Sir Douglas Graham on customary title

July 9th, 2009 at 10:00 am by David Farrar

Sir Douglas does a very neat Q&A in the Herald. Extracts:

What are customary rights and a customary title?

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.

These are common law rights. Not rights under the Treaty of Waitangi. Not rights due to signing a UN convention.

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.

So freehold title comes from the Crown, customary title from commnal indigenous customary use of the land.

Do Maori have to prove a customary title or is it theirs by default?

Maori have to prove it exists by demonstrating on the balance of probabilities that an iwi was in exclusive possession of the land at 1840 and have continued to practise customary activities on it ever since. In Australia a spiritual association may suffice.

And this was the stupid thing about Labour’s panic. Not that many areas would be able to have customary use proven.

How is a customary title lost?

Once proved to exist, a customary title can be lost by abandonment, by surrender to the Crown, or by extinguishment by Parliament. While it is a customary title it is inalienable.

Abandonment is similar to a failure to exercise ahi kaa. If extinguished by statute the intention to extinguish must be clear and usually some compensation is due.

So it can only be removed by explicit legislation, and up until Labour’s law this had not happened.

Is it possible iwi could establish a customary title to the foreshore or seabed?

It would be very difficult for any iwi to show that in 1840 they were in exclusive possession of the seabed, particularly as much of it was not under New Zealand’s jurisdiction until long after that. Nor is it likely they could show they have maintained possession of the seabed close to shore since.

It’s possible there may be remote areas of foreshore from low to high watermark where it could be proved.

Again there was no need for Labour to legislate.

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37 Responses to “Sir Douglas Graham on customary title”

  1. mickysavage (786 comments) says:

    This is a helpful analysis but how do you reconcile this with National’s intentions in 2004 to extinguish customary title, no ifs, no buts and no compensation?

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  2. MT_Tinman (3,130 comments) says:

    An interesting if unsatisfying look at the man most responsible for giving away NZ to one small, questionable racial grouping.

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  3. Lipo (229 comments) says:

    I don’t understand this customary title thing. Did something happen in 1840 that changed this?
    How long do you have to be in the country to be indigenous?. I am born here, does that make me indigenous?
    Can I claim customary title for something I have been using all the time since I have lived here (maybe my driveway?). Can I claim customary right to fish in the harbour since I have been doing that since I was born?
    Why would something that happened in 1840 change the “rules” of customary title?

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  4. bringbackthebiff (99 comments) says:

    Yes Tinman, and despite all he yielded, maori still voted labour en masse

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  5. Jack5 (5,052 comments) says:

    He’s a bright guy Sir Douglas Graham. Did a great job on the settlement with Ngai Tahu, awarding the tribe first and second rights of purchase for Crown assets in the South Island in perpetuity — for ever.

    Trust Graham on the seabed and foreshore issue? Never!

    Especially the way Bro Key, the leader of his old National Party, is cosying up to the Maori Party.

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  6. pete (416 comments) says:

    These are common law rights. Not rights under the Treaty of Waitangi. Not rights due to signing a UN convention.

    Maybe you should read the Treaty sometime. Article 3 gives Maori the rights of British citizens; so common law rights are Treaty rights.

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  7. Sam Buchanan (501 comments) says:

    “An interesting if unsatisfying look at the man most responsible for giving away NZ to one small, questionable racial grouping.”:

    Apart from the daftness of claiming the small amount of assets transferred in the ‘Treaty settlements’ process constitute “giving away NZ”, it is complete rubbish to say anything was given to a racial grouping. Assets went to collective groupings of the people who could credibly claim ancestry to specific iwi. Iwi are political organisations, not races.

    One thing that bugs me with Graham’s comments is this requirement that iwi “continued to practise customary activities on it ever since”. Perhaps OK for groups who maintained ownership of a lot of coastal land, but how were iwi who lost coastal land due to confiscation, expected to maintain customary activities to the beach and foreshore? Sneak in during the night and grab some shellfish?

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  8. toad (3,674 comments) says:

    Shit, what’s going on? I’m not only praising a current National Cabinet Minister, but also a former one – on the same day!!!

    This analysis by Sir Douglas is spot on.

    Actually, I always had a lot of time for Sir Douglas when he was a Cabinet Minister – he was one of the few Nats from that era who had any real understanding of these issues.

    His brother is a pretty switched on guy too.

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  9. toad (3,674 comments) says:

    mickysavage said: …but how do you reconcile this with National’s intentions in 2004 to extinguish customary title, no ifs, no buts and no compensation?

