Price on DRIP

April 28th, 2010 at 10:26 am by David Farrar

has a useful piece on the UN DRIP, and what impact it could have in NZ law.

Starting to get the idea that this has been overblown a bit? Right. It doesn’t provide “rights of veto” over legislation. It doesn’t put Maori on a path to self-determination or separatism. It will not influence all future law and policy practice.

Here’s what it might do. Lawyers may occasionally use it to suggest that a particular statute or statutory power should be interpreted consistently with it, but only where:

1. the statute is genuinely ambiguous, AND

2. the declaration is highly relevant to the issue, AND

3. the lawyer is able to slide around the problem that the declaration is not based on any government promises , and so does not technically raise the presumption of consistency with international obligations; AND

4. the lawyer also overlooks the government’s cautious statement to the about the boundaries of its support for the declaration; AND

5. there is a favourable wind.

I think that describes it fairly nicely between those who say there will be absolutely no effect at all, and those saying it is going to have a massive effect.

It’s likely to form but one strand of an argument made up of many others, or it’s likely to lose. Hardly “an invitation to existing courts to expand an existing breach into a chasm”, as Laws would have it.

If it is there, people will try to argue it from time to time. Winning is another issue.

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20 Responses to “Price on DRIP”

  1. Murray (8,841 comments) says:

    Meanwhile claims are already being made under this declaration. Seems some people certainly do think its way more than symbolic.

    Nice try at a snow job but a lot of lawyers took one look at wet themselves. This is anothe rpiece of John Keys insanty program of antional destruction.

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  2. Owen McShane (1,226 comments) says:

    The first significant impact will arise from reviews of the Maori Issues chapters in District and Regional Plans and Policy Statements.
    They are bad enough all ready (assuming all Maori hold the same beliefs etc) and this will be another licence to use the Maori Chapter to further the animist beliefs of the Greens whose supporters tend to write the Plans.

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  3. JiveKitty (869 comments) says:

    Yes, it is non-binding, but as an aspirational document the government is going to try and live up to, surely it will have an effect on the shape of future legislation. Unless the government was being wholly dishonest when it signed up to it.

    http://weatherbeatenhollowsofsnow.tumblr.com/post/544905875/nzgovtsignsundecindigpeoples

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  4. krazykiwi (9,189 comments) says:

    I think that describes it fairly nicely between those who say there will be absolutely no effect at all, and those saying it is going to have a massive effect.

    I disagree. Price finishes his conditional setup with “and there is a favourable wind”, so he’s clearly of the view that it there will be absolutely no effect at all, save perhaps legal services billings.

    Sovereignty is lots lost like the air from an exploding balloon. It’s lost from 100′s of tiny pin-picks in the tyres of our democracy. This is yet another one of them.

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  5. Gooner (995 comments) says:

    Why are we secretly flying government ministers half way around the world at significant taxpayer and environmental cost to sign things that mean nothing?

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  6. krazykiwi (9,189 comments) says:

    sorry that should read “Sovereignty is not lost like the air from an exploding balloon. It’s lost from 100’s of tiny pin-picks in the tyres of our democracy. This is yet another one of them.”

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  7. KiwiGreg (3,211 comments) says:

    “Having regard to the principles of the Treaty of Waitangi” was slipped into the SOE Act and the courts just took it from there.

    I wouldn’t put ANY intepretation past our current Supreme Court.

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  8. Murray (8,841 comments) says:

    Gooner because if we knew what the fuckers had been up to someone might have taken a stab at stopping them. Thats why,

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  9. backster (2,122 comments) says:

    Why is this Law Journal writer having a crack at Michael Laws and not High Court Judge Eddie JURIE on whose comments Laws based his article. LAWS is usually pretty close to the mark and I suspect he will be closer than PRICE on this occasion too.

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  10. Jack5 (4,818 comments) says:

    I’d feel more relaxed about Bro. Key’s bow to the UN on indigenous rights if it weren’t for the behind-the-scenes input the Attorney-General and Minister for Treaty of Waitangi Negotiations, Chris Finlayson, obviously had.

    Finlayson would have undoubtedly had an influential opinion on the effects of the UN position on NZ.

    What’s Finlayson’s track record? The Ngai Tahu settlement gave the small Ngai Tahu tribe first and second rights to buy Crown property in the South Island for ever. It looks pretty much a sweetheart deal for an iwi that is now outnumbered by other Maori in the South Island. Here’s what Finlayson said of the settlement in his maiden speech on 17th November 2005:

    For many years I was involved in Treaty litigation. In particular I acted for Ngai Tahu in its claim against the Crown. The proudest moment of my professional career was being at Kaikoura on 21 November 1997 when the former Prime Minister, Jim Bolger, and Sir Tipene O’Regan for Ngai Tahu signed the Deed of Settlement.

