Go Hugh – well said this morning. It does matter where control resides. Nationalism needs no apology.

New Zealand's new polymath talent, Dr Oliver Hartwich, the CEO of the New Zealand Initiative (successor to the NZ Business Roundtable) delights in being stereotyped as a German, then negating it.

His sustained sarcasm on the Nobel Peace Prize award to the EU shows a healthy sense of humour, piercing both the PC bias of the Norwegians who select Peace Prize winners, and the EU's world leading form in hypocrisy and pointless law writing.

Nevertheless it would have been deserved for the archtects of the Common Market, and particularly the Schengen Treaty (which largely eliminated border formalities throughout Europe) before the EECproject over-reached to become first the EC, then the EU. I thought how marvelous was their acheivement when crossing the old Franko-Prussian border on the way to Strasbourg from Frankfurt Airport a few years ago. That territory has been fought over countless times. Yet the border formalities consisted of the coach slowing from 120kmph to 100kmph.

As a constitutional lawyer I am fascinated by Oliver's casual reference to the absence of audit sign-off for the EU budget. See this from Daniel Hannan on the topic.
Apparently the default continues. It appears there is no EU Parliament mechanism to force EU functionnaires to comply with  such obligations.

One can understand born bludgers like the Greeks feeling they were just taking an accepted art to new heights when they falsified their national accounts to get past inconvenient EU requirements .

David Horowitz draws attention to the Generation Identitaire manifesto. I wonder whether it is a significant and spontaneous movement in France, or just a separate marketing brand for Marine Le Pen?

Still – it is inevitable that those who are doomed to pay for the arrogance of the 60s radicals, will eventually identify who opened their tab.The surprise is how long it has taken for an intellectual response to gather steam. I look forward to Chris Trotter's view on this grandchild of Paris '68. He and most activists of my generation were wildly excited by Cohn Bendit and others who tore up the Paris cobbles. They set out to destroy symbols of the values on which their prosperity rested.

Generation Identitaire repudiate the debt. Unfortunately, whatever the reasoning of  their manifesto it will eventually be paid in the coin of unapologetic racism. 

Just as the Treay industry in New Zealand is wearing out the goodwill of tolerant middle New Zealand, the Algerian and other beneficiaries of France's determined cultural relativism have been seduced by decades of elite aplogy,  into declaring war on French majority values. The street part of the response will be crude racism however many people of goodwill try to confine it to benign elements of resurgent national identity.

I doubt that New Zealand is anywhere near a similar consciousness. Indeed much of the top down political  investment in our "national identity" has been designed to ensure "it" incorporates minority values. But after Paris 1968, establishments all around the Western world preemptively capitulated to their young. We were all deeply over-indulged by our parents' generation. For example, I became (the first I think) student rep member of VUW Law Faculty Council, solemnly voting with all my wet-behind-the-ears assurance to replace examinations with constant in term assessment, and on professorial appointments. I suspect that consequent and associated degradation of seniority (we called it "elitism") in leadership roles in Universities, along with the abolition of retirement for age, are among the reasons for persistent  low grade political factionalism and tolerance of incompetence that bedevils many law faculties.

What happens in France (and the Netherlands, and the horrible streets of the UK) will reverberate here, however few young New Zealanders are politically sophisticated and organised enough to exploit the opportunity. An establishment is easy meat when befuddled by unpunished derision for its lifetime values. 

The Declaration avoids the awful language so familiar from French intellectuals. How's this for simplicity –

"The Generation of National Identity" – A Declaration of War

We are Generation Identitaire.

We are the generation who get killed for glancing at the wrong person, for refusing someone a cigarette, or having an "attitude" that annoys someone.

We are the generation of ethnic fracture, total failure of coexistence, and forced mixing of the races.

We are the generation doubly punished: Condemned to pay into a social system so generous with strangers it becomes unsustainable for our own people.

Our generation are the victims of the May '68'ers who wanted to liberate themselves from tradition, from knowledge and authority in education.

But they only accomplished to liberate themselves from their responsibilities.

We reject your history books to re-gather our memories.

We no longer believe that "Khader" could ever be our brother, we have stopped believing in a "Global Village" and the "Family of Man".

We discovered that we have roots, ancestry and therefore a future.

Our heritage is our land, our blood, our identity. We are the heirs to our own future

We turned off the TV to march the streets.

We painted our slogans on the walls. Cried through loudspeakers for "youth in power" and flew our Lambda flags high.

