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NZCPR Guest Forum 
‘New Zealand’s Constitution; 
The Conversation So Far’ 
(Constitutional Advisory Panel, September 2012)
David Round
4 November 2012

A ‘conversation’. The very word fills me with foreboding. ‘Conversations’ are creatures of the caring classes; the schoolteachers and academics, the higher-paid end of the public service and all the professional carers in charities, lobby groups, trusts and the social sciences; all comfortably off, and all dedicated to their own deadly vision of a truly caring and happy world where they and people just like them intend to be in charge. The very word has echoes of nanny telling us that we must be civilised and behave like grownups, and that our silly childish prejudices do not justify us depriving other people, the poor, for example, or even Maori, say, of their rights under the Treaty…..That is the sort of context in which we hear the word, anyway. ‘Conversations’, although allegedly two way, inevitably end up with us having to listen to a small group of the shrill self-interested and self-righteous lecturing us on why we need to change. There are other words that could have been used to describe this process of constitutional review. Why not ‘review’? Or we could try inquiry, or consultation, or discussion? What is wrong with ‘discussion’? That is friendly and relaxed enough. Or stock-take, or study, or examination? Some of those words ~ although not all of them ~ might be said to smack too much of officialdom and bossy people being in charge; but that would, after all, be no more than the honest truth. Besides, we surely want a word with some overtones of officialdom, because this is, after all, a proper, sober, official inquiry. Isn’t it? We would not want to mislead New Zealanders into thinking that this was just some casual random chat that they might like to get involved in or might not, depending on how they felt on the day. Isn’t this something important, which ought to be named with an appropriate important word? New Zealanders, surely, are not so feeble that they will be intimidated by a word like ‘review’. The very word ‘conversation’ is patronising. It implies that we are so timid or feeble that we need special reassurance and moral assistance before we dare poke our shy little noses out of our hidey-holes.  

And by the same token, why an ‘advisory panel’? Why not a ‘commission’? ‘Advisory Panel’ is hardly an appropriate name. New Zealanders are being asked for their opinions on immensely important matters. This inquiry is far more important for the country’s future well-being than one, if I may be forgiven for taking the longer view, into the causes of a mine explosion or even the collapse of buildings in an earthquake. Those inquiries were important, and deserved commissions of inquiry. But the future constitutional shape of our country, something that will affect us and our descendants, our prosperity and our very identity; this is shoved away in a corner to be considered by a mere ‘advisory panel’?

Something funny is going on here. This behaviour is not honest. It is stealthy. Someone is about to be ambushed. It might, perhaps, be radical Maori and the Maori Party, misled by National into believing that they might really be able to acquire serious legal privilege for ever. (Even if they do not succeed in doing that, of course, harm will have been done, because their expectations will have been raised, and they will feel aggrieved that they have once again (so they will say) been swindled out of their rights.) They will only have been defeated, of course, because a thoroughly alarmed population will finally have been aroused out of its longstanding apathy. But it might be that the majority of our population is not alarmed, but continues in its inert torpor, and so it ~ we ~ are the ones who are ambushed. I am inclined to think this will not be the case; there seem to be stirrings, and I certainly hope they are more than just that; but I have been hopeful before. If we are not alarmed and angry, then bad things will happen.

I read ‘The Conversation So Far’, of course, with suspicion, and you might argue that such an attitude naturally leads one into paranoia, and to see plotting and treachery ~ or, to call it by a gentler term, self-interest and personal agendas ~ where none exist. But of course there are personal and political agendas. This whole inquiry is a concession to the Maori Party. It is not a disinterested review where no-one involved has any axe to grind. Why would we not think that there are private agendas? This is radical Maori’s big chance. If they pull this one off, they will have won. They will be on top forever, the rest of us ~ those who have not decided to flee to Australia ~ helots in our own land. So why, even before we look at them and see who they are ~ would we not think that many members of the Panel and their friends and allies might have some axes to grind?

We might not expect anything particularly blatant in an introductory document such as this, but without being blatantly biased ~ without saying anything that is not perfectly reasonable and accurate ~ one can nevertheless contrive to give a certain tone, a certain slant, a certain colour and direction to a perfectly neutral document. Just ask Sir Humphrey Appleby. This is done here. I shall give some examples below. But, as we shall see, there is more than mere delicate slanting in the chapter on ‘Crown-Maori Relationship Matters’. In that chapter there are many statements which are actively misleading. Their presence does not do the Panel any credit. Nor does it give us any faith in their fairness and openmindedness.  

