Constitutional law in 'New Zealand' - what decolonisation really looks like:

 The first law of the land know as "New Zealand" or "Nu Tirene" (ironically pronounced: New Tyranny) was and is Te Ture Tikanga. 

The website of the New Zealand Legal Information Institute shows that the first officially recorded Constitutional law passed in this country, the foundation for all future law, was Te Whakaputanga o Nga Rangatiratanga o Nu Tirene 1835,  The Declaration of Independence of the United Tribes of New Zealand.

The second constitutional law passed in this country, and the first attempt to form a sort of Colonial Government in New Zealand, to replace the debauchery, lawlessness and anarchy which had been prevailing among the newly arrived settlers, was on Tuesday, the 23rd May 1838, by the formation of the Kororareka Association, formed by a group of recent Pakeha immigrants living in the township of Kororareka (Russell, Bay of Islands) and its vicinity.  

The Kororareka Settlers Association Rules 1838, which purported to authorise a group of recent Pakeha immigrants to equip themselves with guns and ammunition and hunt down any of the natives who were suspected of "any theft, or connected with any robbery, or buying stolon goods knowing them to be stolon [sic], or harbouring a thief, or assisting a thief to get away without being brought to justice, the same person or persons be found guilty of any of the offences, shall be taken, to the tar-and-feathering shed and receive three coats of tar and feathers, and be then drummed off the beach into a boat and landed on the opposite side of the river, and never allowed to return to Kororaroka. "

The following month the Bill for the Provisional Government of British Settlements in the Islands of New Zealand [1838] was proposed in a further attempt at colonial governance.  The purpose of it is clearly stated - to take the land from the native owners in the most patronising, preposterous and sneaky manner possible:

 

 

 

 

 

Etc, Etc.

Then, in 1839, following the appointment of Hobson, and Lord Normanby's two sets of instructions to Hobson, there was the Provisional Constitution of the Port Nicholson (Poneke) Settlers Association.  This stated: "That in case a person shall commit any offence against the law of England, he shall be liable to be punished in the same manner as if the offence had been committed in England."

Conflict was clearly building with the native inhabitants in regard to the manner in which the English law was being applied vigilante style against native owners who were perceived to transgress the laws of England - of which they had no knowledge whatsoever, or native owners who didn't want to sell their land.  

 There followed various proclamations:

Firstly there was a Proclamation by George Gipps extending Boundaries of New South Wales to include New Zealand.  Then there was another Proclamation by Gipps appointing Hobson as Lieutenant-Governor of New Zealand.  Then there was a Proclamation by Gipps restricting Land Sales in New Zealand and another Proclamation by Hobson re Land Purchases - in case anyone missed the bit about the queen restricting land sales and not recognisng any settlers title as valid. 

"Her Majesty will not acknowledge as valid any title to land which either has been or shall be hereafter acquired in that country, which is not either derived from or confirmed by a grant to be made in Her Majesty’s name, and on Her behalf, but that care shall be taken at the same time to dispel any apprehension that it is intended to dispossess the owners of any land acquired on equitable conditions, and not in extent or otherwise prejudicial to the present or prospective interests of the community, to be investigated and reported on by Commissioners to be Appointed by Me, with such powers as may be conferred upon them by an Act of the Governor and Council of New South Wales: Now I, the Captain-General and Governor-in-Chief aforesaid, do hereby Proclaim and Declare such to be Her Majesty’s Commands, for the information and guidance of all parties interested; and I do further Proclaim and Declare that all purchases of land in any part of New Zealand which may be made by any of Her Majesty’s subjects from any of the Native Chiefs or Tribes of these Islands, after the date hereof will be considered as absolutely null and void, and neither confirmed nor in any way recognised by Her Majesty." - Gibbs

