Co-Governance is still quietly bubbling away

Whether it knows it or not --whether by Coalition design or by bureaucratic subterfuge -- it appears that legal implementation for co-governance has been strengthened under this Government's term rather than diminished.

A recent post pointed out that the UN Declaration on Indigenous Rights, the underpinning that creeping implementation, was a poison pill quietly smuggled in with the Indian Free Trade Agreement (FTA ). It was Gary Judd KC who spotted the clause in the signed Agreement calling on the parties to "affirm" NZ's commitment to this race-base Declaration. As Judd notes this morning, this is an escalation on previous Free Trade Agreements with the UK, which called for the parties to "note" the commitment, and with the EU to "further note." 

This is not simply harmless playing around with words. In legal terms, as Judd himself notes, it is "a significant escalation."

And it's not the only escalation towards co-governance. 

Remember that what underpinned the moves made by Ardern's Labour Government towards co-governance -- towards sharing government power with tribal leaders -- was that UN Declaration. That gave legal strength towards their quiet moves towards what Elizabeth Rata calls "re-tribalisation."

In 2007, the position of Helen Clark's Government was in opposition. Clark was many things, but she wasn't stupid.

John Key was. In 2010, his Government sent Pita Sharples to the UN to "support" it. That "support," when ratified here, underpinned the Ardern Government's support for He Puapua and for every flavour of co-governance emerging since.

And then in 2023, Hipkins's Government moved from endorsing the UN Declaration to a commitment “to upholding the rights affirmed in the Declaration.” These weren't just a small change in words. As a result, the Hipkins's Government then sought advice “to support the drafting of a plan to achieve the ends of the UN Declaration in Aotearoa New Zealand.” Those ends, of course, called for "self-determination" for so-called indigenous people. As Judd explains it, this is when "Non-binding aspirations morphed into affirmed [legal] rights." Once the NZ Government regarded self-determination as a cornerstone of the UN Declaration it then meant tribal participation in government decision making.

As the New Zealanders who claim indigenous status are Māori and governmental decisions affect all New Zealanders including Māori, this means the New Zealand position had become one where Māori should have the right to participate in all or most decision making. That is co-governance between a democratically elected government for all New Zealanders and Māori. Māori protocols ensure they are represented by an essentially self-selected elite.

Words, in politics, are so much fluff. Words, in law, do matter. 

[B]y the affirmations of the declaration and New Zealand’s position, has confirmed that the UN Declaration has binding status (for that’s the meaning of affirm in legal parlance) with a double whammy by confirming New Zealand’s position when that position at the UN and in international law is the July 2023 position.

The Minister and MFAT officials may try to justify themselves by claiming that New Zealand saying in an international agreement that it is bound by the UN Declaration and committed to upholding the rights contained in it is not the same as acknowledging that it has binding effect in New Zealand but that is sophistry which will not wash.

For reasons given in [my earlier post], there is little doubt that the courts will take the affirmations for what they plainly are: New Zealand’s acceptance that the UN Declaration is binding such that its principles may be utilised in the interpretation of legislation and as influencing the common law.

As Rata says in her own post on this, "today's politicians [should] look closely at all re-tribalisation language." Especially if it is being smuggled in through political stealth.

The poison pill smuggled in with the Indian FTA

Another Constitutional Trojan Horse: advancing change through political stealth

FOR ALL THE FOOLISH NONSENSE about "tsunamis" talked about the Indian-NZ Free Trade Deal, there is a genuine issue that Gary Judd KC has identified in reading through it, and it's not about free trade or butter chicken. It's about a poisonous clause inserted at the obvious behest of the NZ negotiators. 

"The striking feature of this Free-Trade Agreement," notes Judd, "is that it brings the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into the text of a trade treaty. That is not a side issue. It is a political and constitutional declaration inserted into an agreement that is supposed to be about trade. ... New Zealand’s Free-Trade Agreements with the United Kingdom and the European Union refer to indigenous rights and Māori participation. But the India agreement goes further. It is the first to affirm UNDRIP expressly. That is a significant escalation."

Why the hell is it there?

Everything points to this UNDRIP wording having been included at New Zealand’s initiative, not India’s. India appears to have agreed only on condition that its longstanding reservation was recorded. There is no obvious reason why India would want UNDRIP written into a trade agreement with New Zealand. ...

If it truly changed nothing, it would not be there. The obvious reason for including it is not trade with India but politics within New Zealand. A trade agreement is being used to advance a domestic constitutional and political agenda. That is an abuse of the treaty-making process. A provision with no real trade function, but clear ideological value at home, has no legitimate place in a Free-Trade Agreement.

Once this affirmation is in a ratified treaty, it will inevitably be invoked inside New Zealand as proof that the country is committed to UNDRIP in a serious and operative way, not merely in some airy symbolic sense. Lawyers, activists and judges will be invited to treat it as yet another marker of state commitment. To dismiss that as mere technicality would be naive.

You'll remember that Helen Clark, as Prime Minister, was astute enough to have her UN representative vote against the Declaration -- one of only four nations to oppose.  (As Judd notes: "India voted in favour (see here) but immediately made it clear that it did so subject to an important reservation. That same reservation now reappears in the FTA.")

It was John Key who blithely acceded to signing up simply in order to bolster his parliamentary support from Pita Sharples's Maori Party. 

What Key casually signed away was not trivial, as we saw when Ardern's Labour Government began drawing up the He Puapua document under UNDRIP's impetus. "He Puapua is not a minor discussion paper," Judd reminds us. "It is a blueprint for major constitutional change, including forms of co-governance. One example is paragraph 15: 'If they choose, Maori must be able to participate in Crown governance."

