Auckland’s latest human rights issue: Ihumatao and the Otuataua Stonefields

Ihumatao and the Otuataua Stonefields: A very special area

By Geoff Chapple

ihumatao-site

The 33ha subdivision site. Photo/Google Images/Composite

Dawn on May 20, 2016, at Ihumatao Village, Mangere. It’s Auckland’s oldest settlement, alongside a coastal estuary, just north-west of the airport. A Maori village, population around 120. A woman is walking back to the village from her job of unlocking the public toilets at Oruarangi Reserve. The woman lives alone here with the ashes of her husband, dead eight years, but she never feels afraid. You can hear te reo spoken on the streets, there’s a Black Power shed down the road and there’s a code: the village sorts its own stuff – you don’t ring the police, you don’t involve the law.

Except that today the law has come to Ihumatao anyway. It has landed soundlessly upon the fields beside the village, a planning judgment that gives Fletcher Living the right to begin the first 120 homes of its proposed 480-house subdivision on the 33ha Oruarangi Block alongside the Otuataua Stonefields Historic Reserve.

It was first mooted as a Special Housing Area (SHA) in November 2013, a confidential proposal, and the block only gradually emerged as the most controversial of the SHAs. Under the emergency conditions of the Housing Accords and Special Housing Areas Act 2013 (HASHAA) – intended to deliver short sharp boosts to Auckland’s housing stock – the Oruarangi SHA is real, and the city’s oldest settlement will be joined, more or less at the hip, to Auckland’s newest housing estate.

The local Makaurau Marae Committee reckons 76 of the 80 households in Ihumatao Village oppose the Fletcher development. As the village gets going on this first day of the new regime, as workers in high-vis vests drive out of quiet streets and head for jobs in Wiri as storemen, carpenters and road workers, it’s not hard to find that opposition.

“I’m blood,” says Tui Walker, when shown the Oruarangi Block decision. “My ancestors have been out here forever, and now things are changing. It’s bad. I don’t like it. We’re going to have a miniature Auckland on our doorstep, are we? Our rates go up and everyone gets slapped with bigger bills.”

“I support my marae, No 1” says a guy with dreads and a bandana, who shakes your hand like he’s throwing it back at you and withholds his name. “And I support our rangatahi.”

oruarangi-1890s
An 1890s photo of the Oruarangi Estuary. Photo/Mangere Historical Society Collection

Save our unique landscape

The rangatahi – the village’s young set – began a protest against the Oruarangi SHA in early 2015, under a Save Our Unique Landscape (Soul) banner. They know their 19th-century history: that Waiohua, the tangata whenua of this region, have close ties with Tainui and – in July 1863 by proclamation of Governor George Grey – were forced off this land to clear the way for General Duncan Cameron’s invasion of the Waikato. The Oruarangi Block then became part of a Government land confiscation in 1865. They know that their 20th century history in its own way is just as uncaring: the 1960s Mangere sewage ponds on one side blocking the Oruarangi estuary from the sea, the Auckland International Airport the other. The sewage treatment has been remediated and the estuary reopened to the Manukau, following a 1985 Waitangi Tribunal report on the Manukau claim, but now this.

Pania Newton is one of the Soul leaders. She knew as soon as she heard of the SHA that she was going to tackle it her own way. For the 25-year-old Maori law graduate, it was simple: “We’re part of the landscape, essentially. That’s where our whakapapa is. We have an umbilical connection to this land. When we go there, we connect back with our ancestors. When we recite our pepeha, we acknow­ledge Otuataua and Oruarangi awa; Te Puketapapa Hape is our maunga. Our tikanga and our mana is within this land.

“We’re running out of green spaces. So come on, let’s preserve them. When I do this campaign, I’m not only thinking of myself or my family or our community but also thinking about the generations to come. I want them to be able to look back and say: ‘They did everything they could to oppose this. They went right down to occupying or they …’ However it ends. ‘Look what they did manage to do.’”

Wander for an hour out here with archaeologist Dave Veart and the Otuataua Stonefields become something more than wandering spines of scoria and heaps of basalt. Every stone here has been turned by human hand and placed. Every structure has an agricultural purpose – windbreaks on the ridges, heat conservation in the depressions, plot division – 100ha of it, and unfortified. Thousands of Maori lived within this Ihumatao Peninsula, their borders secured by fighting pa, but here they lived in peace.

Neolithic organisation on this scale, says Veart, suggests a civilisation that will have spilled over into the softer soils of the Oruarangi housing area, would have crossed it also to get water from the nearby creek. He believes archaeological techniques will improve sufficiently in the decades ahead to light up this area without invasive techniques. Adding the Oruarangi Block to the Otuataua Stonefields Historic Reserve makes sense because it preserves the natural run-out slopes of the two volcanoes that border the park. It also allows the reserve’s expansion into South Auckland’s equivalent of Cornwall Park, with its archaeology preserved and waiting.

“The Maori story in this area is so interesting – and this’d be money in the bank in terms of the intellectual property of the planet really. But once you put houses on this land, that chance goes. There’s no going back. It’s like building houses on the fields alongside Stonehenge.”

Graeme Campbell, who as Auckland conservator for the Department of Conservation in the late 1990s negotiated and then amalgamated many of the Otuataua Stonefields properties, is just as unequivocal.

“This land should not be an SHA. What we’ve learnt in the past 20 years is that the Polynesian migration is a much richer story than we knew in 1999, and predictably we’ll have an even greater understanding of this in the next 10 or 20 years, if the land stays open. It’s not just Auckland, but New Zealand, and it’s international – one of the great migrations. It’s the end point of the Pacific migration. Mangere and Otuataua is a 5000-year-old story.

