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Monday, June 05, 2006

Sedition Trial: Context

Queen v Selwyn


Foreshore and seabed information page has a great timeline of documents setting the scene for the events of 18 November 2004, (Confiscation Day).

Remembering that on 16 November 67 pages of amendments were put up that morning as a result of the wee small hours colonial conspiring by Michael Cullen and Dale Jones (both ex-pat Poms). They were imposing their own views about what Maori (having only a second class citizenship) ought to own in that process. It was a late night, back-room deal that was so rushed, the text so hurried and imperfect that they accidently confiscated local authority property too - which was not their intention. They had to revisit it less than a month later to undo the mistake. Now with their imperfect text - expressing as it did an intention to piss all over the rule of law, the constitution, the government's commitment to human rights and recklessly provoke discord and disorder in pursuit of a confiscation that the Attorney-General herself had to admit was racism - and having 120 MPs and their officials scrutinising it they still managed to cock it up. A couple of rogue words undid the fringes of their perverse efforts. And so they go about correcting it and pretending it never happened. Contrast those circumstances with the allegedly seditious texts.

Parliament was in urgency to get the Foreshore and Seabed Bill passed and was sitting till midnight each night for as long as it would take. To enforce the surreality of this farce the date on the walls of parliament remained stuck on the first date they took urgency as a matter of legalistic, procedural untruth to underscore the Cullen-Dale re-writing of history that was taking place.

Now in this sedition trial the Crown alleges that there are a few words in the texts that they consider to incite disorder/disaffection etc. The Crown seemingly has no qualms that the country's largest circulation daily newspaper can print one of those texts in its entirety and put it on it's website; but that it is somehow wrong for someone to have composed it or to have transmitted it to the Herald in the first place. This is an untenable position for the Crown. So the publication by one person of half a dozen or so documents is unlawful but the same document printed 250,000 times by APN is lawful? So telling people about the idea is fine - unless it's your idea, in which case it is a criminal offence? The implications for the freedom of the media is relevant to this case whether the media comprehend that or not because if the bar is set so low for sedition then they obviously can't publish things that they know would reasonably have seditious intention? No? "Bill of Rights Act" - I can hear it now. Who wants to be the first to find out?

The media must have thought that there was no realistic expectation that people reading the texts would cause disorder/disaffection etc. or else they would not, surely, have printed it a quarter of a million times along with pictures! Having some experience of, in and with the media my reasonable expectation/intention (given involvement in the publication process of the texts) is presumed by the Crown to be an incitement to disorder?

Does everyone from now on have to function with the thought of a sedition charge in the back of their minds before they offer their opinion publicly? Well, depending on how this trial turns out, they might have to. And that the only credible defence for saying "I think that we might have to risk breaking the law to defend our laws and our constitutional heritage in order to uphold justice and stop disorder" must be "I didn't really mean it?" That is the real evil of sedition: the defendant must disavow their own advocacy in order to defend the charge on those terms. Given the technically low threshold for conviction it is who the Crown chooses to prosecute that is telling.

Sedition laws have traditionally been used to persecute people who tell others why something is wrong, not just the actual advocating that individuals should exercise their own conscience (and even imagination) in finding ways of preventing the government from making an arse of themselves (we have all failed in that respect!). The Crown knows that it is the reasons why and what the circumstances are about the issue that really are the important words in those texts - or else they wouldn't be persecuting me, would they?

Through this prosecution the Crown admits the validity of the texts: they admit the facts as much as the force of the alleged incitement because in order to maintain that the texts constitute a real intention the Crown must regard the texts as inherently credible. They can't argue that the texts lack facts and/or are inherently unreasonable and have no underlying justifiable cause because that would undermine their assertion of a viable incitement.

They don't prosecute the lone nutter with tin foil on his head handing stuff out on the high street. They don't charge the largest circulation daily newspaper. They don't indict the owners of websites. They don't care if the papers run anti-Maori hate speech and derogatory cartoons every day of the week for the last 130 years. They haven't prosecuted for sedition for so long no-one even really knows when the last case was. They don't give a flying fuck what anyone else has to say about anything... except when it comes to me. Why? - because they trust me to mean exactly what I say all the time? Praise from Caesar? I should be flattered; but instead I'm just tired.

For my troubles the Crown wants to further embarrass itself. Why? Who authorised this prosecution? Who in their right mind from the Crown wants to bring the unfairness of that nasty confiscation Act back to the table? The parliament agreed with two Poms that Maori are just Abos - is that a good look? For a nation deeply deluded that the rest of the world really believes that they are the bastion of racial equality perhaps telling the truth about what we are is a necessary part of growing up. Sometimes I have to assume that the Crown are on my side and they want to hurt themselves because they know they are wrong - and they have chosen me to do it. Very well then.

