Plan B


Chris Trotter
JOHN KEY WON his office’s sweepstake on the Supreme Court’s Maori Water Rights decision. He put his money of “Five-Zip” and “Five-Zip” it was – a unanimous judgement in the Government’s favour.

Why was he so confident? And why was his Finance Minister so happy to tell us that when it came to his precious partial privatisation programme there was no “Plan B”?

If the Supreme Court hadn’t delivered the desired result, are Bill English and John Key really asking us to believe that they would have shrugged their shoulders and said: “Oh well, back to the drawing-board.”

Of course there was a Plan B.

The signs were there weeks ago in the form of dark mutterings about the Chief Justice’s impartiality – or lack of it – on Treaty issues. Nothing too overt, of course, just the odd line or two in newspaper columns, but sufficient to attract the attention of Dame Sian Elias and the other judges of the Supreme Court. Enough to let them know that if the Judiciary was contemplating thwarting the Executive on a matter of such importance it should think again.

John Key and his government are adamant that they possess an unchallengeable mandate to proceed with their partial privatisation programme. Were the Supreme Court to prevent them from carrying it out there can be little doubt that the Government would present its behaviour as a case of five unelected judges ignoring the democratic verdict of the people of New Zealand.

Such a judgement would not be permitted to stand.

Had the Supreme Court found in favour of the Maori Council, I believe the Prime Minister would have asked the Governor-General to dissolve Parliament and issue the writs for a new election. That election would have been fought on the proposition that New Zealand has become a state in which a minority of citizens (Maori) aided and abetted by their allies in the Supreme Court (Dame Sian Elias) is able to ride roughshod over the will of the (Pakeha) majority.

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It would have been an extremely racist and an extremely divisive campaign, and the Right would have swept all before it to claim a landslide victory.

Labour and the Greens would have been impossibly placed to resist the massive backlash that an overtly anti-Maori, anti-Treaty, anti-Political Correctness political campaign would have unleashed. They would have no option but to stand with the Supreme Court’s decision and defend the Treaty as the guarantor of Maori rights. It would have been a noble and principled gesture, and in Auckland Central, Wellington Central and Dunedin North it would have been rewarded with big majorities. But in the suburbs, the provinces and throughout rural New Zealand National would have carried all before them.

The Left would have found itself in the position of the Labour Party after the events of 1951. In some difficult to define and wholly unfair way Labour and the Greens would have been tainted: pushed outside the razor-wire defences of the new, authoritarian and overtly racist consensus.

Though they would have remained unspoken, such thoughts must have been in the minds of the five Supreme Court judges as they weighed the Maori Council’s case.

Dame Sian Elias must surely have asked herself whether a judgement against the Government would have been worth the trouble it would cause.

National, under John Key, has been advancing Maori claims at a pace that Labour proved incapable of matching when in office. Why put that steady advance at risk by effectively slapping the Prime Minister in the face? Especially when, in 2011, his party came within three percentage points of achieving an absolute electoral majority for its partial privatisation programme?

John Key, Bill English and the National Party didn’t have a Plan B for the very simple reason that they didn’t need one. The sleeping dogs of Pakeha racism are much too vicious to be recklessly kicked into rabid, slavering wakefulness. The Supreme Court was always going to let them lie.

As for Labour and the Greens: they have had a very lucky escape.

Chris Trotter blogs at Bowalley Road


  1. A somewhat cynical analysis of mainstream pakeha society… but unfortunately all to true.

    In collecting signatures for the “Keep Our Asset” referendum, I’ve met too many people who voted National – despite the person being anti-asset sale.

    How to explain this case of Doublethink? God knows.

    But it’s not the first time I’ve seen it.

    Too many New Zealanders in the 1990s expressed a desire for fully-funded State education and healthcare – and in the next breath said they’d vote NZ First or National.

    Say whut?!

    I even wrote a piece for an Otago newspaper on this curious effect. I called it “Beans”. I described going to a supermarket, wanting to buy a can of beans; purchasing a tin labelled “beetroot”; going home and opening it; and being disappointed the can didn’t contain beans.

    That’s how people were voting in 1996 and talking through the late 1990s.

    Funny people, New Zealanders… (though probably not restricted solely to us)

    As for National fighting the election on “overtly anti-Maori, anti-Treaty, anti-Political Correctness political campaign” – indeed. I’d be surprised if National’s taxpayer-funded political strategists would over-look such an obvious tactic. They could call it “Dancing Cossacks v.2”.

    • There is little mystery in your “Beans” effect.

      Most turned the 5th labour Govt out because they were sick of seeing the same faces in power. It’s as simple as that. They felt it was time for a change and it was too hard to actually evaluate policies, hence the surprise that Nact are selling the silver.

      That and because the MSM turned on the incumbent party.

  2. There’s an option C – that Government and media were fairly confident that the law was against the Maori Council case, and that the Supreme Court would rule accordingly.

    Today’s ODT editorial supports this view – A dose of realism

    It could be that the Maori Council just decided to take a punt and Labour-Green support was wishful thinking.

