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NZCPR Guest Forum 
David Round
9 December 2012

A Treaty of Waitangi Constitution

Christmas and New Year! It is a time for relaxation and celebration; a time, too, to reflect on the past year, and wonder about and plan for the days to come. So let us gaze, if not into a crystal ball, at least into the clouds of the future. Perhaps through the clouds we may glimpse the land below occasionally, and sense, however haphazardly, the terrain that awaits us. When I last wrote I imagined the easy steps by which, if we did not rapidly acquire some gumption, we could have a written Treatyist constitution imposed on us without our consent. Let us go further today. Once we had been saddled with such a burden, what would that mean for New Zealand?

Here is a concrete example. In 1997 Geoffrey Palmer put forward a proposed model constitution, which can be found as an appendix in his book Bridled Power: New Zealand Government Under MMP. His constitution’s Treaty section ran thus:

~ The rights of the Maori people under the Treaty of Waitangi are hereby recognised and affirmed.

~ The Treaty of Waitangi shall be considered as always speaking and shall be applied to circumstances as they arise so that effect may be given to its spirit and intent.

~ The Treaty of Waitangi means the Treaty as set out in Maori and English in the Schedule to this Act.

If we were to have the Treaty mentioned in a constitution, it might very well be in some such terms as this. So what would a clause such as this mean in practice?

1.    The first thing to note is that such a clause would remove all Treaty arguments from politicians and hand them over to the courts. This would not be a good thing. Our politicians, heaven knows, are bad enough, but at least we can tell them what we think, and vote them out and replace them with another lot. But we cannot do anything like that with judges. Once the Treaty is in a written constitution, then the interpretation which judges put upon it will be binding on us and beyond argument forever. Given the clear pro-Maori political bent which some members of the judiciary already shamefully display, they should be the last people to be let loose on the Treaty. It is no use saying in reply to that that many judges do not have that political bent. For one thing, political issues, whatever they are ~ not just Treaty issues, but all sorts of things ~ should not be left to judges at all, whether we agree with their politics or not. We ourselves should decide political issues, not highly-paid cloistered officials. For another thing, the politics of most judges are actually irrelevant. We have a hierarchy of courts, and appeals from one to another. The final rulings are made by the five judges of the Supreme Court. They can overrule anyone else. Once those five people declare that black is white, then every other judge in the country is obliged to agree. Under a written constitution, then, many political decisions on all sorts of matters of the highest importance will be handed over to this tiny handful of unelected and undismissable judges. They will be our rulers, and if we do not like it there is absolutely nothing we will be able to do about it.

2.    Our present Chief Justice, who sits on the Supreme Court, has already made it  clear that she considers herself entitled, right now, to strike down Acts of Parliament if they offend against her understanding of ‘Treaty principles’. To do so now would be to deny the supremacy of Parliament; it would be a death-blow to democracy and equality before the law. It would be, in effect, treason; an illegal usurpation of power. Not that this seems to worry her. We can be quite certain, however, that once authorised by a written constitution which ‘recognises the rights of the Maori people’, she and her like-minded colleagues would need no second bidding to do what she so clearly longs to do, and establish herself and her colleagues as supreme over Parliament and people.

3.    Once this principle is established, then it is inevitable that just about every law in the country will be liable to challenge as being in breach of the ‘rights of the Maori people’. No law would be safe. Even if judges ultimately upheld a law, the challenge to it would introduce enormous uncertainty, as well as great vexation and racial ill will. These arguments will of course provide lawyers with an incredibly lucrative new area of work, and we are already noticing that rich Maori organisations are able to employ the best lawyers to argue their cases. It would also bring all judges and our judicial system into disrepute. Judges would be making political decisions. They would come to be perceived as a species of politician, and unelected politicians at that. This would not be good for our judicial system or for public respect for judges or the law.