Clark's objection to the Declaration was principled, and what Clark's UN representative  Rosemary Banks said about it then is as valid now: Four provisions in the Declaration in particular were [and still are] "fundamentally incompatible with New Zealand’s constitutional and legal arrangements, [with] the Treaty of Waitangi, and [with] the principle of governing for the good of all its citizens."

What were those four provisions?

• Article 26 stated that indigenous peoples had a right to own, use, develop or control lands and territories that they had traditionally owned, occupied or used. For New Zealand, the entire country was potentially caught within the scope of the article, which appeared to require recognition of rights to lands now lawfully owned by other citizens, both indigenous and non-indigenous, and did not take into account the customs, traditions and land tenure systems of the indigenous peoples concerned. The article, furthermore, implied that indigenous peoples had rights that others did not have.
• The entire country would also appear to fall within the scope of article 28 on redress and compensation. The text generally took no account of the fact that land might now be occupied or owned legitimately by others, or subject to numerous different or overlapping indigenous claims.
• Finally, the Declaration['s articles 19 and 32] implied that indigenous peoples had a right of veto over a democratic legislature and national resource management, she said. She strongly supported the full and active engagement of indigenous peoples in democratic decision-making processes. New Zealand also had some of the most extensive consultation mechanisms in the world. But the articles in the Declaration implied different classes of citizenship, where indigenous had a right to veto that other groups or individuals did not have.

In short, the Declaration set up two standards of citizenship based on race, and a legal veto over other's property based on ancestry. Clark understood that. Key was too dim.

And so too are Luxon and Todd McClay, who either called for this clause's insertion in the Indian FTA themselves, or were insufficiently astute to have seen it there and taken out.

The He Puapua programme itself was begun without explicit acknowledgement of its goals. Those goals, indeed its very existence, were only revealed when it began to seem that some underlying framework was at play in Willy Jackson's and Nanaia Mahuta's legislative agenda.  Turns out there was. Media organisations uncovered the document, who then obtained it under the Official Information Act, and it was finally released only in April 2021 after pressure from the Ombudsman. "That is not transparent government," points out Judd. "It is disclosure dragged out by resistance."

The irony is that the same thing is happening here. 

Neither Government appears ready to argue openly for setting up two standards of citizenship based on race and ancestry.

Instead, they have to do it by stealth.

Gary Judd explains the danger in detail here, including illustrations "why ratifying the FTA in its present form is not a harmless gesture." I recommend the read.

He concludes:

What is most objectionable in all this is the contempt it shows for ordinary New Zealanders. Constitutional change of this magnitude should be argued for openly, defended honestly and submitted to democratic judgment. Instead, it has been advanced by ministers, officials and sympathetic elites through opaque processes, delayed disclosure and legal increment. That is no way to alter the foundations of a country.

The obvious remedy is greater democratic control. If politicians, officials or judges wish to drive constitutional change, they should have to defend it before the public in clear terms and win consent for it, not smuggle it through advisory reports, bureaucratic process or the fine print of a trade treaty.

That is the real issue raised by this agreement: not trade, but whether constitutional change in New Zealand will occur by democratic choice or by political stealth.

Iranians: Yearning to breathe free!

In Auckland yesterday we woke to news that Iran's theocratic rulers were dead and dying. 

Within hours, Iranians in Auckland had gathered to celebrate. (Yes, those are Israeli and US flags being waved below, and pictures of a dead Ayatollah being celebrated). 

This was in complete contrast to the hand wringing going on in the homes of (to pick just two people) Helen Clark and Antōnio Guterres, who were quick to bemoan attacks on the regime that had slaughtered at least 35, 000 Iranian innocents -- which they'd ignored.

So too had Iranians in many other parts of the world. Not least in Iran. (Click through for posts and videos.)

It seems the only place these murdering bastards are mourned are in the homes and offices of people with Pro-Palestinian t-shirts in the cupboard and keffiyeh on their hat rack. These people "have no shame," observes Brendan O'Neill. "They said nothing when thousands of Iranians were slaughtered by the theocratic regime. Yet now they’re crying because some regime goons were killed in airstrikes. These people are just apologists for tyranny."

Given the Iranian regime's role in supporting world terrorism, Islamofascism and in trying to destroy western life (in every way possible) -- on raining death and destruction on the world for 47 years -- then if regime change is successful in Iran -- if! -- then it would be the single most momentous geopolitical change for the better since the fall of the Berlin Wall.

But as with Bush II's Iraq War, the question to come is: do they know what the hell they're going to do next. With this administration, that's unlikely (it hasn't even bothered to seek Congressional approval, which is constitutionally required). So it will need every circumstance to go the way of those Iranians celebrating above people. As Eliot Cohen says,  "Something of an exercise in ambivalence here. I would like to see the Iranian regime go down hard -- and am not confident Trump knows what he is doing."

Let's hope with crossed fingers for a lion of freedom to arise from the attacks.

Helen Clark & John Key: Politically and historically tone-deaf [UPDATE]

It's hard to overstate how politically and historically tone-deaf Helen Clark & John Key are for showing up at a Chinese Communist Party "victory" party, complete with the world's biggest dictators, celebrating the end of the Second World War.

Politically tone-deaf for all the many reasons rolled out by mainstream commentators: being responsible for cementing New Zealand's free-trade deal with China (for which much credit to both) doesn't require attending the biggest Asian military parade since the Japanese army rolled into Manchuria.

Far from any credit going to Mao Zedong's Communist Party for resisting that invasion, it was instead the CCP's salvation. It gave them their best chance of survival, which they grabbed with both hands.

