The loss of Shane Jones is real for all of us

Stephen Franks

The gloating over Labour's discomfit since Shane Jones' loss of patience with Damien O'Connor's "gaggle of gays and unionists" should not disguise New Zealand's loss.

Shane Jones was the Maori leader most likely to end the intelligentsia's disastrous experiment with Treaty separatism. Recall that he was not only showing Labour Party leadership credentials when he bluntly denounced Auckland's racist Unitary Plan requirements for "cultural impact assessments". When he did not back down, and instead elaborated, he was also putting in a claim to lead the country out of the constitutional swamp.

National's silence is consistent with its recent abandonment of respect for property rights and equality before the law.  Since ACT lost its mana, Parliament has had no champion of fundamental rule of law principles. Rt Hon Winston Peters fitfully emerges to remind the government that Treaty appeasement perverts core values, but no one there has even bothered to recall Sir Douglas Graham's reassurances that the Treaty was a matter between the Crown and iwi and would not affect a square inch of private property.

Crown negotiators continue to resist attempts to include provisions in settlements that would directly affect private property, but it is telling that it was left to Law Professor Ken Palmer to remind the Auckland Council of Labour's statutory reassurance to voters in 2005, that they would not be afflicted with ransom demands disguised as 'consultation'.

Even Shane Jones has not couched his objections in terms of principle. With the disclosure obtained by NBR it seems that Auckland Council considered the problems with its Plan as solely a question of political management, to slide it past objectors. For those outside the paywall an earlier NBR piece gives a reasonable flavour. So far there appears to have been no hint of appreciation that the Plan is hostile to the very core of the Treaty.

The Treaty's legally orthodox principles entitle iwi to compensation for breaches of classical property rights. Under the 'foundation constitutional document' theory those rights were secured for all of us when Maori and the Crown signed the Treaty.

Remember the words -

"Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession…"

Now think about how Auckland Council is trashing those principles in the draft unitary plan.

It is not excused by the Local Government Act 2002. That Act says

“In order to recognise and respect the Crown’s responsibility to take appropriate

account of the principles of the Treaty of Waitangi …” two parts provide principles and

requirements for local authorities that are intended to help Māori participate in the

processes of local authorities to make decisions

Nor does The Local Government (Auckland Council) Act 2009 help the racists behind the Unitary Plan: 

“[Part 7] establishes a board whose purpose is to assist the Auckland Council to make decisions, perform functions, and exercise powers by … ensuring that the Council acts

in accordance with statutory provisions referring to the Treaty of Waitangi”.

I've found no central government "principle of the Treaty" or any other excuse for their Unitary Plan provisions. The following is still Wellington orthodoxy:

"With respect to local government, the dominant view is that local government owes no responsibilities under the Treaty, apart from specific statutory obligations." (Department of Internal Affairs, 2006).

But when Shane Jones has gone who will have the courage and the wisdom to denounce the racists' seduction of Maori into trampling the property rights of their Auckland neighbours? They will be doing just what so many Treaty grievance processes have set out to redress.

Former ACT MP and National candidate Stephen Franks is principal of Wellington commercial and public law firm Franks and Ogilvie.

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