Article – Annemarie Thorby
The day opened with the Judge saying, ‘in the next part of the trial defence can call evidence if they want’.Operation 8: Day 16, March 7th
The Defence Begins
by Annemarie Thorby
The day opened with the Judge saying, ‘in the next part of the trial defence can call evidence if they want’.
‘Now Mr Fairbrother will give an opening address for the defence and will call evidence’.
The first witness was in London, so it was ‘not practical for him to come to NZ’ explained the Judge. The evidence was given by video link and was ‘quite a routine part of court now’.
The Judge said, it was ‘just as effective for witnesses to give evidence via video as to appear in person’.
He then invited Mr Fairbrother to address the jury on behalf of Tame Iti.
‘Winning Hearts and Minds’
Mr Fairbrother began by saying that it ‘was a privilege to stand and to address fellow New Zealanders on a case of such importance’.
‘I say a privilege because in this country we assume a lot of things are fact…we assume that the police and Parliament are all ‘facts’.
‘We assume that the country never changes….that we leave the world the same easy way we found it.’
Some of the evidence he said he would be introducing ‘may appear to be esoterical or a little strange’ but it was important to understand.
He began by speaking of his own up-bringing in New Zealand.
He explained that his father was a truck driver. That he grew up in a small town and had a friend who lived by the marae. As a child he learnt to eel and to play the guitar.
He ‘had not heard of the Treaty’ when he went to University to study law and compared that to Aaron Pascoe saying in evidence that ‘he didn’t know what he knew now, because he was learning through the case’, through Operation 8.
‘What people learn are there are parts of New Zealand quite foreign to us, especially for those who grew up in the city’.
‘There are also parts of the country that are unique’ and said that Ruatoki is one of those parts.
‘Ruatoki is ‘only 21 km from Whakatane, which is the biggest town in the Bay of Plenty. But you travel the 20km to something different.’
He said that visitors to Ruatoki feel the difference. ‘Ruatoki imparts something special on them.’
‘Ruatoki has a cultural difference,’ said Mr Fairbrother.
‘Pakeha buy and sell land and it is only useful when they live on it’. However, in Ruatoki ‘you don’t buy and sell land, it is essential…’.
Mr Fairbrother then reminded the jury about his last question to Adam Pascoe about the Beatles and their song Revolution. The question was asked in yesterday’s sitting.
‘The point about revolution is it’s a song about changing people’s hearts and minds.’
‘It is about getting change through ‘hearts and minds’, not through the point of a gun. This philosophy was the same as Tame Iti’s.
‘That song came out in the 1970s, the same time Tame Iti became involved in activism.’
‘Tame Iti has been involved in activism for the last 40 years…to change people’s heart and minds.’
‘He has been so successful there are changes that you and I are not aware of.’
He called these ‘Constitutional changes.’
‘And for over 140 years Tuhoe have been active for change.’
Mr Fairbrother spoke about the Confiscation Line.
‘The confiscated land pushed Tuhoe back and gave fertile land to friendly Maori and Pakeha farmers’.
‘Tame Iti’s activism is ‘not to cause chaos but to change our hearts and minds.’
About Tame Iti’s Moko, Mr Fairbrother said that ‘some people might think it is embarrassing to wear’, however it attracts people to him and they want to know why.
Tame Iti is known for ‘flamboyant protest’ and that some people ask ‘why doesn’t he get a real job?’
‘It is because his heart and soul is in Ruatoki and he is here to make it a better place.’
Mana Motuhake is Viable
Mr Fairbrother then talked about the witnesses he would be calling.
The first would be Dr McHugh. Dr McHugh was only first, because as he lives in England his appearance had been pre-arranged.
‘Dr McHugh was born and bred in the Bay of Plenty’ and as a student he received a Ngai Tahu scholarship. His work is on ‘how indigenous people cope with infrastructures not of their own making’.
Dr McHugh will talk about the Westminster constitution that ‘is not written’ but ‘obscure’ and he will talk about how ‘changes here are organic’, how ‘we are undergoing change now’.
