Nov 28, 2012

The price of the King's support

So, Tuku Morgan has revealed the price of the Kingitanga’s support*:

A former head of the Waikato-Tainui executive who plans to stand for the role of the tribe's parliament chair says he wants to change the way the tribe is governed so the Maori King has the final say over tribal decisions…

Mr Morgan says if he's elected he'll work towards making changes to the tribe's constitution.

He says members must never be able to go to court with tribal issues, and Kingi Tuheitia should be given the right to veto or dissolve a tribal parliament.

Gifting the King the power to dissolve tribal parliaments will not solve the political and structural problems in Tainui. At most, inserting the Kingitanga as the ultimate decision maker will only change the way tribal politics is played. So, rather than engage in legal plays**, ambitious tribal politicians will jostle for standing in the Kingitanga. Lobbying, not law, will be du jour.

As for the structural issues, elevating the Kingitanga will further complicate what is already an unnecessarily complex iwi structure. At the moment the King sits at the top of the line as the ceremonial head, Te Kauhanganui (TK) stands below as the decision making body, Te Arataura (TA) is lower still as the day to day manager and groups like Tainui Group Holdings (TGH) make up the base. It’s a loose Westminster model where the Kingitanga is analogous to the monarchy, TK to Parliament, TA to the Cabinet and TGH and others are analogous to arms of the executive. Under Tuku’s proposal the structure would not change, other than to take ultimate power away from TK and transfer it to the Kingitanga.

Well, under either model, the structure doesn't fit with the “fundamental principles (that) have emerged over the years as being relevant for most iwi in their structures”. These principles are:

  • the need to establish a structure where the individual iwi members have ultimate control; 
  • the legal capacity and powers of the structure are certain; and 
  • ownership and management functions are kept separate, as are commercial and non-commercial objectives. 

Here are the problems: 1) Under Tuku’s model, the King could dissolve TK and override the will of the individual iwi members. Even then, it’s arguable that individual iwi members do not even have ultimate control over TK and Tainui decision making as it is. TK is not elected on an at large basis. Each Marae puts forward three members to sit on TK, yet those members are not elected on an at large basis either. Arguably, this is not a purely democratic model where “individual iwi members have ultimate control” 2) the legal powers of each body are not certain. A number of tribal politicians, including Tuku Morgan, have taken to the Courts to test the limits of their power and the power of their opponents. Given the hazy rules, a culture of litigation has developed in the tribe. From the beginning of the 2010 financial year through to 2012 Chapman Tripp collected over $1m in legal fees, Bell Gully collected almost $300,000 (including the 2009 financial year). Over four other firms cashed in as well 3) ownership (TK) and management (TA) are kept separate under both models. At least that’s one run out of three.

The troubles in Tainui are not tidy and while I don’t pretend to have all of the answers, I’m sure the answer is not to reduce democracy in favour of feudalism. Structural reform is the key, but that reform must be on democratic terms. Regardless of what you think of Tuku Morgan, Tania Martin or Kingi Tuheitia, I think everyone can agree on that.

*In a extraordinary letter to Tainui tribal members the King called on leaders in TK and TA to reaffirm their "mandate" and endorsed Tuku Morgan in his bid for the chairmanship of TK. 
**The Court has the final say over the interpretation and application of the rules that govern Tainui. As a result much of the political games that go on in Tainui are, essentially, legal games. Opposing parties merely attempt to strengthen their legal positions rather than cooperate, compromise and so on. 

Nov 9, 2012

Upholding the Treaty

Who would’ve thunk that swearing an oath to uphold the central document in our constitution would be “controversial” and “another bid by the Maori party to take New Zealand down the road of racial separatism”. In line with their populist and racist roots National, Act, United Future and NZ First voted down Te Ururoa Flavell’s bill that would allow MPs to swear an oath to uphold the Treaty of Waitangi. The current oath reads:

“I swear that I will be faithful and bear true allegiance to Her Majesty, Queen Elizabeth 11, her heirs and successors, according to law, so help me God.”

Yuck. It’s easy to imagine this oath in pre-Magna Carta England, but New Zealand in 2012?

One of the basic tenents of the rule of law is that governments and citizens are held to the agreements they freely negotiate. The Treaty of Waitangi is not an exception, operative words being not an exception – it’s the central tenant of our constitution after all. With that in mind, shouldn’t we expect MPs to swear an oath to uphold it? Federal representatives in the US swear an oath to uphold their constitution, the nearest equivalent in NZ would be to swear an oath to uphold the Treaty.

In reality, there is no argument against voting the bill down. All Winston Peters could muster were empty platitudes about separatism. Weak. The National Party hasn't, as far as I'm aware, offered a justification. Weaker. What the rednecks forget is that the Treaty doesn't just confer rights on Maori and obligations on the Crown, the Treaty gives the Crown the right to govern.Wouldn't MPs want to swear to uphold the document that they source their legitimacy from?

NB: normal blogging will resume from about the 19th of November (after my exams).