Wednesday 8 November 2023

He's not that bright, is he. [updated]

Kelvin Davis: not the brightest bulb in the chandelier

Only ever a figurehead deputy in a political party obsessed with identity politics (and arguably the worst ever Minister of Corrections from any party), Kelvin Davis has moved on from his promise to remove himself from parliament if he lost his seat, to asking the party to remove him from the burden of being deputy. Which must be a relief all round. 

Following the theme, he now wants to remove public choice on an important constitutional question -- one that's been largely answered (up until now) only by activist judges and activists and agitators around the motu, which is: filling in the gaps in a document that's too spare to fully speak for itself. 

"What gives then the right,"  he says of Davis Seymour's proposed referendum to define the principles of the Treaty, "to unilaterally tutu with the Treaty ... I just don't think that's right, and the first thing that David Seymour needs to do is to go out to the people and ask for their permission."*

"[T]he first thing that David Seymour needs to do is to go out to the people," he says? Then Mr Davis will be very pleased to learn that that is precisely the plan Mr Seymour intends to follow (if that nice Mr Luxon ever grows a pair). I refer Mr Davis to the Cambridge Dictionary [and the Williams and Ryan Māori-English dictionaries], to whit: 

referendum, noun, [tāpaetanga pōti] a vote in which all the people in a country or an area are asked to give their opinion about or decide an important political or social question.

 I look forward to him assisting David in taking the question out to the people to ask for their permission.

* Reported on RNZ's 9am news broadcast.


To make it even plainer, Seymour's proposed referendum does not seek to redefine the Treaty that was signed in 1840. It does not even seek to redefine the principles established in that Treaty's three clauses. What it would do is to clearly define (something Parliament has never bothered to do) the principles drawn up in 1987 by an activist Court of Appeal judiciary ("the judges' eagerness to compile a list of principles has been unfortunate," opines Canterbury university law professor David Round, "and their list of Treaty principles is unsatisfactory.") Peter Winsley gives the potted history:

Section 9 of [Geoffrey Palmer's] State-owned Enterprises Act 1986 included the clause “Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi”. However, Parliament did not define the principles and the Court of Appeal addressed them in its 1987 ‘Lands’ judgement.’
    The 1987 Court of Appeal judges drew on partnership law principles to hold that the Crown and Māori needed to act towards each other with good faith, fairly, reasonably and honourably when dealing with Treaty claims. Constitutional partnership or co-governance never featured in the case since the Treaty/Tiriti clearly vests governance in the Crown.
    However, the Court characterised the Treaty as a relationship between “iwi” and “the Crown”. In effect, it both racialized and tribalized Te Tiriti. Subsequently, the Tribunal and government processes have favoured iwi over hapu, families and individuals. Making iwi the legal owners of Treaty settlements conflicts with Te Tiriti text protecting Māori hapu and individual rights for “all the people of New Zealand.”
    The partnership argument, though fallacious, became a powerful rhetoric to support such claims as Te Tiriti justifying separate Māori local government wards, separate Māori educational and health institutions, and co-governed environmental and resource management.
    The 1987 ‘Lands’ judgment uses race-based language rather than indigenous, non-racial framings such as whakapapa. The rangatira and Crown signatories to Te Tiriti in 1840 sought to bring people together. The 1987 judgement drew people apart into distinct “races”. It falsely validated race as a meaningful concept.


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