    • Pete, surely if the law doesn’t take into account the Treaty (especially Article 2) , then it’s not a good law?

      It’s ironic that so many Kiwis promote the “right to bear arms” – parroting the US Constitution which has little bearing on our nation – and yet ignore our own Founding Document.

      • The Treaty is not part of our Constitution and neither could it really be given the rather contrasting interpretations on key issues between the Maori and the English versions.

        • Oh Gos.

          1) Our constitution, such as it is, is made up of a number of things. To say that the Treaty isn’t one of them, when it is the thing by which the crown derives its authority to govern, is just laughable.

          2) The only version with legal standing is the Te Reo version. There are not 2 binding versions of the Treaty. There is one, the one in Te Reo.

          3) The idea that if citizens have different opinions about what a constitution means then it can’t be a constitution would mean no country would need a court to decide what their constitution means. cf the entire legal history of the US Supreme Court to demonstrate just how daft your comment is.

        • “The Treaty is not part of our Constitution…”

          I didn’t say it was. Considering we have no written Constitution.

          I said it’s our Founding Document – which it is.

          Try to keep up.

  3. Perhaps – just maybe perhaps – the Supreme Court justices applied the law to the facts. Elias CJ isn’t the dictator of the Supreme Court – and it seems a stretch of a stretch to draw the conclusion that she would have persuaded each of the Supremes to unite behind a Judgment of the Court for political reasons.

    I know that the author of this piece is a stalwart of cynical consequentialism – Helen Clark campaigning on illicit taxpayer funds being ‘justified corruption’ if it helped her win the election and all that – but I just don’t buy it here.

  4. The trouble for the author is that John Key’s style isn’t really to die in a ditch over any issue. He is the consummate pragmatic politician. This is more the pity if you would like more right leaning policies but explains his high levels of popularity with the electorate.

      • Anything is questionable. What is indisputable is that the polls have him at very high levels for a Prime Minister serving his second term.

        I’m sure you may want to dispute the findings but until you come up with alternatives beyond ‘None of the people I speak to like him’ I think the polls have more credibility than your opinion.

        • It’s not a matter of “opinion”.

          It’s fact; phone polls are flawed because they don’t call cellphones.

          If you leave out a sector of society based on technological factors such as method of communication, then automatically any so-called poll results will be skewed accordingly.

          I trust that’s clear enough for you?

          • The trouble with this ‘fact’ is that the last election largely reflected the average of all these polls, (and certainly the trends were evident), despite your thinking they were flawed.

          • Franks right, in South Auckland people only have cellphones and they don’t always have money on them either. This is a significant demographic that is never included in the polls.

          • It is quite simple.

            Polling companies are paid to get accurate reflections of public opinions. They are therefore interested in getting their samples as close as possible to the wider cross section of society. If they don’t then they won’t earn money from the people who pay them to perform the polls. As such they employ highly skilled people to help design their polling techniques as opposed to left wing internet media pundits with a axe to grind.

            As stated, at the last election, the result largely reflected the position of the average of the polls taken within the last few weeks of the campaign. The only difference was that National’s total was down a bit and NZ Firsts was up. However this seemed to be a late move as a result of the botched PR stunt between John Key and John Banks. The polls did pick up the move to NZ first but as it was late in the piece it didn’t show through.

            If this wacky idea about Polls not reflecting reality was correct then you would have seen this is the last election around parties such as Mana.

  5. Oh wake up all of you! If a lefty government had been in power the Supreme Court would have found a reason to favour that government’s point of view.
    Anyone with half a brain knew this result was a foregone conclusion. I can remember trying to dispell similar ‘faith in the judiciary’ back in the noughties when amerikan lefties were stupidly putting all their hope in the (at that time more liberal) US supreme court. They were hoping that the boogey man Karl Rove would be brought down by the Supremes over the Plame bizzo.
    National Supreme courts almost never get in head butting contests with governments, especially not newly elected ones. Apart from the fact that the shit rises to the top in all professionis, judicial as well as political, how long does anyone imagine a judiciary would maintain any semblence of independence over even ‘minor’ matters if they tossed major govt decisions out?
    Look no further than Pakistan if you want to see the result of political/judicial warring. Honest judges get replaced with dishonest ones and the bench becomes as politicised as the parliament.
    This is why many of us thinking citizens were hesitant when the Clark govt moved from the Privy council to a local Supreme court.

    Yeah the Privy Council was a mess and were not to be trusted on caes that impacted england, so they had to go, but trying to set up an indepenent judiciary with a talent pool as small as ours is, was laughable.

    A better a idea would have been to get together other nations with similar systems and create a supreme court of senior beaks from those jurisdictions a bit like an international referees panel, in that judges couldn’t sit on cases their native jurisdiction had a part of.

    Look no further than the pissed offness of Collins towards the Canuck judge who didn’t do as he was told over ‘that murder case’ if you want to get an idea of (a) why we don’t have such a system & (b) the ability of a smart judge to render a truly independant decision, that doesn’t favour the Wellington establishment.