After a ten page description of our present constitutional arrangements, the document has two big chapters ~ ‘Electoral Matters’ and ‘Crown-Maori Relationship Matters’. Crown-Maori matters, note. The fiction is maintained that the Treaty was between Maori and ‘the Crown’, and there is inevitably the implication that the settling of claims and the ‘honouring’ of ‘Treaty principles’ is a matter in which we, the people, are not entitled to interfere. 

Anyway. The first chapter, ‘Electoral Matters’, covers several matters. There is the size of Parliament ~ should it stay the same, or be reduced to perhaps 100?  Then there is the question of the term of Parliament ~ three or four years? Should the date of elections be fixed well in advance, or should an early election date be left, as it is now, to the Prime Minister? Then there is mention of the number and size of electorates, and finally the possibility of  ‘electoral integrity legislation’, such as was enacted in 2001 (but expired in 2005) to deal with the ‘waka-jumping’ of Alamein Kopu and others, who were elected as list MPs for one party but then decided to leave it and support another.

Yes, these are not unimportant issues, but they are entirely a smokescreen. There is no need to include these in the review at all. They must be included, it must be explained, because the Panel’s terms of reference require them to be; but this is not the panel’s purpose. The Minister of Maori Affairs, for example, who, with the Deputy Prime Minister set the terms of reference, has said that the purpose of the review is that ‘Maori want to talk about the place of the Treaty in our constitution’, and ‘how our legal and political systems can reflect tikanga Maori’. We all know this.  The hope is, I imagine, that the raising of these electoral issues will divert some public attention away from the Panel’s real purpose, and perhaps lend an air of spurious legitimacy to that actual purpose.

Bear in mind that all of these electoral issues have either been recently settled or are just non-starters in the first place. The size of Parliament? A select committee considered this in 2001. Submissions to the committee were 99 for the present size and 55 for smaller. In 2006 the Justice and Electoral Select Committee also recommended that a member’s bill to reduce the number of seats not be passed, for reasonable and practical reasons ~ with which, I must say, I agree. But the point is that the issue has often been canvassed recently. Are MPs of any party seriously willing to consider reducing the number of seats? I think not. So why is it being raised again?

The second issue, the term of parliament (three or four years?) is one where there can be not the slightest doubt of public feeling. In referenda in both 1967 and 1990 just under 70% of the population voted firmly for three years. The proportion of those favouring three years was actually up slightly (69.3%) in 1990. So why is this mentioned again?

Then, third, there is the matter of the number and size of electorates. The reason for the presence of this issue is a little more perplexing. Surely, we might think to ourselves, the number of electorates depends on our answer to the first question, the size of parliament. Parliament of course has both constituency and list MPs, but nevertheless we thought we could assume a general rule that any reduction or increase in electorates will just be the other side of the coin of changing the size of parliament and number of MPs. How can it be a separate issue? This question seems unnecessary. But here is concealed something that could be very unpleasant. The document’s discussion raises several possibilities: that the South Island quota of constituencies might be abolished, that the present rule that the population of different electorates must not vary by more than 5% be relaxed to allow a 10% variation, and that certain physically large electorates (Maori electorates are specifically mentioned) might also be able to be reduced in population size because of the inconvenience to the M.P. of properly servicing the larger electorate. We can easily see foundations being laid here for a Maori gerrymander. Abolish the minimum number of seats for the South Island ~ even though it has big electorates they are all white people down there ~ and give the extra representation to an increasing number of Maori seats with the smallest legally possible populations. Watch out for trickery here.

Finally, there is the proposal to create new laws against ‘waka-jumping’. I was not aware that this was a burning issue. After an initial period of instability after MMP’s appearance, politics is settling down. ACT will be gone at the next election, if not before, and United Future and New Zealand First will not outlive their present leaders. The Mana Party will last only as long as Hone does ~ which may be some time, admittedly ~ and the Maori Party’s future seems to be quite uncertain. The Conservative Party ~ who can say? It is quite easy, anyway, to imagine Parliaments in the near future with fewer parties than now, and certainly with rather more party discipline within those parties. So again, electoral integrity legislation seems to be nothing but a smokescreen.

