It must have been a grim moment indeed in the Act Party offices when the Resurrection of Orewa went up on the whiteboard as the last, best chance to revive the party’s fortunes. The prelude hadn’t been too flash, either. Clearly the second coming of Don Brash has proved to have been a less than keenly awaited event by the public, in that the polls have barely moved since Brash took over as leader. So call in the spin merchants, who proceeded to run the tape measure over their man.

Hmmm, time for the hard questions. If his presence alone wasn’t enough – and clearly not – then what did Brash think, exactly, he was bringing to the equation ? Well, Brash must have fidgetingly suggested, that Orewa Speech went down pretty well at the time. There must still be 2 or 3 percentage points still in the tank on that one. Done!

And so it came to pass that Act ran its now infamous advertisement in the Weekend Herald, and by the time the Herald on Sunday has rolled off the presses, the spin doctor involved [John Ansell] was gone, allegedly in a huff. Or was his departure a part of the plan too, meant to paint Brash as somehow, something of a moderate? (Our sources indicate that Brash had baulked at the white hood and burning cross aspects of The Plan.) Since then, the Maori Party has (predictably) leapt at the chance of defending the sullied honour of its fast-vanishing constituency. In that respect at least, the Act Party and the Maori Party are unified, with both of them seeking the oxygen of publicity to arrest their respective declines.

So far, Prime Minister John Key has merely stood about ineffectually. You might think the country’s leader (and Minister of Tourism) would feel impelled to quickly and firmly decry the politics of racial polarization – especially when New Zealand and its race relations are about to be on show to billions, via the Rugby World Cup. But no. At his post-Cabinet press conference and in the NZ Herald yesterday morning Key downplayed the issue in the mildest of tones, as a virtual non-event :

What happens with him [spin doctor John Ansell] and the Act Party, frankly I don't give a toss about, but at the end of the day I don't think any of us would be surprised that he's making those comments." He said the comments would not sour National's relationship with ACT.
"We don't share all the views that ACT quite clearly has but that doesn't mean we can't work with them, but we clearly don't share all the views the Maori Party has either but we've certainly proved over the last three years that we can work with them as well."

Even by Key’s dismal standards, this was stunningly weak. Brash and the Act caucus (including Sir Roger Douglas) have deliberately set out to play racially divisive politics and exploit the residual resentment and ignorance of voters about the work done on race relations by his own government and by previous governments – and which include the past efforts of Sir Douglas Graham. According to Brash and his crew, these decades of work to redress past grievances (and any future attempts at affirmative action to correct current injustice) are to be trashed as “pandering to Maori radicals” – while the consultation requirements under the Resource Management Act are to be written off as “bribe a tribe” exercises. All Key can bring himself to say of this inflammatory gambit is that some of the comments made by Act in its ad were factually incorrect, were nothing new, and shouldn’t surprise anyone.

When pressed – as he was by Dr Pita Sharples on last night’s excellent Maori Television debate – Brash indicated that his concern was one of constitutional principle, and of ensuring equality before the law. He claimed to share a concern with Sharples about the over-representation of Maori in the health, education, unemployment and imprisonment statistics – but then proceeded to argue that nothing should be done to address these inequities by any action involving preferential treatment.

Somehow, the fact Maori are suffering disproportionate harm from the current settings – and have been for decades upon decades – inspires Brash to defend those settings at all cost, as his party’s top priority. To do otherwise, according to former Act MP Stephen Franks, would be to create a form of constitutional apartheid.

The position is not only perverse – apartheid was hardly a form of positive discrimination to address injustice – it is factually wrong. Act’s basic premise – that equality before the law precludes any recognition of special rights to indigenous peoples – is, at best, a highly selective reading of the Treaty. It also clings to a colonial era denial of the rights of indigenous peoples as first occupiers – which became the basis of the 1992 Mabo decision in Australia that recognized the reality of aboriginal title, and which eventually led to New Zealand to signing the UN Declaration on the Rights of Indigenous People.

Perhaps Brash should read the UN Declaration. Among other things, the Declaration "emphasizes the rights of indigenous peoples to maintain and strengthen their own institutions, cultures and traditions, and to pursue their development in keeping with their own needs and aspirations". It also "prohibits discrimination against indigenous peoples", and "promotes their full and effective participation in all matters that concern them and their right to remain distinct and to pursue their own visions of economic and social development". Only by affirming the special status of indigenous peoples, the UN argued, can the decades and centuries of discrimination and marginalization against them be addressed.

