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Dr Muriel Newman

Radical forces plan to replace our constitution

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By agreeing to the Maori Party’s demand for a Constitutional Review, as part of their 2008 and 2011 Confidence and Supply Agreements, the National Party is advancing the agenda of radical forces determined to change our constitutional arrangements in their favour. Their goal is to elevate the Treaty of Waitangi into ‘supreme’ law to give tribal members superior rights and privileges that would forever be outside the reach of elected Members of Parliament who might want to change it in the future.

This week’s NZCPR Guest Commentator Dr Elizabeth Rata, Associate Professor of Education at Auckland University, shares with us a paper she wrote in 2005. Marching through the institutions describes how successive governments have played into the hands of an ambitious tribal elite that has spent decades infiltrating the public service, academia, churches, professions, and the media, planning for the moment when they can make their strike for constitutional status and power:

“For over two decades a group of neotribal leaders have controlled the shifting interpretation of the Treaty of Waitangi. That control has, through complex brokerage processes, led to the group’s own emergence as a self-interested political elite. The elite’s ‘strategic march through the institutions’ is now at the final constitutional stage.”

Dr Rata explains that gaining full control of the government’s Waitangi Tribunal has been “pivotal in establishing, then naturalising, the concepts of treaty partnership and principles”, including “rewriting New Zealand’s history”. She points out the failure of politicians to protect the public interest by drawing attention to the “unprecedented way in which governments were losing control of policy formulation and execution in relation to the treaty. This is most clearly demonstrated by the way in which the treaty principles have been brokered into government legislation with enormous consequences for all sectors and levels of government activity.”

In particular she highlights how “Simon Upton’s description of the early 1990s National Government’s incorporation of treaty principles into legislation through the highly influential 1991 Resource Management Act reveals an almost cavalier approach to this most far-reaching of government activities. ‘I am quite sure that none of us knew what we meant when we signed up to that formula’. By ‘formula’, Upton referred to the requirement that local government, through the Resource Management Act, ‘take account of the “principles” of the treaty’. The Labour Government also appeared not to have grasped the significance of the brokerage of treaty principles into legislation. In 2000, Helen Clark, acknowledged that ‘there is no one in Cabinet actually co-ordinating the insertion of treaty clauses into new legislation’.” To read this prophetic article, please click here Under our present constitutional arrangements, Parliament is supreme. It has the power to change any New Zealand law. But those who want to elevate their rights and privileges into a new constitution claim that New Zealanders are feeling ‘uncomfortable’ that MPs have the power to change our constitutional arrangements. Instead, by replacing our present constitution with a new one based on the Treaty, they would be giving unelected Judges supreme power over our democratically elected Parliament. This would enable these Judges to strike down any attempts by future parliaments to change the constitution or remove racial privilege on the basis that it would be ‘unconstitutional’. Those unelected Judges would then have supreme power over our Parliament and over all New Zealander citizens.

The Maori Party’s attempt to change New Zealand’s long established constitutional arrangements has come about as a result of the political decision made by National to support their demand for a review of our constitution. Their 2008 Confidence and Supply Agreement stated, “Both parties agree to the establishment (including its composition and terms of reference)… of a group to consider constitutional issues including Maori representation. The Maori Party will be consulted on membership and the choice of Chairperson, and will be represented on the group.”

Tthe Constitutional Review was jointly launched in December 2010 by the Deputy Prime Minister Bill English and the Minister of Maori Affairs Pita Sharples. At the launch Bill English explained that they would be considering whether any aspects of New Zealand’s constitutional arrangements “require change” and he noted, Of course, we will keep in mind that enduring constitutional changes generally require a broad base of support. Significant change will not be undertaken lightly and will require either broad cross-party agreement or the majority support of voters at a referendum.

This final comment should not be brushed off lightly, but should act as a warning. When other countries have contemplated constitutional change a commitment is usually made to citizens that change will only go ahead if there is widespread support through a public referendum. Here in New Zealand it appears that our fate might be decided by political parties, which under MMP, are increasingly anxious to nurture political allegiances, at a cost to the public good. One only has to look at the Parliamentary vote on the smacking bill to remember that while the public were overwhelmingly opposed to the law change, MPs were almost united in overwhelmingly supporting it. That is a situation that must not be repeated. New Zealanders must demand from the outset that constitutional change can only go ahead if there is majority support through a public referendum process.

Cabinet papers show that the purpose of the Constitutional Review is to stimulate public debate and awareness of New Zealand’s constitutional arrangements, to seek the views of all New Zealanders, to understand New Zealanders’ perspectives on our constitutional arrangements, and to recommend what further consideration of the issues, if any, is desirable. In addition, Cabinet agreed that the views of Maori must be sought “in ways that reflect the partnership model and are responsive to Maori consultation preferences”.1 In other words, the review is already skewed towards a Maori viewpoint – instead of Maori being treated as equal citizens with regards to the review, special consideration has already been proposed.