    Bollger, O’Regan, and Finlayson. Well, yes.

    Finlayson also said that day:

    It seems clear that Parliament will be revisiting the Foreshore and Seabed Act, another masterpiece of the Deputy Prime Minister. I think we need to review this legislation.. . My personal view is that if one respects the rule of law, due process and property rights, this legislation is unfair and discriminatory.

    and…

    … a classical conservative government would not have pursued the Treaty settlement policy advanced by the Bolger Administration in the 1990’s…

    He is a “liberal-conservative” a somewhat loose position that also seems to cover Bolger.

    Is Finlayson at the wheel in driving race policies in NZ? If so, IMHO he is steering a divisive route, though he’s being cheered loudly by a tiny group at the back of the bus — the Maori Party.

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  11. Adolf Fiinkensein (2,830 comments) says:

    “….first and second rights to buy Crown property in the South Island for ever. ”

    What’s the big deal? You’d think they were being given the bloody land free gratis when all they are being given is the first and second right of refusal to pay fair market price. Would you rather the land was sold to the wealthy ‘slanty eyes?’ from the northern hemisphere?

    Some people just should not wake up in the morning if this is the best they can produce.

    I think Mr Price is right. In a couple of years’ time people will say ‘what was that fuss all about.’

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  12. kaya (1,360 comments) says:

    There is no way to spin this positively DPF, let it go. Anyway, it’s just another teeny nibble out of Key’s political capital, death by a thousand cuts comes to mind.

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  13. Bevan (3,965 comments) says:

    I recall a time when the Treaty of Waitangi had little impact …

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  14. Pete George (23,290 comments) says:

    Do you recall all the things that have always had little or no impact?

    Everything is a potential tip of the iceberg, start of the slippery slope. Very little proves to be.

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  15. Bevan (3,965 comments) says:

    Do you recall all the things that have always had little or no impact?

    To be honest Pete: Huh?????

    Typically people do recall when something comes around and bites them in the arse. History is littered with examples of unintended consequences as a result of the best intentions.

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  16. lastmanstanding (1,238 comments) says:

    Just another small but significant step towards the final solution. As the feminists and others have shown us over the decades you carve out your victories little by little always issuing soothing words of comfort.

    “Oh but it doesnt really mean what it says”

    “Oh but its only an aspiration”

    “Oh but it wont mean any real difference”

    Those of us who have around a long time has heard all this comforting statement from polllies civil servants and the creators.

    And we know the truth. And its anti freedom of the individual.

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  17. Jack5 (4,818 comments) says:

    Adolf Fiinkensein posted at 11.57:

    …Would you rather the land was sold to the wealthy ’slanty eyes?’ from the northern hemisphere?

    Adolf at least your racism is overt.

    One objection to the first and second options on South Island Crown property is that it is a race-based advantage for one smallish tribe. Ngai Tahu have long intermarried with whites and usually are now indistinguishable from them. In a few more generations so many white South Islanders will have a smidgen of Ngai Tahu genes that the tribe will be as relevant as the Picts are in Scotland.

    Which leads to the second objection, which is the more serious one. This concession is in perpetuity, for ever. I agree Ngai Tahu were badly treated by successive governments, but race-based options aren’t the just way to compensate for those wrongs IMHO. The Ngai Tahu Crown options are a bit like German reparations for World War II. How many generations can you expect to be guilty for their ancestors’ transgressions? Should the Jews have been given first and second option rights to German Federal Government property for eternity?

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  18. john.bt (170 comments) says:

    The DRIP is another stick for the professional Maoris and apatheid apologists to beat the long suffering NZ taxpayer with.

    Adolf @ 11.57……… Ngai Tahu increased their wealth substantially in just a couple of years by buying “surplus” taxpayer property. So, how did they manage to do that if they had paid market value? And don’t bother with the “property boom ” reply.

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  19. deanknight (263 comments) says:

    You may also be interested in views from another scholar with expertise in this particular area:

    http://15lambtonquay.blogspot.com/2010/04/un-declaration-on-rights-of-indigenous.html

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  20. Viking2 (11,247 comments) says:

    A day or so the comment was made about minerals not being part of any claim. Now that is simply not true. It already has been. Ngai Tahu own all our greenstone.
    Greenstone that is in hills the never ventured into.

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