The Lambda, painted on proud Spartans' shields, is our symbol.

Don't you understand what this means? We will not back down, we will not give in.

We are sick and tired of your cowardice.

You are from the years of post-war prosperity, retirement benefits, S.O.S Racism and "diversity", sexual liberation and a bag of rice from Bernard Kouchner.

We are 25 percent unemployment, social debt, multicultural collapse and an explosion of anti-white racism.

We are broken families, and young French soldiers dying in Afghanistan.

You won't buy us with a condescending look, a state-paid job of misery and a pat on the shoulder.

We don't need your youth-policies. Youth IS our policy.

Don't think this is simply a manifesto. It is a declaration of war.

You are of yesterday, we are of tomorrow.

We are Generation Identitaire. www.generation-identitaire.com

The Tribunal report no 1 is now on line. It is a comprehensive victory for the NZMC/rejection of the Crown case. On my first quick run through:

a) it is sound on the legal foundation for Maori claims to water ownership. They were promised effective ownership, albeit of a customary kind;

b) on the nature of the rights that should have been available if they had been pursued in time it seems sound;

c) it does not give weight to the factors in the law (even as they explain it) that would mean few of the current Maori claims should now be large in scope or value, so it leaves a misleading impression of their current significance. In the Tribunal's defence the Crown did not put those arguments properly if at all;

d) on the claimed legal  'nexus' between the water rights claim and the share sales it is weak in logic. To 'legal realists' though the Tribunal has responded to the tactical nexus. They've squarely put a challenge. It  means if the share sales proceed smoothly after this showdown the Maori legal bluff will have been called. If they do not, Maori constitutional power will have been reinforced under our conventions, which entrench 'what usually happens around here' as constitutional orthodoxy.

e) on the proposed remedy of giving claimants shares and special governance powers in generator companies, the Tribunal is mouthing off. It reinforces those who would palm off on Maori (to their detriment and that of all of us) rights that amount to little more than the power to irritate others. They strengthen the temptations to Maori leaders to elevate recently invented or resuscitated mysticism as a basis to demand feigned respect from pakeha and the state.  It comes in a world that is rapidly making such nonsense irrelevant to them and to us all as economic power shifts from us to peoples who regard such stuff as drivel.

So we have two constitutional courts (the Waitangi Tribunal, and the Supreme Court) neither of which show  the finesse and judgment shown by the US Supreme Court in the recent Obamacare judgment.

Instead of supporting centripetal pressures in our society, they both reinforce centrifugal forces as if they bore no responsibility for the outcomes. We reap the consequences of passing power to the flower power generation. They came to maturity thinking that diminishing the overmighty establishment and its institutions was a worthy life project. They've never realised how much it takes to maintain effective institutions and what an enormous and rare acheivement were those institutions built by our forebears, then thriving with little of the coercive machinery now struggling to maintain even courtesy, let alone routine honesty and incorruptibility. The current constitutional 'guardians'have yet to realise that they are now the establishment.. They will realise too late that they will fall together with the establishment if they would rather fly their culture wars colours than respect the instincts and beliefs of the ordinary majority on which democratic legitimacy depends.  

 So they sock it to the government the way they socked it to their parents.

The following is  from a long article prepared earlier this month, for publication in a couple of weeks time. From rumours  the Tribunal is today telling the government to tai ho my speculation was on the button.

 The NZ Maori Council claims that the sale of shares in the electricity SOEs will make it harder for the government to respect Maori property rights in rivers. Allegedly, private shareholders could make it harder to reverse the state hydro dam builders’ expropriation of control rights, or make it harder to impose compensating water use charges.

 The NZMC has not tried to hide the opportunism in this claim. This is a polite legal hold-up.  The Crown has talked about defining Maori rights in rivers for decades, but meanwhile acts as if it owns them. The claim to rights of some kind in some parts of some rivers is strong but the argument is very thin that the sales will affect any of those rights.

 Tribunal thinking is well signalled in previous reports on rivers. It is almost certain to hold that some Maori rights in some rivers have been breached. Astonishingly the Crown has effectively conceded that without making many of the limiting arguments. It is so hard to work out what the Crown thinks the Maori rights should mean that the government looks as if it set out to lose on those points.

