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David Round

Letter to Bill English

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Monday 24th June 2013

The Hon. Bill English,
Deputy Prime Minister
Parliament Buildings

Dear Mr English,

We write this open letter to you to express our dismay at recent remarks by Sir Tipene O’Regan, the co-chair of your government’s Constitutional Advisory Panel, as reported in the Otago Daily Times, and to ask what your attitude can be to an official panel which displays the predetermination and partiality which a good number of panel members clearly hold.

We are members of the Independent Constitutional Review Panel. We are private citizens who, in the absence of any other obvious person willing to take the job on, have joined together to raise public awareness of the dangers which the Maori Party’s agenda for the C.A.P. pose for our country’s future, and to lead public debate on a vital issue which desperately requires it. Our political backgrounds are various but mainstream. All of us have taken a well-informed interest in Treaty debates for many years.  We receive no government recognition or support; all our work is funded by the donations of ordinary New Zealanders who share our fears.

You will probably be aware of our concerns hitherto about the C.A.P. We list them briefly, but we are happy to expound at greater length in future correspondence.

(a)    The Panel’s very terms of reference require the Panel to make its inquiry ‘in ways that reflect the Treaty relationship’ and ‘in ways that reflect the partnership model and are responsive to Maori consultation preferences’. This predetermines the result by taking an entirely unfounded radical assumption about what the Treaty means as a given and as the starting point in any discussion.

(b)    The C.A.P.’s carefully balanced racial composition again presumes what the Panel is supposed to be asking about, a 50:50 ‘partnership’ of two races with equal power, and thereby an end to equality of citizenship. Its composition along such racial lines ~ five Maori, five European New Zealanders, one of Pasifika descent and one of Chinese ~ forces us to wonder if such a division into racial castes is expected to be an increasingly prominent part of our national life.

(c)     Many of the appointed members of the panel clearly already hold strongly decided opinions from which they are unlikely ever to resile. Professor Ranginui Walker, most obviously, has long been prominent as an extreme advocate of some sort of Maori sovereignty, and Professor Linda Tuhiwai Smith and Drs Leonie Pihama and Hinuriwa Potu seem, with respect, to be shorter on constitutional wisdom than on far-reaching radical understandings of the Treaty. Sir Tipene O’Regan is a moderate voice only when judged against radical Maori ones, as will be illustrated below. It is impossible to imagine any of these people having an open-minded approach to the subject.

(d)     The Maori Party, which as your government partner would seem to  have had some hand in the Panel’s selection, has as its ultimate goal ‘to ensure that the Treaty of Waitangi is given proper recognition and that constitutional arrangements in New Zealand allow for full engagement and recognition by tangata whenua’. Dr Sharples expressed similar sentiments when the Review was first announced. There is a clear implication that nothing like that is the case now.

(e)    Of the European members, Sir Michael Cullen’s long career as a Minister of Treaty Negotiations and his current position as principal Treaty claims negotiator for Tuwharetoa must inevitably undermine public perception of him as some one who could  be expected to argue as vigorously for the interests of his race as the Maori appointees will be  arguing for theirs. Most of the other European appointees can, whatever their particular competences, only be regarded indifferently at best. Professor John Burrows would be the only exception, but not for any longstanding expertise he has in this particular area. Deborah Coddington has recently publicly accepted the Treaty of Waitangi as our ‘founding document’ which should therefore be guiding discussions. Sir Michael Cullen has already described the I.C.R.P.’s fears as those of ‘extremists’ and ‘paranoid’ ‘conspiracy theorists’.

(f)     At the very least, if such panellists as Professor Ranginui Walker were to be appointed, it would be only fair that one of the considerable and growing number of those expressing doubts about where the Treaty industry is leading New Zealand should also have been appointed.

(g)    In any case, we would have thought that there existed an ample pool of informed and fair-minded New Zealanders, Maori and European, without having to choose so obviously interested and compromised parties among your official panellists. The ones chosen do your government no credit.

(h)    All of these remarks about the C.A.P.’s membership must be understood in the light of the Cabinet Minute of the 18th of April 2011. That minute approved a panel with a maximum number of ten members, including two co-chairs, rather than the current twelve members.  (We wonder how the unauthorised extra two members appeared, and why.) The Cabinet’s criteria for membership of the panel (paragraphs 11 – 14 of the Minute) described members who should be ‘representative of wider New Zealand society’, ‘able to relate to a wide range of New Zealanders’, ‘have expertise and specialist skills such as an    academic understanding of constitutional matters, community relations [and] journalism’ and ‘are seen as fair, open to a range of views and with no conflict of interest’. Many of the C.A.P.’s current membership fail to meet most of those criteria, and particularly the last. Even John Burrows’ academic background is not at all in constitutional law.

(i)      The C.A.P.’s discussion document, New Zealand’s Constitution, The Conversation So Far, published in September last year, is grossly slanted towards radical Treaty interpretations. (A full critique of the document appears as a chapter in Twisting the Treaty, A Tribal Grab for Wealth and Power, recently published by Tross Publishing.)

