As some of you may be aware I have recently kicked off a project to engage wider New Zealand in a conversation on the treaty. It is an honour to be invited here today to present the second of three speeches that communicate and build on the work that Susan Guthrie and I spent over a period of 5 years writing our book, “Are We There Yet – the future of the treaty of Waitangi”

What does the treaty in 2015 mean in plain English?

Firstly the treaty is whatever a reasonable person’s view of the following 4 taken together, leads them to – not any one taken in isolation, but all taken together.

1. Treaty of Waitangi
2. Te Tiriti O Waitangi
3. Principles of the Treaty
4. Post-1975 Consensus on the Treaty

And my summary of a reasonable person’s view of those is that the treaty establishes the right of two societies to co-exist, to sustain a mutually supportive, beneficial relationship built on respect and protection of values of both societies.

Since our society today comprises many ethnicities we need to apply the principle of peaceful and fulfilling co-existence to all, rather than just the two of 1840. If we can’t be broad-minded enough to do that then forget about getting sufficient support for enshrining the treaty with a written constitution. Having said that there are some aspects of the arrangement that are unique to Maori – which I will come to.

The treaty requires a duty of care (one can’t benefit at the expense of the other) and mutual respect. The culture, institutions and language of Maori are specifically protected under Article 2. But a reasonable person would infer that those of other groups should be, as much as possible respected as well. The difference the treaty has made is that protections of tikanga Maori is hard-coded – it is an obligation for the Crown to ensure these values are maintained, this is the duty of care the treaty implies. As it happens the 1970 UN Declaration on the Rights of Indigenous Peoples protects these as well for indigenous groups. So which ever way you look at it, this is a differentiating factor between Maori and other ethnic groups.

But we can all agree I hope that the treaty is certainly not an agreement that implies that wider society can impose its values, institutions and culture on Maori. This is what makes bicultural NZ unique – that a treaty was signed to enable two societies to share a land and flourish. The 1970 UN Declaration however, repeats this code for all countries that are signatories, albeit that compliance is “voluntary”.

Now going forward, there are two alternatives – actually only one, but successive governments are really moving quite slowly towards it because the public-at-large isn’t sufficiently informed yet to make progress toward a written constitution. This was the conclusion of the Constitutional Review Panel.

To cut to the chase, they are;

1. try and carry on as we are now – until the next 1975-style uprising – which means keeping and possibly further extending positive discrimination (or affirmative action) toward Maori through, for example, Maori seats (despite the 1986 Royal Commission on Electoral Reform telling government that when MMP was introduced there is no case); expanding the number of Maori wards in councils; extending the positive discrimination toward Maori (quota) in education facilities. I don’t agree with any of these – some are a direct violation of Article 3 (equal rights for citizens) and some are a patronising sop to Maori pushing far beyond the rights to co-governance in resources and taonga as Maori are entitled under Article 2. This treaty extensionism will undermine democracy however – which is what our book is about.
2. hard code the treaty into a consciously chosen constitution. Pakeha have nothing to lose from this and everything to gain. All it means is that – within the law of the land – Maori have the right to self determination – in other words their own institutions to administer and deliver public services. This right is conditional upon activity being within the law of the land. So it’s similar to a federal system if you like. Yes this means that Parliament remains the sovereign power, although Maori have unique carve-outs from that as Article 2 established My proposal for an Upper House enables Maori to have more influence that non-Maori on lawmakers, albeit no right of veto.

 

I vastly prefer this second course because it is right, it should satisfy Maori and it will enable us to get rid of special favours for Maori which I see as stigma-generating, demoralizing and a very poor substitute for the real deal.

The task is to get this constitutional debate going and fast – for citizens to seize the initiative, not to let the government run it with its selectivity of participants and the resultant bias at best, inertia at worst that comes from government control.

What has the government done so far?

It established a constitutional review panel in 2011 and its final report was published at the end of 2013. Recommendations from this $2m exercise were;

1. Citizens of “Aotearoa New Zealand” read the submissions and keep talking about the constitution
2. We need to educate people in the community & in schools on the role of the Treaty of Waitangi. Somebody needs to take ownership of this task – the review panel wants an independent body set up to do this.
3. Such an educational strategy could include resourcing those schools that use Maori as their medium; the education should also provide professional development for the media.
4. Notes people need more information before they will support change, and while there is not broad support at this time for a written constitution, there is considerable support for hard-coding elements of the constitution.
5. The education strategy needs to enable people to inform themselves about the rights and obligations under the treaty. Combining them all into one statute is suggested as a way for the public to easily establish what statutory protections they have.
6. We need a process to establish some options around the future role of the treaty as the foundation of the Constitution.

