The push for treaty in constitution

A deal between the National Party and the Maori Party in the 2008 general election resulted in a further push to enshrine the Treaty of Waitangi in the New Zealand constitution. The review announced in 2010 was a further result of the toxic combination of a new Prime Minister John Key, a pragmatist who appears to separate ethical concerns from day-to-day decision-making, and New Zealand’s Mixed Member Proportional representation electoral system which allowed the Maori Party, a politcal party which got 2.39 percent of the party vote in 2008 to require a review of the constitution .

What is a constitution?

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. A constitution is a fundamental and far-reaching law, and one where just one word or phrase can have effects and repercussions in many and unexpected places. It is usually more difficult to change than ordinary law, and it is often a higher law, so that ordinary laws which go against its provisions can be struck down by judges sitting in judgment on the laws made by a democratically elected parliament. Aa constitution is expected to last indefinitely

What the treaty says

What the Treaty actually says is that the Queen is to be sovereign (Article I); that Maori are to be her subjects, with the rights and privileges of subjects like everyone else ~ no less than that, and no more (Article III); and that those rights include the possession, use and enjoyment of their own property, as the word taonga was accurately translated and amplified (Article II).

What the treaty is not

The treaty is not a valid treaty in international law. It was no more than the memorandum of the preliminary political understanding with the native Maori which Great Britain reached before it formally acquired sovereignty. The treaty does not have any independent legal standing as part of the law of New Zealand. The treaty may be considered to be part of our law only in situations when Parliament has declared that in this or that particular statute “treaty principles” have to be considered in one way or another. Although Parliament does occasionally refer to the “principles” of the treaty, Parliament has never defined them. None of the various lists of treaty principles, not even the list decided on by the courts, accurately reflects what the treaty actually says. The suggestion that Maori did not understand themselves to be yielding sovereignty by their agreement at Waitangi is a dishonest modern invention.

What a treaty-based constitution would mean

If the treaty was embedded in the New Zealand constitution, the rights of Maori under the treaty of Waitangi would be recognised and affirmed, and the treaty of Waitangi would be considered as always speaking and would be applied to circumstances as they arise. Every law in the country would be liable to challenge as being in breach of “the rights of the Maori people”. No settlement of historic treaty claims could ever be full and final. With treaty principles in a constitution, Maori will be legally entitled to pursue claims for resources as "taonga" for ever. Private property, as well as public, is liable to have treaty principles imposed upon it. Courts would be able to rewrite Acts of Parliament. The Waitangi Tribunal would be able to make recommendations that privately-owned land be “returned” to Maori ownership. Maori would have precedence over non-Maori in the distribution of health care, education, and welfare. Constitutionally-based treaty rights could entitle criminals with Maori ancestry to preferential treatment; to gentler sentences.

Treaty push in 1990 Bill of Rights Act

The first push for a treat-based constitution appeared in 1985, when Justice Minister Geoffrey Palmer tabled a White Paper entitled "A Bill of Rights for New Zealand" in Parliament by the then. The paper proposed an entrenched Bill of Rights that could not be amended or repealed without a 75 percent majority vote in Parliament or a simple majority in a public referendum. It would be supreme law, thereby eroding parliamentary sovereignty. The Treaty of Waitangi was to be wholly incorporated within the Bill of Rights thus elevating the Treaty's status to that of supreme law. The Judiciary would have the power to invalidate any Act of Parliament, common law rule or official action which was contrary to the Bill of Rights. The Bill then went to the Justice and Law Reform Select Committee, which recommended that New Zealand was "not yet ready" for a Bill of Rights in the form. The Bill of Rights was passed as an ordinary statute as the New Zealand Bill of Rights Act 1990..

2005 constitutional review

The Fifth Labour Government established a special select committee, chaired by United Future leader Peter Dunne, to undertake a sweeping review of New Zealand’s constitutional arrangements. The select committee, which reported back in August 2005, spent nine months undertaking the review, received 66 submissions and heard from senior jurists and academics. It recommended that parliament should designate a select committee to identify and deal with changes with constitutional implications as they arise. It concluded that there were “no urgent problems with New Zealand’s constitutional arrangements”. However, the Treaty Tribes Coalition, especially South Island tribe Ngai Tahu, maintained “that the greatest shortcoming of New Zealand’s current constitutional arrangements is their failure to fully recognise the fundamental significance of the Treaty of Waitangi”.