    Probably had something to do with Brash being a racist prick and his policy advice coming from Mark Textor.

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  10. NOt1tocommentoften (433 comments) says:

    Pete – no they’re not. Even if you want to sugges they are recognised in the treaty (which I disagree) with it is being disingenious to suggest that customary rights are treaty rights. Even if no treaty had been signed, the rights WOULD still exist unless extinguished through various means!

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  11. RKBee (1,344 comments) says:

    I always considered Sir Douglas Graham was part of the problem be trying to settle the Maori grievances in the first place.
    Now im agreeing with him.. Have i MISSED SOMETHING…

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  12. big bruv (13,718 comments) says:

    Toad

    Of all the lies you consistently push the “Don Brash is racist” is the most offensive and the most obviously incorrect.

    I guess you do this because deep down you know he is right and deep down you know that what he said was supported by a vast number of Kiwi’s.

    Still, given that the Greens struggle with the truth at the best of time (Bradford’s lies about the anti smacking bill, Locke’s lies about Pol Pot, Bradford’s lies about never hitting her own kids when there are witnesses who say she did etc….)

    I can put up with a commie telling lies about policy but I struggle when you seek to blacken the name of a decent man who simply wants all Kiwi’s to be treated the same.

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  13. ernesto (257 comments) says:

    DPF: “Not that many areas would be able to have customary use proven.”

    How do you reconcile that with the review panel saying that some form of customary use title exists in respect of ‘ALL the foreshore and seabed”?

    Doug Graham, for all his experience, brings an outdated view based on international legal doctrines that are rapidly developing to encompass more, not fewer, claims to customary title. International customary rights jurisprudence leads away from a restrictive analysis like Doug Graham’s. Our Supreme Court is likely to be significantly persuaded by the Australian approach which would encompass all of our foreshore and seabed. This is the obviously the doctrine that the review panel adopted. Doug Graham’s stuffy colonial argument would be laughed at by a Supreme Court led by our present CJ.

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  14. Jack5 (5,052 comments) says:

    Toad at 11.28 with his praise damns Graham and confirms how many thinking people regard Graham’s performance in the settlement with Ngai Tahu.

    Toad is so immersed, confused, and dazed in his own agitprop that he can still croak that Brash’s call for equal treatment for all under the law (11.30 post) is “racism”. And black is white and you can square a circle.

    This sort of biased thinking would have got you into the Broederbond in racist South Africa, Toad.

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  15. toad (3,674 comments) says:

    big bruv said: Of all the lies you consistently push the “Don Brash is racist” is the most offensive and the most obviously incorrect.

    Try this, bruv:

    Maori are a diluted race who have intermarried until “few, if any” remain full-blooded, says National leader Don Brash. He says Maori are different from other indigenous people around the world and also labelled judges as “out of touch” with the rest of New Zealand over their left-wing views on the Treaty of Waitangi.

    Or this from the same interview:

    Brash also said that nothing should be read into the few Maori at law school. “Non-Maori are under-represented in the All Blacks. It doesn’t mean the Treaty failed.”

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  16. gd (2,286 comments) says:

    As my late dad said Always follow the money.

    So why are Maori so keen to establish a right over the foreshore and sea bed. Its the money honey thats why. So the current generation can claim compensation and every successive generation can claim compensation based on the increasing value of the asset.

    If it wasnt the money they wouldnt be making the fuss they are. There has been a massive transfer of wealth over the past decade and this is set to multiply in the future.

    And thats not including the gravy train industry thats grown up that adds not one dollar to the countries growth but is simply a transfer payment that sucks the economy down.

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  17. Lipo (229 comments) says:

    To quote Toad

    Try this, bruv:

    Maori are a diluted race who have intermarried until “few, if any” remain full-blooded, says National leader Don Brash. He says Maori are different from other indigenous people around the world and also labelled judges as “out of touch” with the rest of New Zealand over their left-wing views on the Treaty of Waitangi.

    Or this from the same interview:

    Brash also said that nothing should be read into the few Maori at law school. “Non-Maori are under-represented in the All Blacks. It doesn’t mean the Treaty failed.”

    Show me something in this that is either
    1 Racist
    2 Incorrect

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  18. big bruv (13,718 comments) says:

    Toad

    How on earth could even the most sickly liberal with a rampant case of guilty white syndrome describe what Brash said as being racist?