4.    Bear in mind, also, that the nature of the judiciary will change. The United States Supreme Court, which has the power to strike down laws as unconstitutional, is now openly political. Judges are appointed according to their political attitudes, and many decisions openly reflect their politics. This is in itself a bad thing. So here in New Zealand political influence will very probably mean the future appointment of more Treatyist judges.          

5.    Sir Geoffrey’s Treaty clause makes some highly debatable assumptions and assertions ~ which any Treaty clause, however phrased, would inevitably make. It assumes that there is still a ‘Maori race’. This could never be denied in future ~ after all, the constitution says that one exists. It would then, of course, be left to the judges to decide who could qualify as a member of that race, and who not. The clause speaks of the ‘rights’ of the Maori people under the Treaty, without saying what they are. So the judges will continue to say what they are, and we can be sure that the judges will continue to find them to be a lot more than just to be subjects of the Queen like everyone else. If the Treaty is to be ‘always speaking’, indeed, then that is inevitable.

6.    So what would this mean in practice? Here are some examples ~ but they are only examples. The Treaty could be used in every single situation we can think of as an argument as to why the law should grant special privileges to members of the ‘Maori race’, and why any law that does not do so is defective. Even if judges should dare to decide against Maori favouritism, the threat of challenge is always there. We can never be certain, with any legal or social arrangement, that at some time in the future someone will not pop up and say ‘it’s against the Treaty’, and a judge might agree with them. A Treaty clause is an invitation to endless litigation, and a guarantee of eternal uncertainty and racial bitterness.

7.    So, some examples. Already, some Maori are saying that there can be no such thing as a full and final settlement ~ that such a binding of future generations is ‘not the Maori way’. (That being so, of course, the Treaty would cease to have any possible effect when its generation of signatories all died. Well…) Some Maori leaders are actually saying openly now that of course there will be another round of claims in the next generation ~ which is rapidly coming up.  So ~ if that is a right of the ‘Maori people’, we will be putting our hands in our pockets for ever.

8.    The word ‘taonga’, which in 1840 merely meant ‘possessions’ ~ of which land was the chief ~ is now interpreted to mean absolutely anything that Maori people ‘treasure’ or just want. Oil reserves deep underground ~ deep under the sea ~ are now claimed by Maori under the Treaty. By law, at present, they are the Crown’s, the property of us all. But if a constitution requires that the Treaty be respected, and that it is ‘always speaking’….

9.    Water ~ the new oil ~ is at present our common property.  But as we know, the Waitangi Tribunal claims that by the Treaty Maori still own it…

10. Maori would clearly like the public conservation estate ~ an enormous area of land, full of useful timber, minerals, water, scenery for tourism ventures… Already they enjoy special rights in various places to gather plants and timber. There have been extravagant claims about the Department of Conservation’s duty under the Conservation Act’s Treaty section. The courts have already recognised a certain duty to give racial preference to Maori in the granting of commercial concessions. There have been several attempts made to acquire rights to take protected species of fish and birds. The ill-conceived ‘cultural harvest’ proposal of the mid-1990s was one. Another was the Wai 262 claim, which claimed ownership of every single native plant and animal in New Zealand, and claimed, among other things, that any laws which protected them, by forbidding the killing of endangered species, were breaches of the Treaty. (The Tribunal did not go quite so far in its eventual ruling on this claim, but made very far-reaching recommendations all the same.) The Ngai Tahu settlement recognised many ‘taonga species’, and the recent Urewera settlement has made fundamental changes to the underlying arrangements of the Urewera National Park. There will be a lot more of this. In a recent television programme on rivers the narrator, at the end of one down-river raft trip, paid a ‘koha’ to the tribe of the territory for ‘using their river’. There will be a lot more of that. Conservationists are rightly concerned about the privatising of the conservation estate, but in their vigilance against white capitalists often seem to overlook the threat from the brown ones.