Further constitutional review announced

A further review of the constitution was announced on December 8, 2010, as part of a confidence and supply agreement between the National Party and the Maori Party in which the former agreed not to seek to remove Maori seats without Maori voter consent, while both agreed not to pursue entrenching the Maori seats during the current term. Part of the Maori Party’s 2011 election policy was to ensure the constitutional review gives effect to the treaty.

Although the review was set up to consider: The size and length of terms of parliament; whether terms should be fixed; the size and number of electorates, including the method for calculating size; electoral integrity legislation; Crown-Maori relationship matters; the Maori electoral option, Maori electoral participation, and Maori seats in parliament and local government; the role of the Treaty of Waitangi within New Zealand's constitutional arrangements; whether New Zealand should have a written constitution; and Bill of Rights issues; there was little doubt that the treaty and Maori issues were the main event.

Realising Maori Party goals

The review used a strategy that had worked for the government in setting up whanau ora one-stop shop welfare and in passing the Marine and Coastal Area (Takutai Moana) Act despite wide public opposition. A so-called independent panel comprising people who would parrot Maori Party wishes was set up followed by widespread consultation at private maraes and a few scarecly advertised public meetings. The Te Papa museum in Wellington staged what were called debates but were in fact discussions between an aray of like-minded treatyist academics.

Stacked panel

The 12-member panel, announced on August 4, 2011, 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. Its carefully balanced racial composition ~ five Maori, five European New Zealanders, one of Pasifika descent and one of Chinese ~ again presupposes 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.

Alternative review panels

Two alternative constitutional groups appeared. Auckland University Professor Margaret Mutu convened the Iwi Leaders Constitutional Working Group, a self-appointed group pushing for a separatist constitution based on the 1835 Declaration of Independence that resembled the latest Bolvian constitution and included the United Nations Declaration of the Rights of Indigenous People.

Canterbury University law lecturer David Round spoke for a further group, the Independent Constitutional Review Panel, issued a Declaration of Equality that rejected references to the Treaty of Waitangi or its principles in any constitutional document, wanted such references be removed from all existing legislation, wanted race-based parliamentary seats be abolished, wanted race-based representation on local bodies be abolished, and wanted the Waitangi Tribunal be abolished.

The Constitutional Advisory Panel on at least two occasions met members of the Iwi Leaders Constitutional Working Group, but relucantly allowed two members of the ICRP (Elizabeth Rata and David Round) to have perfunctory input into the CAP’s resource base.

Constitutional Advisory Panel report wants treaty conversation to continue

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 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. It did not release the submissions with the report.

ICRP report

The Independent Constitutional Review Panel issued a report based on 1222 submissions made in response to advertising and publicity. Specific responses were sought on all questions that the government-appointed body was required to investigate. The biggest response came from those calling for the abolition of local government Maori seats -- which showed 97 percent opposed. Opposition to the Maori electoral option (separate Maori roll), the parliamentary Maori seats, and to whether the Treaty of Waitangi should be included in our constitutional arrangements came in a close second with 96 percent opposed. Ninety five percent thought that any change to our constitution is only legitimate if approved by voters through a public referendum. Eighty six percent wanted to retain our present flexible constitutional arrangements, where the ultimate law-making power is held by elected MPs. Eighty three percent thought the ICRP’s Declaration of Equality, which is detailed above, should be enacted by Parliament.

OIA inquiry finds CAP submitters oppose treatyism

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 percent of respondents. Only 8.27 percent wanted to retain current system, 4.89 percent thought it should be decided by Maori, and 3.21 percent wanted Maori seats entrenched.

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

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

Conclusion

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 government to listen to the people and reject any future attempts by Maori supremacists to manipulate the system to give them more power. Be warned, the push to get the Treaty of Waitangi into the constitution has been around for at least 25 years and is certain to return.