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6 September 2009 No Maori Seats - for now

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As was expected, in its report on the Local Government (Auckland Council) Bill released on Friday, the special Auckland Governance Legislation Committee did not recommend separate Maori seats for Auckland’s new super city council. While there was undoubtedly vociferous support from advocates for greater Maori representation in Auckland’s governance, the Committee rightly stated that this was a matter for the council and the people of Auckland to determine.

In their minority report, the Maori Party raised a number of points in support of the inclusion of dedicated Maori seats: “that it was a specific recommendation of the Royal Commission on Auckland Governance; that it was consistent with current provisions in the Local Government Act 2002; and that dedicated Maori seats uphold the partnership relationship established between Maori and the Crown through the Treaty of Waitangi, including the partnership established with the mana whenua of the Auckland region”.[1]

Since this issue is clearly not going to go away, with protest action already being planned by the Maori Party, it is worth looking at each of these claims in turn.

First, the recommendations of the Royal Commission on Auckland Governance.[2]

In 2007, when the Labour Government established the Royal Commission, one of its specific directives was to look into “what governance and representation arrangements will best enable effective responses to the different communities of interest and reflect and nurture the cultural diversity within the Auckland region”. As expected - and in line with the ideology of the Labour Government, which has a long history of promoting race-based laws, especially in the local government area - the Commission focused on guaranteed representation for the 11 percent of Auckland’s population who call themselves Maori.

In their analysis the Commission considered the two groups of Maori: Mana whenua or tangata whenua Maori who have ancestral ties to the Auckland region and the much larger group of non-mana whenua or taura here Maori who do not have local tribal affiliations. Mindful of the fact that local tribes cannot agree on which group has mana whenua status, the Royal Commission recommended that three seats on the Auckland super city council should be reserved for Maori – two elected by voters on the Maori electoral roll, and the third appointed to represent mana whenua.

The second point raised by the Maori Party, that establishing special Maori seats is consistent with current local government laws, is precisely why it is not necessary to legislate for race-based seats.

While the Local Government Act 2002 – as well as the Resource Management Act and the Hauraki Gulf Marine Park Act – already contain significant provisions requiring extensive consultation with Maori, the Local Electoral Act 2001 provides a mechanism for specifically creating reserved Maori seats. At any time, if five per cent of the eligible voting population in a local authority area sign a petition calling for Maori seats - or if the council itself votes to introduce Maori seats - a poll on the issue must be held within a specified timeframe under a well-defined process. The result of the poll is binding.

The third point raised by the Maori Party relies on the argument that the Treaty of Waitangi, creates a partnership between Maori and the Crown and that dedicated Maori seats provide recognition of their “special status as a partner under the Treaty of Waitangi”. This interpretation originated from a Court of Appeal decision by Sir Robin Cooke in 1987, which was summarised in a later case as follows: The Treaty creates an enduring relationship of a fiduciary nature akin to a partnership, each party accepting a positive duty to act in good faith, fairly, reasonably and honourably towards the other.[3]

The problem is that this is surely a description of the sort of relationship that should exist between the Crown and all of its subjects. If such a special relationship just applied to Maori, then the Courts would have been responsible for elevating Maori to the status of a ruling class superior to all other citizens. By definition, all other non-Maori New Zealanders would therefore have been relegated to an inferior status as second class citizens. Since that is clearly not the case, any talk of Maori having special partnership status with the Crown is just wishful thinking by Maori separatists.

Treaty activists regularly attribute special privileges to their rights under the Treaty of Waitangi. This is arrant nonsense. The Treaty has no legal standing in New Zealand law. The terms of the Treaty – what it actually says – are contained in three simple articles, which Sir Apirana Ngata, in his iconic booklet “The Treaty of Waitangi” (written in Maori and translated into English), outlines as follows:

The first article states, The Chiefs assembled including Chiefs not present at the assembly hereby cede absolutely to the Queen of England for ever the government of all of their land”.

The second article states, The Queen of England confirms and guarantees to the Chiefs and Tribes and to all the people of New Zealand the full possession of their lands, their homes and all their possessions…

The third article states, Her Majesty the Queen of England extends to the Natives of New Zealand Her Royal Protection, and imparts to them all the rights and privileges of British subjects.

In other words, under Article One, the chiefs of New Zealand ceded their sovereignty to Queen Victoria; Article Two created private property rights; and Article Three conferred on Maori the rights and privileges of British subjects, making all New Zealanders equal under the law.