II

And so, behind the smoke, we come to ‘Crown~Maori Relationship Matters’, the real interest and purpose of the advisory panel. This chapter is divided into three headings; Maori representation in Parliament, Maori representation in local government, and the ‘role’ of the Treaty of Waitangi. Again, these headings and their sub-headings are prescribed in the Terms of Reference.  The observant reader notices at once that this chapter is much more detailed than the previous one. There are numerous references to various Acts of Parliament; so many, indeed, as to cause a little disquiet, as we realise what inroads Maori have already made into our democracy of equals. This may well be part of the purpose of the description ~ to suggest to the reader that these things are already established and accepted, and so we might as well put provisions of a similar nature in a written constitution. Our reaction might well be the opposite, however ~ horror at the discovery of how far down the slippery slope we already are, and determination to arrest and reverse the slide.

The Waitangi Tribunal is also often quoted, but always with the greatest deference. This is a real cause of dismay, and good evidence of the Advisory Panel’s bias. Yes, we know that the Waitangi Tribunal is established by law (the Treaty of Waitangi Act 1975) and we know that it is empowered to make recommendations based on its views of what ‘Treaty principles’ require. The Advisory panel would doubtless argue that that fully justifies frequent quoting of Tribunal ‘findings’. But it does not ~ because, as everyone, not just readers of this column, is very well aware, the Tribunal is not even an impartial finder of historical fact, and its view of what Treaty ‘principles’ are and require is always strongly politicised and slanted to the benefit of claimants. This is beyond dispute. Even admirers of the Tribunal say as much. Reading the ‘Conversation’ one would get the impression that the Tribunal is an absolutely authoritative and unquestioned authority, but in fact its findings are often factually and logically shaky, and with motivations which have no place in a proper judicial tribunal. To quote it as an authority, then, and say absolutely nothing to indicate the tendentious and disputed nature of its ‘findings’, is no less than misrepresentation; it is to be guilty of a confidence trick against the public. 

Let us go into more detail.

1.  Maori Representation in Parliament

Page 41: ‘Over the years, the Maori seats have provided a voice for Maori perspectives and interest in parliament. Commentators say the Maori seats serve as a reminder to successive governments of the promises made through the Treaty.’

Some commentators may say that. Other commentators point out that the seats have nothing to do with the Treaty, that they were introduced almost thirty years later and that they were intended to be a merely temporary measure. For much of their more recent history they have, in effect, been captured by the Labour Party, and their usefulness in providing a voice for Maori perspectives in Parliament has been entirely questionable.

Page 43: The Waitangi Tribunal is quoted as finding that the Crown is obliged under the treaty ‘actively to protect Maori citizenship rights and in particular existing …rights to political representation…’ That is to say, the Tribunal ‘finds’ that the Treaty requires the Maori seats to remain. No comment on this finding is given; the impression is that the matter is settled, instead of being just one political opinion and hardly justified by the historical facts.

Earlier on that page we are told that the 1987 select committee considering the future of the Maori seats ‘was not convinced by the Royal Commission’s position [the 1986 report of the Royal Commission on the Electoral System] that the introduction of MMP would enhance Maori representation in parliament’. 1987 was twenty-five years ago; the issue of whether the Royal Commission was correct or not is completely ignored. It would be very simple to provide an answer. I do not have the figures in front of me, but my distinct understanding is that, ignoring the Maori seats completely,  Maori membership of the House of Representatives is about equal to, if not slightly greater than, the proportion of the population who identify themselves as Maori. But my main point, in any case, is simply that the Panel simply fails to answer this obvious question one way or the other. Why? We are forced to speculate, and I am afraid my speculation suggests that the Panel knows but simply does not like the answer.

To be fair, page 44 tells us of the view of the ACT Party member of a 2001 Review Committee that the Maori electoral option was undesirable in that it promoted racial distinction and tensions. But even then, it does not tell us of ACT opposition to the seats themselves. It does tell us that Professor Joseph, my learned colleague at the University of Canterbury Law School, ‘did not see separate Maori representation as being critical to the integrity of the electoral system and therefore did not see it as legitimate subject-matter of constitutional entrenchment’. We note with interest that both the Greens and Labour supported entrenchment of the Maori seats; although given the things which National is doing now and Helen Clark never did ~ establishing this review, for a start, signing up to the United Nations Declaration on the Rights of Indigenous Peoples, and passing the new foreshore and seabed legislation ~ I do not think we should necessarily be unkind to Labour. Credit where credit is due.

