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David Round

The place of the Treaty of Waitangi in a new constitution

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A Speech on the place of the Treaty of Waitangi and its ‘principles’ in a new constitution for New Zealand given in a debate organised by  the Maxim Institute at the Auckland University Business School on Monday the 15th of April 2013

Ladies and gentlemen;

A constitution is an agreement which a people has about some fundamental things ~ about how they are to be governed, and the principles on which they base their government and society. It is a sort of covenant, a solemn agreement that a people enters into. There has to be agreement ~ and the very fact that we are holding this debate is proof that the Treaty and its so-called principles should not be in our constitution, because on that matter there is no agreement. If ‘Treaty principles’ appear in a new constitution for New Zealand, it will not be because of agreement; it will be a case of a small vocal minority of the population succeeding, through political  machinations, in entrenching its own vested interests in a constitution in the teeth of widespread popular opposition. It would be to hijack our constitution; and that would be disastrous for our country.

(And there is, of course, no way at present in which we could have a new constitution without a mention of the Treaty.)

The place of those of Maori descent in New Zealand life is now an immense political and social and economic issue. But here is an interesting question. In what other area of our national life would we say to ourselves ~ ‘Gosh, here’s an immensely tangled social and political and economic problem, deeply dividing the country ~ how will we solve it? I know! Let’s get the lawyers in!’

This issue is not a legal issue, and law cannot solve it. The whole Treatyist movement is ~ in the words of a recently-published best-seller ~ ‘a tribal grab for wealth and power’. It is naked self-interest ~ and I am perplexed that our rulers cannot see this. Stupidity, political correctness and just plain cowardice must feature in the explanations.

If the Business Roundtable or the Manufacturers’ Federation, or farmers or trade unions or Grey Power were to say ‘Give us special entrenched rights under the constitution ~ it will make us a  harmonious country, and be for the greater good’ ~ if they said that, we would  laugh in their faces. What bizarre flaw in our national character prevents us from recognising these Treatyist con-men for what they are?

Because that’s what this agitation about the treaty in a constitution is ~ a con job. A bit of intimidation here, a bit of high moral tone there, an increasingly threadbare hard-luck story ~ and then, with their ‘Treaty principles’ as supreme law, they are in charge for ever ~ and Heaven help New Zealand .

Our constitutional history for the last thousand years has been an heroic tale of long and at times terrible struggles against oppressive rulers for liberty and democracy. What we have consistently insisted on is the supremacy of elected Parliaments, and representative parliaments.

Putting ‘Treaty principles’ into the constitution would reverse both those trends. Even though the basic principle of our constitution has been for several centuries that Parliament is supreme, our present Chief Justice has already stated more than once (fortunately not yet from the bench) that she considers herself entitled right now to strike down the laws made by our supreme law-maker if they conflict with her own interpretation of ‘Treaty principles’. If there were any mention of the Treaty in a constitution we can be pretty sure that that is what she would do.

And then we would have an unelected judiciary, often of a politically-correct nature, and certainly unanswerable to anyone, making eternally-binding rulings about what ‘Treaty principles’ require.

And if we had ‘co-governance’, the new catch-cry, by the ‘Treaty partners’, then we would have a small racially-defined minority with representation equal to that of the rest of the population.

No principle of justice requires such an arrangement. Maori are not ‘indigenous’ ~ they are simply a slightly earlier wave of immigrants, arriving only about four hundred years before Tasman. And the state of New Zealand was not created by Maori ~ it was carved out of the wilderness by the labours and sacrifice and inventions and civilisation of the pioneers, who rescued Maori from a resource crisis, increasingly deadly wars and self-destruction.

And nothing in the Treaty itself justifies the insertion of racial privilege for part-Maori into our constitution. I have to draw a distinction here between the terms of the treaty and its so-called principles. What the Treaty actually says ~ its actual terms ~ is unexceptional.  What the Treaty actually says, in both Maori and English, is that the Queen is to be sovereign and Maori are to be her subjects like everyone else, with the rights and privileges of subjects like everyone else ~ including, of course, the possession and enjoyment of their  property.

Now that is an excellent thing ~ all equal citizens of one state under the Queen’s law. But there is no scope there for special treatment, and so we have the so-called ‘principles’, which can mean anything that anyone wants them to mean. Everyone has his or her own list. The Court of Appeal’s 1987 list is constantly misrepresented ~ the court used the words ‘parties’ and ‘partners’ very loosely and  interchangeably, but ‘partnership’ has taken on a life of its own, and now many Maori seem to  believe that the Treaty says that Maori and the Crown should  be equal partners in the government of the country. That is nonsensical. The Queen’s subjects cannot be her partners ~ and if the Maori-by-descent 15% of the population were to  have a say equal to that of the  other 85%, then there would be an end to racial  equality and democracy, and the beginning of very  bad government.

