The Maori Party in the run up to the 2020 election had a Mana Motuhake vision for New Zealand. As reported in The Guardian (of course) and enunciated by Claire Robinson a Massey University academic, that vision is Maori people asserting their right to self- management, self-determination, and self-governance over all their domains. It calls for an end to “mainstream management of matters Maori,” “abolishing full and final Treaty of Waitangi settlements,” “buying back land (source of funds not disclosed) for Whanau Hapu and Iwi.” The Government “handing back all conservation land to Hapu and Iwi,” and “all Maori joining the Maori electoral roll within the next three years.” Presumably compulsorily with suitable penalties for those who refuse or neglect to do so.
In addition, there will be a separate Maori Parliament with 15 to 17 seats having control over 20 billion dollars of annual self-managed spending. These demands are said to result from the fact that “the country was settled by consent not conquest.” The proposed model is said to be similar to that which exists in Scotland, Ireland (an independent sovereign state) and Wales. Mr Tamihere the leader of the Party is quoted as saying that “Westminster did not work for the Scots or the Irish” and that “Wellington definitely does not work for Maori.” All of this is said to flow from “the Treaty.”
M/s Robinson elaborates on this theme by opining that: “major parties have none the less determined that if they can co-opt and absorb Maori interests into their broader platforms and attract more Maori as mainstream MPs they can neutralise Maori demands for separate forms of self-determination.” All of this is said by her to be linked to levels “of inequality and poverty still affecting Maori.” The professor expresses the view that “any notions of equality were in terms of legal notions of citizenship not in treaty commitments to Partnership.” (whatever that may mean). She deprecates the notion of “Kiwis” rubbing along as one society.
For a professor at a New Zealand university this is an extraordinary mish mash of ideas devoid of any knowledge of history, law, or constitutional structures. To cite Mr Tamihere with approval is to overlook the superficiality implicit in his views nowhere better illustrated by his approval of claims by some Scots for independence. This silly comparison overlooks a thousand years of troubled relations between the Scots and the English and the constitutional settlement arrived at which gave the English a Scottish King James the First. This settlement has endured for close to four hundred years and notwithstanding the best efforts of Nicola Sturgeon looks set to remain so as the Scottish economy is dependant on the English taxpayers for its survival. Without “Westminster” these ersatz “Parliaments” could not exist. The Maori voting public gave its verdict on Mr. Tamihere’s aspirations at the recent election in which he secured a little over 1% of the Party vote
It is difficult to know where to start in making sense of this separatist thesis, but the Treaty of Waitangi is as good a place as any. It says:
Article the first
The Chiefs of the Confederation of the United Tribes of New Zealand and the separate and independent Chiefs who have not become members of the Confederation cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty which the said Confederation of Individual Chiefs respectively exercise or possess, or may be supposed to exercise or to possess over their respective Territories as the sole sovereigns thereof.
Article the second
Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession; but the Chiefs of the United Tribes and the individual Chiefs, yield to Her Majesty the exclusive right of Preemption over such lands as the proprietors thereof may be disposed to alienate at such prices as may be agreed upon between the respective Proprietors and persons appointed by Her Majesty to treat with them in that behalf.
Article the third
In consideration thereof 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.
There are a number of important points to note about this document. They are:
The Treaty of Waitangi is not a “Treaty” which was then, or now recognised at International law. The law relating to treaties is clear. They can only result from undertakings made between sovereign powers. Whatever misconceptions the Colonial office in London may have temporarily entertained about the governance of these far away Isles in the 1830s it is clear beyond doubt that there was no Sovereign recognised by its inhabitants and no settled form of governance in the nature of a nation state. The country was occupied by a number of tribes each exercising a degree of control in the areas in which they settled but all of which were liable to be displaced at any time by the stronger and more war like. Furthermore the document has not been enshrined in New Zealand statute law.