11. But why stop at public property? Already, ‘wahi tapu’ ~ ‘sacred sites’ ~ can be established over private property. The Historic Places Trust and District Councils can both declare them. The landowners’ consent is not necessary. There need not even be any physical thing ~ a burial ground, a pa site ~ actually there. It might well be enough that this place is mentioned in a song or a story, for example. And we simply have to take the word of a self-appointed spokesman for that. Once the wahi tapu designation is there, a landowner may not disturb his land, subdivide ~ make any changes, really ~ without special permission. Essentially, the consent of the tribal spokesmen will be required. And inevitably, that will require the greasing of palms. Even as we speak, the Kapiti District Council is proposing the establishment of forty wahi tapu on private property in its district. There will be a lot more of this when respect for Maori treaty rights is part of our supreme law.

12. And I would not be surprised if the Resource Management Act were found inadequate in many other respects in its regard for Maori matters. Practically anything any landowner does with his land may affect Maori sensitivities. Watch for amendments here.

13. Needless to say, the latest compromise on the foreshore and seabed will be found to be unsatisfactory. Under the current law there is already the possibility that we may be excluded from parts of our coastline, or have to pay for the privilege. Many Maori, as we know, have denounced these current provisions as inadequate to satisfy their interests. So…..

14. When it was originally constituted, the Waitangi Tribunal was able to make recommendations that privately-owned land be ‘returned’ to Maori ownership. But it was objected that that caused considerable injustice to innocent landowners who suddenly found that their land was unsaleable, or at the very least considerably diminished in value.  So Parliament restricted the Tribunal’s powers so that it could no longer make such recommendations. But how long would that restriction last, if Treaty rights were our supreme law, if there were further rounds of historic claims, and if less publicly-owned land were available to settle those new claims? If Maori Treaty rights were our highest law, surely Maori claims to land ownership should take priority over anyone else’s?

15. Some years ago, you may recall, an old Maori man in Northland was declined kidney dialysis treatment. He was declined, not on racial grounds, but on clinical ones. There simply was not enough dialysis treatment available to treat everyone, and the merits of his own case ~ he was old and had several other serious medical conditions ~ simply meant that he had to yield to others who would benefit more from the treatment. Race, I stress again, just did not enter into the decision. The Maori Council, however, claimed that this decision was a breach of the Treaty. Old people, the Council claimed, were a taonga guaranteed under the Treaty. Therefore, the Treaty required that ~ simply because of their race ~ they be given preference in medical care. Doubtless young and middle-aged people are also taonga. All Maori people are taonga, and precious in the Treaty’s eyes. The Maori Council, then, is already saying that the Treaty requires a racial preference in health care. So if Maori Treaty rights appear in any new constitution we might well expect the courts to issue a directive to that effect. And since there is already not enough money to provide full health care for everyone, who would be missing out?

16.  The courts could well go further. They could overrule the allocations of money made by District Health Boards, and require more to be spent on Maori persons.

17. By the same token, there is no reason in principle why the courts could not overrule any allocations of money made by Parliament itself. If Maori Treaty rights required more money to be spent on Maori health, or Maori social welfare, or Maori education, or Maori anything, justification for the courts’ interference is there in the constitution. We will still be paying the tax, but the courts, authorised by the constitution’s Treaty clause, will be saying how the money must be spent. We may still have parliaments, but if they cannot make final decisions about how our taxes are spent then we will have taxation without representation. The bad old days will be back. 

18. The judges have already discovered an obligation on taxpayers to fund the Maori language extremely generously. The money is not enough, though, actually to get Maori to speak it. It goes without saying, then, that more money will have to be spent on that precious taonga.

19. Many institutions of higher learning already reserve special places for Maori students who would not qualify to enter them on purely academic grounds.  (Some Maori already dislike such quotas as patronising statements that Maori are inferior and need special treatment.) It would be very surprising if these quotas, and other forms of ‘affirmative action’, were not upheld and expanded. And as funding for education inevitably declines, these quotas will have the effect of allowing entry to more and more less-gifted Maori students at the expense of more gifted non-Maori, who will be excluded.