    It is a statement of fact, the only people the treaty has failed are the 84% of people who do not claim to be of Maori decent, for the remaining 16% it is the never ending gravy train.

    The sooner you and the rest of your commie mates embrace the idea of one rule for all and the sooner that sickly white liberals stop making excuses for Maori the sooner Maori will begin to make a positive contribution to New Zealand.

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  19. Jack5 (5,052 comments) says:

    Re Toad at 1.41.

    That statement doesn’t make Brash a racist. You can describe a race without being a racist. Is it racist to say that the Dutch are now the tallest people in Western Europe?

    It’s fact that Maori are “diluted” if by this is meant intermingled with whites. You can say that Pakeha New Zealanders are also diluted. I know you wouldn’t regard such a statement about whites as racist, Toad, and why should you?

    Is it racist to criticise judges for left-wing interpretation of the Treaty of Waitangi? There is no criticism of their race – just of their politics.

    Further on varying characteristics of races: While skin colour is merely pigmentation related to the various climatic needs to harvest Vitamin D from the sun — not too little nor too much — there is no doubt they aren’t the only characteristics that vary. Indigenous Bolivians function better than the rest of us at higher altitude. New Zealanders of Pacific Island descent excel in both codes of rugby. Whites suffer more from skin cancer, Polynesians and Maori more from diabetes. IQ tests internationally show Asians on average above other races. Is it racist to note these things?

    For something more like racism read rants like Rawiri Taonui’s in the Christchurch Press. In the July 8 paper, this Canterbury University Maori studies lecturer makes extravagant statements such as “… Maori students on student loans subsidise rich white kids” and “fear of open entry (to universities) is the simple fear of Maori arriving”.

    Taonui rants about “destruction of pre-contact wananga (schools), subjugation of tohunga (priests) and obliteration of te reo, then goes on for more than a thousand words about how Maori should have open access to Western education, the culture of Pakeha.

    I bet the wananga of old wouldn’t have allowed pakeha they adopted into tribes to rant against the wananga entry standards.

    Taonui talks of “asinine ahistorical anti-Maori commentators” and states that Maori will comprise 30 per cent of school children within a generation. By this, he takes the racist view that any Maori blood makes you Maori. This is the old “one drop” rule of the American slave states of the Confederacy and of racist-era South Africa. The truth is that Maori and pakeha continue to merge. It’s quite possible future New Zealanders will regard Maori as one of the historical races of their heritage, alongside Chinese, other Polynesians, British, etc.

    Compared with Taonui, Brash is a pussy cat.

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  20. Sam Buchanan (501 comments) says:

    Don’t see that the quoted comments make either Brash or Taonui a racist (why is it racist to take the view that any Maori ancestry makes you maori? This is a cultural viewpoint some might disagree with, but it isn’t racist).

    Actually I think Brash was racist – not particularly overtly or deliberately – he just seemed to be the kind of guy who didn’t get out much and couldn’t quite handle the fact that the world had lots of cultures and opinions other han his own. When he called for one law for all he was assuming that meant law designed from a Pakeha world view. I don’t think it occurred to him that ‘one law for all’ might mean we, for example, institute a marae-based justice system which applies to Pakeha and Maori and everybody else.

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  21. grumpyoldhori (2,362 comments) says:

    Bit of a bore with Sir Douglas using a few facts.
    Much more fun in winding the pakeha up by suggesting that they will have to pay to use the foreshore.

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  22. Jack5 (5,052 comments) says:

    Buchanan at 2.40 continues the attempt to vilify Brash as a racist.

    “He just seemed to be the kind of guy who didn’t get out much and couldn’t quite handle the fact that the world had lots of cultures and opinions other han his own….”

    I guess that’s why Don Brash married a Singaporean Chinese lady, and why he graduated from a leftist, Christian pacifist world view to one of free-market capitalism. Doesn’t sound much like your picture of someone who doesn’t get out much, Sam. I read where he corresponds regularly with world central-banking figures. Again, not much of a narrow life. Nor his career moving from kiwifruit farmer and running the kiwifruit export authority to being central banker to leader of the opposition.

    Also Buchanan says: “I don’t think it occurred to him that ‘one law for all’ might mean we, for example, institute a marae-based justice system which applies to Pakeha and Maori and everybody else…”

    Of course Maori had a very highly developed legal system, with case law, international reference, layers of court from basic to supreme, legal scholarship going back to Roman times, and sophisticated legal recording systems, such as for legal title. All without a written language. They had bloody great memories.

