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Dr Muriel Newman

Institutional Racism

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Racism in public serviceA campaign is presently underway to convince the public that racism in the government sector is responsible for the poor social outcomes of Maori.

Predictably the solution offered is preferential treatment for Maori – by enshrining the ‘principles’ of the Treaty of Waitangi into law.

This could be achieved in one of two ways: either by introducing a new constitution incorporating the Treaty of Waitangi – a process that is already underway through the Maori Party’s constitutional review coalition deal with the National Party, or by inserting references to the Treaty of Waitangi directly into laws through Parliament’s legislative process.

While there is no doubt that Maori are over represented in the worst of our social statistics, the colour of their skin is not the cause of their misfortunes. The causes are welfare dependency, family breakdown, and educational failure – problems that do not discriminate according to ethnicity. It is not institutional racism that causes more young Maori to get into trouble with the law, for example, but the fact that Maori make up a disproportionate share of the young uneducated and unemployed demographic that are more likely to commit crime.

The basis of the claim of ‘institutional racism’ appears to be a body of work undertaken by the Human Rights Commission in 2010.1 They interviewed 35 people (yes, 35!) to conclude that racism is rampant within public service institutions. For such a report to have been offered as serious research is an indictment on the Human Rights Commission and another example of why this one-eyed agency should be abolished. Needless to say that “research” was seized upon by the Maori Party, which is looking for any justification and opportunity to insert Treaty clauses directly into legislation.

Their latest attempt was earlier this month: Supplementary Order Paper 259 was designed to amend the State Sector and Public Finance Reform Bill “to strengthen the place of the Treaty of Waitangi in Aotearoa New Zealand’s constitutional arrangements. The practical effect will be to strengthen the Government’s levers to deliver on its Treaty obligations in delivering public services and, in so doing, improve outcomes for Maori”. The SOP, which included a clause 5C amendment stating that it “recognises, provides for, and gives effect to the principles of the Treaty of Waitangi”, was supported by the Maori Party, Mana, Labour and the Greens, but was opposed by National, ACT, United, and New Zealand First – and was defeated.

As their next trick, the Maori Party is drafting a Private Members Bill to introduce Treaty clauses across major government legislation: “The Maori Party is calling for action on racial discrimination in Aotearoa and is developing a private members bill which seeks to eliminate institutional racism in organisations”. Co-leader Tariana Turia explained they were responding to a call for action by their iwi elite backers: “During the Iwi Leaders Forum in Waitangi this year, there was a concerted call that the government must act to address the issue of racism. We support that call, and as an initial measure we have started to develop a private members bill on institutional racism. Our Private Members Bill is just a first step in what requires a wide-reaching and inter-sectoral approach. We are focusing on organisations, processes and procedures which fail to adequately provide for cultural difference. Ignorance is no excuse, and more needs to be done to address racial discrimination here in Aotearoa.”

What is so bizarre about this whole strategy of giving the ‘principles’ of the Treaty legislative power, is that the Treaty itself does not contain any ‘principles’. The Treaty of Waitangi consists of three simple clauses: the first declares that the Queen is sovereign; the third, that Maori are her subjects with the rights and privileges of subjects; and the second, that among those rights and privileges is the security and enjoyment of ones own property. In other words, the Treaty gave us a sovereign, subjects and property rights, but not principles.

The first reference to the ‘principles’ of the Treaty, can be traced back to the Kirk Labour Government’s Treaty of Waitangi Act 1975, which established the Waitangi Tribunal and the Treaty grievance industry. But though it mentioned principles, Parliament made no attempt to define them.

They next emerged in relation to the State Owned Enterprises Act 1986, which was established to enable the government to operate businesses effectively. While Section 27 gave the Crown the ability to recover land that was the subject of a Treaty claim for settlement purposes, there was no mechanism for dealing with claims lodged after the land in question had been transferred to an SOE. This gave rise to a new section 9: Nothing in this act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.

Parliament again made no attempt to define the principles of the Treaty – so the courts and various other bodies did, with the result that there are now well over a dozen different interpretations of what the Treaty principles actually mean.

Judge Anthony Willy, a retired District Court and Environment Court Judge – and former Law Lecturer at Canterbury University – is this week’s NZCPR Guest Commentator. In his submission to the government’s Constitutional Advisory Panel, which he has kindly agreed to share, he explains why the so-called principles and partnership concepts – upon which most of the present-day Maori claims for supremacy are built – are baseless.

“The source of the current debate about the place of the Treaty of Waitangi as a constitutional instrument with a place in New Zealand law is The decision of the Court of Appeal in New Zealand Maori Council v Attorney General. His Honour Cook P made a crucial determination that the: treaty signified a partnership between races.

