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Upton-on-line: Earthquake Dislodges Fossil

Upton-on-line September 22nd


Upton-on-line-on-the-move: Earthquake Dislodges Fossil

Readers will be aware that yesterday upton-on-line – or at least his non-cyber double – announced his intention to retire from Parliament early in the New Year to take up a position with the OECD in Paris.

Upton-on-line is a little taken aback by the protestations of surprise (after 19 years one is truly a living fossil in the sediment of Parliamentary Debates which slowly decompose in the lobbies); and also acutely embarrassed by headlines about leaving Parliament to “save the world”. Paris seems an unlikely setting for a ghastly eco-horror movie.

The reality is less dramatic and far more interesting. The OECD Round Table is an organisation upton-on-line already chairs. It is a forum that brings together governments, multi-lateral agencies (like the World Bank, WTO, UNEP, etc), business and NGOs – all of whom are grappling with the fall-out from Rio.

Unlike the world’s international trade system which has a unitary body of law and a single negotiating forum, the process for developing rules that apply to environmental issues is (relatively speaking) a quagmire. There are parallel negotiations going on in different forums, sometimes in conflict with one another. And everyone has a different view about the sorts of trade-offs that are being made between economic development and environmental degradation (a big North-South issue).

The Round Table is trying – modestly and without any accompanying bureaucracy – to use the skills of its members (in their personal capacities) to try to inject a modicum of coherence into the debates which are presently consuming huge amounts of time and resources. Upton-on-line’s humble view is that there is probably too much being attempted with too little to show for it. Certainly, the number of issues that demand truly global solutions are only a subset of what is being attempted.

But the consequences of globalisation are real and developing the institutions and rules to cope is important. Getting it wrong could be very bad – not just environmentally but economically as well. Hence the interest the appointment provides.

There will be plenty of time in coming weeks to ruminate on the consequences of this decision (and the future of this newsletter). But sign-off is some weeks away and in the meantime we are back to familiar territory with the latest instalment of the sovereignty debate …


Functional Sovereignty & Subsidiarity – the Constitutional Soup Thickens

Last week saw Wellington host an exceptionally interesting conference. It was organised by the Foundation for Indigenous Research in Society & Technology and explored the implementation of indigenous rights.

It was a serious conference that brought together local and off-shore scholars at the heavy-weight end of the spectrum. In the course of it we were given a glimpse of some of the sorts of arguments that are likely to gain currency here as the Government presses ahead with its constitutional reforms that aren’t constitutional reforms.

Of particular interest were the comments of Professor Paul L A H Chartrand, a Métis lawyer, member of the Canadian Indigenous Bar Association, Professor of Native Studies at the University of Manitoba, and a member of the 1991-95 Royal Commission on Aboriginal Peoples.

Professor Chartrand commenced by saying that the Crown in Canada resembled a horse that bolts and runs off for quarter of a mile and then stops and looks back. “If we are to succeed in designing and implementing the rights of indigenous peoples” he said, “we should find agreement on rational and achievable goals.” There had to be “a way to harmony that the State does not see as a threat”.

After Ward Churchill, this sounded like a rather moderate message from North America. He expressed concern about affirmative action programmes noting that they contributed to the perpetuation of an image that aboriginal people were a “problem” or an “underclass of whingers” or “objects of concern”.

Neither was he particularly happy with aboriginal peoples being labelled as “cultural minorities”, distinct and separate from the democratic majority. As for those who celebrated diversity, he thought it a rather meaningless buzzword. Why was “diversity” per se of value in modern society? As far as aboriginal people were concerned, the country they lived in was where their homes and gardens were, and where their languages belonged.

The real issue was how aboriginal people in Canada could determine their own futures without having it done for them by “strangers”. Chartrand described the aboriginal goal of self-determination as a case of "We want In" not "We want Out".

He asserted a right to “functional sovereignty” which he explained in terms of assigning to sub-state groups those cultural, political and economic matters which concern them. These had to be balanced with the interests of the State, something that required “important formal advancements at the theoretical level”.

He cited Quebec as the great example and instigator of indigenous nationalism within Canada. Aboriginal peoples understood, from the Quebec experience, that a majority could exercise sovereignty within a given territory within the broader Canadian federation. But he conceded that functional sovereignty required an accommodation with new minorities - in the case of Quebec, anglophones and indigenous peoples; in the case of Fiji, with the Indians.