(Even the Court of Appeal’s own list is nothing but a list of platitudes ~ honour, fair dealing and so on ~ which a court could use to justify any decision it wanted to come to ~ especially when our Supreme Court is marred by disgraceful politicians such as our present chief justice, ‘Maoridom’s best weapon’, as she was described at the time of her appointment.)

We cannot trust the judges.

As I mentioned at the beginning, this whole matter is not one on which there has ever been any public debate. The entire Treaty-ification of our country, of which this constitutional proposal is the latest manifestation, is conducted without any public input, because the Treatyists know that the public mood always has been, and continues to be, firmly opposed to their attempts to create an apartheid state.

Because that is what this will do. It is amazing that the cry of black people in apartheid South Africa, and in the southern United States with the civil rights movement, was always for integration into the wider community ~ but the Treatyist demand is not for unity, but for separatism ~ and not even ‘separate but equal’, but rather ‘separate and superior’.

To have the Treaty mentioned in our constitution would be a major step towards the disintegration of New Zealand.  These people do not want to be part of the same nation as the rest of us. But, as Metiria Turei assured us in a candid moment, they will still have their hands in our pockets. Several years ago she informed a public meeting at which I was present that ~ and I quote her exact words ~ ‘Maori want two things. They want independence ~ and they want more funding’.

You may think there is a certain contradiction there….

National debate on this matter has always been suppressed. Anyone ~ and I speak from long experience ~ who questions the radical Treatyist line is at once accused of racism and generally abused. What a strange world we live in, where those who argue for the racial equality of all citizens are labelled racist.

When, just a few weeks ago, I expressed my views along these lines in a column in the New Zealand Herald, Sir Michael Cullen described me as paranoid, extremist and a conspiracy theorist. So be warned, ladies and gentlemen~ if you find yourselves sympathising with my point of view tonight, that is what this ‘open-minded’ twinkly-eyed lovable elder statesman ~ and Treaty Claims Negotiator for Tuwharetoa ~ thinks of you.

In an open-minded way!

The official Constitutional Advisory Panel, on which Sir Michael sits, is racially stacked, has stacked terms of reference, and is doing nothing actually to engage the general public, nearly all of whom are still unaware of its existence. As Chris Trotter has recently pointed out, all  the organised Radio New Zealand/Centre for Public Law debates pointedly avoid any real debate ~ with members of the independent constitutional review panel like myself, for example ~ and instead just feature the usual suspects ~ ‘the good and the great, the wise and the just, the righteously indigenous and the guilty descendants of the Maori people’s wicked colonial oppressors’.

And that is why I particularly thank the Maxim Institute for being politically incorrect enough to believe in freedom of speech and to actually act on its principles. Good on you, Maxim. A pity there doesn’t appear to be anyone in our so-called ‘public service’ like you.

To conclude: the fundamental principles by which New Zealand society should be run are the equality of all citizens and, following on from that, a democracy of equals. To put the Treaty ~ as it is currently misunderstood ~ into our constitution would destroy those principles.

Regardless of what its final outcome is, this whole Treaty constitutional review is going to be disastrous for our country. Its very establishment reveals a stupidity and complete lack of principle on the part of the National Party, which, although it is difficult to believe, actually campaigned for election on the basis of ending racial separatism.

Even if no legal changes are made after the review, radical Maori expectations will have been fostered, and their disappointment will be yet another grudge to lay at the feet of the wicked white man.

And if legal changes are made, then the consequences will be far worse.

Constitutions should be clear ~ but ‘Treaty principles’ are a guarantee of uncertainty, litigation and continuing claims. They are a blank cheque for whatever Maori want.

(The Maori Council has already told us, for example, that the principles require a Maori preference in health care. If there is not enough health care to go around everyone, then Maori should receive preference in getting what there is.)

If the courts have the power, under a new constitution, to strike down legislation and  administrative practices should they supposedly offend against ‘Treaty principles’, then democracy and the rule of law go out the window ~ and poverty and civil strife come in the door.

*The audio of the Maxim Institute debate discussing differing views on the role of the Treaty of Waitangi in how we are governed is available HERE.