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By Chris Trotter*
Will the marina at Kennedy Point (Pūtiki Bay) on Waiheke Island ever be completed? On paper, the answer is an emphatic “Yes!” The developer, Kennedy Point Boatharbour Ltd (KPBL) has ticked all the procedural and legal boxes right up to the Supreme Court. On paper, there is nothing to impede the construction of KPBL’s 126-berth marina.
On paper.
But this dispute, which in the week just passed flared into violent confrontation, is no longer taking place on paper. It is unfolding in the waters of Pūtiki Bay. On paper, Fletcher Building was authorised to build at Ihumatao. On the ground, the matter was not so clear cut. If the images of burly construction workers flinging young Maori women into the sea, now viewable on Facebook and Twitter, bring a surge of supporters to the aid of the Ngāti Paoa protest movement, Protect Pūtiki, then KPBL will be faced with precisely the same dilemma as Fletcher Building. How does a commercial enterprise enforce a legal right against an ever-expanding body of human resistance, without the conflict escalating well beyond its original causes?
At both Ihumatao and Pūtiki Bay, the issues at stake are acutely political. Central to both is a series of increasingly controversial questions: Is the Law neutral? Is the Law colour-blind? Is the Law an instrument of colonial oppression? Is the Law, in any meaningful sense, compatible with the articles of the te Tirit o Waitangi?
In the eyes of tangata whenua, these are questions which the Law itself cannot resolve. How can the Law possibly judge its own legitimacy? Especially in a dispute where one side’s reliance of “the rule of law” is presented as a significant contributing factor to the conflict? A case of “Who guards the guardians?” and no mistake!
If this all sounds like an introduction to “Critical Race Theory” (CRT) the idéologie du jour, currently terrorising Republican Party-controlled legislatures all across the United States (and a number of political commentators here in New Zealand) then that is no accident. According to the University of California at Los Angeles’ Luskin School of Public Affairs, CRT “rejects the traditions of liberalism and meritocracy. Legal discourse says that the law is neutral and colour-blind, however, CRT challenges this legal ‘truth’ by examining liberalism and meritocracy as a vehicle of self-interest, power and privilege.”
The backstory to the Ihumatao stand-off certainly confirms this argument. The land in question was confiscated by the colonial government as it launched its armed invasion of the Waikato in 1863. It was taken from a sub-tribe deemed to be “in rebellion” for not swearing its allegiance to Queen Victoria with sufficient promptitude. That the land was then on-sold to Pakeha farmers certainly smacks of “self-interest, power and privilege”. The farmers’ claims to ownership of the land, while indisputably legal, would struggle to clear the hurdle of justice.
The dispute over who possesses Pūtiki Bay presents an even thornier set of questions. While the area remained in public hands, all the residents of Waiheke Island enjoyed equal access to its amenities, and the kororā (Little Blue Penguins) who nest in the adjoining breakwater stones came and went unmolested. It was only when the Auckland City Council effectively transferred the bay from public to private ownership that the trouble started. Critical race theorists would say that such a transfer was simply par for the course. City officials and regulators will always favour Pakeha business interests over those of the kaitiaki (indigenous guardians) of the “lands, forests, fisheries and other treasures” guaranteed to them under Article Two of te Tiriti o Waitangi. By CRT reckoning, the Law that made the alienation of Pūtiki Bay possible could never be either neutral, or colour-blind. Why? Because it was written by Pakeha, for Pakeha.
The stand-off at Pūtiki Bay, therefore, poses a much more dangerous question to the New Zealand state. It demands to know for how much longer the guarantees embodied in the articles of te Tiriti are expected to languish unheeded and unenforced, while Pakeha law continues to deprive Maori (and other New Zealanders) of what remains of their collective resources and treasures? There are no easy answers to this question because, ultimately, it is not a legal question at all. Ultimately, it is a political and constitutional problem.
It is no accident that the MP with responsibility for Waiheke Island, the Greens’ Chloe Swarbrick, is watching the stand-off at Pūtiki Bay with close attention. Ideologically sympathetic to the Maori campaign for radical constitutional change, she is also, as a committed environmentalist, acutely aware of how badly served Pakeha themselves continue to be at the hands of a legal system which seems irrevocably oriented towards power and privilege.