    I’m sure other countries would be happy to set up legal exchange systems with a marae based justice system, such as extradition treaties and copyright recognition.

    Of course no-one would think of a marae-based justice system for all as a plausible option to put before NZ voters. It would be almost as politically risky as suggesting we make slavery legal again, as it was in Maori days.

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  23. Sam Buchanan (501 comments) says:

    Missing the point there I think, Jack.

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  24. Jack5 (5,052 comments) says:

    Further to Buchanan’s 2.40 post where he asks: “…why is it racist to take the view that any Maori ancestry makes you maori?”

    If not, then it was okay and non-racist for the legal-slavery southern states of the Confederacy too, to have the one-drop rule. Any smidgen of black ancestry and you were black with all the disadvantages that implied. Similarly in apartheid-era South Africa. New, black-dominated South Africa doesn’t like such racial stuff any more, if the country’s reaction to a suggested visit by a Maori rugby team is any indication.

    Also there are practical difficulties as intermingling continues (which I am all for). Ngai Tahu has already had an embarrassment over a prominent contributor, perhaps even keeper, of the tribe’s stud book or whatever it calls the record in which logs tribal membership, proved himself not to have any Maori blood. How long can such genetic discrimination continue in practice?

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  25. Sam Buchanan (501 comments) says:

    It was disadvantaging one race that made these systems racist, not how they chose to define races.

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  26. Jack5 (5,052 comments) says:

    Sam Buchanan, in your 2.40 post you wrote:”Actually I think Brash was racist”

    Was this a typo for “I DON’T think Brash was racist”???

    On your 3.48 post, I agree that disadvantaging one race was racist, but how you defined the race was an element of this racism, and it is in this that special interest rises for NZ. Here I concede it is the disadvantaged race that is making the one-drop definition. And you must concede “disadvantaged” is to a far lesser degree than the disadvantage of slaves who were bought and sold as property and denied civil rights.

    However, this obsession with race is unhealthy. Throughout history it has led to calamity. Where there has been continued mingling the problem disappears. Even in India, which seems to have frozen various races into castes, the radce problem thus continues, with particular savagery to the bottom racial-and-now-social caste.

    Brash’s position of one law for all seems the antithesis of this.

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  27. Sam Buchanan (501 comments) says:

    “Was this a typo for “I DON’T think Brash was racist”???”

    No.

    “And you must concede “disadvantaged” is to a far lesser degree than the disadvantage of slaves who were bought and sold as property and denied civil rights.”

    Hardly a concession given this is startlingly obvious. But so what?

    “However, this obsession with race is unhealthy. ”

    Yes – and you seem obsessed with it – going on about Maori being ‘diluted’ and so on. As I pointed out above, what is being called a ‘race’ issue is not. It is iwi that are being compensated by the ‘Treaty settlement’ process, not a race. In discussions about legal systems et al, we are talking about cultures, not races.

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  28. backster (2,150 comments) says:

    SAM………Right up to the 70s you had to be of half blood or greater to be a Maori and thus qualify for the Maori roll, Maori All Blacks etc.. Once Liabour governments changed that you had the likes of Steve O’Regan and others changing their christian names and elbowing their way onto the gravy trains.

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  29. hj (6,918 comments) says:

    We are a racist country

    How are Māori affected by climate change compared to other communities?

    The reliance of Māori on the environment as both a spiritual and economic resource makes them more vulnerable and potentially less adaptable to climate change.
    (what about frigg*n farmers?)
    http://www.climatechange.govt.nz/emissions-trading-scheme/questions-and-answers.html#about

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  30. hj (6,918 comments) says:

    Toad the Green Party wants Aotearoa/NZ to validate the treaty of Waitangi (Maori language version). Correct?
    if so the common law doesn’t apply , it is covered by tino rangitiratanga and tipuna. Correct?

    Does not tino rangitiratanga cover the rohe of Iwi at the time of signing of the treaty and therefore foreshore seabed and Uncle Tom Codley? Please explain.

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  31. hj (6,918 comments) says:

    “We Make the Road By Talking?”
    Catherine Delahunty

    The role of Kotare in Te Tiriti o Waitangi protest
    Kotare is a Pakeha dominated organisation. In our country this means that according to a treaty
    of agreement made between the Crown and tangata whenua leadership (first people of the
    land) we have a right to live within the country providing we acknowledge the independent
    sovereignty of the tangata whenua
    .

    ps green members voted her in!

