Race issue forces new look at NZ's constitution

By CHRIS BARTON

It's September, 2006. Flush from his "Brashlash" landslide success in the 2005 general election, Prime Minister Don Brash is making good on an election promise. But the third reading of the Treaty of Waitangi Reference Removal and Maori Privilege Legislation Extinguishment Bill has not been without incident.

The debating chamber is peppered with calls of "shame" from a few lonely voices on decimated Labour Party benches. Maori Party MPs, who made a clean sweep of the Maori seats, periodically interrupt proceedings with haka - as they did two months earlier when changes went through to the Electoral Act abolishing the Maori seats.

The new bill, dubbed "legislative genocide" by its opponents, goes a step further by removing the right to register as Maori on the electoral roll.

Parliament's speaker repeatedly calls "Order, order ... " Eventually the MPs sit down but continue to interject. "E hoa, ka whawhai tonu matou ki a koe, ake ake." (Friend, I shall fight against you forever, forever).

Outside Parliament, an enormous crowd - gathered from the "mother of all hikoi" - chants and threatens to turn ugly. The Prime Minister remains calm throughout - quietly confident in the mandate of the majority.

This is, of course, an entirely fictitious scenario. But the role of the Treaty and its place in our constitution has become a very real political battleground. In early March, Prime Minister Helen Clark said she was "warmly disposed" towards a discussion of Treaty matters.

Don Brash labelled the move a "political gimmick to get these issues off the agenda until after the election". But the public seems to want talk. A One News Colmar Brunton poll in March showed 69 per cent of New Zealanders want the Treaty's place in society investigated, with only 24 per cent opposing such an inquiry.

Officials are working out details. Should it be a royal commission or a parliamentary select committee? A public consultation phase is expected to start soon, followed by a specialist phase. The process could take 18 months. United Future, the Greens and New Zealand First have given conditional support. Act and National say no.

There is disagreement, too, about the scope. Labour wants discussion on the Treaty corralled. United Future wants to allow wider issues - such as whether New Zealand should become a republic. Both United Future and New Zealand First say constitutional decisions that emerge must go to a binding public referendum.

But regardless of any inquiry, any party with a majority can push through any legislation. So Brash could effectively extinguish the Treaty. Or could he?

"You can never extinguish a historical fact. It will always be the case that the Treaty of Waitangi was signed and existed," says Victoria University dean of law Matthew Palmer.

What can be altered is the legal effect of the Treaty - by introducing a bill which takes out all references to the Treaty in existing legislation and with "a general clause saying the Treaty shall not have legal effect whatsoever with any instrument [other legislation]".

Which sounds remarkably like what National is proposing if elected: "We intend to remove divisive race-based features from legislation," Don Brash said in his speech to the Orewa Rotary Club in January, in which he also spoke derisively of the "wide range of legislation making reference to the 'principles of the Treaty' without any definition of what that means."

While Brash's solution is to take Treaty references out, Palmer asks why not make them more clearly defined. "At the moment you have references to the 'principles of the Treaty' or to the Treaty generically. My argument is that abdicates responsibility for working out what Parliament really meant by that."

He points to the New Zealand Public Health and Disability Bill passed in 2000 as an example of how legislation can be properly framed. When the bill came back from select committee, vague references to "principles of the Treaty" were replaced with a specific purpose - "to reduce health disparities by improving health outcomes of Maori and other population groups". Even the generic clause about respecting the Treaty was clarified, "with a view to improving health outcomes for Maori".

In Brash terms this is still not acceptable because the mechanisms of the bill mean health providers are "explicitly established on a racial basis". He said at Orewa: "There can be no basis for special privileges for any race, no basis for government funding based on race ... and no obligation for local governments to consult Maori in preference to other New Zealanders."

The Health and Disability Bill appears to have addressed such concerns - expressly stating that "preferential access to services on the basis of race" is not allowed. But even well-drafted legislation is unlikely to appease perceptions that a minority group is getting an unfair advantage.

A National Party public survey question encapsulates the issue bluntly: "Do you believe that all New Zealanders should be treated equally under the law?" It's a question to which most New Zealanders could only answer "Yes".