Who thinks the Foreshore and Seabed Act is a shocker? Well, apart from the Human Rights Commission, Waitangi Tribunal, every Iwi, all the constitutional lawyers I've read, just about everybody who knows anything about it, the United Nations also has had some things to say as well. The Labour Government usually loves most of the above - unless they point out the obvious or disagree in any way whatsoever - and then our nice friends at the UN suddenly transform from impartial professionals informing the world of the plight of minorities to become raving, uninformed Marxists on unimportant committees:


United Nations Committee on the Elimination of Racial Discrimination
Sixty-sixth session
17 February - 11 March 2005
Decision 1 (66): New Zealand CERD/C/DEC/NZL/1

4. While noting the explanation offered by the State party, the Committee is concerned at the apparent haste with which the legislation was enacted and that insufficient consideration may have been given to alternative responses to the Ngati Apa decision, which might have accommodated Maori rights within a framework more acceptable to both the Maori and all other New Zealanders. In this regard, the Committee regrets that the processes of consultation did not appreciably narrow the differences between the various parties on this issue.
6. Bearing in mind the complexity of the issues involved, the legislation appears to the Committee, on balance, to contain discriminatory aspects against the Maori, in particular in its extinguishment of the possibility of establishing Maori customary titles over the foreshore and seabed and its failure to provide a guaranteed right of redress


United Nations Economic and Social Council
13 March 2006
Original: ENGLISH

Sixty-second session
Item 15 of the provisional agenda
Human rights and indigenous issues

Report of the Special Rapporteur on the situation of human rights and
fundamental freedoms of indigenous people, Rodolfo Stavenhagen


1. Pursuant to Commission on Human Rights resolution 2001/57 of 24 April 2001, which established his mandate, and to the standing invitation of New Zealand to United Nations special procedures, the Special Rapporteur visited New Zealand from 16 to 26 November 2005. The purpose of the visit was to gain a better understanding of the situation of indigenous people in New Zealand through discussions with the relevant parties on issues such as the treaty settlements process, the implications of the Foreshore and Seabed Act,
16. The Special Rapporteur considers that from a human rights perspective, Governments cannot unilaterally extinguish indigenous rights (whether they are referred to as aboriginal or customary title) through any means without the free, prior and informed consent of the concerned indigenous peoples. In the view of the Special Rapporteur, replacing an inherent right with a difficult judicial and administrative procedure leading possibly to the issuing of a “customary rights order,” may amount to less than the full protection of human rights that the Government is duty-bound to comply with.
47. These developments prompted the Government to announce its foreshore and seabed policy in 2003, which became the subject of an urgent inquiry by the Waitangi Tribunal. The Tribunal, expressing its disagreement with the Crown’s proposal, concluded that this policy would remove the ability of Maori to go to the High Court and the Maori Land Court for definition and declaration of their legal rights in the foreshore and seabed. The Tribunal considered that in removing the means by which the rights would be declared, it effectively removed the rights themselves, whatever their number and quality. The Tribunal also concluded that the proposal would remove property rights, which amounts to expropriation; not guarantee compensation; enact a regime that recognizes lesser and fewer Maori rights in place of the property rights to be declared by the courts; and exchange property rights for the opportunity to participate in an administrative process.
50. [...] the Human Rights Commission points out that potential Maori customary title over parts of the foreshore and seabed and fee simple title for Maori land under existing legislation have now been removed, without equivalent replacement.

51. There remains no guarantee of equitable redress for Maori groups for loss of customary title or criteria to guide compensation calculations [...]. In addition, the establishment of potential foreshore and seabed reserves, which is a positive development, must also be negotiated and in essence fails to provide Maori groups with an appropriate recompense for loss of customary title. By excluding existing freehold interests in the foreshore and seabed from the vesting of the foreshore and seabed in Crown ownership, the Commission considers that the Act limits the right to freedom from discrimination. The Commission also considers that parts of the legislation may also infringe the right not to be arbitrarily deprived of property, and the right to development. In fact, New Zealand’s Attorney General recognizes that the Act provides differential treatment and that this might entail prima facie breach of New Zealand’s Bill of Rights Act, yet she still considers this differential treatment justified.
92. The Foreshore and Seabed Act should be repealed or amended by Parliament and the Crown should engage in treaty settlement negotiation with Maori that would recognize the inherent rights of Maori in the foreshore and seabed and establish regulatory mechanisms allowing for the free and full access by the general public to the country’s beaches and coastal area without discrimination of any kind.

So, it's not just me then.


At 5/6/06 8:27 pm, Blogger Frederick Aloysius Weld said...

Good luck!

At 6/6/06 11:46 am, Blogger peterquixote said...

guaranteed support from here,
this is a disgraceful trial

At 6/6/06 3:35 pm, Anonymous Anonymous said...

you are now on Wikipedia!

At 6/6/06 3:38 pm, Blogger llew said...

Yeah, good luck.

At 6/6/06 7:06 pm, Blogger phil said...

Good luck, Tim! Kia kaha!

At 6/6/06 9:48 pm, Blogger andrew said...

Good luck Tim, Be strong and don't let the bastards grind you down!

At 7/6/06 11:31 am, Blogger P O'Neill said...

Just read about this case and I am shocked they're going ahead with this trial. Anything to make sure indigenous peoples don't fight the final grab of their lands and rights I suppose.

God bless and good luck!


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