In summary the review panel exercise was a toe in the water, suggesting a pathway. Parliament knows the settlement process is coming to an end and the bigger issue of how to coherently embed the treaty in the laws of the land has begun. Up until now that process has been very ad hoc and tentative. This is what is driving the politicians to look at deliberately designing a constitution. But they are scared – they see it as a very slow journey, because the bulk of the NZ public haven’t got a clue what’s going down, and think the treaty is just about writing a few cheques, giving Maori a few meaningless baubles of office, and using positive discrimination (or affirmative action) as a mitigation strategy.

The issue is how do we take the treaty forward from here in a meaningful way? Or, as already mentioned, do we just sit on our hands until Maori get riled up again. To its credit the government has at least started to consider the inevitable. But still – everyone is too scared in this space to take the bull by the horns and complete the job. The tragedy of that inertia, is that we can look for more years of mounting resentment, suspicion and fear amongst the public – stirred along by the shock jocks of low level media – all of which is not in the national interest. And in the meantime too many Maori are locked out from full participation in society because of the lack of empathetic institutions, processes and resourcing to connect with them. The intergenerational displacement continues – in full treaty breach.

Which is why I would like to help speed things up.

What would it look like to have the Treaty in the Constitution?

Many nations have written Constitutions, hard-coded sets of principles to which the laws of the land must conform. However just because it is unwritten, it doesn’t mean our constitution is any less powerful or important. Currently ours is simply a collection of important pieces of legislation, rather than one over-riding document.

It’s pretty clear though that the Treaty is not adequately protected in the laws, norms and processes that make up our constitution. That is why we should start to review and move to a deliberately designed constitution. In New Zealand that would have to reflect the essence of the treaty, which thanks to the post-1975 processes is now captured in the two original documents, plus the established principles and what an objective, reasonable person would take that agreement to mean in the modern context.

Putting the treaty centre of our constitution would, in my view, finally re-affirm that Maori have the full right to the option of accessing institutions and processes that are infused with Maori values and ways of being and are empathetic to, or reflective of the socio-economic advancement which Maori desire of their society.

To my simplified perspective, this means for instance, a child raised in te reo in the home, has all the same resource available to learn English as a second language when they enter school as would an English-raised child have to learn te reo. In the government-provided services of health, education and justice Maori would be able to exercise choice, to access mainstream options or those designed around Maori values. The idea is not to create exclusive, competing, parallel systems but to provide genuine choice. After all, not all Maori have the same views – the key is to create opportunities, not railroad anyone down a particular path.

The question to ask is whether we’re close to that now. I would say we might be with the Rangatahi court – which is a great example of collaboration between the two systems of justice –  but there’s plenty of work to do elsewhere.

Why am I against Maori seats, Maori wards and quotas for Maori in educational institutions?

The short answer is because they are a poor substitute for honouring the treaty. They are a suite of ad hoc interventions designed to patch up the worst of the consequences from Maori society not having its full social, economic and cultural rights recognised. The fallout – as we all know – in terms of over-representation in socio-economic disadvantage – is a living disaster. And not getting any better.

But for as long as we don’t honour the treaty I do not object to these interventions but recognise they are totally unsustainable if democracy isn’t to be destroyed. Granting any group special rights is contrary to Article 3 of the treaty and more significantly, to the natural justice of a democracy. Let’s extend the principle to some other groups who we could well argue are not adequately represented in parliament say. Let’s agree for the purpose of illustration that women, the disabled, Pasifika, and Asians, as well as Maori should all have representation in parliament that reflects their share of the population.

That would imply that we would assign 13 more of the 121 seats to females, 10 more to Asians, 28 more to disabled, 1 more to Pasifica, and remove 9 Maori from parliament. More absurdly this would mean we then have just 25 seats left for democracy to provide. Clearly it’s a nonsense but I provide this to illustrate the principle of allocating political power to groups – whoever they are – is not clever, but rather a very dangerous slippery slope toward the destruction of democracy.

It’s this that drives me to argue that we must hard code the treaty into the constitution and restore our democracy to what it was and should be – one that reflects equally the views of every individual in our society.

