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Mike Butler

Submissions reveal constitution panel’s trickery

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The Official Information Act release of the Ministry of Justice summary of submissions is HERE.

An analysis of submissions to the Constitutional Advisory Panel obtained under the Official Information Act reveal a deep opposition to treaty politics that was obscured in the panel’s report to government in December.

The 12-member panel, appointed as part of the confidence and supply agreement between the National and Maori parties after the 2008 election, sustained immediate criticism for bias evident in the appointment one co-chair and four panelists who were Maori studies academics with vehement anti-colonialist views.

Further bias appeared when the panel consulted separately with Maori groups, and worsened when co-chair Sir Tipene O’Regan lumped together “those who wish to reverse Maori influence” with “extremist groups” and “Nazi sympathisers”.

The panel heard a range of views at over 120 meetings, on its Facebook page and from the 5259 written submissions received from groups and individuals. The 45-page report (with 75 pages of appendices), a somewhat bland regurgitation of what the panel was saying all along, was released in a news dead zone before Christmas.

The Constitutional Advisory Panel always said its purpose was to take the nation’s pulse on constitutional matters. If that was the case, and if the panel reflected the wishes expressed in the 5259 written submissions, recommendations would be as follows:

1. Maori seats in parliament should be abolished, according to 78.84% of respondents. Only 8.27% wanted to retain current system, 4.89% thought it should be decided by Maori, and 3.21% wanted Maori seats entrenched.

2. There should be no separate representation local government, according to 70.55%. Only 8.75% wanted Maori wards.

3. The Treaty of Waitangi should have no future role within New Zealand’s constitutional arrangements, according to 62.82%, while only 15.79% thought it had a role. Moreover, 71.76% definitely did not want the treaty to be made a formal part of the constitution. Only 23.07% thought it should.

4. No changes on the parliamentary term because few had any ideas on how long it should be with the biggest group of 0.545% opting for a shorter term.

5. No changes on whether the parliamentary terms should be fixed. A slight majority of 52.25% thought it should be while 37.64% wanted to retain current system. The system aint broke so don’t fix it on this point.

6. No changes on factors to take into consideration when the size and number of electorates are decided because few had any ideas with the biggest group of 14.64% opting for the status quo.

7. We should have fewer MPs according to 61.69% while 25.35% thought we should have the same number and only 5.49% wanted more.

8. Party hoppers should leave parliament. A total 40.55% thought that if a Member of Parliament parts ways with the party from which he or she was elected they should be made to leave. In addition 36.94% thought list MPs only should go. If the two totals are added, it appears 77.49 percent oppose party hoppers. Just 11.68% wanted no change.

9. Maori electoral participation could be improved in the same way electoral participation is encouraged for all, according to 82.81%.

10. A total of 65.87% were clear that New Zealand should not have a written constitution – with just 28.38% wanting a single written document.

11. But 83.4% thought the Bill of Rights Act 1990 should have higher legal status than other laws. This is worrying because that Act’s architect, Sir Geoffrey Palmer, intended that the Treaty of Waitangi be included in the Act that was to be entrenched as supreme law. Respondents who were dead against including Maori-supremacist doctrine in the constitution appear not to understand the implications of the Bill of Rights Act as superior law.

Despite these mostly clear messages from 5259 people, the Constitutional Advisory Panel recommended that the people of “Aotearoa New Zealand” (remember, the official name of our country is simply “New Zealand”) should merely continue the constitutional conversation, and develop a national strategy for civics education including the unique role of the Treaty of Waitangi which could include the co-ordination of education activities, resources for Maori medium schools, and professional development for teachers and the media.

An underlying assumption appeared to be that if the public were more educated the numerous inconvenient attitudes expressed above would disappear. The panel went to considerable lengths to spin a persuasive yarn.

On the question of Maori seats, the panel acknowledged receiving “a large number of submissions supporting the removal of the Maori seats” but argued that against this option saying it “is inappropriate for longstanding rights of a minority to be taken away simply because that minority is outnumbered”. The panel said “that the decision about the future of Maori seats should remain in the hands of Maori” even though only 4.89% of submissions reflected that view.

Similarly, the panel acknowledged the view that separate representation of Maori in local government was undemocratic but recommended against it by arguing that the Crown had “made co-governance commitments to iwi and hapu in treaty settlements legislation. Co-management arrangements reflect treaty principles and the Maori-Crown relationship and it is not realistic to undo this progress.”

A similar argument appeared in the response to the large group that thought the treaty has no role in how this country is governed. The panel asserted: “It is not viable to wind back the clock” and “the treaty is already a fundamental element of our constitutional arrangements” and “it would be unfair, unjust and unrealistic to go back on the commitments made to iwi and hapu by successive governments”.

This is the problem of going down the path of race-based affirmative action without seeking a mandate from the public, which is exactly what has happened in New Zealand. A precedent has been created. The government cannot proceed without opposition from the substantial majority that disagree. Likewise, the government cannot go back on commitments without upsetting the recipients of treaty generosity.

The panel asserts the official Waitangi Tribunal meaning of the treaty without saying that there are two versions of what the treaty means –the treaty as it was understood in 1840 and the version re-defined in the 1980s. The latter version has given birth to the twin fictions of “principles” and “partnership” that have expanded into demands for 50 percent of the nation’s resources for the benefit of part-Maori who make up only 14 percent of the population.

The 1840 treaty was a simple, 375-word document, consisting of three articles, a preamble and a postscript, by which Queen Victoria obtained sovereignty over New Zealand (first article). Maori were guaranteed possession of their property that they could sell to the government (second article), and all Maori including the many slaves became the Queen’s subjects, equal to Britons.

The quite different 1980s version asserted by the Waitangi Tribunal and repeated by the Constitutional Advisory Panel says the treaty allowed government of settlers only while chiefs could carry on being chiefs, or as the report says “the Maori text of the treaty, while giving kawanatanga (governance) to the Queen of England, also protected Maori rangatiratanga or ‘absolute authority for chiefs (rangatira) to be chiefs and hold sway in their territories.’”

This interpretation is nonsense because if that had been the case, chiefs who signed the treaty in 1840 would have kept their slaves, carried on killing girl babies, continued feasting as cannibals, and would have carried on waging war on each other. Slavery, infanticide, cannibalism, and inter-tribal war all eventually disappeared and no one is demanding that such practices should be reinstated.

The submissions show that the public wants rid of Maori seats in parliament, does not want separate Maori seats in local government, and does not want the treaty to have any future role in New Zealand’s constitutional arrangements.

The parliamentary Maori seats may be abolished by repealing Sections 45 and 269 of the Electoral Act 1993. The Maori roll may be abolished so all New Zealanders are on one electoral roll as equal citizens, by repealing Sections 76-79 of the Electoral Act 1993. Treaty references may be removed from legislation by a majority vote in Parliament.

The Maori party wanted to use the constitutional review as a way of elevating the treaty into supreme law and instead the public has totally rejected the idea. It is up to the National Party/Government to listen to the people and reject any future attempts by Maori supremacists to manipulate the system to give them more power.