‘A lot of those are changes through the Waitangi Tribunal.’
‘He will talk about the role of activists like Tame Iti around the world.’
Dr McHugh’s ‘evidence is at the esoteric level’. ‘Dr McHugh will be saying what Tuhoe has sought for 150 years is Mana Motuhake.’
‘He will say it is very legitimate, and will work.’
‘That what Tame stands for and has been fighting for, in a figurative sense and legal sense, is viable’.
The next witness Mr Fairbrother said would be Rau Hunt.
‘He will take you to shots of the video that the prosecution did not show and that the military expert witness was not shown….He will show what really happened….He will show you how he was showing young people to work as personal security.’
Mr Fairbrother said to the jury that they ‘will see that even from the police videos there are two sides to something before someone can draw an inference’.
The witnesses appearing tomorrow will be Tamati Kruger, the chief Treaty of Waitangi negotiator for Tuhoe.
‘Tamati Kruger has Known Tame Iti since he was a young fellow. He will tell you about the activism and how it affects Tuhoe, he will tell you about the history and about how the police roadblock was on the Confiscation Line.’
After Mr Kruger will be Auckland University professor David Williams, a Rhodes Scholar at Oxford University and someone who has given evidence before the Waitangi Tribunal. And among other things, ‘will talk about how what Tuhoe is seeking through the Waitangi Tribunal is viable.’
Mr Fairbrother then summed up by saying to the jury that, ‘The police and the Crown ask you to infer that Tame Iti and at least two others had in their mind to commit mayhem, in fact they say murder, to cause grievous bodily harm, to burn buildings down.’
He asked the jury ‘to pause to think how ludicrous that is that for a man whose whole life has been out there wanting peaceful change and when his tribe is on the brink of major change. How could he risk that?’
Mr Fairbrother said the Crown have no evidence of ‘a grand plan’.
‘The Crown put things together and have a jig-saw.’
He asked the jury to think about ‘what is amongst their property and can be taken out of meaning’.
‘Tame iti has shown no indication of such a plan.’Tame Iti has shown no indication of such a plan. He has actually shown strength and commitment to his own Iwi, his own land.’
‘If you are in Ruatoki and you are carrying a gun, no one will blink because it is a life amongst mountains. If you do that in Anzac Place, people will run.’
‘If you walk in the city with a spade, people will think you are gardening. If you walk in the bush with a spade, people will think you are planting marijuana.’
‘We are talking about an area of land where ordinary behaviour is different from the city.’
Mr Fairbrother said it is ‘two worlds’.
He said that his aim was to ‘establish that you can’t be certain about the Crown case’ but he would go further and ‘after hearing about Tame Iti and his life, there can be no doubt.’
Mr Fairbrother then called his first witness and the video link was opened.
A System of Thought
It took a few minutes to get the video-link working. But once both sides had vision, the Judge noted, ‘You come armed with a bible’ and Dr McHugh was sworn in.
Dr Paul McHugh is a Reader in Law at Cambridge (one step below a full professor) and has studied in New Zealand, Canada and England. He explained that his speciality of study is the history of the British Crown’s relations with indigenous peoples, especially in North America and Australasia. He has published widely.
The first thing Mr Fairbrother asked him to do was to explain what Common Law is.
Among other things, Dr McHugh said, ‘it is a system of thought attributed to the English’, ‘it is a grand way of thinking about law and obligation’, it is ‘law developed through the doctrine of precedence.’
‘Common law can mean any number of things,…but it is specifically a system of thought associated with English thinking…’
Dr McHugh said he had given evidence to the Waitangi Tribunal on at least three occasions and also in Canada. He was engaged by the New Zealand government to give evidence to the Foreshore and Seabed Select Committee
As an independent expert he gave evidence for the Crown to the Waitangi Tribunal explaining the British annexation of New Zealand.
He explained that his father presided over the Waitangi Tribunal hearing of the Ngai Tahu claim.
When England Annexed New Zealand
Mr Fairbrother then asked him to ‘explain New Zealand’s current constitutional arrangements, especially as it affects Tuhoe.’
