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Dr Muriel Newman

Constitutional Rights & Tribal Ambition

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Rotary ForumLast week I spoke at a Forum in Wellington, co-hosted by the Wellington Rotary Club and Victoria University, on the topic of Constitutional Change: “The Constitution Question – How the Crown, MMP and the Treaty could change our lives”. Deputy Prime Minister Bill English, one of the Ministers responsible for the constitutional review, was a keynote speaker. He outlined the relationship between the government and the Iwi Leaders Group. But more on that later.

Firstly here is what I said in a brief address entitled, “If it ain’t broke, don’t fix it!”

A country’s constitution belongs to the people. It’s the charter that sets out the basic rules by which a nation is governed: who gets to vote; how laws are made; the rights and safeguards of citizens; how state power is exercised.

In 2005 Parliament reviewed New Zealand’s constitutional arrangements and found they were working well.

That means the present constitutional review is political – the result of a deal the Maori Party did with National after the 2008 and 2011 elections. Their goal is to enshrine the Treaty of Waitangi into a new written constitution as supreme law.

The Advisory Panel was hand-picked. The consultation process prioritised iwi. The approach to the rest of New Zealand was so low key that a recent opinion poll showed most people had never even heard of the constitutional review.

Since our call under the Official Information Act for submissions to be publicly released has been declined, we have no indication of what the Advisory Panel is going to recommend – nor whether any government would be foolish enough to push a Treaty of Waitangi constitution onto the country.

But I raise these concerns, because no-one knows what might happen under MMP, when a party representing an elite group of corporate iwi, who have a driving ambition to co-govern the country, holds the balance of power.

So why are we opposed to changing the constitution?

Firstly, “If it ain’t broke, don’t fix it”.

New Zealand already has one of the most successful constitutions in the world. Rather than being found in one document, our constitution consists of a collection of statutes, conventions, and common law rights – its flexibility and simplicity makes it the envy of many other nations.

New Zealand also has one of the strongest parliamentary democracies in the world. Because our Parliament is supreme, the ultimate law-making power is held by elected Members of Parliament – who can be sacked if they lose the confidence of voters.

In comparison, in countries with “written” constitutions, the ultimate law-making power is held by un-elected judges – who cannot be sacked.

If our constitution was to be redrafted into a single document, lawyers and judges would be in charge of law-making in New Zealand – for ever. Because if our elected MPs ever tried to change it, their efforts would be struck down by Judges as being “unconstitutional”.

Effectively, this means the call by the Maori Party for a new written constitution is actually an attack on the sovereignty of our Parliament – an attempt to transfer supreme law-making powers from our elected MPs to un-elected Judges.

Why are we opposed to the Treaty of Waitangi being enshrined in a new constitution?

Firstly, the Treaty is not valid in international law. It was a simple document of understanding between Great Britain and Maori before sovereignty was formalised. Nor has it any independent legal standing in New Zealand law.

The Treaty itself consists of three ‘terms’:

  • the first states that the Queen is to be sovereign;
  • the third, that Maori are to be her subjects with the same rights and privileges as everyone else;
  • and the second, that those rights include the possession, use and enjoyment of their own physical property or ‘taonga’.

The Treaty did not establish any ‘partnerships’. Nor did it guarantee any group of citizens, superior status. It simply guaranteed equal rights to all citizens under the Queen’s law.

However, if the Treaty was to become part of New Zealand’s constitution, all laws would have to be assessed as to their effect on Maori Treaty rights. If a new law was judged to enhance Treaty rights – however they might be interpreted – it would be allowed to proceed. But if there was doubt, it would be rejected. Every existing law in the country would be open to challenge.

Already some iwi are saying there can be no such thing as a full and final settlement – that binding future generations is ‘not the Maori way’. Under a Treaty of Waitangi constitution the claims process would never end.

The word ‘taonga’ would be re-interpreted to mean anything ‘treasured’ – oil and gas reserves, water,  the conservation estate – all would be up for grabs.

And why stop at public property? How long would it be before private property was targeted for Treaty claims?

And what about health, education and welfare – would superior funding and priority treatment be demanded as a Treaty right? Or would the goal be separate systems altogether?

Co-governance rights would certainly be demanded – half the seats on district and regional councils, conservation and health boards, all public bodies in fact.

And what about parliament?

You get the drift.

While I’m not claiming this is exactly what the instigators of the present review have in mind – just as night follows day, these are the sorts of consequences we could expect if the Treaty of Waitangi were ever to become part of New Zealand’s constitution.

Our forefathers ensured that democratic rights in this country are based on citizenship – not race, nor religion, nor any other defining feature. That governing power is held by our elected MPs – not judges, nor a self-proclaimed iwi aristocracy. And they kept the Treaty out of our constitution for a very good reason.

