Richard Prebble: The problem with Labour's co-governance - there is no democratic accountability

Who is Willie Jackson representing as the minister in charge of He Puapua? Photo / Mark Mitchell

Opinion

OPINION:

Act leader David Seymour is proposing a referendum on the principles of the Treaty of Waitangi. While Seymour is right that Labour has no mandate to implement co-governance, his solution of a referendum is not the answer.

With almost no debate, Labour has adopted a radical reinterpretation of the Treaty as a partnership to justify co-governance. With co-governance, there is no democratic accountability when half the power is held by those who do not have to answer to the electorate.

Co-governance was not in Labour's manifesto. Labour ministers hid from its coalition partner He Puapua - a report that could result in co-governance being extended. Work on this radical document is continuing.

Now Labour has an absolute majority and ministers have put the Treaty as a partnership at the heart of the government. It is paralysing policy. How can Māori be part of both the Crown and the other partner? Who is Willie Jackson representing as the minister in charge of He Puapua?

Seymour's solution is for the country to hold a referendum on what he believes are the Treaty principles.

"1. All citizens of New Zealand have the same political rights and duties. 2. All political authority comes from the people by democratic means, including universal suffrage, and regular and free elections with a secret ballot. 3. New Zealand is a multi-ethnic liberal democracy where discrimination based on ethnicity is illegal."

These are fine principles but they are not the principles in the Treaty. Neither Queen Victoria nor the chiefs proposed that women have the vote, for example.

There is a further objection. If a government can hold a referendum on whether to hold "regular and free elections", it follows some future government could hold a referendum to abolish elections. Any referendum to abolish fundamental rights is itself illegitimate.

We do not need a new Treaty. The Treaty is fine as it was written in 1840. [In the English text version] there are just three articles: "Cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty"; "guarantees ... the full exclusive and undisturbed possession of their Lands and Estates, Forests, Fisheries and other properties"; and grants "all the Rights and Privileges of British Subjects".

There is nothing about partnerships or being "a multi-ethnic-liberal democracy".

As David Lange put it: "Did Queen Victoria for a moment think of forming a partnership with a number of thumb prints and 500 people?"

A few Māori signed the English version. Māori had travelled to Australia and Britain. The preamble meant Māori knew what they were agreeing. Ceding sovereignty to end the bloody musket wars, gaining protection for their property and all the rights of British citizenship was a good deal.

What the Treaty does say is still important today.

Sovereignty was ceded. Sovereignty is indivisible. The Crown is everyone as represented by the executive and the courts.

Property rights are guaranteed.

Citizenship grants the rights from the Magna Carta - no arbitrary taxation and the right to a fair trial with a jury.

Parliament is responsible for the present reinterpretation, and only Parliament can fix it.

Parliament has included in a number of laws the phrase "the principles of the Treaty", without saying what those principles are. No MP thought that a court might say that a Treaty principle was a partnership. No court has.

Act leader David Seymour is proposing a referendum on the principles of the Treaty of Waitangi. Photo / Mark Mitchell

People have seized on a statement by judges that in resolving Waitangi claims, it is a relationship similar to a partnership, in order to claim that partnership is a Treaty principle.

Where Māori have a valid property claim, such as to some of our national parks, then co-governance is a pragmatic solution. It recognises the Māori property interest while maintaining the public interest in preserving the parks.

Labour ministers are now promoting co-governance on the basis that the Treaty is a partnership even where Māori have no property claim.

Māori interest in having access to health is the same as everyone.

As far as water is concerned, Māori only have an ownership interest as ratepayers in the dams, pipes, pumping stations and sewage plants. There is no case for co-governance.

So what is the answer?

In the hearings to appoint Judge Ketanji Brown Jackson to the US Supreme Court, a Senator asked what the solution was when the court misunderstands what Congress intended? The Judge replied that in that case Congress should amend the law to make its intention clear.

We should follow the judge's advice. Parliament has legislated that courts apply the principles of the Treaty. Parliament should now set out that those principles are what were agreed in 1840.

Instead of a referendum, Act should campaign that Parliament legislate that the principles of the Treaty of Waitangi are those in the Treaty: namely, the Crown has sovereignty, the Crown guarantees property rights and everyone has the same rights of New Zealand citizenship.

When Parliament does that we can again repeat Governor Hobson's words: "He iwi kotahi tātou: now we are one people".

• Richard Prebble is a former leader of the Act Party and former member of the Labour Party.