Far from fighting a patriotic war, Mao's rabble instead withdrew into Yenan, coming back from near-extinction far from the war zone while lighting joss sticks and praying to Marx for the destruction of Chiang Kai-Shek's Republican army at the hands of the Japanese.

So it wasn't "China" that fought off the Japanese. Because by and large the only "China" fighting there  was Chiang Kai-Shek's Republican army, forced to fight the Japanese invasion while Mao's forces largely sat on their hands hoping for the best—keeping their powder dry ready for the civil war they started after the Japanese surrender and the exhaustion of Chiang Kai-Shek's army. 

After resting up for several years while building its materiel and men, on the very day following Japanese surrender in China Mao's party headquarters issued orders to advance — taking over the country from north to south, finally seizing full control in 1949. (You can read all about the sorry tale in Anthony Kubek's brilliant How the Far East Was Lost.)

That neither Helen Clark nor John Key appeared to know anything about that history says very little for either, but their attendance at the revisionist parade would bring a quiet chuckle to Chinese organisers delivering the Big Lie to an international audience.

It would be even worse if Clark or Key did know the real history. That would be worse than a disgrace. It would be damning.

A brief history of Victory Day: 

• 1937-45: Kuomintang (KMT) exhausts itself fighting Imperial Japan. CCP "hides its strength bides its time." 
• 1945: Imperial Japan surrenders. 
• 1947: US cuts back on aid to KMT. 
• 1949: CCP, supported by Stalin, defeats an exhausted KMT. Captures China by Oct 1. KMT flees to Taiwan.

UPDATE: Historically tone-deaf to the CCP's stolen valour (the point of the cartoon above), and politically inept: just consider how the Financial Times, for example, summarises the event that Key and Clark endorsed. In short, it wasn't about free trade :

Chinese President Xi Jinping was selling his vision for a new world order this week. Hosting a regional security summit on Monday, Xi called on attendees including India’s Narendra Modi — Trump’s latest tariff target — and Russia’s Vladimir Putin to join China in leveraging their economic influence to challenge the west.

Bolstering that message was a massive military parade in Beijing yesterday ... to show off the latest weaponry in China’s arsenal. Xi was joined by fellow strongmen Putin and North Korean dictator Kim Jong Un — the first time all three leaders have been in one place.

Grant Robertson's book "reveals him finally as not much more than a political operator, without very much substance at all."

"I got home ... at 1:30 on Saturday morning and by 3:30 [Sunday] afternoon I’d finished Grant Robertson’s new book, 'Anything Could Happen,' and in between I’d been to two film festival movies, a 60th birthday party, and church. It is that sort of book....

"[Y]ou will search in vain for any serious insight or reflection on the politics, politicians, or policies of the 20 years or so in which Robertson was first a staffer, then an Opposition MP, and then a senior minister and close confidante of the Prime Minister. He was Labour’s finance spokesperson and Minister of Finance for, in total, just under 10 years (Minister for six of them), and had been Labour’s spokesperson on economic development for a while before that. ... and yet in this book you will look in vain for any distinct Robertson perspective on events or issues or institutions or individuals relating to that portfolio or (mostly) for any perspective at all. ...

"Clark, Cullen, even Anderton, and of course behind the scenes Heather Simpson. Do we learn anything about them from this book (written by someone who was actually a student of political science, before himself becoming a senior player)? Barely at all.... no critical evaluation of any of them [neither Labour colleagues nor National opponents] and not even any insight on what made key players tick. ...

"And, of course, there is nothing at all on the structural fiscal deficit Robertson bequeathed to his successors ... Not even a rueful reflection on the contrast between those Budget Responsibility Rules he and James Shaw had launched (to the upset of the left of their own parties) back in Opposition in March 2017 and the way it all ended. ...

[P]erhaps it reveals him finally as not much more than a political operator, without very much substance at all."

~ Michael Reddell, from his post 'Reading Grant Robertson'

Helen Clark's women

Helen Clark: "Women should stick together. But not those women!"

"According to the NZ Herald this morning: 

'Former Prime Minister Helen Clark has described the departure of former Prime Minister Jacinda Ardern from politics as “devastating for women around the world”.'

"Not this one. ...

"Clark's comments relate to the abuse that women politicians have to endure and how they must stick together and build networks to protect themselves.

"When I had a brief fling with political advocacy, and later campaigning for ACT in 2005 and 2008, not many women wanted to stick together with me."

~ Lindsay Mitchell, from her post 'Why I disagree with Helen Clark'

15 YEARS AGO: Here's how Key helped fuel the gravy-train

One advantage of having blogged so long is having written about so many things.

One disadvantage of having blogged so long is watching things you've warned about being ignored.  Here's from 2010, with Eric Crampton's warning in particular now looking especially prescient....

AS YOU MAY HAVE NOTICED, the Government you voted for has signed you up to the UN Declaration on the Rights of Indigenous Peoples—something Helen Clark herself was opposed to, citing fears it would create “two classes of citizenship and … give indigenous people veto rights over laws made by Parliament.” 

But we already have two legal classes of  citizen, don’t we—something confirmed by Doug Graham when, as Minister in Charge of Treaty Capitulations, he told taxpayers, “The sooner we realise there are laws for one and laws for another, the better." 

So one law for all is officially dead. Pita Sharples grand-standing announcement merely throws another shovelful of dirt on that particular colour-blind aspiration. 

Instead, we now have another aspiration. One endorsed by your government without any conditions whatsoever, despite John Key’s insistence that the Declaration itself is “aspirational and non-binding.” 

Now naturally, Hone Harawira and co have a different view.  Hone has already been on radio insisting the Declaration will be used to support a gravy train of claims for other people’s property, and for truckloads of taxpayers’ money—and one suspects he speaks for many others when he says that, including those who will sit in judgement on such claims. 