Dr McHugh said he would ‘put it in an historical context as he is regarded as an historical expert’.
‘Activists, people like Tame Iti, are historically very important instigators for constitutional change.’
‘Crown sovereignty has been the enduring frame of Westminster systems, a frame in which immense change occurs’ and it is ‘not carved in stone’.
‘Crown sovereignty has embraced immense constitutional change over time’ and cited the changes from personal monarchy to the 1688 Parliament and the Bill of Rights.
‘Today,’ he said, ‘Crown sovereignty is synonymous these days with national sovereignty’
‘Prior to 1840 when the Crown annexed New Zealand, Maori sovereignty over New Zealand was recognised. In 1840 the Crown’s sovereignty arrived.’
Dr McHugh talked about how ‘sovereignty became associated with a theory of absolute Crown sovereignty’. The view being that, amongst other things Crown sovereignty was ‘unlimited’ and ‘unaccountable’, and that ‘English law applied to all, so all Maori became British subjects.’
‘Not all lawyers in New Zealand in the 1840s proscribed to that but over time it became ascribed to by the New Zealand courts.’
‘In the Treaty Maori agreed to Kawanagatanga but retained Rangatiratanga, so did not buy into what the lawyers were ascribing to.’
‘On a quasi-diplomatic basis some chiefs were recognised’ but the ‘assumption that English law was running every where was not the reality.’
‘People don’t jump because 21 guns are rung.’
‘We have then constitutional practise opposed to the high theory of it.’
‘The distinction between the theory of sovereignty and practise of it continues.’
Tuhoe Did Not Sign The Treaty
He then began to talk about the special history Tuhoe had. Tuhoe did not sign the Treaty, and did not encounter any Crown representatives until 1862.
‘Things started happening after that.’
Dr McHugh explained that ‘Judith Binney’s book (Encircled Lands: Te Urewera, 1820-1921) and the two reports from the Waitangi Tribunal set out pretty comprehensively what has happened.’
He said it is, ‘now full public record’ and briefly spoke about the siege and confiscations followed by Te Kooti’s retreat to te Urewera.
The area has been ‘territorially distinct ever since.’
A key period he said was in 1896 when, after Richard Seddon’s visit to te Urewera two years earlier, ‘the Act (Urewera District Native Reserve Act) was passed which recognised a form of local autonomy for Tuhoe.’ ‘It was a very important for Act Tuhoe relations with the Crown.’
Seddon was given a taiha, an indication of special recognition by Tuhoe.
Mr Fairbrother then asked about types of activism around these issues that are ‘on public record?’
Dr McHugh said that, ‘Tame Iti’s activism is essentially a call for public consultation on the constitution.’
The forms of protest are full of ‘symbolism and metaphor.’ He described it as ‘very powerful media images’ and explained how Tame Iti draws on other media images of ‘Pakeha fearfulness’ and ‘uses that to explore issues.’
Mr Fairbrother wanted to know if that form of protest is uncommon or is there a theme around the world.
‘A plug for my latest book?’ replied Dr McHugh and then talked about the symbolic forms of protest he has studied in Australia and North America, these included ‘symbolic bark treaties, hikoi, and blockades’. he said that ‘Tame Iti’s public record fits in with symbolic protest.’
The Crown Rendered Accountable
Mr Fairbrother asked about the role of the Waitangi Tribunal in NZ and wanted to know if other indigenous societies have a treaty like NZ or a tribunal?
‘The New Zealand treaty is different,’ said Dr McHugh, ‘because it is a treaty ceding sovereignty New Zealand separated sovereignty from land ownership.’
‘New Zealand is unique for having ceded sovereignty’
He explained how the development of the Waitangi Tribunal recognised that ‘the Crown had behaved in a way that it needed to be held accountable for.’
This was ‘against what the theory of the 19th century was’ and ‘the crown is rendered accountable through the process.’
Mr Fairbrother then asked if Dr McHugh had seen images of the Powhiri in 2005 when the Waitangi Tribunal visited Ruatoki.
Dr McHugh said it was a ‘powerful theatre’…’It was a very powerful statement.’
