In a recent hearing at the High Court the attempt by the Maori Council and Tainui to get a court judgment that Maori have de facto proprietary rights over water by virtue of being Maori was rejected. No doubt Maori will pursue the case to the Supreme Court. The way the case played was interesting.
Justice Young found (amongst other things) that the Government (which the Maori Council was seeking a judgment against) had been acting according to the law of the land. Here is a key part of the judgment:
That particular statement goes to the heart of a matter which has been festering in New Zealand for years. Maori have told themselves, and persuaded many others, they they have authority and mana which is equal to that of Parliament. This is the implicit consequence of claiming that Maori, as signatories to the Treaty of Waitangi, are Treaty Partners or co-Regents with the Crown.
No review of Parliament by the Courts is permitted in law. This is effectively what the claimants have asked this Court to do in these proceedings.
There are two kinds of treaties.
The first is a treaty amongst equal partners. Free trade agreements (treaties) are modern example. The second is a treaty between a superior and an inferior party. The Treaty of Waitangi is clearly the latter: Maori ceded sovereignty to the Crown. For the past forty years Maori have increasingly asserted the Treaty represents an agreement between co-equal partners. Most people in New Zealand have simply nodded and shrugged. We are all being duped by revisionist history being propagated to give one component of the population special powers and higher rights. This contention has been acceded to by successive governments and has been reflected in numerous court decisions.
It has been a soft revolution. Justice Young's decision throws a monkey wrench into the Maori propaganda machine. We will await the outcome of a review by any higher court. But clearly Justice Young is correct: the constitution of New Zealand has Parliament as the supreme court of the land, our highest authority. The courts cannot override Parliament, or review decisions taken by Government under legislative authority.
Maori and its supporters have been arguing for a different constitution: Maori and Parliament as co-equal authorities. They have won lots of hearts and minds amongst the Left, the Commentariat, and the universities: it has been constitutional overthrow by stealth. Since Maori don't have enough votes, they have sought to use the courts (successfully to a significant extent) to recognize rights and powers not granted to them by voters.
Dr Elizabeth Rata is an associate professor in the Education Faculty at Auckland University and a member of the Independent Constitution Review Panel. She has written a very important piece in the NZ Herald confronting these very issues. It is so important, we reproduce it in full.
Dr Elizabeth Rata: Treaty no longer symbol of national unity
5:30 AM Thursday Dec 13, 2012Concerns over erosion of democracy are behind opposition to inclusion of the pact in governing arrangements.Where the belief becomes a problem is when a member of the Government appointed and funded Constitutional Advisory Panel such as Deborah Coddington states that this is so.
In describing the Treaty as our founding document she has jumped the gun somewhat in anticipating the panel's recommendations about the status of the Treaty. And she is certainly premature in gauging New Zealanders' opinions on the subject. Attempts by successive governments since the 1987 Treaty re-interpretation as a "partnership", including the expensive 2006 Treaty Roadshow, seemed to have been based on the misguided assumption that if New Zealanders knew about the Treaty then they would accept its increasing inclusion in the nation's political system.
Deborah Coddington appears to think along similar lines. However the rejection of Treaty politics by many is not from ignorance but from being only too aware of the profoundly undemocratic nature of political arrangements proposed by Treaty activists within all levels of government.
This rejection of Treaty politics has been the case for some time, despite the Road Show and an education system dedicated to promoting a Treaty-based biculturalism. Following two decades of biculturalism a 1999 survey of attitudes to the Treaty and the Waitangi Tribunal found that the Treaty "is a major point of division within the country". Only 5 per cent of those surveyed "think that the Treaty should be strengthened and given the full force of law". About 34 per cent want the Treaty abolished.
Ten years later, and despite considerable promotion, the Human Rights Commission's annual progress report on Treaty issues for 2009 found declining numbers who agree that the Treaty is the country's founding document. Since 2009, claims for public resources such as the foreshore and seabed and fresh water, along with claims for political control over those resources, has fuelled this widespread disquiet.
The entrenchment of attitudes opposing the inclusion of the Treaty in our governing arrangements is not based on a Maori non-Maori division. There are Maori and non-Maori of various ethnic backgrounds and cultural affiliations who are troubled by the implications of Treaty politics for democracy.
I consider it more accurate to put the dividing line between those who can be loosely grouped under the term "biculturalists" and those who maintain that "we are New Zealanders".
For the latter New Zealand citizenship comes before ethnicity, cultural affiliation or religious belonging, although commitment to those identities may still be considered important. What guarantees a person's political and legal status is what matters and that guarantee comes from being a New Zealand citizen, not from being a member of an ethnic group.
Biculturalists have morphed from the inclusive biculturalism of the early 1980s with its idealistic commitment to difference in unity to a separatist iwi politics. The first stage of iwi politics began in the late 1980s with the reinterpretation of the Treaty as a so-called "partnership".
This saw the insertion of partnership principles into almost all New Zealand legislation. We are currently in the second stage - one that is hotting up with proposals before the Hauraki Gulf Forum for "co-governance" of the Gulf. This will cement in the so-called Treaty partnership and justify a place for the Treaty within a New Zealand Constitution.
Those who object to this, and I am one of these, do so for two strong reasons. Co-governance establishes a political system where the power and authority of one party, iwi, is unchallengeable.
That party is not appointed by the people and is not therefore accountable to the people. The undemocratic nature of co-governance is made worse by the criteria for belonging to the Treaty partner. Membership of iwi is fixed in genetic ancestry. Unlike democracy which allows for all comers, a group whose membership is fixed in the past has no room for newcomers.
The Treaty partnership model of co-governance will subvert the fundamental principles of democracy. Democracy is a political system of equality no matter what your heritage, and a system of accountability no matter what your race or religion. As equal citizens each of us can call our political leaders to account. If iwi as Treaty partner was co-governor we could not do so.
This makes the matter of the Treaty's status of great importance to us all. To simply assert that the Treaty is our founding document, as Deborah Coddington has done, is not good enough.
Not only are there other contenders for the status of founding document (if we want one); the 1852 Constitutional Act springs to mind, but the strategic use of the Treaty in iwi politics to undermine democracy at all levels of our political system means that the Treaty is tainted as a symbol of national unity.
No comments:
Post a Comment