And Mai Chen, eager to get in on the gravy, insists the declaration will “have an impact.”

   "‘Declarations … are international obligations and they do form part of the backdrop, the context within which courts do interpret, but it's not just courts its the Waitangi Tribunal and its also direct negotiations… [T]he entire country would appear to fall within the scope of the article, and [the text of the Declaration] generally takes no account of the fact that the land might be occupied or owned legitimately by others.’ 
    “Ms Chen said the Declaration would 'shape Maori expectations in negotiations.”

And the Declaration itself begins by affirming its “good faith in the fulfilment of the obligations assumed by States in accordance with the Charter.” 

So one suspects that this government signing up to the Declaration is going to involve more than just a little “aspirational” window-dressing. 

SO WHAT DOES IT CONTAIN,THIS DECLARATION? It should be no surprise to find that a UN Declaration with “rights” in the title contains a welter of manufactured “rights” that trample over genuine rights.  And if it were simply an enumeration of genuine rights—rights to life, liberty, free speech, the pursuit of property and happiness—it would hardly need the modifier “rights of indigenous people” added to it, as if by virtue of their indigeneity some individuals are more endowed with rights than others. 

As if to confirm that, The Declaration’s preamble talks about being “the basis for a strengthened partnership between indigenous peoples and States”—affirming as clearly as one could that “there are laws for one & laws for another.” 

It speaks of affirming to “peoples their right to self-determination”—ignoring that such a right pertains only to individuals, not to a collective. 

And the Declaration itself outlines specific “rights” which it says shall be upheld by “the States” which have affirmed it: 

• “the right [of indigenous people] to freely determine their political status”

Which “right” is a recipe for separatism.

• “the right to autonomy or self-government in matters relating to their internal and local affairs”

Which “right” is a guarantee that separatism will be upheld by “the State.”

• “the right not to be subjected to forced assimilation or destruction of their culture… States shall provide effective mechanisms for prevention of, and redress for [this]”

Which “right” requires the State to subsidise for ever whatever parts of indigenous culture claimants will assert are being destroyed.

• “the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned”

The “right” to subsidised separatism, in whatever form of tribalism that will manifest itself.

• “the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons.”

A “right” to the subsidised education of tribalism and mysticism, and to the re-naming of New Zealand.

• “States shall … take effective measures, in order for indigenous individuals, particularly children… to an education in their own culture and provided in their own language.”

The “right” to kohanga reo for ever.

• “the right to establish their own media in their own languages”

The “right” to Maori TV for ever.

• “the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.”
  
• “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”

The explicit creation of two classes of citizenship, and the “right” to veto that Helen Clark was so concerned about.

• “the right … to the improvement of their economic and social conditions, including, inter alia, in the areas of education, employment, vocational training and retraining, housing, sanitation, health and social security. 
  States shall take effective measures and, where appropriate, special measures to ensure continuing improvement of their economic and social conditions…”

The “right” to special racist welfare. 

• “the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources”

The “right” to dream up a new basis of land claim for any part of New Zealand whatsoever.

• the right "to own use, develop or control lands and territories they have traditionally owned, occupied or used"

As New Zealand's former permanent representative to the UN, diplomat Rosemary Banks, says “the entire country was potentially caught within the scope of that article. ‘The article appears to require recognition of rights to lands now lawfully owned by other citizens, both indigenous and non-indigenous ... Furthermore, this article implies indigenous peoples have rights that others do not.’"

• “the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.”

Providing the basis for a whole new cycle of claimants to ride a new gravy train. 

I COULD GO ON, BUT I suspect you already get the point. 

This is simply a whole litany of bogus “rights” with which the Hone Harawiras and Tame Itis of this country will have a field day.  For them and their lawyers, this is like Christmas in April. 

The affirmation of these bogus rights is John Key writing a blank cheque on taxpayers to buy the Maori Party for a generation. And just in case you think this isn’t the sound of someone putting their hand in your pocket, take a look at Article 39…

    “Indigenous peoples have the right to have access to financial and technical assistance from States and through international cooperation, for the enjoyment of the rights contained in this Declaration.”

The Declaration is nothing less than a manifesto for subsidised separatism. 

As Ayn Rand said of a similar list of entitlements “rights”: 

    “A single question added to each of the above eight clauses would make the issue clear: At whose expense?     “[These so-called rights] do not grow in nature. These are man-made values—goods and services produced by men. Who is to provide them?     “If some men are entitled by right to the products of the work of others, it means that those others are deprived of rights and condemned to slave labor.     “Any alleged "right" of one man, which necessitates the violation of the rights of another, is not and cannot be a right.”

Take note here that “The State” itself has no money of its own—every dollar must first be taken from others. The bogus “rights” affirmed here, to which New Zealand is now a signatory, require of taxpayers that they provide a cradle-to-grave ATM machine for whatever tribalists want, including the property of taxpayers, creating “two classes of citizenship and … giving indigenous people veto rights over laws made by Parliament,” just as Helen Clark feared it would. 

One law for all is officially dead. 

And parliament’s One-Law-For-All party?  The party propping up a government giving tribalists more even than Helen Clark was prepared to? What about them? Fear not, punters, for fearless leader Rodney Hide says the Declaration and the secrecy with which it was announced “is not a deal-breaker." 

Given what ACT supporters have already swallowed, one wonders if anything ever would be.

NB: Eric Crampton sees informative parallels “between New Zealand signing on to the UN Declaration on the Rights of Indigenous People and Canada's constitutional wranglings over Quebec as a'"Distinct Society'." 