20. In theory, anyway, these Maori students, once they are admitted, usually have to fulfil the same standards as everyone else ~ although we have our doubts. But that may not last. Once ‘Maori science’ and other Maori ‘disciplines’ are  given equal standing with proper science and other disciplines, all standards will fly out the window. Who are we, after all, to impose our narrow cultural prejudices on other cultures? Equal respect for Maori worldviews and cultural perspectives ~ and qualifications in the same ~ will surely count as a Treaty right.

21. The Nurses’ Council some years ago required all students to pass courses in ‘cultural safety’, which were nothing but racial indoctrination. Some tertiary institutions now are thinking about requiring all students to pass a course in ‘cultural competence’. In other words, no-one will even be able to graduate from those institutions unless they have displayed politically-correct attitudes. We thought that sort of thing only prevailed behind the Iron Curtain, and in comical if appalling dictatorships such as North Korea’s. But it is already happening here, and such respect for indigenous cultural views would surely be upheld, if not actually required, by a constitution which makes respect for Maori Treaty rights by everyone part of our supreme law.

22. So many Maori are in prison. Some people attempt to justify this by explaining that Maori commit a vastly disproportionate number of serious and violent crimes. Well, that might be so ~ but even so, prison is so unkind! It is not the Maori way. Although at other times we are told that theirs is a warrior culture…The Maori way is aroha ~ not that most of these villains seem to have received much of that as they were growing up. I’m sure that constitutionally-guaranteed Treaty rights will include marae-based justice, gentle care, and courses in weaving, gardening and stick games. Will this work? It doesn’t matter. It’s their Treaty right. End of story. Lock your doors and keep your powder dry.

23. Social welfare! So many Maori are poor! (Although at the same time more and more tribal and corporate Maori are rich! How is that, now? Maori poverty, be it added, can be explained simply as a function of age, education, class and the rest ~ one does not need race to explain it at all.) Whatever…There’s poverty, and many supposedly intelligent people argue that the simple and effective way to eliminate poverty is simply to give all poor people more money. There you are. More of our money, of course. I’m afraid I can see some of our judges agreeing, and discovering that an adequate income, necessary for a dignified and healthy lifestyle, simply has to be provided by us as a taonga promised by the Treaty and now enshrined in the new constitution. It’s the sort of new exciting extension of the boundaries of human rights jurisprudence which all progressive-minded people must applaud…

24. You are getting the idea, and this list is becoming repetitive. I shall mention only one more thing. The Treaty, our politically active judges already tell us, involves some idea of partnership. Never mind that the Treaty actually says that the Queen is to be sovereign over all ~ by some strange legal alchemy, clever judges have transmuted this into its very opposite.  This is now regularly interpreted to mean a partnership of equals. Maori are not to be subject to the Crown, but are to be its partner. This partnership is a fundamental subversion of democracy. Special reserved Maori seats on local bodies, and even in parliament itself, are just the start. Maori are claiming now that their involvement in decision making should not be on the basis of one person one vote, but instead on 50:50 representation.  Some are already clamouring for a separate Maori house of parliament whose consent would be required for any laws. Imagine dealing with that! But they all seem to be united in expecting representation well in excess of what their proportion of the population would entitle them to. That is what they have on the official Constitutional Advisory panel ~ five Maori and five European New Zealanders. That is what they are demanding in their new proposals for ‘co-governance’ in the Hauraki Gulf Forum ~ equal numbers to all other interests combined. That is what they will be seeking everywhere; and once they have got this 50:50 representation, then they will form an unassailable voting bloc. Then we will be forever at their mercy. And given what foolish judges have already said about partnership, it is entirely possible that Maori Treaty rights under a new constitution will be discovered to entitle them to this equal 50:50 representation.

Christmas, eh? I think of W.B Yeats’ poem The Second Coming. Near the beginning he wrote:

Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.

So true. And then he asks

…what rough beast, its hour come round at last,
Slouches towards Bethlehem to be born?

What indeed?

Be happy while you can.

God bless!

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