Until we do this I fully expect more and more ad hoc targeted interventions to mitigate the worst effects of the denial of Maori’s rights.

How can we make progress?

The review panel is correct in saying education of the public is a prerequisite. In the year since they said that, government has done nothing – perhaps waiting for the groundswell of discontent to build sufficiently to compel them to act. Such is my cynicism of the glacial pace of progress that those who choose political careers prefer.

But we can spur this along by sponsoring a public debate anyway, which is my own objective.

The first aspect to address is the fear born of the unknown that the general public feel – and which the review panel picked up in its observation that there is currently no ‘broad support for a supreme constitution’ – even though it noted ‘considerable support for entrenching elements of the constitution’.

Only by laying out some options of what a constitution might look like, can the public education process begin. Most importantly the over-riding lack of understanding is around what non-Maori might lose. While the reality is nothing and indeed all sectors of society will gain (1+1=3) – this is not the general preconception – and hence the fear.

The review panel has suggested that beefing up the Bill of Rights be the vehicle to define our Constitution. That seems totally reasonable but is detail. The more relevant point is how? On that the panel suggests to the Bill of Rights

•  be added economic, social and cultural rights, property rights and environmental rights
•  improved compliance by the Executive and Parliament with the standards in the Act
•  the Judiciary be given powers to assess legislation for consistency with the Act
•  we entrench all or part of the Treaty

The guts of course lies in the first part – defining the rights –  and this is where various options need to be put up for public consideration. For me, this is the logical next step in pushing this discussion along, and what we at Morgan Foundation will be doing.

To conclude, the post-1975 treaty processes have been wonderful, not just in enabling breaches to be identified, claims to be heard, validity established and then settlements to be negotiated. More tellingly, insofar as the future is concerned, that process has provided a better definition of the treaty and its relevance to contemporary New Zealand society. Using that definition we can now move forward and hard code it into a constitution.

For me, that means we will be able then to honour Article 3 of the Treaty, Article 46 of the UN Declaration of Rights of Indigenous Peoples, and the natural justice of a true democracy – by removing group political rights and returning to a democracy where your vote is worth no more or less than mine, where political power is returned to parliament from these non-democratic committees and Statutory bodies that have proliferated over recent years.

In short I don’t want to see positive discrimination as being necessary for Maori But until we honour the treaty properly and are sufficiently confident that this country enables all cultures to fulfill their potential, and form the strongest possible cross-cultural relationships, we will need more and more special privileges for Maori if only to mitigate the deeper and deeper despair that marginalisation brings for so many in that group. To any fair-minded New Zealander, that should be totally unacceptable.

This concludes my second speech of three in this series on the treaty. In the first at Ratana last week I identified the types of changes that in my view would go along way to boosting the mana of Maori in this land and help restore the types of dispossession that TW Ratana identified when he gave the four gifts to MJ Savage. I saw those types of undertakings as;

• Renaming the country before we worry about design of the flag. John Key is clearly eager to remove the shackle of the Union Jack from New Zealand’s identity. He might consider how Maori feel about the reverberations from ongoing neo-colonisation. I am pleased the constitutional review panel refer to our country as “Aotearoa New Zealand”.
• Making te reo compulsory in primary school. This would lift the status of the language in the minds of all New Zealanders and more importantly ensure future generations feel strongly identified with the Maori heritage that is part of our unique identity. Pleasingly the mainstream schools are moving a long way down the track of teaching pupils New Zealand history and the Maori legacy. All I’m doing here is suggesting we make that formal.
• Introduce an Upper House in Parliament with 50/50 Maori representation. On a 75% majority vote (to eradicate partisan voting), that house be able to recommend parliament reconsider intended legislation. This honours Maori unique status or mana in New Zealand but not to the extent Maori can veto legislation.

Next week I will conclude this series with a speech on the issues of water and customary Maori rights.

Behind all of these communications lies a foundation of work that we completed in our book, “Are We There Yet – the future of the Treaty of Waitangi”. That research concluded that we are not but that the essential elements of rangatiratanga – self-determination, eradication of socio-economic disadvantage, and greater political power can be achieved by Maori through means that do not compromise the lives of other New Zealanders. In order the solutions lie in devolution, strengthened human rights and racial discrimination legislation, and a constitutional discussion through the deployment of citizen’s assemblies (a way all New Zealanders can participate in constitutional change).

Thank you.