Now, Brash can disagree with New Zealand – and the rest of the world – signing such documents. But it is factually wrong to describe customary title as a ‘pandering’ or ‘weakness’ or a dangerous new direction that New Zealand is straying down at its peril. Not all legal entitlements or prerogatives based on race are the moral equivalent of “apartheid” – a term that (incredibly) Brash refrained from using in this case only because of its negative connotations. To state the bleedingly obvious: when a relatively marginalized racial minority seek to retain their cultural identity and improve their lot, this is not the same thing as when the powerful use race as a rationale to perpetuate injustice. The power imbalance changes the equation completely. Affirmative action is not apartheid.

Moreover, customary title is a common law right. Brash seems to have deliberately kept himself ignorant of the fact that the common law has long recognized the kind of legal distinctions that Act condemns. Doug Graham pointed this out in 2009, in the course of this useful q&a primer in the NZ Herald, at the time when the Key government was beginning the most recent round of attempts to negotiate the proper place of customary title within the foreshore and seabed issue. As Graham said then:

The common law has always recognised the right of indigenous people to carry on practising their customs. These may be non-territorial customary rights such as fishing and hunting, or a territorial customary title where they actually lived… Not all Maori have the same customary rights. Inland Maori do not have sea fishing rights. So they are dependent on what customary activity was being carried out.

Who actually owns New Zealand?

The Crown had the ultimate radical title to all land. But a customary title is "parasitical" to the Crown's rights until it is lost.

Is a customary title like my freehold title?

No. Customary title is unique and quite unlike freehold land. It is normally communally owned and exists to permit the indigenous people to practise their customary activities on it. My freehold title is a Crown grant.

What rights go with it?

If a customary title is proved to exist, minerals and trees belong to them. But they cannot do anything inconsistent with the customary activity, such as strip-mine the land…. etc etc

New Zealand’s current position on customary title is that it can lapse or be extinguished if not continually exercised. The legal need to be able to demonstrate ongoing exercise of that right since 1840 lies at the heart of the recent dispute between Hone Harawira and the Maori Party. In Harawira’s view, that requirement imposes too high a hurdle – given that in many cases the customary right has been interrupted and extinguished not by any voluntary action or culpable negligence by Maori, but because of illegal Crown seizure, occupation and use in decades past.

The basic point – that customary title is a valid, widely recognized common law right of indigenous people and applies to them only – is widely recognized around the world. The Act Party’s mantra of New Zealanders ‘being equal before the law’ is a code for denying that reality – and Brash is sowing racial disharmony by the carelessly inflammatory language that he has chosen to use while disputing the issue.

Some rights and privileges in society come with age – which is how Don Brash qualifies for a state pension, when younger people do not – and some come with being tangata whenua. Both can be safely negotiated within a modern democratic society that has a commitment to fairness, and not to the politics of division and racial resentment.

At a personal level, Brash might be better advised to look in the mirror and ask himself how much the economic policies that he has championed over the past 25 years have contributed to the bad outcomes in health, education, unemployment and imprisonment experienced by Maori. Arguably, that suffering has been caused by the support given – by himself and Sir Roger Douglas – to the radicals in the Business Roundtable. Many New Zealanders have had more than enough of the policies that pander to that minority.

Hugh Grant, Hero

Amidst the wreckage of the News of the World phone hacking scandal in Britain, actor Hugh Grant has emerged (alongside the Guardian’s Nick Davies) as the unlikely hero of the hour. Grant not only pursued, interviewed and taped a former News of the World executive – and wrote up in the New Statesman an expose of how widespread the practices were – but he has been a terrific advocate on television for independent review of the media practices involved. See him here, and here, and here.

The story of his encounter with the former NOTW executive Paul McMullan is here on BBC News, and it includes a killer closing exchange between McMullan (who could have come from Central Casting, so closely does he fit the image of the creepy tabloid journalist) and the actor.

Grant is headed in exactly the right direction. So far, there has been an undue emphasis – an ‘off with her head’ frenzy, almost – on scoring the resignation of NOTW former editor Rebekah Brooks. Brooks should go, but a body count approach can easily obscure the systemic abuse involved, and fail to get at its causes.

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