VIEWS FROM OUTSIDE THE APIARY: IAN FLETCHER
The ACT party’s policy is to promote a Bill (and referendum) on Treaty Principles, related to the Courts’ ability to interpret The Treaty of Waitangi/Te Tiriti. To keep the coalition together, National and NZ First (who both see this as unnecessary) have both agreed to hold their noses (politically) and support the Bill to a Select Committee, after which we all expect it will die. What should we think?
ACT’s proposals are seductive: their first principle would affirm the sovereignty of Parliament, and third would affirm the principle of equality before the law. The first is a fact; the later ought to be. Not a problem, really.
It’s the second proposed principle that is controversial. It proposes that the Crown protect Māori rights as they were when the Treaty was signed, but goes on to say that those rights only differ from everyone else’s rights if there is a specific law, or settlement to establish a differing arrangement. This appears to extinguish any concept of Māori sovereignty, and reaffirms the universal application of the first principle – so, Parliamentary supremacy as well as sovereignty.
The real purpose of the second principle isn’t aimed at Māori claims to sovereignty, but at the Courts. The idea that there were Treaty “principles” was introduced only in 1975 in the Legislation that set up the Waitangi Tribunal. The original Treaty – in either language – is an exchange of commitments, not principles.
Since then, the courts and the Tribunal have elaborated a set of principles, based on partnership, active protection of Māori interests, and redress for past and present wrongs (this list is drawn from the published Cabinet Paper on the ACT Bill). ACT’s proposed second principle would limit the Courts’ ability to derive or extend new Treaty principles. It’s a battle of the principles.
Given that this Bill will die, why bother? Because this debate (it’s no more than that) sets up an emotive, divisive issue for future elections. ACT’s argument (set out in their Cabinet Paper) is that the Court and Tribunal-derived principles are used “to justify actions that many New Zealanders view as vague and contrary to democratic values (e.g. equal rights for all citizens), including co-governance in the delivery of public services and even ethnic quotas within public institutions.”
In other words, this appeals to people to whom Crown-Māori relations seem hard to understand, or who feel powerless or left out. Politically, this is astute. The last (Labour) government made a hash of co-governance ideas by failing to explain themselves clearly enough. I wrote about the Three Waters proposals at the time, describing their governance proposals as “baroque”. It wasn’t a compliment.
What will happen? The Bill will die, but ACT’s policy is clear; they have a strong platform that will separate them from all the other parties, and I suspect it will work well enough at the ballot box.
What about the other arguments swirling around? Debates about what transfer or sharing of sovereignty Māori considered they were agreeing in 1840 are theatre. We will never actually know, and it doesn’t really alter the current settlement or the debate. However, I think it would be a pity if our shared recollection became a caricature, where noble Māori were ripped off by dastardly British. I wrote my thesis in New Zealand political history (covering a later period), but I do know that the history is profoundly complex on all sides, and it is still being uncovered. We should give the past room to breathe.
Sovereignty today is exercised by Parliament. The people elect the Parliament, and the Parliament elects the government. That’s the 1996 MMP settlement. We can change it, but we need to start from the facts. Order is maintained by the Police and the courts. We have one currency, border system, tax system, local government framework, health system (well, sort of), and so on. Notions of an alternative sovereignty are largely gestures. I’d compare it to the so-called independent foreign policy, which (as I’ve noted before) confuses opinion with capacity to act effectively. Everyone can have an opinion.
This leaves the Courts. Here we have a problem, and ACT has a point. I have had senior lawyers, senior public servants, politicians and business people all express concern about what they see as the legal adventurism of the Supreme Court. Rather than ACT’s electoral grandstanding, or Shane Jones’ recent attack on a single judge’s alleged left-wing politics, we do need a serious conversation about the constitutional role of the courts. Regrettably, I see no one in public life with the mana to lead such a debate both respectfully and effectively. Once, when I took over responsibility for the UK’s interaction with the World Trade Organisation system, my boss said “Don’t let the lawyers near it, Ian, they’ll ruin it”. Same with the Treaty.
Ian Fletcher is a former head of New Zealand’s security agency, the GCSB, chief executive of the UK Patents Office, free trade negotiator with the European Commission and biosecurity expert for the Queensland government. These days he is a commercial flower grower in the Wairarapa and consultant to the apiculture industry with NZ Beekeeping Inc.
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