If the document is not a Treaty recognisable at law then it can only be in the nature of a contract entered into by the signatories, and like all contracts it was and is to be observed in good faith. Thus, the Maori signatories had and continue to have a duty to cede to the British Crown sovereignty over all property which they individually or collectively possess. This is no different from, any other subject of the Crown in relation to land ownership. We none of us own our land absolutely we hold it in estate in fee simple from the Crown, but our title is good against the whole world. So it was in the case of the Maori inhabitants. Ownership of their land was guaranteed and only the Crown had the right of purchase. This has been well understood since the time of the signing. It conferred valuable benefits on the Maori population. They became British citizens enjoyed the benefits of the Rule of law and the protection of the Crown from any other foreign incursions of the like of the French, Spanish, Dutch, or Portuguese all of which were aggressive colonial powers at the time. This is what is expressed in Article 2. It guarantees to the Chiefs who signed the document undisturbed possession of their lands estates forest fisheries etc. as long as they wish to retain them. It was not a guarantee that these rights would enure in the case of alienated lands. This is so because of the quid pro quo contained in article 3 which was grant to all “natives of New Zealand the rights and privileges of British subjects.”
As to the notion of Partnership it was and is constitutionally impossible for the Crown to enter into a partnership with her subjects. She can as she did in 1840 make promises to them but by definition, the Crown is supreme, and the people are subject to her laws albeit under the then British system of parliamentary government. It is regrettable that in 1986 one Judges sitting in the New Zealand Court of Appeal in a Maori Council case involving disposal of state owned assets chose to characterise the relationship between the Maori claimants and the Crown arising from the Treaty variously as creating obligations which are akin to the duties of good faith owed by members of a partnership to each other. This was Sir Edward Somers formulation. No judge was more careful with language than he, and what he said has been willfully misconstrued. “Akin” means similar to but different from. The only judgment in that case which refers to the Treaty giving rise to a partnership between the Maori signatories and the British Crown is that of Justice Cooke. The Judge said: The treaty is to be seen as “an embryo rather than a fully developed and integrated set of ideas. “The Treaty” he said “signified a partnership between races.” His Honour expressed the view that integration of the two races which had been the goal of successive governments for the past one hundred and twenty years was no longer the goal and that the emphasis should now be on “preserving Maoritanga, Maori land and communal life, a distinctive Maori identity”. His Honour was quite entitled to hold these obiter views (that is statements made in passing which are not essential to deciding the matter before the court) as any other private citizen but his duty as a judge was to identify and apply the law. Nowhere does his Honour cite any legal authority for his views and they run counter to a number of previous cases of high authority. In short he was making up the law for which there was no legal precedent and trespassing on the role of Parliament the only institution in our democracy which could legislate for such a fundamental social upheaval.
None of the other four Judges agreed with this brave social experiment. The most balanced and judicial exegesis of the Treaty is to be found in the judgment of Sir Ivor Richardson. His Honour began by emphasizing the patchy nature of the concession of sovereignty to the Crown. He recognized that many chiefs never did sign the document necessitating two proclamations one dealing with the North Island where there was sufficient uptake to construe a genuine consent by the Maori inhabitants , but in the case of the South Island, sovereignty was based not on the Treaty but on Captain Cook’s discovery. His Honour recognised the ongoing scholarly debate about the true status of the Treaty and posed the question: “is it to be viewed as a purely domestic law contract or an international treaty to be construed according to the international law of treaties?” Having considered the various options for construction of the document in its present context Richardson J. held as a matter of law necessary to the determination of the case before him that there is one overarching principle in the understanding the intent of the Treaty. He said: “The Treaty must be viewed as a solemn compact between two identified parties the Crown and the Maori through which the colonization of New Zealand was to become possible.” The Judge continued: “The basis of the compact requires each party to act reasonably and in good faith towards the other.” In deciding against the arguments of the Crown in the case before him the Judge said: The answer lies in the application in this case of the principles of the Treaty that the Crown will act in good faith and fairly and reasonably towards the Maori people…”To which Somers J added that although the treaty was not justiciable in New Zealand there exists a duty of the signatories to act in good faith to each other but not such as to restrain the legislative supremacy of Parliament. In no legal sense does this case decide that that there is a partnership between Maori and non-Maori and any later case which purports to rely on the dicta of Cook J is to misconstrue the reasoning on which the case is founded.