“You can say this is the place where Polynesians became Maori, and there were maybe 30,000 people living between Mangere and Wiri, a proto-Polynesian city.”

soul-leader-pania-newton

Soul leader Pania Newton. Photo/Geoff Chapple

Plans go awry

Part of the rage around the Oruarangi SHA stems from Manukau City Council’s decision seven years ago to do precisely what Veart suggests. With support from the Auckland Regional Authority, the council put a protective Notice of Requirement on the Oruarangi Block until it could be confirmed as Public Open Space in a proposed Manukau District plan change.

Planning commissioners then reviewed public submissions on the plan, balancing – as the Resource Management Act insists they do – the economic well-being of private land-owners against the broader public good, including historical and Maori heritage. The commissioners turned down the request by Gavin H Wallace Ltd, owner of the Oruarangi Block, to change its zoning from rural to business development. They confirmed the existing rural designation and the Notice of Requirement.

Three years later, in 2012, the Environment Court heard an appeal by Gavin H Wallace Ltd and decided entirely differently. The court’s decision saw the Oruarangi Block brought within Auckland’s Metropolitan Urban Limits and rezoned as a “future development zone”. The court favoured the private landholder interest over the wider good, but noted any development within the future zone should be sensitively done. The Notice of Requirement on the Orua­rangi Block was cancelled.

The block was set for a sale, and the time-line remains unclear, but it seems Manukau City, and then perhaps Manukau planners acting for the new Auckland City, sat down with the major Gavin H Wallace shareholder, Ailsa Blackwell, to negotiate a possible purchase.

“We offered it to the council, but the price was not satisfactory,” says the now 88-year-old Blackwell, a lifetime resident of the area and an ex-theatre sister at Middlemore Hospital. “They offered around $5 million, and after the court case they offered $6.5 million. The council never got beyond that. I’d have preferred the council if they gave us a good price, but they wouldn’t, and we’d already lost the best part of the farm.

“We sold the first 52 acres [21ha] to help the Otuataua Stonefields Reserve, for just over $1 million, I think, in the 1990s, so that was our contribution to the public good. It was all a matter of offering us enough money for this remaining section – that’s all there is to it. I think Fletchers are good. I think they’ve got great plans.”

Fletcher Living won’t reveal the terms of the sale agreement with Gavin H Wallace Ltd, but it was rumoured to be about $19 million, conditional first on Auckland Council, then the Government, accepting Oruarangi as an SHA and secondly on the HASHAA’s independent commissioners allowing a plan change within the Auckland Council’s Proposed Auckland Unitary Plan from “future development” to “residential”. Because the land adjacent to the Otuataua Stonefields Historic Reserve is regarded as sensitive, because of its wahi tapu sites and because Fletcher is 56% overseas owned, the company had to prove to the Overseas Investment Office (OIO) that it would bring benefits to New Zealand above and beyond the benefits any local firm might bring to the same land purchase.

Fletcher’s solicitor put forward a number of benefits, often to a lukewarm response from the OIO, but the one that did make it stand to attention was Fletcher’s capacity to help realise a stated Government policy: the company’s proven speed in building houses by the dozen.

With an SHA opportunity top of mind, the company was already making contact with two local iwi and building an alliance. It also commissioned Clough and Asso­ciates to do an archaeological assessment. Te Warena Taua, chairman of the Makaurau Marae Maori Trust, did a cultural assessment for the company. Both Rod Clough and Te Warena Taua had given expert evidence before the Environment Court of 2012, seeking preservation of the Oruarangi Block in its pristine state, and lost the case, but both now accepted the new commission. It was better to be inside the tent than out.

Clough’s report noted the change: “The approach must now be to mitigate the effects of development on the heritage landscape as far as possible.” Taua did not respond to requests by the Listener for an interview, but is understood to be happy with the conditions Fletcher has agreed to, including protecting the wahi tapu lava caves in an 8.5ha open space next to the stonefields reserve, Maori theming in park and street furniture, and affordable housing that might bring some of the Waiohua diaspora back into the district.

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Archaeologist Dave Veart: It “just seems like a bit of an unfair deal.” Photo/Stephen Robinson

‘An entirely new process’

In early 2014, the Oruarangi SHA came under direct scrutiny at Auckland Council. Cathy Casey, ward councillor for Albert-Eden-Roskill, says the process began for her with a workshop in early 2014 when about 40 proposed housing areas came through in a single tranche. The assessments from the council’s Housing Projects Office were no more than six pages apiece, and unless they were local to a councillor’s ward, they were hard for councillors to figure out.

In a high-pressure environment, the elected members often relied on a five-­colour coding system to assess the proposed SHAs, red serving as an alert to a potential problem, and green as good to go. Orua­rangi SHA’s requester, engineering and design consultancy Harrison Grierson, got a green. So did Oruarangi SHA’s developer, Fletcher Living. Oruarangi’s iwi status was listed yellow. That meant not perfect but okay. The Otahuhu-Mangere Local Board was noted as a red flag, but local board opposition to the SHAs wasn’t particularly unusual, and to her ongoing regret, Casey let it go through. “This was an entirely new process and we were just learning by doing,” she says. “You can see how, right across Auckland, especially if the local councillor is not there to guide you, it’s really hard to pick up the nuances.”

She didn’t understand Oruarangi’s heritage aspects then or suspect the division between the Makaurau Marae Committee, which looks after day-to-day running of the marae and supports Soul, and the Makaurau Marae Maori Trust, whose warrant is the marae’s outside issues. The Oruarangi SHA progressed onward through council in strict confidence, until the council finally signed off 41 SHAs, including Oruarangi, on May 1, 2014. Those went through to Housing Minister Nick Smith to await approval by the Cabinet and to be finally ratified by Orders in Council.