From all over New Zealand one hears the complaints of conservationists and local communities that the laws of the land are not being enforced by local and regional authorities. That, just as the rights of the indigenous people are overlooked and/or ignored, the rights of the poor, and the poorly-connected, are routinely brushed aside.
The explanation for this inconsistency has stood the test of time: “These decrees of yours are no different from spiders’ webs”, the Sixth Century BC Sythian prince, Anacharsis, is said to have remarked to the celebrated Athenian law-giver, Solon. “They’ll restrain anyone weak and insignificant who gets caught in them, but they’ll be torn to shreds by people with power and wealth.”
What could yet emerge from the Pūtiki Bay protests is something very similar to the convergence that left the Police and the Government so helpless at Ihumatao. Not Maori alone confronting developers and their minions, but younger Pakeha New Zealanders standing alongside them in solidarity against a system that, time and again, has proved itself profoundly deaf to their urgings for a gentler, greener and fairer Aotearoa.
Perhaps it is time for a thoroughgoing reassessment of exactly where New Zealand now stands. For how much longer, for example, does the New Zealand state expect to get away with operating a legal and administrative system borrowed hollos bolus from the United Kingdom, and used with ruthless efficiency to make permanent the dominance of British settlers and their descendants over these islands? For how much longer does the business community and the agricultural sector expect their interests to be accorded priority? For how much longer are those excluded from the world of the comfortable and the secure expected to remain silent – and peaceful?
The answer, on paper, is what it always has been: forever. On paper, Kennedy Point Marina will be built and return a healthy profit to its investors. On paper, those Ngāti Paoa protesters will be arrested by the Police, and fined by the courts, for trespassing on their people’s ancestral land. On paper, all the avenues of legal redress for what is happening at Pūtiki Bay have been closed-off.
But, although history is written on paper, that is not where it is made. It is made in the world of flesh and blood and human passion, by the sort of people who, when thrown off a developer’s barge, into the water, and kicked in the head, climb right back on. And, by the people who, outraged by what they have witnessed, decide to stand with them.
*Chris Trotter has been writing and commenting professionally about New Zealand politics for more than 30 years. He writes a weekly column for interest.co.nz. His work may also be found at http://bowalleyroad.blogspot.com.
27 Comments
I doubt that the system is deliberately set up to favor the white folk. I do however think that it is well and truly structured to favor the wealthy, the privileged and well connected. For example the development of residential sections. Wealthy developers may well complain that it is a nightmare to work through the planning and permission processes, but it is these same barriers that protect their interests and prevent widespread and healthy competition. These barriers have resulted in an unforgivable shortage of affordable house sections and this also very much favors their interests. These people have all the experience and advisors to negotiate their way through the labyrinth of bureaucracy and regulations. The solution may be to have clear and open regulation with time limited processes and consequences that fall on the bureaucrats if they fail to react in a timely and open manner.
Anyone who has had experience of the law, the police, the court system and attendant lawyers & barristers will soon discover that there is much that is moral but illegal, and much that is legal but immoral. Expecting the law to deliver justice is naive, the realm of Hollywood.
Why the racial collectivising Chris? This is a class thing, the rich and powerful making rules for the rich.
Is anyone without access to a boat that requires a berth in favour of turning the bay into a marina? I don't care enough to protest and don't live in Auckland but I dislike it.
I don't accept being collectivised in with a bunch of ruling politicians who made decisions for their own personal motives using the colour of my skin.
"Because it was written by Pakeha, for Pakeha."
Chris does leave some of his points unclear in his columns but I think this one is explicit.
He mentions the Treaty, CRT and English law systems. They only other collectivisation I can detect is colonist vs indigenous. Have i skipped over something?
You are both correct to an extent. The establishment (corporate exec's, property developers, senior public servants & politicians, etc etc) hold the power and benefit from the status quo. They are mostly pakeha but that doesn't mean all pakeha benefit, in fact I am highly dubious of the Maorification of many institutions and see it as much a tool to maintain the status quo than any genuine desire to improve outcomes for Maori (hello RBNZ using Maori symbolism everywhere but it's easier to "Find Wally" than spot Maori in senior roles there).