Massey University professor of Maori Research and Development Mason Durie says the battlefield is one of individual democratic rights versus group rights. "At stake is whether indigenous rights can override the principle of equality of citizenship," he wrote in a paper last year.

Most would say individual rights come first, but under our law, even if the Treaty was extinguished, Maori rights do hold sway. Aboriginal title or customary rights exist in law separate from the Treaty - arising under a common law doctrine inherited from England and applied in Canada, United States and Australia. "It is a recognition by the English legal system that the people who were here first gained an interest in property by virtue of that fact," says Palmer. First in, first served.

Close all the legal avenues for "first nation" claims to be expressed, says Palmer, and it will come up in some other form of protest action. "If you don't get it right, then the issues are going to find their way into the political and legal arena no matter what sort of law you pass."

In his Orewa speech Brash acknowledges illegal land confiscations of the past must be dealt with. "The Treaty contains just three short clauses, and deals with the government of New Zealand, property rights, and citizenship. Those principles must be upheld." But if those principles - presumably of the Treaty - are to be upheld, which ones are not?

Like many, Palmer says our difficulty with the Treaty lies with its ambiguity - not just in what its clauses mean, but also because of its "half in, half out" status in law. While our courts have recognised the Treaty as "our founding document" and parliament has made reference to it in some legislation, the Treaty itself has no official legal standing. It's not part of our Constitution Act or our Bill of Rights.

Palmer says that fits with New Zealanders' pragmatic approach: "We're not generally people who like broad sweeping principles and frameworks to be handed down from on high. We prefer to build things up piece by piece, one at a time - which is consistent with our constitutional arrangements."

But we also like to pull things down and start over again. Witness the support Brash is getting for his Treaty castration proposals. Palmer sees the groundswell of opinion as a constitutional debate, as us deciding just how much we want the Treaty enmeshed in our law.

Brash wants it out: "The Treaty is not some magical, mystical, document ... The Treaty did not create a partnership ... "

Palmer wants it in: "People try to think of it [the Treaty] as a contract and it's not. I think it's a reflection or expression of an intention to have an ongoing relationship."

The Brash position disagrees with the Court of Appeal which has referred to the Treaty as "akin to a partnership"; and in the 1987 Lands case, unanimously held "the Treaty signified a partnership between races". The Court said partnership was a useful analogy "because of the connotation of a continuing relationship between parties working together and owing each other duties of reasonable conduct and good faith".

It's a classic constitutional divide. When Parliament makes lax laws, the courts step in to interpret the void. A quick-fix to the Treaty's in-limbo legal standing would be to make explicit reference to it in our Constitution Act or Bill of Rights. Combine both the Treaty and the Bill of Rights into a new Constitution Act - enshrining them into a supreme law requiring a 75 per cent majority to overturn - and New Zealand would have a written constitution.

As former Prime Minister Jim Bolger points out, that's potent: "With a written constitution, interpreted as it must be by a court, there is a significant transfer of the rights of sovereign parliament to the rights of an independent appointed court."

A written constitution would also render Brash's proposals to extinguish Treaty legislation largely impotent. But Bolger - a long-time advocate of the republican path - cautions that while a written constitution has "a lot of glamour", the American experience shows it "was not always helpful in advancing liberal democracy". Look for example, he says, at the way it has been used to both justify and outlaw slavery and segregation.

Which brings us to a fork in the road. One path, mindful of history, takes what has gone before, fixes the ambiguities and refines our existing laws to give the Treaty its rightful place. The other way says the Treaty is too broke - "badly drafted and ambiguous" - to fix: that we should cut the "loose threads of 19th-century law", and exclude the Treaty's presence from legislation so we may become "one people".

It's now 2009. The Maori Party has gained mana. Having won 30 seats in the new parliament thanks to disillusioned Labour and National voters gifting it their party vote, it has formed a minority government. Through a grand coalition with Labour, New Zealand First, the Greens and United Future it's keeping an election promise. But the third reading of the Constitution of the Republic of Aotearoa Bill has not been without incident ...

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