In addition, leaving aside the possibility of individual disputes between Maori and others the terms of the Treaty have been fulfilled. All persons of Maori ethnicity enjoy precisely the same Constitutional benefits and status as any other citizen of New Zealand. In return for that it is not open to any person to now challenge the Sovereignty of the New Zealand Parliament. It is mischievous to equate constitutional status with some economic deprivation currently suffered by descendants of some of the signatories to the document, and somehow to suggest that the agreements made 160 years ago dealing with sovereignty and citizenship remain effective to relieve such perceived economic inequality. As associate professor Fynn-Paul so aptly accurately remarked “The stolen country narrative continues to gather steam, fueled by a tiny minority of activists bent on bringing maximum embarrassment to capitalism, democracy western civilization and Europeans in general. The only reason for them to be so unreasonably angry about things that happened centuries ago is because they see everything through the lens of perpetual racism and victimization, and crucially because they do not believe in the power of democracy to correct these wrongs…. Marxists and their sympathizers have always believed that in creating a good society is best left to a handful of self-appointed intellectuals than the rough and tumble of parliamentary debate. Has history taught them nothing? The ones who will really loose out if the anglophone democracy is further discredited are surely those people in the world who are most vulnerable.”
Can this small band of intellectuals as they tap away at their devices honestly believe that the coming of Western civilization to New Zealand has destroyed all that was pure and good in the society which they found giving nothing in return. Do these people see nothing in the benefits of twenty first century civilization which are available to Maori and non-Maori alike; public health, education, prosperity, the rule of law, settled government, infrastructure, money, and banking? The list goes on.
Putting the Constitutional and legal questions aside and focusing on the practical implications of the notion of “Partnership” between persons of Maori ethnicity and non-Maori citizens of New Zealand. It is clear beyond doubt that a partnership requires the willing agreement of two or more parties to share in the profits and losses of a venture. A partnership does not exist because one side wishes it to. In this context the parties are potentially Maori citizens and non-Maori citizens. it requires that the incidents of that partnership be clearly spelled and agreed upon given there that is nothing in the Treaty document which does this. That being so they must be invented, and will include such matters as:
Who are the members of the partnership? Is it all persons who claim some Maori ethnicity no matter how small, or will it be on an opt in basis allowing those having a degree of Maori ethnicity to remain subject to the racist colonial structures? When this is sorted out the new arrangements will require governance in all its modern complex iterations. A separate Parliament will be needed, one of which will pass laws solely binding on Maori people and presumably the existing Parliament will continue to function for the rest of us. Laws passed by each Parliament will be applicable only to the affected “Partner.” This assumes of course that the Maori Partner would wish to have a Westminster Parliament. Mr. Tamihere does not seem keen on this institution and it may be the new “Partner” will decide to revert to tribal structures which existed before 1840. Quite how these will be updated to accommodate life in the modern world remains to be revealed. There will be inevitable conflicts between the sets of laws and a mechanism will be needed to resolve these. Perhaps some system of International arbitration but that smacks of the sort of thing a colonial oppressor would want.
To pay for these changes it will be necessary to develop a taxation system solely for the benefit of the new “Treaty Partner” to which presumably non Maori will be expected to contribute as in the Scottish model and a bureaucracy necessary to collect and manage the taxes levied. In addition, this will involve the establishment of a Maori civil service dedicated solely to the management of all matters of Maori governance; it will need housing, and a set of rules governing its management and conduct. All encouraging developments for lawyers of the Maori section of the New Zealand Law Society and Wellington commercial property developers.
The existing court structure and the Rule of law being racist colonial relics will no longer apply to the new Partner and it will need to develop its own legal structures. There are plenty to choose from: Venezuela, China and Saudi Arabia come to mind as useful models. Whatever systems are chosen they will need to be enforced and this will presumably require the creation of a police force or the like. Of course, the new “Partner” may be more attracted to the BLM model and not waste money on any sort of enforcement structure leaving it to the good sense of the “Partner” membership to regulate its affairs in a non-conformational and peaceful manner following the useful precedents in Seattle and Minnesota. This legal structure would also need to accommodate resolution of historic and ongoing tribal differences all of which will do doubt be amicably settled.