Later, as Soul began its programme of contacting politicians to protest about the inclusion of the Oruarangi SHA, Casey would become their champion within Auckland Council. Mortified at having missed a number of chances to at least oppose it intelligently, she brokered meetings to get Soul in front of the deputy mayor, the mayor and Ken Lotu-Iiga, general manager of Fletcher Living, which would be building the houses. She went further, getting sufficient names on a petition and sufficient votes from sympathetic councillors that she could force a full council meeting on August 27, 2015, to vote on her notice of motion revoking the Oruarangi SHA.

Councillors dealing with HASHAA were on a learning curve, and Auckland Council got another lesson that morning. Appended to the council’s agenda was a letter from Smith. The SHAs were activated by Orders in Council, wrote Smith, and as such could only be revoked by him as Housing Minister. Even if he wanted to revoke, he would have to justify his action against set criteria that seemed unlikely to occur in Auckland – for example, a sudden collapse in housing demand.

Five councillors voted to revoke Auckland Council’s original decision anyway. They included one member of the Mangere Ward, Arthur Anae, as well as the chairman of the council’s Heritage Advisory Panel, Waite­mata and Gulf councillor Mike Lee. Some of Lee’s anger is apparent when asked why he voted on a notice of motion that had no chance of changing anything.

“The HASHAA legislation is draconian and largely suspends the rights of people and communities to exercise traditional common-law rights to input on planning decisions affecting them. Also, council’s Heritage Advisory Panel was not consulted on this SHA and requests for a briefing were denied.”

Noisy protest

The independent commissioners appointed to hear the plan change sought by Fletcher for its SHA and the necessary resource consents met in the old Manukau City Council offices on February 3 and 4, 2016. Outside on the steps, Soul mounted a packed and noisy protest. Inside, the only submitters technically allowed to present under HASHAA rules should have been able to demonstrate that their property boundary ran alongside the proposed SHA, but Soul managed to get its experts to address the commissioners anyway. The commissioners’ report perhaps acknow­ledged their submissions by noting the effect on cultural heritage would be “more than minor” but outweighed, they immediately added, “by the purposes of HASHAA and the measures to be employed to recognise and provide for iwi values …”

Fletcher came to the table with a welter of reports, from consultants in every relevant field. There were a few gaps. The commissioners, in their report, demanded a number of new conditions, including an authority from Heritage New Zealand to be in place before any earthworks begin. They noted: “There is a strong possibility that heritage values and archaeology might be discovered through the earthworks and construction phases of this project.” There were other mitigations, but Soul’s attempt to stop the development – under HASHAA rules at least – had failed. The development would go ahead, and under HASHAA legislation there could be no appeal.

“Prior to the 1860s, Maori who lived here had a windmill and they grew wheat and they produced flour for Auckland,” says Veart. “Then their land gets confiscated, and it’s part of this ongoing story where this area goes from being one of richest parts of early Auckland to a rubbish tip, courtesy of the European settlers, then a sewage works.

“Then that gets remediated and ‘oh, we’ll have that now – it’s all nice and clean’. Which just seems like a bit of an unfair deal to me. You can have it when it’s shitty, but as soon as it’s clean, we’ll come back and confiscate it again.”

On May 20, the same day that the ­villagers at Ihumatao first saw the ­commissioners’ decision, Fletcher’s Lotu-Iiga issued a statement, saying the company remains committed to delivering a residential community, with high-quality environmental outcomes, that is respectful of the history and the existing community.

“We know there is local opposition to developing this land as was evidenced through the SHA process. With these rulings in place, we look forward to further engaging with relevant stakeholders to enable increased understanding of our plans.”

Soul’s Newton was in Hawaii at a Native American and Indigenous Studies conference when the commissioners’ report came in. So what now for Soul?

“I think you know the answer to that,” she emailed back.

“The fight isn’t over yet, not until I do everything in my power to oppose the ­development. We’re only just getting started.”

PROTECTION PLAN

Fletcher Living says comprehensive preparations and planning have been undertaken to protect the culturally significant geological features of the Oruarangi Block, including consulting with “recognised Maori leaders who have the mandate to represent their iwi”.

It says a variety of impact reports have been commissioned, and comprehensive protection plans are in place, including:

• protecting lava caves in the development as part of this buffer zone.

• creating a buffer zone to protect the Otuataua Stonefields Historic Reserve on the western boundary of the development (about a third of land in the development area will be public space).

• protecting significant native trees, the historic Wallace homestead and other significant landmarks and geological features within the development.

• protecting many historic stonewalls, although some will be rebuilt and some removed.

• protecting public access to the adjacent reserve.

WATCH “SUNDAY” PROGRAMME 18 SEPTEMBER 2016 HERE:

http://tvnz.co.nz/sunday-news/rock-and-hard-place-video-6493401

 

Kevin Hague’s valedictory

Green MP Kevin Hague after the passing of the marriage equality bill – one of the highlights of his eight years in Parliament. Photo/Mark Mitchell

Stuff reports:

With one last understated jab at the Government and an emotional nod to his late mother and sister, Green Party veteran MP has signed off on eight years in Parliament. 

Giving his valedictory speech to a mostly-full House of MPs, Hague said it had been a little like “punching into the wind of Cyclone Bola”. 

He gained laughs when he told Parliament of a time when he and his partner Ian used to sail on 24ft cutter.

“I remember in 1988 during Cyclone Bola – some might question the decision to go sailing – we were anchored in a bay in the outer part of the Coromandel Harbour.”

The wind was so strong it would drag the boat out, forcing them to keep a 24-hour anchor watch and use the small outboard motor to “punch back into the wind” to get to back to shelter. 

“Eight years of Opposition has felt something like that. Going to work each day, standing up for what we believe in, but losing almost all of our arguments,” he said. 

“Not because we were wrong, but because of the Government’s superior numbers and resources.”