Maori are a sub-section of the disadvantaged, it's just that we are indigenous with the State having obligations to us under Te Tiriti. Also, while I'm ranting, Maori do not speak with one voice. I am pro-development - we need to create jobs in rural communities, get our people off benefits and into work and becoming business owners. What NZ really needs is Maori and developers working together.
I'll go back into hibernation!
Working together. In other words, teamwork. What profound wisdom and benefit is to be gained by the good application of such simple spirit. For instance the much denigrated, considered to be war mongering by most, US Air Force general Curtis Le May saved thousands of his airmen’s lives, by the unrelenting training and training, making the crews air & ground, work together, teamwork that gave rise to trust.
Maybe I should hibernate from Chris's columns. I apparently get something different from others from his only somewhat coherent text. Despite spending half of it on his CRT interpretation of the situation maybe somewhere he is actually criticizing it or it's not his main point to be discussed.
I think this between Ngati Paoa and local government and if they think civil disobedience is appropriate to protest getting pushed over by a council, I can empathize with that. However, I'm not sure simplifying it to race issue will help anyone.
The societal stresses out here are huge and rising.
Expect flash points rising as inequality increases.
Of course the powers will do their best to make it a race issue - keep the people divided.
So expect the race issue to be stoked.
I mostly blame housing.
But this is not just about penguins.
The whole process of dispossession started in the 'mother country' first. The very people who came to New Zealand (and many other countries) as soldiers and colonisers, who then dispossessed people of their commons, were largely the same people who were dispossessed of their own common lands and thus identities and means of subsistence, by the Enclosure Acts. Other side-effects of the Enclosure Acts: Decimation of the countryside, and providing the surplus cheap labour for the industrial revolution. See e.g. https://sites.udel.edu/britlitwiki/the-enclosure-acts/ & https://courses.lumenlearning.com/suny-hccc-worldhistory2/chapter/the-e…. All perfectly legal, but not moral. In this context, it's more of a 1% vs 99% issue than a racial issue. I don't claim that there aren't and haven't been significant racial issues and injustices and I don't want to minimise them. But divide and conquer is a well-rehearsed tactic of the ruling classes, so it's important to see the chain of causation.
It's not only tangata whenua concerned about this sort of thing.
Frankly, if you want to see a lovely place destroyed, just bring money into it. Money has ruined the Coromandel, it has pretty much ruined Waiheke Island (it's just they've found a way to wreck it some more).
Chris, there are a few errors here so I'll set the record straight as I have been riding this baby for the past five years as uri of Ngati Paoa & Waiheke.
Firstly, the issue of who consented and approved the project was and is the Auckland Council. Because of the illegitimacy of both Ngati Paoa entities at the time,2015/2016 the Council used a clause the RMA that gave them the authority to approve the project.
The wealthy investors saw an opportunity to score big with the impending Americas Cup. Well, that's come and gone and now some are gearing up to contest their 'get out of gaol' clauses in their contracts.
All they need is one claim to win and then the entire development will go belly up because the rest will follow suit!
So then the locals win, the penguins win and Mana Whenua can go about being Mana Whenua.
Kicking a woman in the head ain't cool in anyones book and ramming a swimmer with a boat isn't either.
These pricks are not properly or legally registered security guards. They don't have the CoA that is required by law and their ID numbers have not been provided as they are legally required to upon request.
The security company that employs them, Warden Consulting on the Northshore are not even registered with the Ministry of Justice as a Security company!
They are not a legitimate legally qualified security guard service. They have no legal right to act as security guards.
Meaning none of this would of happened if they were not there or, if they were legitimately qualified security guards, they would of had plans in place before any of this had happened. They would know how to plan for these events because proper security companies have to lodge security plans based on the environment that they're securing. It's called a Security management plan.
Standard industry practice.
You get the irony of expecting everyone else to live in accordance with certain rules when protesters are also lashing out physically, right?
I'm not sure that's a super strong moral high ground you've got there: We can assault you, but you should be prepared for it and if you're not, then there's nothing wrong with the way we've acted? The longer video shown on the news paints a very different version to the heavily cut down one the media showed a week or so ago. Why is that?
Chris T - Am I understanding you correctly - that you are calling for a "reassessment" of our legal system where the rule of law and private property rights become subservient to (and dependent upon) ethnicity, heritage or political grouping? If so, I suggest you talk with a few non-white Zimbabweans and see how that has worked out for them.
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