(j)      The amount of money allocated to public consultation was never enough to make genuine consultation possible. There was therefore an excellent excuse for preferring to reach out to interest groups likely to be sympathetic to the Panel’s agenda. Consultation with Maori has certainly been extensive, but a recent poll showed that only one third of New Zealanders had even heard of the panel’s existence, and the only thing that has happened since then to make them more aware has been the advertisements inserted in newspapers by the I.C.R.P.

(k)    The C.A.P. has even gone so far as to  meet at least twice with members of the Iwi Leaders Constitutional Working Group, a self-appointed group like our own with no more standing than our own. Although Professor Rata and David Round have been able to have some very perfunctory input into the C.A.P.’s resource base, there has been nothing more, and certainly no attempt to engage with the I.C.R.P. as an entity.

Taking all of these things together, we consider ourselves entitled to fear that the Panel’s recommendations will be unacceptable to most New Zealanders, who are thereby in danger of having unwanted and racially divisive constitutional change imposed on them unilaterally.

We are now concerned to read in the Otago Daily Times a report of a speech which Sir Tipene O’Regan, the C.A.P.’s co-chair, recently gave at a ‘matariki breakfast’ at the Otago Early Settlers Museum. The report reads in part:

‘Sir Tipene is keen to ‘take the pulse of middle new Zealand’ over key constitutional issues…The Panel wanted to hear from ‘individuals and groups of serious-minded people’….Some extremist groups had already been quick to offer their thoughts, including Nazi sympathisers and some who wish to reverse Maori influence in this country and seemingly wanted to remove every trace of Maoridom. He asked if they also wished to ‘black out in some way’ the koru pattern on the  tail of  Air New Zealand aircraft. Removing that Maori flavour would leave New Zealanders as ‘just another little Anglo leftover’ stuck at the bottom of the Pacific….Some issues were more difficult to discuss because civics education was no longer offered in New Zealand schools but the panel was providing its own background materials to stimulate discussion. Civic education had seemingly rivalled sex education as a ‘major phobia’ in some quarters, with teachers viewed as ‘lefties’ who could not be trusted to teach it.’

We make the following comments:

(a)    The C.A.P.’s period of public consultation, now extended until the end of July, was originally due to end at the end of this month, so it is a bit late for the Panel now to be starting to ‘take the pulse of middle New Zealand’. Unless we have misunderstood something, that is what the Panel was supposed to have been doing all along. At the very least, then, this statement is an admission that the Panel has hitherto failed in its duty of public consultation. Given the circumstances outlined above, we cannot see how one month more will make any difference.

(b)    In his ‘extremist groups’ Sir Tipene includes groups who ‘wish to reverse Maori influence in this country’. There is certainly a proportion of the population who believes that Maori influence in government and legal and political arrangements is rapidly heading out of control, but they are not extremists. They are a majority of citizens, who believe in racial equality in a colour-blind democratic state. Those who do not are the extremists.

(c)    We very much doubt that anyone disagreeing with Sir Tipene has been ‘quick’ to make submissions. For the reasons outlined above, the Panel has operated just underneath the public radar, in the hope that it will be able to have just as much engagement as will enable it to claim some sort of ‘informed consensus’ while avoiding the undesired unpleasantness of listening to  what the public actually thinks. Such genuine popular involvement as there has been has been despite the C.A.P.’s silence and, if anything, because of the modest efforts of the I.C.R.P. We cannot but cynically interpret Sir Tipene’s hope that ‘serious-minded’ individuals and groups would get involved as a dog-whistle to his own sympathisers to produce submissions in numbers sufficient to outweigh an unexpected number of submissions from the concerned general public. Those who disagree with him he clearly would not consider ‘serious-minded’.

(d)    We will have to take Sir Tipene’s word for it that ‘Nazi sympathisers’ have been making submissions. If they have, then that is of course no more than their democratic right, and however much we might disagree with them we have to respect their rights as citizens to do so. We will be interested to examine all the public submissions and see if we can find all these Nazi-ish submissions. But in any case, lumping together in one sentence ‘extremists’, ‘Nazi sympathisers’ and those unhappy about the continued Maorification of our country clearly reveals a predetermined view that anything less than continued further  Maori influence is extremist and may be dismissed without further consideration.

(e)     There would be very few people in New Zealand, and we certainly do not know any of them, who ‘wish to remove every trace of Maoridom’. Talk of that is a very shabby straw man. Nor is that the issue here; the Panel’s task is to consider constitutional arrangements, not culture. That is an entirely different thing; and indeed, Maori culture seems to be managing perfectly well without the need for further legislative enforcement.