But it had been “an enormous honour” to serve as an MP, and Hague said he felt he had made his late mother and sister proud. 

“In leaving I feel I have done my best, I feel I have made things better and I go with my integrity entact.”  

The pragmatic activist; Hague has had a political career marked by both quiet dedication, and staunch advocacy. …

During his speech, Hague made particular mention of ACC Minister Nikki Kaye, with whom he worked on a bill to reform adoption and surrogacy laws. 

He offered his “best wishes” for her fast recovery, as she has taken leave to battle breast cancer. 

A career of significant achievement, also included helping establish Nga Haerenga (the New Zealand Cycle Trail), and he leaves behind a petition being considered that seeks pardons for those convicted for homosexual acts before law reforms were passed in 1986.

But it was marred by never having had the opportunity to be a minister.

“I think I might have done a pretty good job of that,” he said. 

I doubt I would have agreed with many of his policies, but I do think he would have been a good Minister. As a former Chief Executive of a DHB he does understand how the system works. And Hague has done a commendable job in weaning some of the Greens away from their anti-science views towards fluoridation and the like. I worry they may regress in his absence.

Do we need a Queen anymore?

By Michael Donaldson

Authors Sir Geoffrey Palmer and Andrew Butler.

Authors Sir Geoffrey Palmer and Andrew Butler

Remember that time when a whole bunch of vulnerable New Zealanders had their basic human rights removed by Parliament late one night as the House sat under urgency?

No?

Well, the Health and Disability Amendment Act of 2013 did just that, prompting constitutional law expert professor Andrew Geddis to slam the Government’s actions as “trampling all over a basic foundational principle of our constitutional order”.

But that’s exactly what happens when you don’t have a written constitution to govern the way our law-makers behave, something former prime minister Sir Geoffrey Palmer desperately wants to change.

Along with fellow lawyer Andrew Butler, Palmer is about to release A Constitution for Aotearoa New Zealand, a book that explains – in a surprisingly easy to understand manner – why New Zealand needs a written constitution and what a first draft of that constitution entails.

It has what some would call emotive elements – ditching the Queen as the head of state, locking in a four-year election cycle, enshrining the Treaty of Waitangi – but at its heart is a fierce commitment to both protecting the rights of all New Zealanders and ensuring we all, politicians especially, know and understand the rules by which we run this little club called New Zealand.

Constitution Aotearoa might sound eye-rollingly dry but the fact is New Zealand’s current constitution is, frankly, a mess.

Parts of what could be considered the current constitution are, says Palmer, located in 45 Acts of Parliament, 12 international treaties, nine areas of common law, eight constitutional conventions, several executive orders and other legal instruments. It’s a bit like having your worldly possessions packed in unmarked boxes – you know it’s all there but finding what you want can be almost impossible.

“In a democracy you ought to know what your rights and responsibilities are and you ought to know how the system of government works, you ought to know what the rules are,” Palmer says. “In New Zealand you can’t find out because the constitution is all over the place, it’s inaccessible.

“What you want is a document that sets out who the head of state is and what the head of state does, what the Parliament is, how it’s elected and what it can do and what the judiciary can do.

An elective dictatorship

Bizarrely, New Zealand is one of the few countries in the world (alongside Britain and Israel) that doesn’t have a written constitution. The fact we don’t have a clear set of rules to follow, or any of the checks and balances inherent in a written constitution, means our politicians can do whatever they like as long as they get a majority in the house.

Great Britain at least has the House of Lords to act as a checkpoint for legislation while Israel has 11 basic laws that set out how the country should be governed.

Without those rudimentary measures, New Zealand is open to a worst case scenario where one powerful person could influence Cabinet, which in turn controls Parliament, which enacts laws the courts cannot overturn … if you think it sounds like a dictatorship you’re not far wrong.

“Lord Hailsham [in 1976] described the British system as an elective dictatorship,” Palmer notes, “and the elective dictatorship in Britain has never been as strong as it has been in New Zealand.”

The potential for that dictatorship has been muted by MMP but “New Zealand is still very friendly to executive power”, Palmer says, meaning Cabinet can turn anything it fancies into law.

“There are considerable dangers in that,” he adds. “Parliament can easily be dominated by the governing party, and Parliament will do what the governing party wants. The system we call parliamentary sovereignty, which means Parliament can do whatever it wants, becomes, in New Zealand, that the executive [Cabinet] can do whatever it likes.”

Palmer uses the 2013 Health and Disability Amendment Act as an example of how basic rights can be quashed in a political blink of an eye.

The Act was a response to a Court of Appeal ruling that the Government had to pay a minimum wage to family members who cared for disabled children. Rather than argue the case in court, the Government simply changed the rules late one night under urgency.

The Act now prevents anyone from even making a complaint to the Human Rights Commission about the Government’s family carer policy, let alone bringing a court case to challenge the policy. National made the vote a matter of confidence, forcing its support parties to toe the line.

“There was no warning the Bill was to be introduced; there was no public consultation on it; there was no Select Committee consideration of it. By any measure it was a shocking piece of legislation that ousted well-known constitutional protections and removed New Zealand citizens’ rights to be free of discrimination,” Palmer and Butler write.

Palmer, erudite and measured, is adamant he’s not into “scaremongering” but he believes the way the Government “rode roughshod” over people’s basic human rights that night shows how fragile our democracy is.

“It’s those sorts of issues in New Zealand society – where we say we protect people’s human rights but quite frequently don’t – that you need to exert some more checks and balances.”

Under his written constitution, that bill would never have been introduced because Constitution Aotearoa states any motion for urgency has to be supported by 75 per cent of Parliament. On the other side, if the Government had taken a case to the Supreme Court and lost, it could have then tried to overturn the ruling in Parliament, but again it would have required a 75 per cent majority – “you couldn’t turn it over by a majority of one”.

