by Casey Costello of Hobson’s Pledge

Two steps forward, one step back. Right on the heels of the local elections’ welcome victories for democracy and rejection of race-based division, the anti-democratic movement is at it again.

In this update, we cover the troubling propaganda sent to incoming councillors from Local Government New Zealand (LGNZ) and an attempt from the judiciary to undermine our parliamentary constitution by claiming tikanga is part of common law.

Parliament can be bad enough when it comes to creating divisive and racially motivated policies, but at least it can claim some level of democratic mandate. Increasingly, we are seeing entirely non-democratic bodies usurping what should be democratic decisions to alter the fabric of our society.

LGNZ tries to side-step the democratic legislative process

LGNZ has delivered a guide to all newly elected councillors and mayors that is attempting to invent in councils’ standing orders a mandate for mana whenua as “traditional governors” of New Zealand.

Standing orders are the procedures that govern the conduct of meetings and debate for councils. They are required to be established by each council, and LGNZ has created a guideline to assist them.

In a significant shift from the 2019 guidelines, the first three pages of the 2022 version, after the introduction, are dedicated to a section titled “Local Government Obligations Under the Treaty of Waitangi.”

Notably, the guide states that “Iwi and Hapu have a mandate based on their role as the indigenous governors of the land.”

The document explains that this is different from iwi and hapu being stakeholders, asserting that this status as “indigenous governors” would exist even if it wasn’t enshrined in the Treaty.

While recent legislation has grappled with what the Treaty requires, our newly elected councils have now been instructed by their representative body, LGNZ, that mana whenua are the governors and hold a mandate, which does not exist in law. By stating that iwi and hapu hold this status, LGNZ is  clearly implying that non-Maori New Zealanders, and the councils themselves, exist as subordinates.

The critical question that arises is this: what has changed in the three years since the 2019 guidelines for standing orders were issued, after the last local body elections?

This Labour Government worked quickly, once in office, legislating to remove the right of voters to demand a referendum when their council sought to divide them by race through establishing Maori wards.

At least the Government’s removal of communities’ right to push back against racial division required a legislative process. LGNZ seems to be trying to circumvent having a legislative process and has simply opted to creatively interpret councils’ obligations towards further undermining our democracy.

This is as much as can be expected from LGNZ, as before campaigning started for these elections they and the Race Relations Commissioner banded together to distribute their instructions on “Running an Inclusive Campaign”.

These guidelines attempted to preclude any campaigner from dipping their toe into any discussion about whether all New Zealanders should be treated equally before the law. The Treaty and the very much still up for debate position of the “Partnership” lead the list of what are supposedly off limits topics.

How will newly elected councillors, seeking to put an end to racial division and create an inclusive and engaged community, be able to function with these guidelines?

We are left to conclude that the point of these guidelines is to prevent exactly that sort of unifying approach.

Tikanga, Common, and Parliamentary Law

The recent Supreme Court decision regarding Peter Ellis included “tikanga” in their determination as to whether the case could proceed after the appellant had passed away.

Tikanga is defined as relating to Maori tradition, custom and values.

This innovation has been subject to media scrutiny about the effects that resonate well beyond the Court’s decision to overturn the conviction, specifically in terms of the implications of bringing tikanga into the judicial process.

Peter Ellis case forced court to confront how tikanga converges with common law | Stuff.co.nz

Stephen Franks, former MP and prominent New Zealand lawyer, weighed in about the attitude of the judges on the Supreme Court:

This is, of course, not the first time that tikanga has been used to muddy the waters regarding the power of parliamentary law. It was relied upon in the decision by Churchman J in the ruling on the Bay of Plenty claim under the Marine and Coastal Area Act, where the judge effectively set aside the clear intention of Parliament in reaching his judgement. This is still subject to legal challenge and explained here by Muriel Newman of the NZ Centre for Political Research.

The same article notes that Professor Jacinta Ruru, one of the authors of He Puapua, welcomes the Ellis decision.  In a February 2021 article, she discusses at length the opportunity, as she sees it, for the Treaty to constrain the supremacy of Parliament to make law “to better protect the rights of our country’s first inhabitants”Why te Tiriti should place a limit on the supremacy of parliament | The Spinoff

Parliamentary supremacy is the foundation of our democratic system.

New Zealand is already facing challenges, almost daily, with the undefined “principles of the Treaty” and increasingly ambiguous new legislation inserting Maori terms, without clear definition, into an English-framed legal system. Alas, the insertion of tikanga will likely serve as profitable fodder for lawyers for years to come.

Hobson’s Pledge will continue the fight against these racist attempts to divide us.