 On the merits of a properly argued case applying the law bargained for in the Treaty, most customary interests will have expired decades ago. But judging from the capitulation in the Marine and Coastal Area (Takutai Moana) Act 2011 (the current government’s replacement for Sir Michael Cullen’s Seabed and Foreshore Act) those arguments will never be put.

 The NZ Maori Council does not necessarily need a solid legal platform. A severely limited decision can be translated by political rhetoric into a sincere grassroots Maori conviction of a conclusive finding in their favour. Appeasement does the rest. Ngati Apa[1] was a Court of Appeal decision that some iwi retained rights to an arguable case (to be heard by another court) for rights akin to ownership of some limited areas of seabed and foreshore where they had continuing practical use and control. That preliminary decision has now been converted to extensive rights to shared control and economic exploitation, without the underlying case ever having been completed. Pakeha leaders found it impossible to call out Maori leaders for failing to correct misleading descriptions of the limited scope and the flimsiness of the claims.

 The Crown has put all its bets on persuading the country, including Maori, that Maori interests are not affected by the share sales. It should succeed, but probably won’t but even if it did, it would not quell the storm. Tribunal comments on the underlying rights may uncork pressure that will not relent.  

 Silver lining

If the Waitangi Tribunal agrees with the NZMC, and the pressure to appease drives the government to negotiate, there may yet be a silver lining for all New Zealanders.

An urgent negotiation between the NZMC and the Crown could crash through the barriers to creation of a simple property rights regime for water management. The overall social gains from creation of genuine property rights could provide enough surplus to buy-off the NZMC (or iwi) and leave us all better off, without a budget impact. Given political aversion to the “o” word (ownership) the rights may need a new label, but ownership is a broad church. Reasonable permanence of exclusivity of benefit plus transferability will do.

 A panicky political deal could do the opposite, and cement New Zealand into a high cost, low benefit, constantly renegotiated water allocation regime[2]. It could foster continual ‘rent review’ disputes and attract a stream of new rent seekers. That would recreate many of the defects in property rights from which the Treaty and British law in 1840 promised an escape[3].

 This note accordingly discusses features that would distinguish a valuable long term regime from a problematic one. People whose futures depend on clear water rights should get ready to help the government hold to important bottom lines.  All over the world the water commons is being “enclosed” as water becomes recognised as a scarce and valuable resource. There is plenty of experience to draw on. New Zealand may have set out to invent something unique to avoid stirring up Maori claims to ownership, but that cat is out of the bag, so we can now go to proven models.

 The Land and Water Forum work

 Many attributes of good water management regimes have been explored by the Land and Water Forum. It has exhaustively established agreement that water scarcity requires rationing and water quality requires standards,  that each catchment needs its own plan, and that it is desirable to have a broad consensus among the stakeholders of each catchment in support of the plan. But the Forum has so far avoided (publicly at least) the big issue – how do individual people and businesses and communities get and hold and lose or transfer the benefits, costs and rents from rights to use water. How do we ensure transaction costs do not blow out. Essentially, the Forum has yet to say how its system will not bog down under opportunities to do just what the NZMC is doing now, use legal tactics and cunning politics to take existing or future rights from others. The fine print operational details of property rights systems are everything. So far Forum reports have hardly touched on them.

 Forum reports show exaggerated respect for abstract Maori principles but a search for simple words such as ‘property’ or ‘ownership’ or even ‘rights’ suggests the Forum must have been under a John Cleese protocol “don’t mention the [water ownership] war”.

 This is not necessarily a criticism of the Forum. It is common sense to work first on things that can be agreed, to develop habits of cooperation and good faith discussion before tackling the really knotty issues. Even if ownership has been the taniwha-in-the-room up to now, the next report will explore transferability[4]. That must deal with many if not all of the elements that together constitute and define property rights.

 After the Taniwha has woken

 Thankfully the NZMC are rational. Hold-up tactics gained for Maori 20% of the quota on the creation of New Zealand’s world leading fisheries management system. They worked again in relation to broadcasting spectrum, and more recently when aquaculture territory was expanded. The NZMC has made it plain that redress for offence to Maori rights can be tangible. They will withdraw their action for a suitable price, perhaps a percentage of the SOEs. Given that Maori have been long encouraged to frame their wishes in semi-mystical and rarified terms such flexibility attracts criticism as venality, but we should all be relieved at pragmatism.  Reaching a rational water rights regime could be vastly less likely without it.