And "Her Majesty does not deem it expedient to recognize any titles to land in New Zealand which are not derived from or confirmed by Her Majesty as aforesaid; but in order to dispel any apprehension that it is intended to dispossess the owners of any land acquired on equitable conditions, and not in extent or otherwise prejudicial to the present or prospective interests of the community, I do hereby further proclaim and declare, that Her Majesty has been pleased to direct that a Commission shall be appointed, with certain powers, to be derived from the Governor and Legislative Council of New South Wales, to inquire into and report on all claims to such lands, and that all persons having any such claims will be required to prove the same before the said Commission when appointed. And I do further proclaim and declare, that all purchases of land in any part of New Zealand, which may be made from any of the chiefs or Native tribes thereof, after the date of these presents, will be considered as absolutely null and void, and will not be confirmed or in any way recognized by Her Majesty." - Hobson

This is the context in which Te Tiriti o Waitangi 1840 was signed.  The wording of it is clearly intended to assure the Native Owners of the land that their tino rangatiratanga over all their whenua, tikanga, and all their other taonga, would be protected.  The wording of Te Tiriti o Waitangi was deliberately deceitful.

Te Ringa Mangu Mihaka.

Te Ringa Mangu Mihaka (The Black Hand) was born in 1941at Parawhenua.  He grew up on his lands at  Parawhenua Pakonga, Ohaeawae, Taiamai, Ngawha, Pouerua, Waitangi, the awa and moana o Waitangi, Omapere, Ipipiri, Pewhairangi, from Pouerua to Rakaumangamanga.

He was born at home on the whenua at Pakonga, in a one room home without electricity that he shared with his parents and eight siblings.  In due course he attended Te Ahuahu Native School, where he was awarded dux of the school.  He recalls the prize, three books: Moby Dick, Dambusters, and Under Sealed Orders.  

He recalled the occasion when the teacher, a Mr Fleming, asked the tamariki "Who knows the name of the native trout?"  Due to the effects of colonisation, which had drummed into them the need to speak the English language at all times, there was silence as the students tried to think what it could be, finally Te Ringa Mangu put his ringa mangu iti (little black hand) up and said "Kokopu". 

He purloined an education by slipping into university lecture halls and listening, and thinking for himself.  He associated with other constructive thinkers (sometimes referred to as "activists", etc).  

When rudely confronted with the law saying ‘no Māori may use his language in the Courts of New Zealand if he can speak English, and the claim by the judge that, as a result of the signing of Te Tiriti o Waitangi, the laws of England suddenly apply to the whole of 'Nu Tireni', Mihaka stood up and said "Kahore!" and challenged the Statute of Pleading aka the Pleading in English Act 1362, all the way to the Privy Council, on the grounds that Te Reo was a "taonga" according to Te Tiriti o Waitangi.  He uttered the famous words "He taonga te reo" - the language is a "taonga" or 'treasured belonging'.  "Ki nga tangata katoa o Nu Tirani te tino rangatiratanga o o ratou whenua o ratou kainga me o ratou taonga katoa."

Te Ringa Mangu Mihaka, aka 'Dun' Mihaka, appealed to the High Court and then the Court of Appeal when the District Court refused to let him address the Court in te reo Māori.  Acting for himself, Mihaka relied on the Treaty of Waitangi. While the Court of Appeal agreed that ‘the use of the Māori language in New Zealand is a matter of public importance’, it ruled that the treaty had no legal bearing on the matter. The court based its decision on the English common law that applied in New Zealand from 1840.  

This was a reflection of the view infamously expressed by Prendergast J in 1877 that the treaty was "worthless" and a "simple nullity" because it was signed "between a civilised nation and a group of savages" who were not capable of signing a treaty.

 Te Ringa Mangu Mihaka has commenced a criminal prosecution on behalf of Te Wakaminenga o nga Tino Rangatira against government officials, following the fraudulent misuse of a document bearing the signatures and personal information of over sixty kuia kaumatua of Waitangi marae, after Police refused to prosecute the offender - claiming it "wasn't in the public interest".  Not only is the prosecution in the public interest, but it is in the public interest to conduct a review of the refusal of Police to prosecute, and the ongoing obstruction of Police, who refused to serve the summons following the decision of Judge Hastings ordering that it be accepted for filing, Police then also refused to apply for a production order according to the Search and Surveillance Act, which limits the ability to "an enforcement officer" as defined by that Act, in ongoing attempts to obstruct and pervert the course of justice.

