DON BRASH: SHOULD WE HAVE A REFERENDUM ON THE TREATY?

A couple of days ago, K Gurunathan – described as a former mayor of Kapiti – had an article in Stuff under the heading “ACT’s Treaty referendum: a bad idea, and even worse timing”.

In the article, he noted that former Prime Minister John Key had ruled out the idea of scrapping Maori electorates, even though it had long been National Party policy to do so, on the grounds that doing so “would be an incredibly divisive thing to do to New Zealand and New Zealanders. Do you really want to rip a country apart? I’ll tell you what would happen – hikois from hell.”

Then Mr Gurunathan noted that “Green Party leader James Shaw warned there could be wide scale disruption leading to violence if ACT’s Seymour is successful in getting National’s Christopher Luxon to agree to his referendum on the Treaty. Te Pati Maori president John Tamihere added that if Maori were backed into a corner it would spark a civil disobedience movement that would shut down the country’s major cities.”

What on Earth has David Seymour proposed to prompt such strong reactions? He has simply drawn attention to the fact that there is a huge amount of confusion about what the Treaty of Waitangi actually provided, with an increasing tendency for governments to interpret it and its so-called “principles” as conferring different political rights on those New Zealanders who chance to have a Maori ancestor than on those who don’t.

Yet the actual text of the Treaty, whether in English or te reo, is very short and very simple – only a single page in length. Its three simple clauses involved Maori chiefs surrendering sovereignty to the Crown, being guaranteed their property rights, and being granted the rights and privileges of British subjects. (And arguing that chiefs did not understand that they were surrendering power to a higher authority is impossible in view of the speeches made and recorded at the time, and subsequently made at a conference of chiefs in Kohimarama in 1860.)

Much legislation in recent decades refers to the “principles of the Treaty”, but Parliament has never tried to define those principles. The result has been that the courts have felt free to interpret those principles as they have felt inclined, suggesting in particular that the Treaty established something “akin to a partnership”, even though neither the word “partnership” nor any synonym for “partnership” appears in any of the three short articles of the Treaty.

So David Seymour has suggested that Parliament should debate what the Treaty means and, having had that debate, should ask the country to confirm the meaning by means of a referendum. In a statement issued ahead of the election explaining why ACT wants a referendum on the meaning of the Treaty, he commented:

“No society in history has succeeded by having different political rights based on birth. New Zealanders came here to escape class and caste and apartheid.

“All of the good political movements of the past four hundred years have been about ending discrimination on the basis of race, religion, sex and sexuality to treat each person with the same dignity. We are the first country in history that’s achieved equal rights and has division as its official policy. It’s nuts.

“The Treaty Principles Act would be short but decisive. It would define the Principles of the Treaty as:

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, regular and free elections with a secret ballot.

3. New Zealand is a multi-ethnic liberal democracy where discrimination based on ethnicity is illegal.

“For the avoidance of doubt, these principles prevail over any contradictory enactment by Parliament, or finding on the matter of Treaty Principles by the Courts.”

I find it hard to see any rational reason for opposing such a referendum. Surely not the threat of civil disobedience by those who feel that that interpretation of the Treaty of Waitangi threatens their own self-interest?

Of course, there is nothing about such a referendum which would reverse or put an end to claims against the Crown for historical abuse, and nor should it.

But if such a referendum were passed it would end once and for all the nonsense that those who chance to have some Maori ancestry – now always with ancestors of other ethnicities too of course – have some preferential right to anything. Logically, there would be no basis for Maori electorates – which were established for just five years in 1867, and which the Royal Commission on the Electoral System said in 1986 should be scrapped if we adopted MMP – no basis for separate Maori wards in local government, no basis for a separate Maori Health Authority, and so on.

Might this lead to the sudden disappearance of Maori from positions of power and influence? Of course not. We don’t know the final shape of the new Parliament as I write but it is only a couple of years ago that the Leader and Deputy Leader of the National Party were Maori, as were the Deputy Leader of the Labour Party, the Leader and Deputy Leader of New Zealand First, the Co-Leader of the Greens and the Leader of ACT, with only one of those seven people being dependent on a Maori electorate to get into Parliament. To imply that without Maori electorates Maori would be deprived of a voice in Parliament is condescending nonsense.

I hope that John Tamihere, who was himself a Minister in a Labour Government some years ago, would not do anything to encourage civil disobedience – indeed, would do everything in his power to encourage obedience to the law – if David Seymour’s referendum were to go ahead. But the longer New Zealanders go on pandering to the radicals who are demanding superior rights based on ethnicity the more difficult it will be to put the country back onto a democratic path.

As negotiations to form the next Government get under way in earnest, let’s hope that a referendum to define our political rights beyond any shadow of doubt is firmly on the agenda.

Don Brash

31 October 2023