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.
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Steve
This is good until the end of (d), but then you change gear and lose any analytical force. A curious open minded reader is likely to see (e) onwards as tangential and personal about an undefined group of people. It detracts from the key points relating to the core issue.
By contrast, your other blog today is tight, free of indulgent flagellation, and is therefore much more compelling. Stick to the latter style – you'll change the views of more people.
Tony