The history of Parihaka

 

Remember, remember, the 5th of November 1881.  The day the armed constabulary - armed police - attacked the unarmed and peaceful inhabitants of Parihaka pa.  

Please feel free to share this short film about the history of the tangata whenua (people) of Parihaka, it should be an essential component of the education curriculum.

 

Maori Agents - challenging flawed laws:

The Human Rights Review Tribunal recently cited two interesting precedents in the matter of Mihaka v Housing New Zealand Corporation.  The first one is cited in the Minute dated 13 October 2016 (copied below for ease of reference) - the Tribunal cites Mihaka v Police 1981 1 NZLR 54.

 What's interesting here is that the Tribunal didn't have any problem addressing Mrs Raue as Maori Agent in its Minute dated 9 June 2016, as evidenced below:

The Minute of the HRRT dated 9 June 2016 clearly states "REPRESENTATION:  Mr TRMN Mihaka in person assisted by Ms K Raue, Maori Agent" -

Mr Mihaka, as a descendant of the original inhabitants of this land, he uri o nga tangata whenua, has the sovereignty, te tino rangitiratanga, to appoint a person of his own choosing to speak for him.

Tangata whenua have always had the right to appoint a kaikorero of their own choosing, and it is ridiculous to assert that the quasi colonial 'government' acting on the questionable and ultra vires authority of a treaty claimed by the English to grant them all our mana and all our tino rangitiratanga by some sleight of hand smoke and mirrors.

Mr and Mrs Mihaka cite the Law Practitioners Act 1955, which refers to the role of Maori Agents but does not define the role.  In fact the 'Maori Agents' who claimed authority under this Act were infamous for cheating Maori out of their land - which is likely why attempts are being made to expunge all evidence from the historical record and pretend it didn't happen.

So let's have a closer look at Mihaka v Police 1981 - did the Crown attempt to trick Mr and Mrs Mihaka by the use of clever legal language?  Here are the relevant paragraphs, the problem's not that hard to spot - there's a question of law here:

Mrs Mihaka's trial was not in the High Court, it was in the District Court - she was charged with Wilful Damage.  Barristers don't normally bother with District Court work, they stick to High Court work, and they are required to be instructed by solicitors normally.






This decision cites sections 13 and 14 of the Law Practitioners Act 1955 - it completely ignores the infamous section 17 - which relates to solicitors and Maori Agents:

The role of McKenzie Friend is rather misunderstood - the original McKenzie Friend is Ian Hangar QC - an Australian barrister, and a qualified barrister at the time of his involvement in the McKenzie case.  Not a layman at all.  It seems there are currently moves underway to 'reform' the role of McKenzie Friends in NZ Courts.

Why this is important is because Dun was royally ripped off by the two pettifoggers assigned by Legal Aid to conduct his appeals - neither noticed he'd not been provided with Disclosure - let alone what that Disclosure contained.

And then just when you think you've got it sussed you find the Hardie Boys decision.

Second brief of evidence of Katherine Amanda Furfie, HNZC:

We recently received the second brief of evidence of Housing New Zealand Corporation manager Kathy Furfie, which can be viewed in its original form at this link.

Starting with paragraph 4.  Ms Furfie was sitting in the back of the room during the hearing on 3 August, and heard the exchange that took place regarding the statement Ms Furfie alleges she dutifully recorded from the complainant, Warren Frederick Dickie.

This exchange can be read at this link to the second part of the transcript of the hearing.  Page 13 onwards is of particular interest, and from page 23 onwards it becomes extremely interesting indeed.