And then, after considering the questions of maintaining Maori seats, their entrenchment, and the Maori electoral option, the Panel helpfully raises the subjects of waiving the 5% requirement before a list party can get its candidates into parliament (an idea unanimously rejected by the 2001 committee) and mentions a Ngati Porou proposal to establish a completely new Maori representation Commission ‘to return to first principles and new forms of Maori representation in a three year consultation process’. At this point I think we have reached the stage where the Panel is putting ideas into people’s heads. Why raise again something unanimously rejected by a select committee? The answer, I suggest, is this ~ that these ideas are the logical next steps which Maori will want to take in their slow stealthy power grab. They have the Maori seats ~ perhaps they even have the Maori seats entrenched. So what next?  How can Maori go forward from here? Let us think. But what is this? Good heavens! Right here, as it happens, a suggestion ~ from the traditional leaders of one tribe, no-one else ~ that Maori representation cease to be a matter for Parliament, but should be handed over to a permanent Maori committee. Well, that would be handy! The Maori seats, then, would no longer be a matter for the wider public, but just for Maori ~ some Maori ~ themselves. This Maori committee will inform us from time to  time about their latest demand ~ I am sorry, they will tell us what they have discovered our evolving duties under the Treaty to be ~ and we will then have no choice but to do as we are told. (The Treaty is, the late unlamented Sir Robin Cooke told us, ‘an embryo, not a fully-developed set of ideas’. In other words, it is a blank cheque, so of course there will be all sorts of surprises in future as we continue to keep what is evidently our side of the bargain. Bargain?! As currently interpreted, it is a very expensive ‘bargain’.) And so now the Panel mentions this interesting idea in passing, and if anyone wants to follow it up, well…This is what is known in the law as leading the witness, and except in cross-examination is generally considered improper.

2. In the section on Maori Representation in Local Government we are told on page 47 that ‘[a]s tangata whenua Maori have a close and direct concern with the management of natural resources. Maori therefore have a close interest in effective representation in local government to ensure their views and perspectives are represented’. Now what is that but a blatant statement that Maori deserve something more than just one normal vote each just like everyone else? ‘As tangata whenua’?  As inhabitants of New Zealand we all have a very great interest in the management of natural resources right now, but that seems not to concern the Panel. Some of the ancestors of present-day ‘Maori’, usually a small minority of their ancestors, were of the Maori race, yes. How does that give them a special say to managing natural resources?

The Panel then tells us as a fact that ‘[h]istorically Maori exercised kaitiakitanga, managing all of New Zealand’s natural resources. Maori and the Crown agreed, through the Treaty, that Maori would maintain authority and control over their taonga, including natural resources. Now, much of the management and regulation of these resources is the responsibility of local government’.

Put it like that, and the only conclusion is that local government (all of us) should hand over to Maori (just some of us) more control over the natural resources on which this country’s economy and life are based. If Maori were promised the right to manage everything, even after they’d sold it (a point the Panel does not touch on) ~ and if they don’t have that right now ~ well, clearly we’ve taken it away from them, and we have to give it back. That is the only conclusion that paragraph can lead you to.

Yet there is not a single fact in that paragraph. For a start, pre-European Maori were not ‘managers’ ~ in their own way, they over-exploited resources and lived beyond their environmental means as much as anyone else. The record of Maori environmental destruction is clear ~ perhaps thirty or more bird species rendered extinct, between a third and a half of our pre-human forests burnt, and other resources used unsustainably. Dr Tim Flannery, the respected author of The Future Eaters, suggests that by the late eighteenth century a Maori ‘resource crisis’ was in full swing, and, had it not been for the white man’s pork and potatoes there would have been a catastrophic collapse in the Maori population. And then ‘kaitiakitanga’ ~ the word, for a start, is a missionary word, coined by Henry Williams for insertion into the Treaty. How could Maori have exercised something they did not even have a word for? I notice that the panel’s definition of kaitiakitanga, in a footnote, defines it ‘in a modern resource management context’. Very wisely, there is no attempt to define it as it was understood environmentally in 1840. It would have been nonsensical to try, because no-one in 1840 was thinking about ‘natural resources’, and the understanding would certainly have been that if lands and rivers, say, were sold to the Crown, then Maori rights over them would cease. There is nothing in the words or even in the ‘principles’ of the Treaty which says that even after Maori have sold land they’re still entitled to all sorts of rights over it to ‘manage’ its natural resources, which they have just sold.  But the panel presents this as a statement of fact which, it also makes clear, obliges us to ‘return’ to Maori the rights of governance that local government stole from them.  This really is part of the next stage of the Maori agenda; it is time that Maori really got their hooks into local government as well as central government. This is one of the logical new fields of Maori takeover attempts. But we do not expect an allegedly impartial review panel to instruct us that it is our duty.