He then referred back to Judith Binney’s ‘much praised book’ and said ‘when the tribunal was called on and was crossing the Confiscation Line…it was a very good example of political protest.’ It was showing ‘not only what happened in the past but giving evidence in the present.’
Mr Fairbrother then asked about Tame Iti’s role on that day, and again Dr McHugh described the shooting of the flag as powerful.
He was then asked what he believed Tuhoe were ‘seeking to achieve through the Tribunal
Dr McHugh said his understanding was ‘seeking recognition that it is territorially distinct and judicially different.’ That it is, ‘Autonomy within the framework of the New Zealand state.’
He said that ‘it was a redistribution of sovereignty.’ He described it as a ‘federal arrangement’, a ‘form of federalism’.
‘It was not unique’, it was ‘possible’, and ‘utterly within the mainstream’ and pointed out examples in Canada.
He acknowledged that ‘Tuhoe claims before the Tribunal have substantially been upheld’. That reports indicated ‘that Tuhoe’s distinctive position have been recognised by the Tribunal’
‘Tuhoe have made significant grounds through the tribunal report’, ‘the report is part of raising the consciousness of Tuhoe’s position….raised through Binney’s book and also through public activism.’
Dr McHugh said the ‘nearest parallel for Tuhoe is the 1896 legislation.’
Mr Fairbrother, then asked if ‘change occurs without constructive activism?’
‘Activism is very important,’ said Dr McHugh. ‘Very frequently rabble rousers and tub-thumpers turn into tomorrow’s heroes’ and cited the example of John Wilks who fought for the right to jury trial and freedom of election.
‘Activists are very important for putting on the table constitutional issues, you might not agree but they raise questions that need to be raised.’ But ‘Pakeha New Zealanders aren’t receptive to constitutional change.’
Mr Fairbrother then asked him for his views on the the 2011 Ministerial panel appointed to look at the New Zealand constitution ‘that will include possibly entrenchment of the Treaty.’
Dr McHugh said that the Canadian constitution in 1982 recognised the rights of the First Nation people and that ‘this has happened in other jurisdictions’, more recently in Australia.
‘Twenty years ago this was not considered likely but over time our consciousness has been raised….The Crown’s relationship is not with Pakeha subjects but Maori also.’
When asked if ‘constitutional change can happen without the will of the people’ Dr McHugh said ‘some form occurs gradually, but the majority is democratic.’
A major change in New Zealand was cited as being the introduction of MMP through a referendum. Another change was in the courts when ‘in 2003 the Court of Appeal said sovereignty over the coasts was not the same as ownership.’
‘But major change is achieved typically though democratic lawful processes.’
Dr McHugh said, ‘most Treaty settlements were not put to a referendum…so can’t see any way the Tuhoe settlement should go to a referendum.’
I won’t speak for Tuhoe
Under cross-examination by Ross Burns, Dr McHugh agreed that ‘A Waitangi Tribunal report contains finding and recommendations but the government does not necessarily have to act upon those recommendations.’
Mr Burns then said, ‘Tamati Kruger has support of 97% of Tuhoe in the way he and his group are conducting negotiations.’
Dr McHugh said that was what he understood, but he was ‘not in a position to comment on Tuhoe.’
Mr Burns asked if Dr McHugh was ‘aware of anyone advocating violence, not necessarily taking the legitimate position through the Tribunal?’
Dr McHugh told Mr Burns that he ‘would have to ask Tuhoe themselves’. But pointed out that ‘both Judith Binney and the Tribunal say that the Confiscation Line cannot be crossed in anger.’
‘But I cannot speak and I won’t speak for Tuhoe.’
In a question about Tame Iti’s public activism, Dr McHugh said ‘I can only refer to his public record because I don’t know him personally.’
‘So you couldn’t comment on his private activism when it is in secret?’
‘Well, if it is in secret, I can hardly comment on it can I?’
Dr McHugh said that he not seen any footage of the training camps.
The Judge’s Questions
The Judge wanted to know more about the 1896 Act.