(f)     Sir Tipene in his speech made reference to particular (alleged) submissions. If he is going to do that, then it is the C.A.P.’s clear obligation now to make all submissions available to the public by electronic means. That is extremely simple to do, and in any case no more than the panel’s simple duty. Submissions on the MMP review were made available for all to read on the Electoral Commission’s website as soon as they were received. If this ‘constitutional conversation’ is indeed an open one, as the C.A.P. alleges, then what people are saying should be openly available also. We therefore request that you ensure that all public submissions to the C.A.P. are made available as soon as they are received. Presumably the Panel already sorts and organises all submissions as it receives them, and places them on some sort of electronic register. A failure to do that would be a gross inefficiency; but if it is done, then it would be a simple thing to make that register publicly available.

(g)    It is completely unacceptable for a co-chair to leak or refer to just selected items from (alleged) submissions for his own political purposes unless public access to those submissions is available to all. We doubt that it would be acceptable if many other chairs of committees were to adopt this as a general practice.

(h)    No-one that we know of is ‘seeking to remove that Maori flavour’ from our country, and the suggestion that there is such a movement both misrepresents opposition to the official panel’s agenda and misunderstands the C.A.P.’s official purpose. To suggest that opponents of the Panel’s political agenda would leave New Zealand as ‘“just another little Anglo leftover” stuck at the bottom of  the Pacific’ again misrepresents that opposition and also displays a contempt for our British constitutional inheritance which sits very ill on the shoulders of the co-chair of a constitutional  advisory panel.

(i)      The last two sentences appear to defend the right of school-teachers perceived as ‘lefties’ to indoctrinate children with their own political views on the Treaty. This does not suggest that Sir Tipene and his panel will be very concerned that Treaty ‘education’ will be properly fair and impartial. Nor do we do not see that it is any part of any school-teacher’s role so to propagandise. Parents have every right to object to such propaganda. It is little less than an intellectual form of child abuse, however much Sir Tipene and his cohorts may support it.

Certainly, the report of your Constitutional Advisory Panel has not yet been prepared and presented. Nevertheless by the clear indications the public has seen so far the chances seem high that it will not be worth the paper that it is printed on. Anything less than a radical departure from our present democratic and egalitarian principles will not satisfy the radical desires of some panellists and their increasingly truculent supporters. We have to  say that we consider it most unfortunate that your government established this Panel in the first place, for its direction has been obvious from the start, and whatever its recommendations they will only further inflame racial animosities. Radical race-based innovations would be an anathema to most New Zealanders; now the matter has been raised, nothing less than such innovations will satisfy radical Maoridom, who will consider any failure of this inquiry to deliver on their ambitions to be yet another injustice visited upon them by the wicked colonising oppressor. You have created a problem where one did not exist before.

Be that as it may, that damage is done, and it would be unrealistic to ask you to end the operations of this appalling committee. We do ask, however, that you note our concerns. More particularly, we ask whether you find the statements and attitude of Sir Tipene O’Regan appropriate to the chair of a government-appointed panel presumably hoping to make some claim to integrity and fairness. The Cabinet Minute requires members who are seen as fair, open to a range of views and with no conflict of interest. We cannot see that Sir Tipene fulfils those criteria.  The Cabinet Minute particularly specifies that although the Maori co-chair is ‘responsible for ensuring an appropriate process is used to consult with Maori’, he is not ‘responsible for reflecting a particular Maori perspective’.  Does the government find Sir Tipene’s attitude acceptable in a co-chair? Is his partiality to be an accepted benchmark for the conduct of future government-supported inquiries?

We also ask you to indicate, in general terms, what your government’s attitude would be to recommendations, whatever their tenor, coming from a Panel run as partially as this one is. Would your government be inclined to approach such recommendations with caution? Or do you find no cause for disquiet in the Panel’s proceedings and attitudes?

Finally, at the time you and Dr Sharples first announced the constitutional review, you stated that any constitutional change would ‘not be undertaken lightly and would require either broad cross-party support or the majority support of voters in a referendum’. We note that you say ‘or’ a referendum, leaving open the possibility that there might be significant constitutional change merely by Act of Parliament. We do not hesitate to say that that would be completely unacceptable to most New Zealanders. A recent poll indicated 79% public support for a referendum as indispensible to constitutional change, with only 13% considering that the decision should be by Parliament alone. We would add that approval by a mere 50% majority is quite inadequate; a higher threshold would be essential to ensure that substantial elements of our communities do not consider themselves strangers to their own institutions and with no commitment to innovations. Given the momentous consequences any change in our constitutional arrangements would inevitably entail, we feel entitled to ask you for a firm assurance that your government would not allow any such change to proceed without substantial popular support in a binding referendum. Nothing less will satisfy legitimate public concern.

Yours sincerely
David Round (Chair, Independent Constitutional Review Panel)
For and on behalf of Professor Elizabeth Rata, Emeritus Professor Martin Devlin, Professor James Allan, Dr Muriel Newman, Michael Butler (Members, Independent Constitutional Review Panel)