    “In the Canadian case, folks inside Quebec had the impression that being granted ‘distinct society’ would give them everything they ever hoped for (at least during the Meech negotiations) while folks outside Quebec were told it ‘means dick.’ Here, Key says signing the Declaration is meaningless; Hone says it's powerful.     “If this starts working its way into judicial and regulatory decisions, Parliament would have to come in and explicitly state that it was the intention of Parliament that the Declaration is a legal nullity; Parliament would be unlikely to do that as it would be a pretty big slap to Maori…”

NZ's govt health 'system': "delivering equally awful health-care to everyone"

"Enough is enough. Former PMs Helen Clark and Jacinda Ardern should come clean about how they were the Chief Architects of the omni-shambles that has become our health system. ... for the folks who suffer from long waiting lists and declining health-care quality, some of whom didn't make it. 

    "The person who wrote the report [that is] the inspiration behind the disaster that is Health NZ was Heather Simpson, Clark's Chief of Staff for 9 years ... reincarnated by Labour to advise Ardern and Hipkins on health-care. ... The report was the inspiration behind the [disastrous] centralisation of NZ's health system. ...
    "I read the report. No intellectual basis is built for its suggested re-design of health-care delivery. No wonder our system is failing. 

    "It keeps repeating the word 'equity,' seemingly in the hope that by writing that word on paper is enough to deliver it in practice. The report bizarrely repeats 'equity' 219 times (!?) By contrast, the word 'competition,' which is a requirement to ensure quality and efficiency in nearly every economic system, is not mentioned one time. The report thereby seeks to deliver equally awful health-care to everyone."

    "... [The report's] half-baked idea is that the monolithic super-structure it invents ... would create 'economies of scale.' It uses the jargon, 'scaling up.' Health NZ has succeeded only at being a large scale disaster."

~ Robert MacCulloch, from his post 'Former Labour PM's Clark and Ardern wrecked NZ's Health System: they should be held accountable for the lives that have been lost'

 

Helen Clark is now *against* corruption!

 

Helen Clark's eponymous foundation has come out against corruption in politics, which is a bit like coming out in favour of apple pie with cream.  

As I outline below, you'd think an organisation using Ms Clark's name might stay quiet on the subject of corruption. What her foundation's report calls corruption however included in one neat package deal the putrid practices of political lobbyists, and the act of people donating to their favourite political party.

These are two very different things.

One has the stench of cronyism. Of peddlers of political relationships forming a parasite class that Ayn Rand once called an "aristocracy of pull." The other is, well, for the most part it is just people donating to a political party because they like the party's policies and/or people.

Yes, cause and effect sometimes goes the other way. There are parties who do sell policies to donors. The ACT party's pathetic capitulations to Auckland council amalgamation and on abolishing the RMA has for years been predicated upon the many consultants who donate to and infest the party, and who never see a trough they don't like. The National Party's silence on China's many misdeeds may be connected to large donations from organisations like the Inner Mongolia Rider Horse group. The link between Winstons First's racing and fishing policies and his racing and fishing donors is oft ignored simply because major parties seek a sweetheart deal with him every three years,  but is tangible, not to mention the link between Labour's policies (education policies for example, favouring teachers unions) and trades union donations of time and money to Labour's campaign. And not to mention all the "green" projects subsidised with taxpayer money to help out the businesses and of Green donors.

But for the most part, donations are small beer. And are fairly transparent. It's the hole-and-corner parasites of political pull who are the biggest evil. And they're everywhere.

PJ O’Rourke used to delight in pointing out that this corruption, the buying and selling of political favour, is simply the price of Big Government — the sort of government that Clark herself has always favoured. Favours for cronies. Jobs for the boys (and girls). Big Government's power and money on sale to the highest bidders.

No one should be surprised. As O'Rourke used to remind us, when legislation proscribes what is bought and sold, the first things to be bought will be the legislators -- and the more legislation is written the higher the demand, and the higher the price.

The answer of course is a separation of state and economy, in the same way and for much the same reasons as the separation of church and state.

But that is not what Clark's foundation prescribes. 

It's not what Clark herself is after.

Helen Clark and her followers have long favoured direct payment of political parties by taxpayers. That's what this is about. Taxpayers forced to donate to parties whose views they may abhor. To political parties whose power would only become more entrenched by the regular involuntary AP from taxpayers' pockets. Clark favours this because her own Red Team suffers by comparison with donations to the Blue Team. (Not that money on its own can win elections, otherwise the ACT Party would have been in power for the last three decades.)

This was the impetus behind then-Prime Minister Clark's infamous user of illegal taxpayer money for her own election campaigns — "illegal" was the Auditor-General's word — passing retrospective legislation to legalise what commentator Chris Trotter called "acceptable corruption." ("Acceptable" because it was his own favoured political regime ransacking the public purse.) And for then-Prime Minister Clark's subsequent passing of the Electoral Finance Act to muzzle her opponents during election campaigns.

Corruption? If there's anyone in New Zealand politics who knows about corruption it's Helen Clark. When I read that Helen Clark's Foundation is "targeting corruption," I immediately searched here at NOT PC for "Helen Clark corruption." It's quite a trove. It runs for three pages. if you feel like diving in, start with the post near the top: ' Cancerous and corrosive and un-democratic and, and, and ...

Or of you want a fuller story, download this PDF copy of The Free Radical from 2006 explaining, as the cover story describes 'How Labour Stole the Election.'

Foreshore and Seabed issues aren't going away

So they're doing it again.

Anyone — anyone! — has the moral right to assert their ownership of something — and, under a common law system, they have the ability to go to court to try to prove that assertion. To make their claim. (Or try to.)

Common law recognises that not all legitimate claims to land or water use or ownership come as grants from a fictional entity called "the crown." Instead, it recognises the imperfection of that system, and allows claims to be made on occupation, on long use, on recognised practices.