Head of State

Palmer believes it’s inevitable New Zealand will become a republic – in fact, he argues that we are already a “de facto” republic in as much as the Queen doesn’t exercise any power here. What power she does have, the so-called royal prerogative, is described as “shadowy”, “murky” and so poorly defined it may as well be abolished.

The question then becomes, if not the Queen, then who?

Palmer rules out an elected president, saying it’s too contrary to our national personality and character. He rules out the Prime Minister taking on the largely ceremonial role as he or she is overburdened as it is.

In the end, Constitution Aotearoa lands on an updated variant of the Governor-General, appointed by Parliament for a term of five years. A public vote on the Head of State is rejected for the simple reason there would be no power invested in the role. Plus, he adds, if the public voted for a head of state it risks becoming a political process.

The Royal Family, as a result, would remain “popular celebrities” and New Zealand could send a message to the world – and to ourselves – that we are a mature and independent nation, but one that stays within the Commonwealth, maintaining our historical links to Britain.

Palmer knows there will be an emotional response to any call to axe the Queen as our head of state but is adamant that because it’s “very unclear what can be done in the name of the Queen” having her as a Head of State serves no logical purpose.

He’s more concerned with national identity and says a Head of State should say “something about us, who we are and what we stand for”.

On that note, he admits the flag debate last year had a large bearing on Constitution Aotearoa. “We thought if you’re going to discuss something important like the flag it’s probably more important to start in another place and figure out what you are about before deciding what symbol you should have to represent you.

“One of the things that worries me about New Zealanders is that sometimes they don’t know who they are.”

Treaty of Waitangi

Constitution Aotearoa has the Treaty of Waitangi unambiguously at its heart. In fact, Palmer, argues, it is effectively New Zealand’s first constitutional document and the Government’s “moral and political claim to democratic legitimacy rests of the Treaty”.

By its nature as a founding document and in the way it is now interwoven in modern society, the Treaty is integral to New Zealand’s current (unwritten) constitution. But like that complex and confusing constitution in the clouds, the Treaty itself is shrouded in uncertainty and “jagged legal recognition”. In other words, it has no independent legal status.

Palmer wants to give the Treaty “clear and certain” status. First, the text – in English and Te Reo – cannot be amended, which was a fear held by Maori when Palmer tried to incorporate the Treaty into the Bill of Rights Act of 1990. He believes, nearly 30 years on, Maori would be more receptive to seeing the Treaty enshrined in superior law – there would be no “hidden dangers” to Maori rights in doing so – and he has faith in the courts’ ability to handle complex Treaty issues in a fair manner.

A Supreme Court, acting under the new constitution, would also bring thoughtful analysis of how the Treaty works in modern New Zealand, ending the current “ungainly, unclear and untidy” legal treatment of the Treaty.

Nothing like America

One of the main criticisms of a written constitution is that once it’s indelibly inked, unelected judges could make changes to acts of Parliament because the constitution, as a law, would be open to interpretation.

Palmer doesn’t shy away from allowing senior judges to invalidate acts of Parliament that are inconsistent with the constitution. This, he says, gives Constitution Aotearoa “real bite” by ensuring MPs always acted with an eye on a higher law.

But Palmer is insistent we wouldn’t end up like the United States where the Supreme Court has the last word on virtually all constitutional matters. Constitution Aotearoa would give Parliament the final say, provided it can muster a 75 per cent majority. Think of it as a game of tennis, where Parliament always gets a chance to serve for the match.

The reason the United States system fails is the only way to overturn a Supreme Court ruling to is to have the support of Congress and three-quarters of the 50 states. That, Palmer argues, is why there have been so few changes to the US Constitution for 225 years. As well as giving Parliament the last say, Constitution Aotearoa has a built-in mechanism allowing it to be reviewed every 10 years and changed by a 75 per cent majority in Parliament.

“A constitution has to live – this is nothing like a US Constitution . . . New Zealanders wouldn’t buy an American constitution.”

But don’t we already have all this?

The New Zealand Constitution Act of 1852, enacted in England, “was in many ways a constitution”, says Palmer, in that it provided a method of government and was superior law.

But after New Zealand got self-government “it was whittled away and whittled away … until the guts fell out of it. By the time it was repealed in 1986 there were only 12 provisions left and you couldn’t understand any of them … it was an ‘anything goes’ constitution.

“You need something more than that and everyone else has something more that. I’ve worked in this area for over 40 years and it’s always seemed very strange to me the New Zealand system is so rudimentary.”

There have been two recent government inquiries into whether we need a written constitution – in 2005 and 2013 – but “neither of them led anywhere”. That’s due to the fact there was “no model to say what an alternative would look like, so we thought if we put forward a model that would focus the discussion”.

What happens next?

Constitution Aotearoa will officially be released at Parliament on Wednesday and has a complementary website where Kiwis can make submissions. Palmer says the book and website should be seen as the “start of a conversation”.

Once the submissions have been taken, he and Butler will write a revised version. After that it would be up to government to take hold of the issue. Palmer’s hope is that within five years New Zealanders will be voting in a referendum on whether to adopt Constitution Aotearoa.

“It’s a long time but it’s important to address these issues because if you leave your constitutional underpinnings unaddressed and unrepaired they fall into disuse and start to erode. And that’s one of the dangers here … that you can lose your liberty in little bits.

“New Zealand is relatively well governed compared with a lot of countries but it could be a lot better.”

A Constitution for Aotearoa New Zealand, by Geoffrey Palmer and Andrew Butler, Victoria University Press. Available September 21. $25.www.constitutionaotearoa.org.nz

Maori imprisoned at twice rate of Europeans for same crime

By Jordan Bond (NZ Herald)

Maori are twice as likely to go to jail than Pakeha when convicted of assault, sparking fresh calls from MPs for a Government inquiry into the “biased” criminal justice system.