Mr Mihaka's Maori agent pointed out that the policies and procedures of Housing New Zealand Corporation clearly document the processes to be followed, starting with taking a detailed written statement from the complainant and recording it on a "T-463 incident summary form or on a note pad if you do not have a form with you.":

When Mr Mihaka's Maori agent raised this, and pointed out that we'd never seen any statement from Dickie - apart from the slanderous and defamatory one we recently acquired from Police (see the transcript), the Tribunal made the extraordinary comment that if everyone followed policy we'd never get anything done - like evicting cheeky darkies from their homes for example:

We asked Housing New Zealand Corporation, and their solicitors, for a copy of the statement that Kathy Furfie alleges she received - and was supposed to have recorded - from Warren Frederick Dickie - we've asked for it repeatedly, as well as the identity of the Police officer who Housing NZ Corporation allege told them the defamatory lies about Mr Mihaka's alleged drug use etc.  The requests have been repeatedly ignored or refused, and Kathy Furfie is coming dangerously close to committing perjury as defined in the Crimes Act, as are other parties who have knowingly provided other false information to Courts and Tribunals regarding this matter.

Police have categorically denied the allegations of HNZC, and it is clear that Kathy Furfie's claims to have visited Dickie and recorded a statement of complaint from him as claimed in her briefs of evidence is an orchestrated litany of lies and half truths.  HNZC staff have simply engaged in a series of breaches of privacy and slanderous and defamatory little gossip sessions!

Response regarding application for recall of Court of Appeal decision:

Received a response from the Court of Appeal to Maori Agent Raue's application for recall of the decision of France J.

The requirement that the application be signed by the applicant or appellant personally is unnecessary - an injustice is an injustice no matter who draws it to the attention of the Court.  The Minute correctly states in paragraph 3 that the Rules do NOT specifically require the signature of the appellant.

The Court has cited the case of Hooper v Police, which was not decided 'on the papers', Mr Hooper appeared via video link by the look of it.

Ironically, any lawyer could have filed the application on behalf of Mr Mihaka, instead of Maori Agent Raue, and the lawyer's signature would have been acceptable.  Ironic because Mr Mihaka has so far been billed over $4,500 by lawyers Brett Crowley and Nathan Bourke for two appeals against the conviction for allegedly assaulting Warren Frederick Dickie.

The appeals were partly upheld, by France J, but would doubtless have been entirely successful if either of these two lawyers had realised that Mr Mihaka never received Disclosure prior to the trial, according to the Criminal Disclosure Act 2008.

Neither of these lawyers even noticed that there was no statement from the complainant to Police, let alone notice the very serious discrepancies between the various information and evidence relied on to convict Mr Mihaka.

Ironically, there seems to have been little or no consultation with tangata whenua (Maori) regarding the establishment of the role of Maori agents in the 1955 Law Practitioners Act, and no consultation with tangata whenua regarding the DISestablishment of the role.

More concerning are the attempts to erase all record of the shameful history of the role of Maori agents in conning Maori out of their land - defrauding Maori.  More legislation is being passed to further alienate tangata whenua from their land.

The site will be updated with our response shortly.

HRRT hearing cancelled until further notice:

Just received, email from Human Rights Review Tribunal, cancelling hearing scheduled for tomorrow and Wednesday:

Dear Mr Mihaka, Ms Raue, Ms Cuncannon and Ms Shaw
As you know, a 7.5 magnitude earthquake struck New Zealand at 12.02am today.  As a consequence, all Ministry of Justice sites in Wellington have been closed until further notice while buildings are checked by engineers.  In addition members of the public have been asked to stay away from central Wellington until at least this evening.  No trains are running and there are no replacement bus services.

At the time of writing it is not known when these circumstances will change sufficiently to allow the resumption of hearings at the Tribunals Unit.

In these circumstances the Chairperson has directed that I give formal notification that the hearing scheduled to commence at 10am tomorrow, Tuesday 15 November 2016 is of necessity cancelled.

I hope to be in touch with you shortly to arrange a new date of hearing.

If you or your witnesses have availability issues between now and March 2017 please let me know by 5pm on Wednesday 16 November 2016.