All of this is fairly surreal stuff for New Zealanders who have grown up with one of the more centralised unitary states in the world. The thought of breaking the country up into regional or local majorities who then have to develop a modus operandi with citizens who were once part of the majority but have newly acquired minority status is all a bit exhausting. But upton-on-line observes that Canadians and Australians seem to love all these tiers of government and whatever the extra dead-weight costs, their economies seem to bowl along better than ours.

Certainly, Chartrand’s idea of functional sovereignty is only made possible by the vein of federalism that runs through Canada’s constitutional arrangements. He drew a parallel with the European notion of subsidiarity which he interpreted as vesting government decision-making as close as practically possible to those directly affected by the decisions.

As a result he disapproved of seeking political settlements just at the level of the tribe or nation. Rather, he preferred settlements to apply to bands (hapu in our terms) for particular purposes (ie fishing on a particular lake) and then for those rights and their management to emanate upwards from the bands to their particular first nation and then up to the level of the federal associations of first nations. Authority should be delegated upwards.

Re-enter Margaret Wilson

This was the idea that Margaret Wilson, speaking out all of a sudden after weeks of silence, found herself agreeing with on Mana news. She noted that Chartrand’s concept was consistent with New Zealand’s democracy as we now understand it under MMP: “It is a model [that’s] consistent with democratic principle which is that from the bottom up your democracy comes, not from the top down which is the more authoritarian monarchist-type model.” So we can roll a spot of republicanism in with our functional sovereignty/subsidiarity for good measure!

The only problem is that it isn’t compatible with our unitary arrangements. And it is quite alarming that someone with Wilson’s academic credentials should be thrashing around so uncertainly with concepts and ideas that have not been carefully thought through in the New Zealand context.

Now such notions might once have been possible. Our constitution wasn’t always as it is now. Article 71 of the NZ Constitution Act 1852 (passed by the British Parliament) provided as follows:

“And whereas it may be expedient that the Laws, Customs and Usages of the aboriginal or native inhabitants of New Zealand, so far as they are not repugnant to the general Principles of Humanity, should for the present be maintained for the Government of themselves, in all their relations to and Dealings with each other, and that particular Districts should be set apart within which such Laws, Customs and Usages should be so observed:

“It shall be lawful for Her Majesty, by any Letters Patent to be issued under the Great Seal of the United Kingdom, from Time to Time to make Provision for the Purposes aforesaid, any Repugnancy of any such native Laws, Customs or Usages to the Law of England, or to any Law, Statute or Usage in force in New Zealand, or any part thereof, in anywise notwithstanding.”

And indeed, such Letters Patent were drafted in 1858 to bring into force two Acts:

 The Native Districts Councils Act 1858 which empowered runanga along with resident magistrates to pass by-laws to regulate civil injuries and lesser criminal offences; and
 The Native Districts Courts Act 1858 which gave Maori assessors authority to enforce by-laws on their own for small cases (where no more than five pounds was at stake) along with the magistrate on circuit for more important cases.

From a Maori point of view, that sort of local 'sovereignty' had been mandated under Article 2 of the Treaty – the article whose translations are most divergent. The colonial authorities relied, instead, on Article 71. But whichever way you look at it we were, in the early days, launched down a rather different constitutional road – and not just with respect to Maori. There were Provincial governments too that provided a counterweight to the centre. All of that disappeared in the 1860s and 1870s. And Sir Geoffrey Palmer swept away Article 71 in 1986.

So there’s a legislative and constitutional trail that the proponents of rangatiratanga through functional sovereignty can point to – although upton-on-line points out that Article 71 said indigenous self government “should for the present be maintained” (which has a slightly interim feel about it). Wilson is aware of all this but has decided not to talk about it. Instead she is pinning everything on “closing the gaps”, interpreting the Article 3 guarantee of “the same rights and duties of citizenship as the people of England” to mean equality of social outcomes (see her extensive interview in the Evening Post of September 20th).

Now this just will not wash from any reasonable legal perspective. It is an entirely novel interpretation and has no legal authority to back it – however desirable some may believe it to be from the point of view of social democratic theory. There is no agreement in our society about rights to equality of outcomes – that’s a keenly contested point of political philosophy – and there certainly wasn’t in 1840. There was –and is – agreement on equality of standing before the law, but go too far beyond there and you enter the thickets of political ideology.