This section then goes on to describe the opportunities already presented by the Local Electoral Act, the Local Government Act and the Resource Management Act for privileged Maori representation and participation in local government. This is followed by a section on ‘Questions and Perspectives’. The first question is whether special Maori representation on councils should be ‘guaranteed’ ~ that is, whether it should be made compulsory, rather than, as now, merely an option which local ratepayers may ~ and often do ~ vote against. If Maori had their own special representation on local councils it would usually mean that Maori were over-represented; that in one way or another their vote gave them more influence around the council table than the vote of a non-Maori. This offends against our most deeply-held egalitarian instincts. But the paper makes absolutely no remarks, here or anywhere else, about the virtues of equality of voting power and representation. There is not a single remark that ‘some commentators’ might think that inequality of voting power is objectionable in principle. Clearly the Panel does not think it is.

The section then goes on to talk about ‘other ways’ of achieving Maori representation, mentioning in particular some Treaty settlements, and the restructuring of the new Auckland City Council. But nowhere does it even consider the possibility that Maori should just be like everyone else and vote just like everyone else. The thought obviously never entered the Panel’s head. Neutral? I think not.

III

3. And then there is the third section, The Role of the Treaty of Waitangi. Here things start to get really bad. This section, which claims to be a summary of the present situation so as ‘to inform a conversation about the future’, is subtitled ‘The Treaty of Waitangi in Our Constitution’. This of itself is misleading. The Treaty is not part of our constitution. The panel claims that the Treaty has an ‘accepted position as the founding document of New Zealand’. At a legal level, this is simply untrue. The Treaty, as every judge still says, has no legal status. It is, of itself, not part of our law. Yes, we may say that at a political level the Treaty marks the beginning of the establishment of the state of New Zealand, but it has no legal status. It was a mere preliminary political proceeding. Yet anyone reading this section would naturally assume from this description as our ‘founding document’ that it was the legal foundation of our state. Not to spell this out carefully is, putting the best interpretation upon it, negligent ~ and since it is impossible to believe that this document was not extremely carefully written, we must suspect that it is deceitful.

The section then goes on to give examples of how ‘the Treaty influences the exercise of public power’. The examples it gives are (first) references to the principles of the Treaty in some statutes, (second) the Maori seats, (third) the Waitangi Tribunal and, (fourth), the explaining and application of the principles by the courts and the Tribunal. The impression given is that the Treaty is already well-established in our constitution. Now all of this dishonest. For a start, the third and fourth items are nothing more than a part of the first. The courts and the Tribunal refer to the principles of the Treaty because they are referred to in statutes. So items one, three and four are exactly the same. Cross numbers three and four off the list, then. Second, as already explained, the Maori seats have nothing whatever to do with the Treaty. So cross number two off. Third, and most important, when the courts and the Tribunal do consider Treaty principles, they do so not because of any place the Treaty has in our constitution, but because a particular act of parliament has authorised such consideration. (After all, it is the ‘principles’ of the Treaty, not the Treaty itself, that are being considered!) For an ordinary act of parliament to say that in certain cases decision makers must take the principles of the Treaty into account hardly makes the Treaty itself part of our constitution. An act of parliament might say that sustainable management of resources, say, is to be considered in decision making. Does that make sustainable management part of our constitution? I think not.

The next paragraph tells us that governments have ‘acknowledged that the Treaty’s guarantees have not been consistently honoured, and have taken responsibility for redressing breaches through the settlement process. They have also accepted that the principles of the Treaty must be considered when making decisions, if future breaches are to be avoided.’

There is no mention of previous full and final settlements. There is no acknowledgement that the current growing Maori grudge industry is the child just of the last two or three decades. There is no contemplation of any other possibility than that New Zealand’s history has been nothing but one long heroic struggle of Maori to keep alive their mana while gallantly resisting the onslaught of the pakeha oppressor….

It certainly is true that more recent feeble governments have allowed the grievance settlement process to be opened all over again, and that even the Crown seems reluctant to mention earlier full and final settlements; but nevertheless, those settlements, and our past peaceful race relations, have to be known. They make an enormous difference.