Ministry of Justice figures reveal in 2015, 26.3 per cent of Maori convicted of assault were imprisoned, compared to less than 13 per cent of Europeans – when both were found guilty of the same crime.

This divide is the largest it has been since figures are available from 1980.

Labour spokesperson for Maori development Kelvin Davis said there’s an unconscious bias “right throughout the judicial system”.

He said incarceration rates were one small part in the web of the “ugly” criminal justice system that disproportionately affected Maori.

“We just can’t keep locking up brown people at twice the rate of non-brown people,” Davis said.

Labour spokesperson for Maori development Kelvin Davis said there's an unconscious bias "right throughout the judicial system". Photo / Andrew WarnerLabour spokesperson for Maori development Kelvin Davis: Photo / Andrew Warner

“There definitely needs to be an inquiry of sorts as to why Maori are being disproportionately sent off to prison and non-Maori are given fines.”

Since data was available from 1980, the highest rate of imprisonment for Europeans convicted of assault – 14.7 per cent – has not eclipsed the lowest imprisonment rate for Maori – 16.3 per cent – in any year.

Green Party co-leader Metiria Turei said unbalanced incarceration rates perpetuated poverty cycles and grew “a culture of distrust” between Maori and the criminal justice system.

She said Maori and Pacific People have fought the “systemic bias” in New Zealand for decades without progress. “Clearly it’s still a serious problem. It’s absolutely critical to have a legal system that is genuinely just, because right now it’s really clear the legal system does not deliver justice for Maori,” Turei said.

Across all ethnic groups, community work was the most common sentence type for people convicted of assault, comprising of 28.9, 31.0 and 30.8 per cent of European, Maori and Pacific cases respectively.

University of Canterbury professor of sociology and criminologist Greg Newbold said judges’ sentencing decisions were informed by a number of factors, including prior criminal history, likelihood of reoffending, gang or organised crime connections and employment status.

“If you controlled for all those factors … I think you would find the courts were not biased against Maori,” Dr Newbold said.

“I don’t think the courts are racially biased, I think they’ve got a strong class bias.”

He said the Government should conduct research to establish if this issue was a genuine concern.

“The Government should be doing it. The research needs to be done … They need to find out whether in fact these figures indicate a true bias or a false bias.”

Europeans convicted of assault paid a fine, reparation or restitution 13.6 per cent of the time – a more common sentence than imprisonment. In comparison, convicted Maori paid a fine, reparation or restitution less than 6 per cent of the time, less than half the rate of Europeans.

In 2015, 7598 people were convicted of assault -3928 Maori, 2505 Europeans, 894 Pacific People, and 271 other ethnicities.

Opinion: Minister for Women? Yeah, right

Monday 12 Sep 2016 3:13 p.m.

Minister for Women Louise Upston (Supplied)Minister for Women Louise Upston (Supplied)

No comment.

Two words that, with a few exceptions, should never be uttered by a minister of the Crown.

Yet it’s this resounding silence we have heard from Minister for Women Louise Upston on the Chiefs saga. Not one word has passed her lips on the issue.

The Prime Minister defended her silence saying he’d already said enough as the voice for the Government on the issue.

And after that she sent a tweet.

Yes, instead of reassuring over half of the population by saying she, the minister for all women, is standing up for women, she sent a tweet to her three-and-a-half-thousand followers on a social media platform basically none of the country uses.

A tweet two days after the shameful investigation was concluded, which did not mention the Chiefs, nor New Zealand Rugby, nor the investigation itself.

View image on Twitter

Sorry Minister, that’s simply too little too late.

Here’s what you could have said:

1. It’s deplorable behaviour

As the Minister for Women, Louise Upston is the voice for women. She should be championing the rights of women in every aspect. A strong message condemning the actions of these players should have been the first thing that she said. Not “disappointing”, not “unfortunate”, simply say it as it is. It’s deplorable.

2. Knock on my door

Here’s the thing. Louise Upston has an entire ministry dedicated to women. It defines itself as “the Government’s principal advisor on achieving better results for women, and wider New Zealand”.

One of its four “priority areas” is “keeping women free from violence”.

The minister has control of this ministry and should have said to the Chiefs and NZR: “I have a team of experts who can help you”. Or even better, she could walk up Molesworth Street into New Zealand Rugby House, knock on their door armed with a team of experts and dish up some advice.

3. The investigation was not good enough

Employing your own legal counsel to investigate your own behaviour is a joke. There should have been an independent body to investigate. The fact that the Chiefs and NZR decided to deal with it this way shows how much of a joke they thought it was.

Who should have been the first person to point out that the investigation had more holes than a block of Swiss cheese? The Minister for Women.

The Minister should have been up in arms at the state of the investigation and that the victim wasn’t even interviewed. Here’s a thought: she could have asked her ministry who’d be best placed to investigate.

4. Strippers are people

The rhetoric from faceless internet trolls and anonymous talkback callers to RadioLIVE show why there’s a need for a Minister for Women. The comments about Scarlette’s ordeal ranged from “she should have been more careful” to “she’s a stripper, what did she expect?” But it wasn’t even just faceless trolls. It came from elected councillors in the Chiefs’ province.

Margaret Murray-Benge, a Western Bay of Plenty District Councillor said she feels sorry for the players because what else were they to do when faced with booze and a stripper? Here’s what she said on Facebook:

“I feel quite strongly — why on earth would a stripper go to a rugby doo. I feel very sorry for the players — too much drinking and a naked body. Why on earth did the stripper accept the invitation in the first place. Move on and do not extend the invitation next year. The players deserve protection too [sic]”

What kind of victim blaming bull***t is this?

Here’s what the players could have done: shown some respect for boundaries and, you know, not sexually abuse her.

