracy has many expressions, many ways of mobilising voices and representation, rather than statically holding onto dominant axioms.”[1]

It is the long term aim of the Maori sovereignty movement to hold, not just one or two reserved seats on governing bodies, but 50 percent. Even though Maori represent a minor part of the population and the two race-based parties combined gained less than 3 percent popular support at the last election, in this post Treaty-settlement era, their crusade is for a half of governing seats to be determined by race for use by their appointed elite, with 50 percent for everyone else. In spite of the fact that such co-governance arrangements fly in the face of the rule of law and democracy itself, the government – both local and central – are already establishing such arrangements to control crucial public resources, such as the Waikato River, the Hauraki Gulf, and the Urewera National Park. The naked ambition of iwi driving this agenda (as submissions to the government’s constitutional review reveal only too clearly) is to set themselves up as a permanent ruling elite. By holding 50 percent of the votes on governing bodies, they can control the country by default. That government is playing along – threatening the integrity of the rule of law and democracy itself – is deplorable.

Unfortunately, while the public are increasingly alarmed by these developments, many elected representatives are supportive.

These issues reached a head in New Plymouth last week when the Mayor put forward a proposal to the 15-member District Council to appoint six iwi members with full voting rights onto influential council committees. He justified the proposal on the basis that “Iwi participation in local government is necessary because they’re our treaty partner”.[2]

Under the Local Government Act, councils are required to provide opportunities for Maori to contribute to the decision-making process. In most cases, local iwi have privileged status as an ‘affected party’ under the Resource Management Act, which means that councils will refer consents to them as a matter of course. Most councils also have liaison committees to ensure that local iwi are kept well informed, especially on issues involving submissions.

The problem is that many cash-rich iwi now want more. Being able to approve or block consents is no longer enough. They want decision-making rights – not through the normal democratic process, but through the back door.

The New Plymouth District Council vote showed five council members were in favour of race-based representation, while seven were opposed; three were absent. While the motion was defeated, the matter does not rest there.

Te Atiawa iwi representative Peter Moeahu threatened the council: “It is of grave concern when New Plymouth councillors deliberately act contrary to local government law and spit in the face of iwi, the Crown’s Treaty partner. The law is clear: Council has a legal obligation to engage with iwi. They refuse to do so. I am in Wellington next week and will raise this issue with government officials. I expect other iwi of north Taranaki may do the same.”[3]

After the move to appoint iwi onto the District Council was defeated, the Taranaki Regional Council chief executive Basil Chamberlain revealed that they too were planning to appoint iwi with full voting rights onto influential council committees. The chief executive explained that “the issue was still under discussion and would be confirmed when Treaty settlements went through”. [4]  Council minutes from a meeting on March 18 stated, “It was noted … that the matter of Iwi representation on some standing committees of the Council was still being carefully worked through with Taranaki Iwi and will possibly be another twelve months before given effect to.”

The Local Government Commission, under the leadership of Basil Morrison (who is also a member of the Waitangi Tribunal) is now pushing a race-based agenda. In any area where amalgamation is being considered, the Commission is recommending super councils and Maori statutory boards. If the Commission tries to force through such changes against the will of residents and ratepayers, locals have an opportunity to fight back through region-wide referenda. However, if the Commission tries to force through its agenda against the widespread wishes of the public, then the Commission itself should be sacked – for failing to respect the views of locals and for undermining the rule of law.

Upholding the rule of law is crucial to democracy. This week we have launched a petition calling for the abolition of the Maori seats. The 1986 Royal Commission on the Electoral System recommended the abolition of the Maori seats, if MMP was introduced. While strong advocacy by Maori leaders ensured the seats were retained, their existence – through Maori-only parties holding the balance of power – is now leading to an escalation of race-based laws and extremism, which is seriously undermining democracy and dividing our country. It is time race-based seats were removed, to strengthen the rule of law and to heal our democracy.

 

THIS WEEK’S POLL ASKS:

Do you agree that the race-based Maori seats undermine the rule of law and democracy in New Zealand?

Click HERE to vote

         

 Read this week’s poll comments daily HERE  

 

Click HERE to see all NZCPR poll results

 

FOOTNOTES:

1. Pita Sharples, Race Relations Day dinner
2. New Plymouth District Council, Door not closed on Maori input to NPDC
3. Taranaki Daily News, Te Atiawa take issue to Crown
4. Taranaki Daily News, Regional council likely to give iwi full committee voting rights


[i] Evidenced by the terms of reference of the Constitutional Review Committee resulting from an MMP bargain with the Maori Party and which has now reported and among other recommendations proposes that there be an Upper House comprised of 50% Maori and 50% non Maori members. .

[ii] For example the provisions of the Auckland Region Draft District Plan allowing persons of Maori descent to object to the building of houses on land claimed to be of some significance to the objector.

 
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