Moreover, it is news to me that governments have officially accepted that Treaty principles must be considered in future decision-making. The Panel’s statement suggests some sort of official declared policy, embedded now in law or at least government practice. But there is no law or generally-established principle to that effect, and since the ‘principles of the Treaty’ are so elastic it would be disastrous if there were. I notice that the Panel does not provide any footnote…..

The next heading in this section is ‘International Context ~ Declaration on the Rights of Indigenous Peoples’.  To be fair, the Panel does note that this United Nations Declaration is ‘an aspirational document that does not bind the government’. Most of this section repeats not the Declaration itself but the National and Maori Party government’s statement of support for it, which ‘reaffirms the importance of the Treaty’ and ‘recognises that Maori have an interest in all policy and legislative matters’. Well they do, of course; but so does everybody else.

Then we have a section on the ‘Treaty principles’. This begins with misrepresentations. It claims that there are ‘differences between the two texts of the Treaty’. Now in one sense there is only one text of the Treaty, the Maori one, which is the one nearly all chiefs signed. The English version known to us is just a back-translation of that. But (apart from the obvious one that they are in different languages!) there is no difference between the English and Maori texts. Both recognise the sovereignty of the Crown, the status of Maori as British subjects ~ no less and no more ~ and continued Maori ownership of their property. The Panel claims that it was because of this difference, and ‘the need to apply the Treaty to changing conditions’ that ‘attempts have been made to distil a set of principles from the Treaty’. The distillation of principles, however, occurred only because parliament has referred to them in various statutes. Parliament was in no way prompted by alleged differences between the texts. Parliament acted for entirely political reasons, not out of any ‘need to apply the Treaty to changing conditions’. Indeed, a very strong case can be made that Parliament considered the mention of principles in section 9 of the State-Owned Enterprises Act to be nothing but meaningless lip-service. The ‘need to apply the Treaty to changing conditions’ could very fairly be described as an admission that the Treaty in its actual terms is now irrelevant, and has nothing further to say to a country where there is no doubt that the Queen is sovereign, and Maori are her subjects just like everyone else. Agitation for the ‘development’ of Treaty ‘principles’ is an admission that the agitators are unhappy with that situation of equality before the law.

The Panel accepts that the list of Treaty principles ‘is not definitive’. It ‘continues to evolve as the understanding of what it means to be a Treaty partner evolves’. Yes indeed. Every day someone tells us of some new obligation we have.  This lack of definition ‘provides flexibility for the Crown-Maori relationship to develop’. You can say that again. But it can be ‘the cause of frustration for those who seek clarity and certainty of meaning’. Well again, I must agree. And should we not have clarity and certainty of meaning in a constitution? I would have thought so. I know ‘some commentators’ think so also. But the Panel does not appear to be aware of this basic axiom of common sense. It prefers a situation where we are tied to a blank cheque. Where our new constitutional arrangements will compel us to comply with ‘Treaty principles’ without knowing what they entail. The principles ‘evolve’ ~ at our cost, and to Maori benefit, for ever and ever.

Then there is a section on the principles in acts of parliament. Various statutes are mentioned, but for some reason, there is no mention of the number of statutes containing these references. The number is small, and would be easy to ascertain exactly. I am not 100% sure of the present figure myself, but it is a comparative handful, although including some quite important statutes. It would be reasonably interesting and relevant to know, perhaps? Why no figure…?  

‘Who decides what the Treaty principles are?’ is the next section. It says that the Waitangi Tribunal is ‘the body responsible for deciding what the Treaty means in a modern context’. This is only half true. The Tribunal is not that mighty and authoritative. It is empowered to hear complaints of breach of Treaty principles, certainly, and make recommendations based on its ‘understanding’ of the ‘principles’, but it has no wider authority to deliberate on what those principles are. It may only say what they are in the claims before it; where, as we all know ~ see the recommendations on radio waves, and, much more recently, water, to take but two examples ~ its interpretations are often absurd. Moreover, the courts also make decisions about Treaty principles, when a statute refers to them. The Panel then talks about judicial decisions on the principles, but does not explain how the courts are able to adjudicate on those principles if the Tribunal (as they have just said) is ‘the body’ responsible for defining the Treaty’s ‘modern meaning’. One might almost get the impression that the courts are bound by the mighty Tribunal ~ which is, thank heaven, still the opposite of the truth. For the time being, at least.