 Maori pragmatism is also historically respectable. The Treaty signatories had more pressing and practical goals than a spurious ‘partnership’. Kaitiakitanga, or co-management may flatter a Maori elite but the smoke-and-mirrors of governance is not the substance of the ownership they were promised.

 The Crown has shown repeatedly that it would rather do a deal than subject our politics to the drawn out uncertainty of court determination. Elected politicians fear judicial political naivete, and Dickensian delay. But most importantly courts may only address facets of a dispute[5]. A political/legislative deal can be comprehensive (though loopholes have always been found in full and final settlements)”.

 Is anyone in power prepared?

 The big question is whether there is anyone on the side of the government (and ordinary New Zealanders) who is equipped to ensure that the next steps are towards proper property rights, and not the insulting and dangerous incitements to endless dispute of the kind created by the Marine and Coastal Area Act 2011. There is little evidence from recent years that anyone in government has dared talk about real property rights for Maori and Pakeha.

A few months ago Alan Bollard's name was mentioned as a possible successor to Sir Mervyn King, as Governor of the Bank of England. Yesterday's Spectator returned to the theme, suggesting seriously that the British government should secure Alan or the current governor of the Reserve Bank of Australia to restore confidence in the judgment, independence and integrity of the Old Lady.

Alan is described as "stepping down from a strikingly successful term as New Zealand's central banker".

When I go on holiday I always expect to enjoy uninterupted hours blogging on things for which there is no time when responding to client demand.

Fortunately the appeal of skiing, tramping, eating with friends and other holiday distractions have never faded enough to make the computer screen seem more enticing, so all those plans dissolve. And when I come back there is usually such a backlog of client work that the blog continues to take a back seat.

But I'm now back.

If you follow this blog you read in May about the 'thaw" reported today on Stuff.

No sign yet of our democracy working to ask how to avoid such bipartisan stupidity again.

Presumably the lack of leaks from  demoralised MFAT folk, blaming their political masters, means they were equally if not more culpable.

The most worrying sign of our vulnerability to bad judgment on matters foreign  is in the continuing lack of MSM exploration of why this debacle  went unchallenged. I suspect a shared chattering class eagerness to treat good intentions as sufficient for policy formation.

Wise words referred to me by Dan McCaffry, on the undermining of democracy by judicial inquiries.

"But, crucially, inquiries are now being given remits to look into the ‘morality’, ‘ethics’ or ‘culture’ of the media (and possibly finance, too). They are being asked to go beyond identifying what happened, even to go beyond recommending what can be learnt from the mistakes of the past. Inquiries are now being asked to do something politics has failed to do: determine what we want our banking system to be. This represents a failure of politics – and the preference for conferring authority on unelected judges rather than mediocre politicians is far more damaging than Libor-fixing or phone-hacking"

Judges will be found who will not feel inadequate to the past. Legislation may not leave them much choice. Parliament has thrust them into making political decisions, such as how to balance the help given to families with dependent adults, against the help given to those looking after accident victims.

And we need not look further than at the  enthusiasm of some of our coroners to moralise about what polticians should be doing, based on their individual case conclusions. 

I am a honky for balance (as Willie Jackson once called me) in a Maori language week special screening on TV One at 10am on Sunday 29th. In filming at Te Papa on Monday my panel debated whether "the government is killing off te reo through lack of interest". 

"Yes!" was the overwhelming answer from the audience. I saw only 3 nay votes. More on the political significance of that later.

Despite not managing to carry the audience, as I've come to expect of Maori broadcasting the filming was enjoyable. They explore issues more open-mindedly than mainstream media. They have the time to be thorough. Their prism is race, so they do not have to find time for all the facets of an issue. Facets they choose get the time needed. But the open-mindedness is the bonus. Watch the show and you will see – the questioning covers the full spectrum, without the anxious self-censorship that draws the vigour from MSM interviews. 

With some exceptions (one of which you'll see 'on my case' during the show) Maori in public affairs are often more resilient, more generous spirited, and more fun to debate with than their 'sickly white liberal' suck-alongs.

When asked to participate I was also asked to pen a few paragraphs on how I would approach the moot. Clearly they expected or wanted me to be hostile to Te Reo.

Here is an edited and supplemented version of what I sent: 
 
"I like to understand and to be able to use Maori words. Some are perfect, filling needs where there is no precise equivalent in English. Mana, kapai, whakapapa, kai moana, whanau, kaumatua etc enrich communication.