    Most of all of course those who oppose the sale of our assets to carpet baggers need to grow a pair.

    It is typical of whitefella lefties to want to leave it up to Tangata Whenua to do all the heavy lifting, instead of organising a strong grassroots campaign among all citizens to resist this outrage in whatever way is necessary.

    I betcha many have read posts by the usual mob of pseudo-lefties who bitch at “Maori’ because some Iwi groups have put the interests of members ahead of those of bourgois pakeha NZ & plan on buying Mighty River shares when they become available.

    The usual “we (meaning I assume – us pseudo-lefties) gave you alla that Waitangi Treaty shit and now you won’t do as you are told like a good little indigenous lackey”.

    If you truly oppose this sale and what to succeed at stopping it forget about magic bullets, divorce opposition from tedious parochial politics (do you really imagine what his name & the rest of the Labour ‘brand’ wouldn’t do something similar if the price was right?) and get stuck in to building a genuine mass movement to stop this sale. Not to mention Blind Freddy could see jonkey and the lickspittles were gonna make the thing about ‘greedy Maori’ (sic) which really only served to divide the opposition.
    Now that option is no longer on the table it is time to enage in the actions of the possible.

    It is almost too late now, but it could still be done. All the extra time that the court process provided has been mostly wasted by people who should have known better sitting on their spotty behinds n picking blackheads, when they could have been engaging with Joe Public, up front face to face while they were on holiday.

    However even many of the looney racist pakeha pseudo-lefties appear to be quietly disappointed that this attempt has been stymied, so instead of wasting energy on day dreaming Utopias where careerists toss self interest onto the back burner just long enough to ‘do the right thing’, it makes more sense to channel the discontent out here where ordinary folk exist.

    • “A better a idea would have been to get together other nations with similar systems and create a supreme court of senior beaks from those jurisdictions a bit like an international referees panel, in that judges couldn’t sit on cases their native jurisdiction had a part of. ”

      Not a bad idea actually.

      In fact, we could have started with a Pacifica Supreme Court, taking in Australia, New Zealand, and Samoa, for starters. (And Fiji once the military junta is removed and democracy restored.)

  6. “Were the Supreme Court to prevent them from carrying it out there can be little doubt that the Government would present its behaviour as a case of five unelected judges ignoring the democratic verdict of the people of New Zealand.

    Such a judgement would not be permitted to stand.”

    Oh, come on. The Supreme Court was not asked to rule if the Government has the right to sell assets. It was asked to rule on the constitutional ramifications of an obscure interpretation of the Treaty of Waitangi and did so.

    Had the Court found the other way the Government would have had to do what Governments always do, and have the right to do if they can, which is to change the law. And suffer any electoral consequences.

    To suggest the Supreme Court Justices of New Zealand would be influenced by a little Government strong-arming is “9/11 was an inside job”-level paranoia.

  7. I fail to see how John Key can claim a mandate to sell off any assets at all. If National had gained 50%plus at the general election and could have governed alone I would beieve he had a mandate, but to claim a mandate on a minority of National Seats is stretching credibility. The only reason he has claimed a mandate is because his allies have no principles and are only interested in the office they have gained through being in cabinet

      • Gosman – “As stated, at the last election, the result largely reflected the position of the average of the polls taken within the last few weeks of the campaign. The only difference was that National’s total was down a bit and NZ Firsts was up.”

        Really? What were the poll results for National in the week leading up to the elexdction?

        The rest of your post (March 1, 2013 at 10:08 p) , especially the first parapgraph, is meaningless twaddle. That wasn’t a coherent argument so much as PR for polling companies. (For which I hope you were paid.)

    • Indeed, Les.

      As a matter of fact, Parties that OPPOSE asset sales won more votes than the National-ACT-Peter Dunne troika,

      National – 1,058,636
      ACT – 23,889
      United Future – 13,443
      TOTAL – 1,095,968

      Labour – 614,937
      Greens – 247,372
      NZ First – 147,544
      Maori Party – 31,982
      Mana – 24,168
      Conservative Party* – 59,237
      Total – 1,125,240

      * Note: Whilst the Conservative gained no seats in Parliament (because of the 5% threshold), their numbers are included because they gained over DOUBLE the electoral-support for ACT.

        • Yes, our democracy works through a regular vote for government and then multiple opportunities to influence government through select committee, lobbying and the occasional referendum, among other measures.

          If you truly believe that when the country voted at the last election they were sending a clear mandate for asset sales then you’d support the upcoming referendum which would surely vindicate your position and leave the way for asset sales to flow forth unopposed? Yes?

          • No, because I don’t support policy referendum. I like how our representative democracy allows political party’s to put forward a broad policy mix and then implement it over three years if they win enough seats and support from others in parliament.

            As with the majority of citizen initiated referendum this one is a waste of time and taxpayers money.

  8. Had Key lost the SCNZ judgement and gone to the country (which I would have doubted — he would have cut some kind of deal with the NZMC), Labour and The Greens would have suffered a heavy defeat with or without the ToW issue. National would have been in power until the end of 2015, and be in the box seat to win further elections.

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