A woman’s job shouldn’t define her worth. Louise Upston should have said so. No woman should ever be subject to this kind of abuse, no matter her line of work.

5.Love Rugby, Respect Women.

Louise Upston had another opportunity – if not lead the chorus, then at least join it.

The Human Rights Commission penned an open letter to NZR signed by 25 high-profile women.

They included Race Relations Commissioner Dame Susan Devoy, Equal Employment Opportunities Commissioner Dr Jackie Blue, United Nations Women President Barbara Williams, three Opposition Members of Parliament. So why not add Minister for Women Louise Upston to the list? The words were written for her. All she had to do was sign the dotted line.

It’s not the first time Louise Upston has stayed silent on an issue like this. She also stood by the Prime Minister during the ponytail scandal. She’s also previously said she doesn’t consider herself a feminist.

And by adding to that record with this shameful stance, she’s basically showing the nation that her role of Minister for Women means nothing to her.

If the Minister for Women doesn’t feel comfortable standing up for women, she should step aside and make room for someone who’ll scream and shout their support for women from a mountaintop because that’s what we need.

Minister, step up, or step aside.

Protestors could be charged as terrorists under law change, Law Society warns

uss-texas

Legitimate protestors could be charged as terrorists under new legislation unless changes are made, the NZ Law Society says.

New Zealand’s history of protest at sea, including against the visit of US nuclear vessels during the 1970s and 1980s, was cited during submissions on the law change today.

Parliament is considering legislation that will bring New Zealand up to date with current international rules about maritime security.

It will create new offences related to maritime terrorism and maritime boarding.

But there are concerns that the law change could be used to stifle protest at sea because the definition of what is terrorism is too broad.

Jonathan Orpin of the NZ Law Society appeared before Parliament’s Foreign Affairs, Defence and Trade committee today and argued for the terrorism definition to be tightened.

The current definition is to carry out or to threaten acts with the purpose of intimidating a population or to compel a government or organisation.

Orpin submitted that should be changed to match the terrorism definition in other legislation – including an intention to induce terror in a civilian population, or to unduly compel or force a government or organisation.

The Law Society also wants the legislation to state that the fact a person engages in any protest, advocacy or dissent is not, by itself, sufficient to infer terrorism.

Finally, the society recommends that the wording of the law be changed to only capture those who use a ship in a manner that intends to cause death, serious injury or damage.

“No one is ramming a vessel but they are in close contact to make a point to wave banners, and someone dies or is seriously injured…that, on its face, would appear to come within the [terrorism] section. And the society doubts very much that is the intention of Parliament.”

National and Hamilton East MP David Bennett responded, saying if someone puts their boat in a position where another vessel could run into it, that was intent.

“I disagree with you that you are just running around and it sort of happens. It’s like walking across the motorway, you put yourself in that position and something is going to happen.

“This is a foreign power’s vessel – it is a military vessel – you are getting in the way of it. It is a terrorist act in a foreign country, isn’t it. That could be the argument.”

The Human Rights Lawyers Association and Friends of the Earth NZ also submitted that the current terrorism definition was too broad, and the vast majority of protesters who commit illegal acts should be excluded.

The Maritime Crimes Amendment Bill passed its first reading with support from all parties. Labour and the Greens have indicated they would require amendments to continue their support.

Gehan Gunasekara: Spy bill lacking some robust privacy protection

 

Waihopai

The much-anticipated New Zealand Intelligence and Security Bill is before a select committee of Parliament. There is unlikely to be loud applause from Edward Snowden, however, as the bill does little to address the concerns regarding mass surveillance he exposed in 2013 and the subsequent mischiefs that have come to light including the GCSB spy agencies spying on New Zealand residents.

The bill follows the recommendations of the independent Cullen-Reddy Report as to how these should be addressed and the bill does implement many of them. The devil, however, is in the detail.

On the one hand the bill strengthens privacy protections by expanding the number of the Privacy Act’s rules that now apply to the intelligence agencies.

The bill’s requirements for the issue of warrants for surveillance is also relatively robust.

There are, despite this, some weaknesses.

First, the Privacy Commissioner can only investigate breaches by the intelligence agencies and make recommendations to agencies and to the Prime Minister, which the latter is not obliged to follow.

Individuals cannot complain to the specialist tribunal that hears complaints against other agencies and can award damages. The same goes for whistle-blowers within the intelligence agencies, any complaints of unlawful behaviour can be made only within the intelligence structure itself, whereas other agencies’ employees can bring matters to the attention of the Ombudsman who can ultimately report to Parliament.

Secondly, under the Privacy Act it is perfectly lawful for an agency such as a business holding customer information to disclose it to authorities where reasonable grounds exist for believing it is necessary for law enforcement, detecting offences and so forth. The intelligence agencies have now been added to this list. The police are likely to produce evidence as to why they need access to information but all that is required of intelligence agencies is their say-so that the information is needed.

This puts a lot of pressure on those who are the subject of such requests. Very few agencies release “transparency” reports detailing the number of official requests they have received and complied with, Trade Me being one exception. As the bill does not require warrants to carry out “lawful activities”, clarity is needed as to whether warrants are needed in these instances.

Finally, the bill’s definitions of the agencies’ functions incorporate widely drawn terms such as “information assurance and cybersecurity” and “information infrastructure” that covers, for example, things such as metadata and big data.

Such gathered data may be shared with other agencies in New Zealand as well as those overseas if the minister authorises it. Even more alarmingly, the Director-General of Intelligence and Security may retain and disclose to public authorities, especially overseas ones, any “incidentally-obtained intelligence” for purposes that include responding to “potential threats to the security of any other country”.

