Jane Kelsy: Cynics clutching at straw men over indigenous rights report


Bandwagons are a godsend for political parties languishing in the polls, when appealing to inbuilt prejudices, fears and ignorance becomes a substitute for informed and rational debate.

The National Party’s cynical decision to reactivate Don Brash’s Māori-baiting received a boost by the “leak” of He Puapua, a report prepared for Government by a technical working group that set out its vision for how the Crown can meet its obligations under the United Nations Declaration on the Rights of Indigenous Peoples by 2040 and a roadmap to do so.

Somehow that report has been reinvented as a secret blueprint that underpins every move the Government makes to meet its obligations under Te Tiriti o Waitangi.

Many others have since jumped on the same bandwagon, most recently Act’s former leader and one-time Labour Minister during the Rogernomics era Richard Prebble.

As someone who has long argued that adoption of international treaties needs to be subject to greater public scrutiny, I found his contribution in The Herald especially ironic.
The Act Party had no problem supporting the adoption of the Trans-Pacific Partnership Agreement or other similar free trade and investment agreements that were negotiated in absolute secrecy and severely circumscribe New Zealand’s sovereignty.

Yet Prebble objects to the adoption of the UN Declaration, an international instrument that was developed very publicly through an iterative process involving states and indigenous peoples, which successive New Zealand governments helped to dilute and then initially declined to sign, and eventually adopted with a caveat that further limited its implications.

Clearly, his issue is not about adopting any international instrument. It is about international commitments to recognise the injustices of colonisation for indigenous peoples and address its legacy today.

Having misrepresented the Declaration, Prebble proceeds to rewrite Te Tiriti as well.

As an intelligent person with legal training, Prebble cannot be as ignorant of the Treaty as be purports to be. In relying on the English text he ignores the reality that Māori – whom he claims ceded sovereignty – almost exclusively endorsed Te Tiriti, in which the British Crown reaffirmed ongoing Māori authority or tino rangatiratanga. That built on He Whakaputanga o te Rangatiratanga o Nu Tireni – The Declaration of Independence – of 1835, which the Crown also recogised.

Prebble attacks the Waitangi Tribunal’s careful history and analysis of Te Tiriti. But, as a lawyer, surely he accepts Te Tiriti has precedence even under common law doctrines? The doctrine of contra proferentem says the preferred meaning should be that which works against the interests of the party who provided the wording.

Just this week, Churchman J in the High Court in Re Edwards applied both common law and tikanga Māori (Māori values, concepts, principles and processes of law) to recognise hapu rangatiratanga, mana motuhake and tino rangatiratanga over the 35km takutai moana (seabed and foreshore) coastline under dispute in Te Whakatōhea.

So what we have from Prebble is not a legal argument. It is certainly not a moral one that engages with the UN Declaration and He Puapua as an opportunity to find new ways to fix the undeniable realities of landlessness, poverty and homelessness, state abuse and institutionalised racism, and political disempowerment that Māori live with today.

Those social inequities have burgeoned since the neoliberal policies Prebble and his colleagues in the Fourth Labour Government introduced in the 1980s and which he continues to champion. The failure of more recent governments to redress them can be attributed, in part at least, to just the kind of scaremongering we are seeing today.

Once the window dressing is stripped away, the furore around He Puapua is pure politicking of the most cynical and opportunist kind.

It is no coincidence that this comes at a time when the current Government is taking tentative and incremental steps to find new ways to give effect to the Crown’s Tiriti commitments and in doing so, to find a more just way forward for Māori in their own land. There is no secret agenda to that and it is mischief-making to suggest there is.

Honouring Te Tiriti will benefit us all. So, let us not get distracted by the straw men that Richard Prebble, Judith Collins and apologists for the colonial past seek to put in the way.

– Jane Kelsy is a professor of law at the University of Auckland.

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