The final paragraph in this section mentions the Court of Appeal’s 2003 decision in the Ngati Apa case, which began the whole foreshore and seabed controversy. That decision, some commentators believe, was disgraceful, and clearly improper according to the Court’s own rules about abiding by earlier decisions, but there is no mention of that here. But on its face, anyway, the decision had nothing to do with ‘Treaty principles’. So why is it mentioned here at all? This is interesting. Is there a Freudian slip here? Is it possible that the prominent people on the Panel understand that the real secret reason the Court of Appeal decided as it did was for the sake of respecting the principles of the Treaty ~ and to hell with any parliaments or parliaments’ laws that got in their way?

Then there is a section on Treaty settlements. It quite rightly admits that a claim before the Tribunal is only one way of making a claim and obtaining a settlement. It is also possible to enter into direct negotiations with the Crown. I comment that any future abolition of the Tribunal could, of course, do nothing to stop such claims. There will always be this option for the redress of genuine grievances, even after that biased Maori lobby-group the Waitangi Tribunal is consigned to the museum.

But, as we all know, we are nearing the end of the current round of ‘full and final settlements’. The Panel itself does note, although only in a footnote, that all historical Treaty claims had to be filed with the Tribunal by 2008. So what happens then? Ah, yes indeed! It would be dreadful if the end of historical claims were to mean an end of the Treaty industry. And so, unsurprisingly, under ‘Questions and Perspectives’, the next section, the question is asked ~ it has all been thought out, you see! ~ the question is asked, ‘What will happen once all historical Treaty grievances are settled?’ Not all that long ago we were being told by honourable important people like Sir Douglas Graham ~ I think he has managed to  hang on to his knighthood despite his conviction ~ that once historic claims were over we would all be able to put the past behind us and move forward together happily into the  future as one people. But the Panel clearly takes a different view. It instructs us that the Treaty ‘will continue to impact the Crown actions’. The English is bad, I know. ‘The principles of the Treaty must be considered when making decisions if future breaches are to be avoided.’ ‘Must’? Isn’t the Panel supposed to be asking us, instead of telling us? But here it is once more lecturing us on what we ‘must’ do. What the Treaty actually says is that Maori are to be the Queen’s subjects ~ to put it into modern parlance, they are to be New Zealanders ~ like everyone else. Genuine historic wrongs against them may be righted ~ but after that, we are, in Captain Hobson’s words, to be one people. Yet here is an allegedly impartial panel, set up to seek our opinion, telling us that the ‘principles’ of the Treaty ~ by which they mean, a special place for Maori ~ ‘must’ be considered ~ and, it is clearly implied, ‘must’ be in our new constitutional arrangements.

This is a carefully coded but nevertheless openly racist political speech, clearly leading to a predetermined outcome. One would expect nothing more from some of the Panel’s membership. From at least one other, it comes as something of a disappointment.   

This section then quotes the recent report on the Wai262 claim (for flora, fauna, culture, &c) as being ‘future-focussed’ and ‘set[ting] out building blocks for a constructive and positive post-Treaty relationship between Crown and Maori based on mutual respect’. Yeah yeah. Clearly, again, the Panel thinks this is the way to go. But you and I know perfectly well where we will end up.

Then finally in this section we have the question ‘Should the Treaty be entrenched?’ The answer begins by describing an ill-conceived 1985 suggestion by the then Minister of Justice in a draft bill of rights, which would ‘recognise and affirm’ the rights of ‘the Maori people’ under the Treaty, and provide that the Treaty ‘shall be regarded as always speaking and shall be applied to circumstances as they arise so that effect may be given to its spirit and true intent’.  It was further proposed that the courts would be able to strike down any acts of parliament which they considered to be ‘inconsistent with the Treaty’. Well, we were lucky not to get that, but here is the Panel raising the suggestion for us again. The Panel alleges, somewhat illogically,  that the reason this suggestion never appeared in the Bill of Rights Act was that Maori objected that the Treaty would be demeaned unless it was entrenched as higher law. As I recall, that was only one part of the reason. The other part was the fear of many of us that Treaty principles would be a blank cheque, and would authorise judges to embark on disastrous political adventures. But the Panel mentions only the one reason, objections by Maori themselves. That being so, it would  follow that if Maori now had no objection to entrenching the Treaty as higher law, there would be no reason why it could not be done. Maori, are you listening?