The terms of reference for the Review cover three basic areas:

1. Electoral matters including the size of Parliament, the length of terms of Parliament, the size and number of electorates, and electoral integrity legislation;

2. Crown-Maori relationship matters including Maori representation – the Maori Electoral Option, Maori electoral participation, Maori seats in Parliament and local government – and the role of the Treaty of Waitangi within New Zealand’s constitutional arrangements; and

3. Other matters such as Bill of Rights issues, and whether New Zealand should have a written constitution.

A cross party reference group of MPs set up at the time to advise on the Review consists of Amy Adams from the National Party, David Parker from the Labour Party, Hilary Calvert from ACT, Metiria Turei from the Greens, Peter Dunne from United, and Rahui Katene from the Maori Party.

On August 4 last year – just before the election – the 12 member Constitutional Advisory Panel to lead the public discussion and prepare a report for Ministers was announced. The joint chairmen are:

  • – Emeritus Professor John Burrows, Queens Council and Law Commissioner,
  • – Sir Tipene O’Regan, former Chairman of Ngai Tahu.

Panel members are:

  • – Peter Chin, lawyer and former Mayor of Dunedin;
  • – Deborah Coddington, journalist and former ACT MP;
  • – Hon Dr Michael Cullen, former Labour Deputy Prime Minister and current principal Treaty Claims negotiator for Tuwharetoa iwi;
  • – Hon John Luxton, former National Cabinet Minister and co-Chair of the Waikato River Authority;
  • – Bernice Mene, former Silver Ferns representative and TV presenter;
  • – Dr Leonie Pihama, senior researcher in Maori and Indigenous education;
  • – Hinurewa Poutu, Kura Kaupapa teacher and Maori language media consultant;
  • – Professor Linda Tuhiwai Smith, Pro Vice-Chancellor (Maori)and Professor of Education and Maori Development at the University of Waikato;
  • – Peter Tennent, former Mayor of New Plymouth and hotelier; and
  • – Emeritus Professor Ranginui Walker, Maori academic and Member of the Waitangi Tribunal.

It is this ‘independent’ panel has will lead the public consultation process and report on any areas where there is a broad consensus. But having said that, it is clear that the panel is stacked towards Maori considerations as Pita Sharples reiterated: “An important part of the review process will be consultation with Maori, particularly on the place of the Treaty of Waitangi in our constitution. The members of this group are well placed to seek out and understand the perspectives of Maori on these important issues.”

National’s 2011 Confidence and Supply Agreement with the Maori Party agreed “to continue to progress the review of New Zealand’s constitutional arrangements and the advisory panel established to lead public discussion on relevant issues. The advisory panel is to deliver its recommendations to the Government in September 2013. The National Party agrees it will not seek to remove the Maori seats without the consent of the Maori people. Accordingly the Maori Party and the National Party will not pursue the entrenchment of the Maori seats in the current Parliamentary term.” Does this latter point not compromise the outcome of the whole Review process which has the future of the Maori seats as one of its key features?

In a Treaty Debate speech at Te Papa last month, Professor John Burrows, the co-chairman of the review panel explained that a constitution is a collection of rules that determine who exercises power in a country and how they exercise it, including the powers of Parliament, the Courts, and the Executive, as well as the safeguards to protect citizens against the abuse of power.2 Countries with a written constitution have all of their constitutional arrangements in one document, but in our case, like the UK, there is an array of major documents that constituted New Zealand. These include a collection of Statutes like the Constitution Act, the Bill of Rights Act, and the Electoral Act, some UK Statutes like the 1297 Magna Carta, a number of key court decisions, and a collection of constitutional conventions and long-standing practices – like the powers of the Prime Minister – that can be found in the Cabinet Manual. In addition there are other historical documents like the Treaty of Waitangi that played a part in constituting New Zealand.

Reform advocates say that a constitution needs to keep pace with the changing face of a county’s culture, but amidst calls by various racial groups to have their special rights enshrined, it is more important than ever to prevent New Zealan

d being saddled with a constitution that forever divides us on the basis of race.

Please do not ignore the serious and long-lasting effects this review may deliver. If you haven’t already signed up to our Constitutional Review campaign, please do so here , so we can keep you well informed.

Despite what the Maori Party and their fellow travellers are saying, there is no constitutional crisis in New Zealand. We plan to vigorously oppose any attempt to foist on an unsuspecting public a new Constitution based on race, and we will forcefully protect the one we have, which has and is serving us well.