“From this analogy Cook P then extrapolated the well understood common law requirement that partners must act toward each other: with the utmost good faith which is a characteristic obligation of partnership.

Judge Willy quotes other Judges, who concur that the meaning of ‘partnership’ in the context in which it was used means, “Each party owed the other a duty of good faith. It is the kind of duty which in civil law partners owe to each other”.

He finds that on careful reading of this crucial Court of Appeal case, there was no decision that the Treaty created a special partnership between Maori and the Crown, but the duties that the Crown and Maori owe each other are akin to those owed by partners to a commercial transaction: “In the context of a constitutional debate and in particular whether the Treaty is a constitutional document the distinction is fundamental. In the result Maori and the Crown are not partners in any sense of the word. Indeed it is constitutionally impossible for the Crown to enter into a partnership with any of its subjects. The true position is that the Crown is sovereign but owes duties of justice and good faith to the Maori descendants of those who signed the treaty. Once this distinction is understood there can be no question of the sovereignty of the Crown in New Zealand represented by the Governor General and The New Zealand Parliament, being shared with any other person or entity. It is one and indivisible.”

In other words, the duties of “partnership” are no more than the proper duties of responsible partners in a commercial transaction. It cannot be any more than that because it is impossible for the Crown to enter into a partnership with any of its subjects. Yet, for decades, the sovereignty movement has been successfully claiming partnership status, when they have no greater status than any other citizen.

The consequences could be damaging – unless they are strongly opposed, Maori could be assigned priority allocation of social benefits as a matter of course. A case in point is a discussion paper on allocation models by PHARMAC, New Zealand’s drug buying agency, in which they ask whether Maori should be given priority access to medicines. They are calling for feedback – you can read the discussion paper and make a submission HERE.

To be fair, the paper invites comment on whether the allocation models for medicines should take into account other factors such as age and disadvantage. But is health care based on race such a far fetched idea?

The answer is that it is already happening. Many millions of dollars of public money is already being spent on separatist Maori-only health services – as can be seen in the Ministry of Health’s “Maori Provider Development Scheme 2013/16”.2

And it’s not just health. Whanau Ora was set up as a Maori-only welfare programme, but was ‘officially’ opened up at the last minute to all comers to avoid separatist accusations – even though the changes were only cosmetic. Now, the funding for the programme has just been transferred from the government to Iwi Leaders through a Crown-Iwi Partnership Group, which will control where the millions of dollars of taxpayers money it takes to run the controversial programme – which has been found to be funding family reunions, rugby club functions and gangs – will be directed.

There are already Maori-only schools, Maori-only prison programmes, and a raft of other race-based taxpayer funded services.

These race-based services are not counted as being discriminatory, because Human Rights laws allow for “special measures” or affirmative action programmes to enable disadvantaged groups to achieve equal outcomes with other groups in society. As explained by the United Nations Committee for the Elimination of Racial Discrimination, these special measures “should be appropriate to the situation to be remedied, be legitimate, necessary in a democratic society, respect the principles of fairness and proportionality, and be temporary.”

Since most people realise that disadvantage in New Zealand is not race-based, and that preferential treatment for Maori is not temporary, from time to time a public backlash is generated. It last occurred in 2004 in response to the Labour Government’s Maori-only “closing the gaps” strategy. Then National Party leader Don Brash unleashed the growing resentment of mainstream New Zealand with his Nationhood speech at Orewa, where he stated, “there can be no basis for special privileges for any race, no basis for government funding based on race”. In response, Labour set up a Ministerial Review to examine some 25 Maori-only programmes and policies, resulting in a number of them being modified and others being scrapped.

A similar climate of unrest is now developing. Claims for our foreshore and seabed, the electromegnetic spectrum, the ownership of our water, all of New Zealand’s plants and animals, our rivers and lakes, the mountains and national parks, and now priority treatment by all government services, have created a growing realisation amongst the wider public that this is no longer about justice or a fair deal, but is a blatant grab for power and resources by the iwi elite who want to create a privileged ruling class in New Zealand. Their blatant attempt at the co-governance of the country through the constitutional review is seen as a step too far. It may yet lead to a public backlash and a demand for equality – which is, of course, what the NZCPR has long been championing through our Declaration of Equality: the abolition of the Maori seats, the abolition of the Waitangi Tribunal, and the removal of all race-based preferment, in favour of equal rights and one law for all.

  1. Human Rights Commission, A Fair go for all
  2. Ministry of Health, Maori Provider Development Scheme 2013/16