In his NZCPR Guest Commentary about Maori seats on the new Auckland Council, former Minister of Local Government and Member of the Waitangi Tribunal, Dr Michael Bassett states:

“Constant repetition of assertions that Maori have a Treaty of Waitangi right to dedicated seats on the new Auckland Council doesn’t make them correct. It is clear that neither Tuku Morgan nor Len Brown, nor most of the other advocates of separate representation, has read the Treaty, sometimes called our founding document. It is a simple treaty of three clauses. It was written in 1840 when nothing approaching today’s concepts of democracy existed anywhere in the world.  There was no parliament, nor any councils in New Zealand. Consequently there was nothing that could be deemed an Article Two ‘taonga’ to be preserved on behalf of Maori. What there was in the Treaty, however, was an Article Three guarantee to Maori that the Crown would give Maori ‘the same rights and duties of citizenship as the people of England’. In other words, when it came to politics, Maori rights would be the same as everyone else’s.”

In arguing for special reserved Maori seats, advocates have suggested that Maori are incapable of being elected in the same way that other representatives are. History proves them wrong, as Dr Basset explains, “Since the 1970s Maori have proved that they can win general seats on councils in the Auckland region. Harry Dansey, Dr Pat Hohepa, Ruth Norman, Denise Henare and Betty Wark all sat on either the Auckland City, the Regional or North Shore City councils. There have been others. Most councils have had Maori advisory councils for the last twenty years. They have worked well.”

Dr Bassett concludes his article with some general advice, “Everyone would benefit from reading the Treaty of Waitangi. Many assertions about it keep being made in ignorance of its actual provisions.” To read the full article, click the sidebar link>>>.

I heartily agree, and would unreservedly recommend Sir Apirana Ngata’s booklet, “The Treaty of Waitangi”, which was originally published in 1922 by the Department of Maori Affairs, who promoted it thus: “Sir Apirana was trained as a lawyer and had a brilliantly lucid understanding of legal and parliamentary technicalities. His analysis of the Treaty, article by article, is so clearly and simply written that even young people will be able to understand it, in spite of the complexity of the subject-matter”. The book, which should be obtainable from public libraries, is also available in electronic form as part of the NZCPR subscription package – click here>>>.  

Providing a greater understanding of Treaty of Waitangi is the rationale behind the weekly column written for the NZCPR by law lecturer and Treaty expert David Round. In this week’s column “Special Maori Seats”, David warns that race based seats on elected bodies enshrines separatism and tribalism, and could eventually lead to the Balkanisation of New Zealand: “Maori seats, then, lead inexorably to one of two political positions ~ either special seats for every race, or a special position for Maori as superior to every other race.  There is only one other option, and that is to have no special seats for any race at all. I favour that one”. (To read the column click here>>>)

While most New Zealanders would be opposed to race based seats on local authorities, there is no doubt that the National Party was flirting with the idea in order to appease the demands of their Maori Party coalition partner. The fact that Maori seats were a distinct possibility led the Minister of Local Government, Rodney Hide, to announce that he would resign if they were included in the Auckland Council Bill. He explained that as the ACT Party leader, he could not be the promoter of a Bill that was inconsistent with ACT’s fundamental principle of one law for all.

This revelation that the Prime Minister was even considering trading away the principle of one law for all is extremely worrying. Rodney Hide explained what happened during a recent interview on TVNZ’s Q+A programme: “What happened was, the Cabinet decided on the 6th of April not to have Maori seats, obviously that was disappointing for the Maori Party, John Key subsequently raised the prospect of having Maori seats, he came across to see me on June 3rd, he said here's an option that we would have, you could introduce the bill, the Maori Party and the National Party could vote to put in Maori seats, the ACT Party could vote against, and that could be a fix.[4]

In other words New Zealand’s Prime Minister is not driven by principle on this crucial issue. That he was even considering introducing Maori seats means that the issue has not been put to rest as many people would like to think. It could be that introducing race-based seats is a price that our trader Prime Minister is quite prepared to pay for Maori Party support in the future.

This reality will not sit well with most New Zealanders. Equal rights should be a matter enshrined as a fundamental guiding principle for all of our politicians. Reserving “Maori only” seats around the top table breaches that principle and has no place in an egalitarian society.

When Don Brash raised these issues as leader of the National Party in his Nationhood speech in 2004, he galvanized public support.[5] New Zealanders knew that if he had become Prime Minister, he would have worked hard to make separatism a thing of the past. Unfortunately at this stage, given the actions of John Key, New Zealanders can no longer have that same confidence that under National the future of this country will be based on one law for all.

This week’s poll asks: Do you believe that local councils should have special seats reserved for Maori? Go to poll >>>  

FOOTNOTES:
1.Auckland Governance Legislation Committee, Report on the Local Government (Auckland Council) Bill
2. Royal Commission on Auckland Governance, Part Four: Structural Reform
3. David Round, Are Non-Maori Second Class Citizens?
4.TVNZ, Q+A: Rodney Hide interviewed by Guyon Espiner
5. Dr Don Brash, Nationhood

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