Then there is health. Clearly it is a widely held belief amoung the putative “Treaty Partner” proponents that the existing arrangements for universal health care of all New Zealanders have conspicuously failed Maori people. Recent proposals for a separate Maori authority to deal with at risk Maori children are a good example of the failure of the colonial health model. To remedy this the new Partner will want to establish Maori health care structures run by Maoris for Maoris. This will involve the building of hospitals, provision of general practice facilities and all the paraphernalia which goes to make up the current colonial relic; or maybe not perhaps a reversion to the holistic practices which served Maori people so well before Colonization. Depending on what model is chosen this will result in a burden on the new Maori taxation system, but it will no doubt be cheerfully born as the price of striking off another colonial shackle.
A model of Maori Social welfare (if there is to be any) will need to be developed and that in turn will depend on which form of political governance is chosen by the new “Treaty Partner.” If it decides to revert to a form of tribalism then this may not become an issue because presumably each tribe, Iwi, Hapu, and family will look after its own as it did before the arrival of the Colonial oppressors.
Then there is the important question of ownership of key assets for example fresh water. The Partnership model has encouraged Ngai Tahu to make application to the High Court for a declaration of rangatiratanga (the right of Maori people to rule themselves) that all fresh water resources within its taikawa (area), which is the majority of the South Island will be shared with the Crown. A spokesperson for the tribe says
“In the case Ngai Tahu would seek to compel the Crown to fix the problems in partnership with the Iwi …..its about the extraction of water… the settlement Act was very clear that the tribe had rangatiratanga.”
Although the text of the reported statement makes the ritual obeisance to gathering water cress and children swimming in the South Island rivers, it is clear beyond doubt that the tribe as one of the major dairy farmers in the South Island, including the large Balmoral forest area recently acquired as a treaty settlement which is to be converted from forest to irrigated dairy farming that these aspirations are overwhelmingly business oriented. If the court grants the application, and that is very much on the cards given recent pronouncements of the Supreme Court then Ngai Tahu as a sovereign owner will be spared the inconvenience of seeking to obtain water rights and will be free to extract water at will. This court proceeding illustrates that there is simply no end to the ingenuity of Maori interest in exploiting the notion of “partnership” to the detriment of the remaining 85% of New Zealanders. Watch this space every other Iwi will either seek to join this proceeding or bring its own proceedings seeking similar relief.
Local Body democracy is the next bastion to fall in the cause of the Treaty Partnership. Ms Mahuta The Minister of local government (and be it noted Minister for Foreign affairs) has announced that the current requirement of a public poll of voters on the matter of separate Maori wards if requested by 5% of those eligible to vote and living in the district will be abolished, and it will be left to the elected members of the local authority to decide if Maori wards are to be established. This notwithstanding that in almost every case where the councils have so decided the decisions have been overturned by the voters. In answer to the suggestion made on public radio on 25 November that such a proposal is the very definition of “racism” the Minister declined to answer the question and simply replied that “the world has moved on.” This astonishing response from a Minister of the Crown (channeling what the Prime Minister said in a television debate with Judith Collins “Oh that is so yesterday”) heralds a new era whereby it becomes lawful for representation on public bodies to be decided solely on the basis of the wishes of one race component of our multi-cultural society. It is also an affirmation that democracy as the fundamental pillar of our constitutional arrangements is at risk opening the way for Mr. Tamihere’s view of a brave new world. One wonders if wearing her Foreign affairs chapeau, the Minister will affirm in world fora that New Zealand remains a parliamentary democracy or has “moved on” to greener pastures.
One could go on; education, foreign policy, armed forces, transport infrastructure, science, resource management, preservation of the environment, but it becomes tedious to do so. The simple fact is that people of Maori ethnicity are so closely woven into the weft of modern New Zealand society that it becomes the tantrum of greedy mischievous rent seekers to suggest otherwise. Maori people contribute to all forms of endeavor which makes our society the success that it is. They need no separatist “Treaty Partnership” to continue doing so. One would have thought that the South African model of “separate but equal,” which be it said did not meet with universal approval as a paradigm for a harmonious and prosperous society, would be sufficient to dispose of these ambitions but not so. There is no end to the Partnership demands which will be visited on the long-suffering majority of New Zealanders, demands which have no basis in law but which the current government shows every sign of supporting, academe trumpets and to which the courts appear to be sympathetic. I doubt that is a society in which New Zealanders of all persuasions wish to live.