‘You mentioned a statute passed in 1896 which gave some limited recommendation to Tuhoe autonomy Is that Statute still in force?’
Dr McHugh said that he thought it was no longer still in force.
He said that he understood it to be ‘a form of autonomy.’ …’After their 1871 agreement with McLean, Tuhoe saw the establishment of Te Whitu Tekau, the Council of 70…but then Tamati Kruger can give you more detail about this.’
Secondly the Judge wanted to know what Dr McHugh meant by the term, ‘adroitly exploiting Pakeha fearfulness’.
Dr McHugh used the example of going onto a marae and seeing the haka. He explained how ‘Maori draws upon fearfulness…Some Pakeha are better than others understanding Maori culture and can take the challenge, others react fearfully.’
‘Are you suggesting that some, at least, have misinterpreted what are simply traditional recognised expressions or cultural forms of Maori?’
‘I don’t think so’.
Dr McHugh also said that maybe Tame Iti allowed that misinterpretation to occur as indicative of the cultural gap that has occurred.’
‘It is not up to him to straddle the gap, but Pakeha. It is not up to him.’
Dr McHugh then finished giving his evidence and Court broke for morning tea.
‘My Primary Role was Protection’
Rau Hunt was the second of Mr Fairbrother’s witnesses to be called today.
Hunt is a security consultant with twenty years’ experience in the Navy. He enlisted in 1980 as a seaman. Other roles in the Navy included gym instructor for 10 years, ‘getting new recruits into line.’
‘Taking them from civvy street and moulding them into how the navy wants them.’
He was also a weapons instructor in the Navy.
He now works overseas in the security industry.
Gretal Fairbrother, assistant to Russell Fairbrother, began by playing video footage from the Whetu Road area that showed activity around the vehicles.
Mr Hunt how the video footage showed an exercise was about positioning vehicles in a convoy, in a ‘nose to tail position as would be used in a convoy’.
‘That is how we move on the road in the Middle East, nose to tail.’
The long stick seen in the footage, ‘represented a search mirror to search underneath a vehicle, to search for contraband or explosive devises under the vehicle.’
The blocks placed on the bonnet of the car were ‘stones representing vehicles, one behind the other and showing how the vehicles move along the road’, with the middle being the VIP vehicle.’
‘It is all about principal protection, VIP protection.’
When asked if there were different techniques used to show how ‘to take a hostage, someone without consent’, Mr Hunt said not.
‘In my career I have never learnt or been shown that, my primary role was protection.’
He said that he had been invited to Ruatoki ‘to show what I did in the Middle East.’ That there were plans ‘to set-up a security company running out of Ruatoki, and to write a proposal in relation to that.’
It was ‘for the locals to run a security company to look after the logging truck equipment, to protect it.’
In response to the equipment that was there for hand-to-hand training, Mr Hunt said he was ‘just going briefly over every part of his job.’
He was at the site for ‘about 4 hours.’
‘The time was a waste’ he said. ‘No one had the skills to pursue a career, not in the Middle East anyway.’
Under cross-examination he explained how he had arrived late Friday night and after first going to the Mission House then met with a group at Whetu Road for approximately 20 minutes. There were ‘roughly 18’ people there.
Some people did have balaclavas on.
The training exercises around the vehicle the next morning involved 10 or 12 people.
He had ‘an idea’ there may have been another group. When he first got to Whetu Road, Tame Iti spoke to another person and ‘they walked off down the river together.’ The person was Te Rangikaiwhiria Kemara.
He also met Tuhoe Lambert at Whetu Road.
‘He was just leaning on his vehicle, spoke briefly.’
And when asked ‘Iraq’s not in Africa, is it?’ He replied, ‘No.’
Under re-examination he said that Tame Iti did not have his face covered and he did not recall him with a gun.
The people present ‘ranged in age from late teens to 60s.’
He confirmed that he was charged as a result of Operation 8 but he was one of the group who had the charges dropped.
That was the end of Tame Iti’s defence for the day, two more witnesses will appear tomorrow.
Court was adjourned at 11.50am until Thursday morning.