Our common-law system however has been so buried by statute law that it's now hard to find it. And in recent years successive governments of both hues have been desperate to avoid anyone — anyone! — making any sort of common-law based claim of ownership.

That seems to go double for iwi.

The kerfuffle over foreshore and seabed began when Helen Clark rejected the right to Ngati Apa to go to court to try to assert its right to part of the Marlborough foreshore and seabed based on long use and occupation. She decided instead to nationalise it, trumping both court and claim. Ironically now, she sent out John Tamihere to sell the poisonous solution to unwilling Māori buyers.

Bear in mind Ngati Apa were simply arguing for the right to appear in court to try to make a claim. (As they and others of every hue were fully entitled to.) But that was enough for Clark.

The rights rort continued with the John Key Government's further politicisation of the foreshore and seabed, coming up with a bastardised replacement of the Clark Government's Foreshore and Seabed Act that tried to square an illegitimate circle.

Didn't work, said the Court of Appeal last year. Property rights remain legitimate even in the absence of government recognition, they suggested. And iwi, they agreed, are entitled the chance to claim legitimate rights in court (even if National's replacement Act bars full recognition).* And so the Luxon Government is now all a-scramble trying to keep the illegitimate cork in the bottle, acting to legislate away the court's decision.

It's not a good legal look.

Ironically (ironies abound here) the politician promoting the politically-expedient pre-emption, Paul Goldsmith, is a historian by profession. I can't help wondering how different New Zealand's history may have been if principled common law had won out over political expediency over the last one-hundred and eighty-five years.

We may be a different, and better. place for it.

* * * * 

* No Right Turn summarises the court decision, and National's (over) reaction: 

"The decision ... basically reinterpreted section 58 of National's Marine and Coastal Area (Takutai Moana) Act to make it consistent with its purpose clause and te Tiriti o Waitangi by allowing "shared exclusivity" according to tikanga. The upshot is that it would become significantly easier for iwi and hapū to gain customary marine title over their foresore and seabed - a fact confirmed in subsequent court decisions. National doesn't want that to happen - in fact, they don't want Māori to be able to gain customary title at all, despite what they promised Te Pāti Māori when they passed the law in 2011 - and so they plan to legislate it away (which they disguise as "restoring the intent of Parliament" - which is effectively an admission that they dealt in bad faith with their coalition partner in 2011). Of course, they're pitching this as being about beach access, like they always have, even though that is not and never was under threat. But they're quite open in the Herald about what its really about: protecting the aquaculture industry. So Māori rights are going to be sacrificed to protect National's donors and cronies. Which sounds just a little corrupt."

It does a bit, doesn't it.

As I've said before, when the Foreshore & Seabed Act was repealed, it should have just been left where it was at before.

And where it was at before was with Maori needing to prove to the courts that they possessed a common law property right in their portion of NZ’s foreshore & seabed. And if they could prove such a right to a legal standard of proof, then why on earth should anyone object?

What could possibly be wrong with recognising the right of people to claim the property in which they have a right? Everyone, including divers, miners, aquaculture owners, and iwi.

What could possibly be wrong with the protection of property in which people can prove that right, which is all that a repeal of the Foreshore and Seabed Act could have done.

And that’s all there really is to it. See how uncomplicated it really is? Or could still be.

"So why did the current Labour government go so wildly off the rails?"

"People want stability, which is all the Nats ever offer. That’s why since the war every National government has received 9 year terms, except the Holyoake one which lasted 12 years. Helen got 9 years by behaving like a National government and not rocking the boat but every other post-war Labour government has lasted respectively, one term (twice) or been bumrushed out after two terms before they go power crazy.
    "I last voted National over 40 years ago when I woke to their reality as a Party of not rocking the boat, uninspiring, minding-the-shop-style dullards. I certainly wouldn’t give them sixpence, nor do they need it ...
    "But periodically radical changes are required and these are only ever delivered by Labour which is a Party of malcontents.
    "So why did the current Labour government go so wildly off the rails?
    "Blame the public for that, specifically a phenomenon that saw the nation lose its head; the only time I was embarrassed to be a New Zealander. I refer to the ludicrous Jacindamania phenomenon which induced in Labour a thousand-year Reich, faith in their longevity, and a corresponding dictatorial mentality resulting in sheer totalitarian insanity in so many ways....
    "The next Labour PM is not in the House yet but will probably emerge after the 2026 election...."

~ Bob Jones, from his post 'Political Donations'

He's New Zealand's new Prime Minister, by the way.

Being a professional political blogger and all (and by 'professional' here I mean simply 'one who professes to be or do a thing to some degree of efficacy'), and since every other professional commentator is currently going through the 'H' section of their filing cabinets to pad out stories introducing Chris Hipkins to their readers, I thought I'd better examine what I've already written here about the profoundly unexciting young fellow. (He's New Zealand's new Prime Minister, by the way.)

Searching the scrolls here reveals he's caught this blog's eye only five times, which probably says something already.

Oddly, the first time he's mentioned is with a recommendation to vote for the fresh-faced new candidate in his first election. Yes, true story. And yes, there is a catch. (It's down near the end of the post, if you're really interested.)

The next time he catches this blog's attention is 8 years ago as minister of education, defending the teachers' unions. Our Dr McGrath describes the "boyish Labour MP and teacher's pet Chris Hipkins" who "seems convinced that if teachers in charter schools aren't registered, children will be at risk and the sky will fall." The good doctor's recitation of many registered teachers peccadilloes still suggests otherwise. 