I like to hear Maori at Maori functions, and the familiarity of greetings that mark membership of the tribe of New Zealanders, though whether that is very different from a masonic handshake I am not sure.

But I find it arrogant and discourteous to be subjected to long Maori discourse in gatherings where few people speak it and all speak English. On some occasions it is deliberately affronting. I worked in Sweden and Austria on my OE. Striking for me was the courtesy of those I worked with. Though I was of much lower status (e.g. paid deckhand on a racing yacht)  they would often conduct their conversations in English for long periods, simply so that I did not feel left out. 
 
But you no doubt want me as a black hat, a representative of the unbelievers who illustrate why your cause is so long and difficult, and why it needs Maori Language Week. You want me to exemplify the forces to be overcome. I suspect I'll suit your purpose.
 
I see little gain for New Zealand in the forced and subsidised promotion of a language that its promoters want to keep as fossilised property. It might be different it Maori language supporters were generous of spirit, and genuinely welcomed the efforts of others to use it. The “give it a go” campaign was great in principle. But it was undermined every time there was a carping complaint about mispronunciation of Paraparaumu, or preciosity about Whanganui. This insistence that offence is caused by imperfect use is the giveaway. The promoters are not really interested in the primary use of language as the means of understanding each other, of communicating ideas and learning. They are not focussed on language as the access to the stored up wisdom and research and experience of mankind. They do not glory in the achievement we have in understanding each other in a way no other animal ever has. I think they see it as a supplement to body language and dance and gesture that many animals have, but for its crude symbolic force, not because it enables cooperation and coordination.
 
Preciousness about Te Reo is driven by the same human vice as creates caste and snobbery and race hatred, namely the desire to create lots of markers to distinguish “them” from “us”. Kids do it in the playground, inventing secret languages to create outsiders and insiders. Priests did it for centuries with Latin, until the German Martin Luther made that secret knowledge redundant by translating the Bible into the vernacular.
 
In the foetid world of NZ academia and the bureaucracy, te Reo can be a one-upping ticket to smugness or even intolerance. Plainly the purpose is not communication in long public oration where there is no possibility that any listener will know it better than English. I saw it in Parliament, supposed to be a crucible for communication at its most effective, and most important, where the objective should be to be as persuasive of your fellow citizens as possible. Maori was instead used to demonstrate how little you wanted to persuade or to share, and how much you wanted to differentiate yourself without reasoning. A compensation was the sotto voce commentary of my neighbour, a cynical NZ First Maori MP, on the oratory of the try-hards whose rhetoric in late-learnt Maori was apparently pathetic. Using uncompelling language in a chamber where every person could communicate freely in a common tongue with every other person whose vote was desired, showed  that its use was a bid for privilege, not agreement (though that was demanded as "respect'). I fear that it was also used by some as a way of avoiding performance measurement , by individuals whose representation and persuasion skills might not have earned them Parliamentary seats on merit.

The drive to complicate our printing with macrons is another affectation that has nothing to do with improving the effectiveness of communication. It is like the long and useless campaign of the Academie Francaise to keep French pure including by inventing new words for things that the French have not invented and which have already been labelled. There is a tweeness in much of this when it comes from pakeha that makes it hard to resist mockery.
 
Perhaps none of this matters. The current aggression on Maori language may be just a pendulum swing. Despite our egalitarian tradition that kept the lid on division by class accent, there may not be much harm if we have a few risible years when our new class marker is the ability to pretend naturalness in communicating in Maori. I can accept that so long as we do not get trapped into a perverted class structure, with language being used long term as a barrier to distinguish them from us, just as class accents do in class ridden societies.
 
This view of language as property was blessed by some of our judges in a silly period, but more recently the own goal nature of that attitude was typified for me by the witless reaction to the intended use by LEGO of Maori names. If there had been a genuine interest in the promotion of the language for communication, it would have been welcomed as a great way to get kids familiar with the vowel usages and familiar with the tones. Instead it was treated as infringement of a proprietary secret knowledge. Language thrives when it is used, when it is comfortable and conveys the same meaning to speaker and hearer.  When the pretended guardians of the health of the language threatened LEGO into abandoning the plan, I knew that it was probably doomed. Those who want it kept pure to function as the property of an elect, their ID or passport, will never promote it as a genuine open medium of communication.

So I can be your jarring note, if that is what you want. If not  you'll be able to get someone more comfortable."

In the result, there was plenty of contention though without enough time for much discussion of the issues I put forward.