IV

The ‘Conversation’ does have one final chapter, merely entitled ‘Other Constitutional Matters’. This very title suggests that it is merely a ragbag of odds and ends. It mentions only two things. One is ‘Bill of Rights issues’. As I am sure you recall, the New Zealand Bill of Rights Act 1990 sets out in extremely general terms various fundamental rights and freedoms which we usually ought to have. Time and space, mercifully, do not encourage me to go into the issues here, and the question is of course not one of the Panel’s central preoccupations. But I note that the Panel lists the rights protected by the Bill of Rights Act, and includes in its list ‘democratic and civil rights such as electoral rights…’. We might have thought that the Panel would dwell on those electoral rights a bit, given its keenness to give Maori special electoral privileges. How would those two things fit together, now? Would that be a matter requiring a little careful consideration? But the introduction of racial inequality in voting is not pursued any further. Our country’s intellectual and political elite have now moved to the stage where racial privilege, which we thought we never had, is now back as the only morally and intellectually accepted position. It requires no justification; it is self-evident. It is just that Maori will be holding the whip.

The other issue in the ragbag is ‘Written Constitution’. (I do not know where the indefinite article went.) Most of this section is pretty fair. But string these quotations together:

Page 70: A constitution’s preamble ‘may talk about why the constitution has been developed, what kind of government it is establishing and the values it promotes. A preamble can be inspirational and aspirational. Preambles are not generally enforceable by courts, but can give a context for interpretation of other sections of the constitution.’

Page 71: ‘Some countries have autonomous territories, generally where a minority ethnic group exercises some powers of self-governance independently from the national government.’

Page 72: ‘Many constitutions also provide for group or community rights, particularly the rights of minority and indigenous groups. Mechanisms for implementing these rights may include:

  ~ A requirement to consult these groups about decisions that affect them

  ~ Providing for effective participation in decision-making and elected bodies through, for example, guaranteed representation in federal or central parliaments.’

On page 75, the ‘[i]ssues that might arise’ ~ that ‘might’ is a charming touch ~ ‘in developing a written constitution’ include, at the very top of the list ~ ‘How would a written constitution reflect the Treaty of Waitangi and the future position of Maori iwi and hapu?’

I am detecting a pattern here.

V

A lady recently sent me a news item reporting that Peter Sharples, the leader of the Maori Party and Minister of Maori Affairs, wanted to see more teaching of ‘Maori history’ in schools. The lady commented ‘They never stop pushing, do they?’ No, they never do stop pushing, and that is why they are succeeding. That is why we are on the back foot ~ because we sit quietly and comfortably at home while the  rabble-rousers are imbuing their following ~ both the no-hopers and the young flash ones who are doing very well ~ with a sense of perpetual grievance. Their respectable friends of various races have engineered a committee a group of radical Maori and sickly white liberals ~ that phrase is not just abuse, but actually a very accurate description ~ to make recommendations about how ‘Maori’ should be more in charge in future. That is all this is. And it is so frighteningly easy to imagine the headlines just a year or two down the track. A committee of prominent New Zealanders from all sides of the political spectrum has recommended that greater respect be paid to the principles of the Treaty in a new written constitution for Aotearoa/New Zealand. (‘New Zealand’ will ultimately be phased out, but that will take some time. The  atlases….) Then, an announcement after a close general election, when neither Labour nor National would be able to form a government by itself, and the Mana or Maori Parties hold the balance of power, that laws along these lines are being drafted for consideration the following year….A big hikoi of the disaffected and the weeping and wailing classes to Wellington when the select committee is sitting ~ a bit of muscle, perhaps, the odd threat of rebellious impatient young Maori anger, a bit of aggro, the fortuitous discovery of an arms cache in the bush somewhere….~ and politicians, practically all of them, end up as unscrupulous cowards, I’m sorry my friends ~ either that, or you don’t get anywhere ~ what would our politicians, any of them, do? Three guesses. So statesmanlike! Now is a time for healing. Then the hongis, the karakias, the little old ladies, the pompous orators with their big carved walking sticks, the windbaggery…And then the deluge.

And so, if I may jumble a few transport metaphors together ~ I can see no evidence that this advisory panel will be any more than the spokesman for their brownish bandit bros. They are the squeaky wheels that get all the grease. They are the bandwagon. We are the poor old horse. We are the camel, and the straw that breaks our back ~ or our patience ~ is already in the wind. The light is already appearing at the end of the tunnel, but alas, it is the light of the oncoming train.

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