As minister of education he also oversaw the introduction in the government's factory schools of new dumbed-down curricula, of course, including in science. Sorry, I mean in climate change, in which New Zealand children are now indoctrinated taught. ("As the post reminds us, "What happens in our schools is a very big part of shaping the future of New Zealand,"as Helen Clark herself crowed back in her day.)

Hipkins first emerged to prominent notice in his role as Minister in charge of Responding to Covid Headlines. As it happens, our own post's headline describes his work well, as compared to that of his colleagues: 'Even 'pretty inept' looks good compared to 'not at all.'

And with our last and most recent reference to this emerging talent, we're going to have to claim some kind of prescience in saying "it seems pretty clear: the most dangerous ministers in the current cabinet are the young and eager Wood and Hipkins, and the older, wiser and more devious Parker, Little, Faafoi and Robertson." (Okay, maybe not Faafoi.)

To be fair, it's not truly insightful analysis. And there is more about him we might have said, including about his time most recently as Minister Oveseeing Ram Raids (a suitable bench-mate then for his deputy, in her role as Minister for Social Mayhem), but he really is so dreadfully unexciting it's hard to say anything much at all. 

How his handlers decide to brighten him up for the electorate will be about the only interesting thing to observe about him in his last few months as Prime Minister -- playing as Geoffrey Palmer to Jacinda's David Lange.

What is 'He Puapua'? [updated]

He Puapua is a report commissioned by the Ardern Government to carry out The Key Government's commitments after signing the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), a "legally non-binding resolution passed by the UN in 2007" without New Zealand's vote -- which was withheld by the Clark Government. Among other rights and pseudo-rights asserted in the Declaration are said to be "the indigenous peoples' right to [their] own type of governance." That is almost specifically the aim of the He Puapua report, which 

sets out a timeline for ... transformational constitutional change which will divide the polity into "'three streams: the Rangiratanga stream (for Maori), the Kawanatanga stream (for the Crown) and the Rite Tahi stream (for all New Zealanders).'

In the words of Elizabeth Rata, the report's commissioning and conclusions make it "clear [that] New Zealanders are at a crossroads." 

We will have to decide whether we want our future to be that of an ethno-nationalist state or a democratic-nationalist one.

The report itself makes its own aim abundantly clear: it "describes our future as an ethno-nation."

Delivered to the Ardern Government last year, and only released because it was leaked to the Opposition, the words "He Puapua" themselves translate as "a break," or "a separation."

While it’s usually used in reference to the ocean and a break in waves, in this case the expression centres on a 'breaking of the usual political and societal norms and approaches.’

Such a sundering is not a trivial thing. It brings to mind another famous Declaration, which recognised that "When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation."

Neither decency nor respect has impelled any such declaration in this case. Instead, as Rata says in an excellent take-down of the report:

Displaying an astonishing confidence, the authors claim that 'We consider Aotearoa has reached a maturity where it is ready to undertake the transformation to restructure governance to realise rangatiratanga Maori (self-determination).' I hope [says Rata] that this 'maturity' can accommodate the vigorous debate that is certainly needed if we are to abandon democracy - for what exactly? While each sentence of the Report deserves scrutiny I will confine myself to two points. The main one is the Report's premise of the political category as an ethnic one. The second concerns judicial activism in constitutional change.
    He Puapua envisages a system of constitutional categorisation based on ancestral membership criteria rather than the universal human who is democracy's foundational unit. Ancestral group membership is the key idea of 'ethnicity'.... The word entered common usage from the 1970s followed by 'indigenous' in the 1980s. 'Ethnicity' was an attempt to edit out the increasingly discredited 'race'. However changing a word does not change the idea. 

The report, in total, and the separate future it demands, is race-based. Explicitly. 

"When we politicise ethnicity by classifying, categorising and institutionalising people on the basis of ethnicity," warns Rata, "we establish the platform for ethno-nationalism. Contemporary and historical examples should make us very wary of a path that replaces the individual citizen with the ethnic person as the political subject." No such worries appear to occupy the report's authors.

"Interestingly," she continues, "those examples show the role of small well-educated elites in pushing through radical change." The report's authors are exactly as described. And as well-educated, well-heeled, and well-connected "culturalist intellectuals," their bios reveal them to be virtually all of one mind:

• Claire Charters, "(Ngāti Whakaue, Tainui, Ngāpuhi, Tūwharetoa) [and the Report's chair] gained her LLM from NYU in the US, and her PhD from Cambridge University. She is an associate professor at Auckland Law School, University of Auckland, and Director of the Aotearoa Centre for Indigenous Peoples and the Law. She has been an advisor to the UN President of the General Assembly on Indigenous Peoples’ participation at the UN (2016 – 2017); chair of the UN Voluntary Fund for Indigenous Peoples, Trustee (2014 -2020); chair of the cabinet-appointed working group to provide advice on the realisation of the UN Declaration on the Rights of Indigenous Peoples (2019-2020); co-chair of the New Zealand Human Rights Commission Kaiwhakatara Advisory Group on human rights, Te Tiriti rights, and Covid-19; and worked on the negotiations for the adoption of the UN Declaration of the Rights of Indigenous Peoples (1998 – 2007)."
• Canadian Kayla Kingdon-Bebb is "the current Director of Policy at Te Papa Atawhai / Department of Conservation. Previously she served for three years as Principal Advisor (and earlier, Private Secretary) to two successive Ministers of Conservation. Kayla has extensive experience in the machinery of government, and has led programmes of cross-agency and collaborative work on policy issues relevant to indigenous rights and interests... Kayla has a PhD and MPhil from the University of Cambridge. Her doctoral and master’s theses focused on Treaty law, indigenous customary law and legal pluralism in the context of natural resource management."
• Tamati Olsen is the "Chief Advisor Maori at Housing New Zealand Corporation" and "Director (Acting), Wellbeing, Policy Partnerships. Te Puni Kōkiri – New Zealand Ministry of Māori Development" formerly "Manager Cultural Wealth" at Te Puni Kōkiri"
• The 26-year-old Waimirirangi Ormsby "is project manager at Ka Awatea Services Ltd, developing Ka Awatea strategic vision document base on Mātauranga Māori principles." "Of Waikato, Ngātiwai and Te Arawa descent, [she] has foraged deep into her whakapapa to help environmental sustainability resonate more with her people. But for her the key is to live it herself every single day.... Together with her husband she created Pipiri Ki A Papatūānuku or PKP, which encourages a month of passive environmental action every year. People agree to a period of minimising their waste, tūkino free eating where they try to avoid industrially-farmed produce, begin composting or recycling and minimising plastic waste, or anything else they feel they can commit to.... Longer term, she has much grander ambitions for the recognition of traditional ways. “Te pae tawhiti, my vision for the future is, to be honest, one or two generations from now to have indigenous people leading the way and having indigenous knowledge systems be implemented into constitution, into law and policy, into the way that we live our lives, for everybody.” 
• Previously at the Office of Treaty Settlements, Emily Owen is "General Manager Policy, Department of Corrections NZ. She holds a Masters in History from Massey University."
• "Passionate about Te Tiriti o Waitangi and human rights," Judith Pryor holds "a PhD in Critical and Cultural Theory from Cardiff University in the UK (2005)." Her "doctoral research in constitutions - examining law, history, policy and practice from a theoretical perspective - was published in 2008 as Constitutions: Writing Nations, Reading Difference." "Since returning to Aotearoa in 2006 from the UK, I have predominantly worked in Te Tiriti or human rights-related areas, including at Te Kāhui Tika Tangata, the Human Rights Commission; the Waitangi Tribunal, and the former Office of Treaty Settlements." She "can advise and support you and your agency to develop a capability plan as now required under the Public Service Act 2020. I can also devise a training programme for you, and can deliver Te Tiriti analysis training. Drawing on my previous experience in Policy, my workshop is particularly aimed at policy practitioners, and can be adapted for other audiences. The training covers:​ What the role of the Crown is in the Te Tiriti relationship; Why Te Tiriti analysis is critical for developing sound policy; How to embed Te Tiriti at each stage of the policy process (including engagement); How to practically work through a policy problem using a Te Tiriti framework."
• Jacinta Ruru "is co-Director of Ngā Pae o te Māramatanga [New Zealand's Māori Centre of Research Excellence], and Professor of Law at the University of Otago." Her "research interests focus on exploring Indigenous peoples' legal rights to own, manage and govern land and water. Jacinta's PhD thesis (University of Victoria, Canada, 2012) is titled "Settling Indigenous Place: Reconciling Legal Fictions in Governing Canada and Aotearoa New Zealand's National Parks."
• Naomi Solomon has an LLB from VUW. She is Ngati Toa's "General Manager, Treaty and Strategic Relationships."
• Gary Williams is a "Disability Sector Leader ... [whose] particular interests are issues for disabled people and especially disabled Maori, leadership development and training, the rights of disabled people and effective organisational governance and management. [Formerly] CEO of DPA [Disabled Persons Assembly], he has extensive sector networks, both nationally and internationally, and networks within government agencies."

Rata herself is explicit that what begins in ethno-nationalism often ends in bloodshed. "In Rwanda the ethnic doctrine 'the Mahutu Manifesto' of 1953 was written and promulgated by eleven highly educated individuals identifying politically as Hutu. The raw material of the ethnic ideologies that fuelled the violence in Bosnia and Serbia was supplied by intellectuals. Pol Pot began his killing campaigns immediately on his return from study in Paris." In all these cases, the bad philosophy preceded the horrific outcome. In Rata's 2006 speech to the NZ Skeptics she said: 

In New Zealand we are obviously not far down the track towards ethno-nationalism. However we need to recognise that the ideas which fuel ethnic politics are well-established and naturalised in this country and that the politicisation of ethnicity is underway". Fifteen years later the He Puapua Report shows the progress towards ethno-nationalism. Why has this racial ideology become so accepted in a nation which prides itself on identifying and rejecting racism?

The answer, of course, is what the report's authors call their philosophies. PhDs in subjects like Critical and Cultural Theory* have a real-world impact that appear in documents such as these. As Rata concludes:

'He Puapua' means a break. It is used in the Report to mean 'the breaking of the usual political and social norms and approaches.' The transformation of New Zealand proposed by He Puapua is indeed a complete break with the past. For this reason it is imperative that we all read the Report then freely and openly discuss what type of nation do we want - ethno-nationalism or democratic nationalism?

* * * * * 

* Quick reminder that Critical Race Theory and the like are not merely “Let’s teach the bad parts of history too” -- it's more like "Let's teach that history is all bad. And racist." Richard Delgado, for example, founder of the critical race theory school of legal scholarship, noted for his 'scholarship' on hate speech, and for introducing storytelling into legal scholarship baldly asserts:

Unlike traditional civil rights [e.g., Martin Luther King’s approach], which embraces incrementalism and step-by-step progress, critical race theory questions the very foundations of the liberal order, including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law.

Also, Critical, Cultural Theory etc, its not a theory. 
"The critical race theory (CRT) movement [says Delgado in Movement, Activists, Transform, Power] is a collection of activists and scholars interested in studying and transforming the relationship among race, racism, and power."

So it's a "theory" only in the same sense that AntiFa is an idea.

Don't say you haven't been told. 

[Hat tip Stephen Hicks, Peter Renzland]