Upton-on-line was genuinely shocked that the Minister changed tactics this week and chose to allege that the National Opposition was being 'hypocritical' in having supported treaty clauses in legislation like the Resource Management Act but opposed it in the Government’s new health bill. From of a scholarly point of view (and the Minister is a scholar), this is a disastrous new low.

As she knows, treaty clauses to date have been widely understood to protect Article 2 interests. The health legislation breaks new ground in importing a treaty clause into social legislation which the Minister herself characterises as dealing with Article 3 issues (erroneously in upton-on-line’s view as detailed in our issue of August 11th).

But on the other side of the political spectrum there are Maori who are equally disgusted. For them, closing the gaps is all about equalising the exercise of power. So the Minister is opting for a moderate course after all?

Maybe, maybe not. Because she freely admits (again in the Evening Post), that Articles 1 and 2 “have to be addressed and they are difficult issues, but they are different from Treaty clauses.” She concedes that they are the subject of general discussions but says there are pre-conditions that have to be met before they can come centre stage. One pre-condition is equality, and once the Government has made progress there then “you do by definition have a different environment and it might be a better environment … to start talking about the constitutional issues.

What we are being invited to do, as a nation, is include treaty clauses in social legislation whose necessity is strongly contested and whose legal consequences are unknown. We are told that the Government is not contemplating fundamental constitutional reform. But we are told that the Government has “identified the first steps … towards constitutional change if that’s what’s there.”

We are entitled to much greater clarity – and a frank assessment of the ambit of the constitutional changes whose 'first steps' have been identified. Upton-on-line is surprised by the incoherent and fragmented way in which it is being advanced. To claim that there is no agenda of treaty-based constitutional reform but repeatedly refer to unanswered constitutional questions is to talk in riddles.

In a Nutshell

Another speaker at the indigenous rights conference was well known lawyer, Donna Hall. Hall spoke about the Draft Declaration on the Rights of Indigenous Peoples and the Permanent Forum for Indigenous Issues that the UN is establishing. In backgrounding the position of indigenous peoples, Hall summarised the argument put before the 1995 Copenhagen workshop which kicked discussions off – and its reception. It’s a masterly cameo and the conclusion rather hilarious. We produce paragraphs 13 and 14 from her paper …

13. The indigenous argument goes like this:

(a) Indigenous cultures pre-date the state. While cultures have existed from time immemorial, national states are largely modern innovations. Many are of doubtful authenticity with dubious boundaries, poor records in people management and long records in power games and war mongering. They may be audited as having confused good management with power maintenance.
(b) Culture is resilient. States regularly predict the demise of their indigenous populations when in reality, indigenous people have survived and grown stronger. States come, go or change, but cultures endure.
(c) Indigenous cultures transcend the state, crossing state boundaries. This applies for example to the Saami, American Indians, Zulu or Maori who, although it is not always appreciated, are part of a wider Pacific family, cut off from political communication with our relatives through the state's assumption of authority.
(d) Indigenous cultures are not dependant on the maintenance of territorial integrity. While they relate to a place they can survive without it. There are Maori marae throughout Australia for example, and at least one in Tahiti.
(e) Indigenous cultures are not exclusive or even racially prescriptive. Their ability to incorporate others is as large as that of any state.
(f) Their existence may challenge the state's legitimacy. This is not always arguable in international law where time legitimates original violence, but legitimacy is in question when states continue an omission to recognise the citizenship rights of indigenees.
(g) They are not creations of the state. Like themselves, their rights of autonomy are inherent and come from out of the ground.
(h) More especially tribal indigenous societies are mainly anti-centralist (and anti-state to that extent). Law and authority is located at the "lowest" or most local or village level. All above that may be seen as mere federations of interests dependent upon continued support from the base. The power structure to which States are accustomed, is where law and power descends from the top down, becomes inverted. Indigenous societies work from the bottom up. Power sits at the base.

14. By the time this type of debate has run its gambit in Copenhagen - the State Banquet had melted - India was not speaking to Brazil, Australia was asleep and Donna Hall left the Conference grateful to get back to New Zealand for a rest.


Upton-on-line thinks that’s a rather brilliant summary of the indigenous viewpoint whether or not you agree with it. And it poses a few challenges for any government that has paternalistic ambitions to ‘solve’ problems at the local level. On the other hand, it poses a few problems for 'indiginees' who wish to conceive of themselves as individuals. But Hall at least has a sense of humour which seems in short supply sometimes!

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