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  32. hj (6,918 comments) says:

    Michael King said:

    Travel overseas at the age of thirty confirmed and emphasised for me that it is New Zealand and its experience and traditions, Maori and Pakeha, that is in my bones; and that there is no other part of the globe in which I would want to live or could live with the same sense of belonging and enrichment.

    Among the subsequent experiences that have sharpened that feeling for me are being informed by members of the Aahi Kaa group that I was in fact a tau iwi or foreigner in this land; and, just as offensively, listening to Cabinet Minister Doug Graham say that Maori people had spiritual feelings for lakes, mountains and rivers, and that Pakeha people did not. Doug Graham might not have those feelings: but I and my family have them, as have the thousands of other Pakeha people I have encountered in four decades of walking, tramping and camping on this beautiful land; and doing their best to preserve the contours and the character of Papa-tua-nuku from a variety of commercial interests which have sought to destroy that character by ill-considered development projects.
    http://sof.wellington.net.nz/origins.htm

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  33. hj (6,918 comments) says:

    Catherine Delahunty:
    “I explained that as a Pakeha I had a very limited relationship with the foreshore and seabed but “loved the beach” generally. This did not compare well to the 1000 years of whakapapa and site specific responsibilities* that Betty and her hapu maintain to this day. Yet she had been refused a chance to speak. I also waved a copy of Te Tiriti around in a flamboyant manner.”

    * fastest mass extinct in human history
    http://www.greens.org.nz/node/17412

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  34. Jack5 (5,052 comments) says:

    Sam Buchanan at 4.27 accused me of being obsessed with race because I responded to his labelling as a racist Don Brash, the politician who called for one law for all.

    Though Buchanan called Brash a racist in his earlier post, he now denies the debate around the Brash comments are a race issue. Bit of contradiction here, Sam. And if I have an obsession it is with the unfair and untrue depiction of Brash as a racist.

    In earlier postings Buchanan and I discussed the concept classifying as Maori people who have any Maori ancestors whatsoever (and I guess this could soon be as little as one one-hundred and twenty-eighth, or seven generations back). I compared this to the infamous “one drop” policies of the slave-owning Confederate states and apartheid-era South Africa, which meant that the merest smidgen of Coloured or black ancestry (“blood”) meant you were Coloured or black.

    In a 3.48 post, Sam Buchanan said it was the disadvantaging of a race that was racism, not how the race was identified, as in the one-drop rule.

    Are Maori disadvantaged? They may be behind in economic development and in various Western measures such as university attendance and criminal offences. But they are not legally disadvantaged, and many Maori leaders seem to want Maori to be a minority advantaged over the rest of society. Advantages either partly received or sought include ownership of what have previously been Crown assets, open access to university, special prison and justice systems, even a separate political system within NZ.

    As for the final Buchanan assertion that these issues are based on cultures and iwi but not race, you could similarly argue the Afrikaaner special rights under apartheid were a cultural issue rather than a race one, or even an iwi one, as Afrikaaners are part of the European race, and not the whole of it. They also had and have a separate culture from the English-speaking South Africans, in religion, language, and in many customs.

    Afrikaaners were and are an African iwi. The American Confederates could be seen as an iwi, too, one that fought with the bigger, American iwi.

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  35. Robat (16 comments) says:

    All this rights business stems from 1840 but its well known other people were settled in NZ well prior to this date, like maybe 1640 or 1066 or whatever.
    How then, can Maori continue to get away with their claim of being indigenous?
    Perhaps those in the gravy train industry can help me out here.

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  36. Tauhei Notts (1,692 comments) says:

    Sir Robert Jones summed it all up beautifully in a quote several years ago;
    “Talking about Maoris, and, by the way, I’m thinking of becoming one…”

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  37. Sam Buchanan (501 comments) says:

    “As for the final Buchanan assertion that these issues are based on cultures and iwi but not race, you could similarly argue the Afrikaaner special rights under apartheid were a cultural issue rather than a race one,”

    So far as I know, Afrikaaners didn’t have special rights under apartheid – white people did. It was racially defined.

    “The American Confederates could be seen as an iwi”

    Don’t be silly.

    “Sam Buchanan at 4.27 accused me of being obsessed with race because I responded to his labelling as a racist Don Brash, the politician who called for one law for all.”

    No I didn’t.

    I did say that there was a subtle racism in Brash’s presumption that ‘one law for all’ meant a law founded on European culture, and I thinkl there are similar assumptions in much of his view of how society should operate.

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