If you believe in this birthright and their wisdom, then join us in opposing radical change. Please support our call for the constitution to be left alone – so that New Zealand can remain a nation where all citizens are equal under the law, not a country forever divided by race!

Most of the speakers at the Forum promoted the biculturalists’ view that Maori have a right to co-govern the country as Treaty partners. They appeared wedded to this doctrine, even though the Treaty did not promise a partnership nor special rights – only equal rights. They believe the Treaty should be inserted into our constitutional arrangements.

In his address Bill English made the point that nations are built by people, not the state, and that New Zealand’s flexible constitution has been very successful in enabling the sovereign state to solve problems and deal with the tensions that build up within society over time.

In particular he mentioned the relationship that has been developed between the Crown and Maori: through their coalition deal with the Maori Party, his government has built an association of ‘equal participation’, which not only enables the “tangata whenua” to express influence through the Iwi Leaders Group, but retains a non-adversarial capacity for respectful disagreement.

Mr English explained that Cabinet members regularly meet with up to eight iwi representatives to engage in early discussions on matters of mutual interest such as the foreshore and seabed, Treaty settlements, the role of iwi in the Resource Management Act and freshwater management, and so on. He credits this new model of engagement with the progress that has been made on some thorny issues, and believes the key is that as a group, iwi leaders have a high level of legitimacy within Maoridom.

The problem for the wider community however, is that through this process, the government has become captured by the naked ambition of corporate tribal interests to co-govern the country. That this undermines the government’s commitment to a democratic society based on equal rights – relegating all other citizens to second-class status – appears to be of little consequence.

The irony is that in opposition National campaigned strongly on ‘one standard of citizenship’, building an expectation that once they won office, they would begin removing race-based privilege. In particular they opposed Maori ownership of the foreshore and seabed, yet once they were elected to government and began engaging with the iwi leaders, they had no hesitation in repealing public ownership in favour of tribal claims.

It’s a similar story with Maori seats – in opposition, National promised to abolish them, but once in government, they backed off. No doubt when they are again in opposition and no longer able to change the law, removing race-based representation will become a major campaign theme.

It is becoming increasingly obvious that unless the public is prepared to speak out more strongly, the cosy deals the iwi elite are negotiating with this government – and no doubt future governments – will take precedence. This means, the fact that all citizens are equal under the Queen’s law in this country, will be increasingly ignored, as a group of mixed heritage corporate leaders, use fabricated versions of history to elevate themselves to a privileged class status through more and more race-based co-governance deals.

Auckland University’s Professor Elizabeth Rata has spent much of her professional life researching and documenting the advancement of the self-proclaimed tribal aristocracy towards constitutional status. In her article “Democracy and Tribalism”, Professor Rata explains:

“From the 1980s, the rather benign idea of recognising Maori culture in the wider society became a political biculturalism that has enabled a small but extremely influential group of retribalists to capture the moral high ground of social justice advocacy – but in their own interests. On the way to elite status with its associated political power and economic wealth, the retribalists have successfully manipulated the rather naïve belief that social justice comes from cultural recognition – a belief which got support for biculturalism in the first place.

“Biculturalism has a new political meaning but its ongoing support lies in the old cultural one. It now means that two so-called ‘ethnic’ groups have different political interests which should be recognised institutionally. This institutional recognition – beginning in education and health, began a veritable march into the heart of government. The re-interpretation of the treaty as a so-called ‘partnership’ is providing the mandate for the march into the institutions to become a march into the constitution. We see this in recent months with the assumption that ‘co-governance’ is the natural next step. The inclusion of Maori representatives on the Auckland City Council is based on this unquestioned assumption.

“But what is the nature of the group that will be ‘co-governor’? What are the implications for New Zealand’s parliamentary democracy?”

There is no reason to believe that if the present push for a Treaty-based constitution fails, that the well-resourced corporate elite, who are driving this agenda, won’t be back in a few years time with another attempt, and then another, until finally the politicians cave in and give them a carte-blanche right to co-govern New Zealand.

But in a democracy, such an outcome is not inevitable – if there is sufficient public opposition. To paraphrase the wise words attributed to Edmund Burke, “Bad things happen when good people do nothing”!

Last week we asked for volunteers who were passionate about policy issues such as equal rights to register for our NZCPR Working Groups. If you would like to help, please click HERE. But you may also like to consider 5PM – the 5 Principles Movement – which will be promoting 5 principles including equal rights in the lead up to the 2014 election. To find out more and register your interest, please click HERE.

If you share our concern that race-based co-governance is undermining democracy, then please help ensure that as many New Zealanders as possible become aware of what is going on – and feel free to forward this newsletter on to anyone you think might be interested.


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