Such a loophole provides just the type of back door that continues and legitimises the possibility of mass surveillance. The nature of intelligence-gathering in the modern era is that a large amount of data is likely to be scooped up in the electronic net. The Cullen-Reddy Report recommended that any such retention and disclosure be subject to a separate warrant application, but this has not been followed in the bill.

Although it may be an improvement on earlier legislation governing spying the bill still contains many flaws and opposition parties would do well to examine these closely.

• Gehan Gunasekara is an associate professor in commercial law at the University of Auckland and researches and teaches privacy law.

Human Rights Watch: France’s Shameful and Absurd Burkini Ban

A woman is confronted by state officials in a public place and forced to change her clothing, while another is fined for failing to wear “an outfit respecting good morals and secularism.” Unbelievable in a country like France? No, it happened on French Riviera beaches just this week.

A Muslim woman wears a burkini, a swimsuit that leaves only the face, hands and feet exposed, on a beach in Marseille, France, August 17, 2016.

A Muslim woman wears a burkini, a swimsuit that leaves only the face, hands and feet exposed, on a beach in Marseille, France, August 17, 2016.

These incidents follow a series of municipal decrees de facto banning burkinis, and, apparently, any other skin concealing beach outfits worn by Muslim women, in about 30 French towns.

The bans were adopted in the aftermath of two horrific terror attacks: the truck attack in Nice and the church killing in Saint-Etienne-du-Rouvray.

Although the actual burkini was designed to allow observant Muslim women in Australia to go to the beach and work as lifeguards, in France it is now seen by some as a threat to public security, and a form of “enslavement”in the words of the Prime Minister Manuel Valls, who supports the bans.

The Council of State, France’s highest administrative court, is considering an appeal against the bans by the French Human Rights League. Previous efforts to challenge the bans in court have so far failed. In Nice, the administrative court rejected the appeals brought before it by the French Human Rights League and the Collective Against Islamophobia in France, and instead confirmed a previous decision, taken on August 13. The judges ruled that banning the burkini is “necessary, appropriate and proportionate to the aim pursued in terms of the protection of public order and security” in the context of terrorist threats.

But what in fact these bans serve to do is create a dangerous and absurd confusion between how some Muslim women choose to dress and the despicable terrorist attacks that French people, of all religions, have suffered.

Absurd because under the pretext of defending France’s republican principles and women’s rights, the burkini ban actually amounts to banning women from the beach, in the middle of the summer, just because they wish to cover their bodies in public. It’s almost a form of collective punishment against Muslim women for the actions of others.

Instead of encouraging all French people to live together peacefully and promoting equality and fundamental freedoms, which is the responsibility of the public authorities, the burkini ban and the revival of the endless controversy on religious symbols linked to Islam merely stigmatize practicing Muslim women, exclude them from public spaces – and sharing those spaces with their families and friends – and deprive them of their rights to autonomy, to leisure activities, to wear what they chose, and of course to practice their faith.

Not to mention the ridiculous argument about hygiene: how can one seriously think that burkinis are less hygienic than wet suits, or long-sleeve T-shirts worn by kids to protect them from the sun?

But the burkini bans are more than just unfair and discriminatory, they are also dangerous. Because linking a bathing suit to terrorist threats, without any facts to justify such a statement, endorses false and harmful narratives about Muslim communities and risks increasing tensions between communities, while hardening the feeling of injustice felt by some Muslims in France.

When the Nice administrative court  argues that police cannot “in the context of the state of emergency (…) protect the expression of religious belief” – particularly, it seems, when it relates to the Muslim community. The burkini ban is also a concrete example of the very real dangers an extended state of emergency poses to basic rights and equality: a risk about which Human Rights Watch has repeatedly warned.

As it’s dominated the French political and media landscape for the past few weeks, the burkini ban has gone from a laughing-stock to a source of deep shame. During a time of national emergency, surely French police have better things to do than humiliate women on the country’s beaches.

 

As it’s dominated the French political and media landscape for the past few weeks, the burkini ban has gone from a laughing-stock to a source of deep shame. During a time of national emergency, surely French police have better things to do than humiliate women on the country’s beaches.

Tracey Barnett: New Zealand’s Silence On Nauru is Complicity                                                 By

 

Naurudetention

The abuse revealed in over 8,000 pages of incident reports on Australia’s offshore detention prisons by The Guardian yesterday signals another troubling fact, the New Zealand government has chosen to remain silent over the ‘grave concern’ of inhumane and ‘urgent’ conditions cited by the UNHCR happening in our own backyard.

 

Statistics revealed in testimony for a 2015 Australian Congressional report tell their own story in a snapshot of systemic abuse cited:

 

Number of children then held on Nauru: 93

(Plus another 104 on mainland centres)

 

Number of reported child abuse incidents on Nauru only. 67.

Number of which are against staff at the facility. 30

Number of staff charged. 0

 

Number reported raped or sexually assaulted. 33

 

Number of reported self-harm or suicide attempts. 253.

(That’s on average one every four days.)

 

Number of reported assaults on detainees. 211.

(That’s on average one every five days).

 

Number of years, under Australian law, that any staff member can now be jailed for speaking to the press on what is happening in these facilities. 2 years.

 

Cost to make an application for a press pass to Nauru (even if it is denied). $8,000.

 

As fair brokers in our region and on the world stage on asylum and refugee treatment, WagePeaceNZ calls on the New Zealand government to urge Australia to disband their inhumane and abusive offshore detention regime.   Currently, the UNHCR has issued a statement calling for ‘refugees and asylum-seekers to be immediately moved off Nauru to humane conditions.’

 

New Zealand should open its doors as a one-time gesture to accommodate these long suffering refugees, as we did with such positive and successful results for the Tampa survivors.

 

 

Media Contact: Tracey Barnett

                           WagePeaceNZ

                           tracey.barnett@xtra.co.nz

 

Note from Human Rights Foundation: see Guardian report here