Yours sincerely
Helen

 Which is just as well - the Office of Human Rights Proceedings are still, as of this morning, trying to claim that they haven't received our application for assistance, despite admitting that they HAVE received it, they just can't access it - still - because of the incompetence of their Information Technology department, who have admitted that they - still - can't access ten whole days worth of emails 'since they moved to the cloud' - incompetence is bad enough but blaming others is completely unacceptable!

We will be applying for a prerogative writ of certiorari to confirm that they HAVE received it!

Ken Shirley and other political cronies:

Brian Neeson
Ravi Musuku
Ken Shirley

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(L-R) Brian Neeson – Ken Shirley – Ravi Musuku

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All three men were appointed to the Human Rights Review Tribunal.  All three have connections to National, or in Ken Shirley’s case, to ACT, one of National’s coalition partners.
Brian Neeson
Party positions held:

• National Party MP 1990 – 2002

Government appointments:

• Appointed to Human Rights Review Tribunal by Justice Minister Simon Power, in December 2009.

The appointment was made by the Minister –  without being interviewed, as is the usual process,
““It is the chair’s view that without interviews by an appropriately selected interview panel, the process will not provide an opportunity to properly assess the candidates suitability,” advice to Power in July last year said.

“The required skills cannot be evaluated without interview. He [Mr Hindle] has also expressed concern that the suggested appointment of member without interview would be at odds with the practice of past years“.” – Source

Which was unfortunate, as Neeson has a shocking record for anti-gay/lesbian beliefs that can only be described as homophobic.  He consistently voted against including gays/lesbians in protective Human Rights legislation and voted against legislation to outlaw employment discrimination based on gender. (See ” National’s version of ‘human rights’ ” at Tumeke, for full details.)

It is difficult to understand how someone of Mr Neeson’s beliefs can contribute to human rights issues in NZ, unless his appointment is specifically designed to curtail human rights for women and minority groups?
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Ravi Musuku
Party positions held:

• National party candidate in Mt Albert Electorate in 2005 and 2008 general elections

Government appointments:

• Appointed to Human Rights Review Tribunal by Justice Minister Simon Power, in December 2009.

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Ken Shirley

Party positions held:

• Labour Party MP 1984- 1990
• Ranked third on ACT Party List for 1996 elections
• ACT Party MP 1996- 2006

Government appointments:

• Appointed to Human Rights Review Tribunal by Justice Minister Simon Power, in December 2009.

Statement on Maori:
“Graduation day at Te Wananga. Soon after the Labour Government came to office it started showering money on all things Maori. ” – NZ Herald

“Soon after the Labour Government came to office, ushering in its flagship ‘Closing the Gaps’ programmes. It started showering money on all things Maori. ” – Ibid

“Out of this Te Wananga o Aotearoa pocketed $5.8 million and said that would go a long way towards providing for its growth. ” – Ibid

“But the Government went further. Closing the Gaps demanded even more taxpayer money be thrown at Maori. ” – Ibid

“Despite its apparent concern, it has continued to shovel huge sums of taxpayer money to this institution – all in the name of the treaty. ” – Ibid

“The Treaty of Waitangi Fisheries Commissioners have foreshadowed that the decision to allow the Maori Land Court to hear iwi claims to the foreshore and seabed of the Marlborough Sounds opens the way for similar claims around the country” ACT New Zealand Deputy Leader Ken Shirley said today.

I now call upon Prime Minister Helen Clark to act consistently, and to declare such claims off limits -as she recently did in the case of the claim for oil and gas reserves. In this instance, it was made quite clear that oil, gas and mineral reserves were vested in the Crown by legislation in 1937.” – Press releases on Court of Appeal decision on foreshores and seabed, Recreation Access

“I am again calling on the Labour Government to act decisively. It must spell out the bounds to claims – in order to prevent undue anxiety for tens of thousands of New Zealanders, and to ensure that iwi don’t waste any more time and money pursuing claims that should be off limits.” – Ibid

Hopefully Mr Shirley’s anti-Treaty and knee-jerk anti-Maori  beliefs will not be carried over to the Human Rights Review Tribunal.

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.(Acknowledgement: Frank Macskasy, David M. and Tumeke)