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Ele Ludemann: Does reset need a referendum?

Act wants a referendum to define the principles of the Treaty of Waitangi.

The principles do need redefining and that redefinition will almost certainly result in a reset that reverses a lot of the insertion of the undefined principles in areas which many think have nothing to do with the Treaty.

It is 23 years since David Lange said:

It is with no disrespect for Maori feeling for the treaty that I have to say it means nothing to me. It can mean nothing to me because it has nothing to say to me. When I was in office I understood that the government had succeeded to certain legal and moral obligations of the government which signed the treaty, and that in so far as those obligations had not been met it was our responsibility to honour them. But that is the extent of it.

The treaty cannot be any kind of founding document, as it is sometimes said to be. It does not resolve the question of sovereignty, if only because one version of it claims one form of sovereignty and the other version claims the opposite. The court of appeal once, absurdly, described it as a partnership between races, but it obviously is not. The signatories are, on one side, a distinctive group of people, and on the other, a government which established itself in New Zealand and whose successors represent all of us, whether we are descendants of the signatories or not. The treaty cannot even resolve the argument among Maori themselves in which one side maintains that that you’re a Maori if you identify as such, and the other claims that it’s your links to traditional forms of association which define you as Maori.

As our increasingly dismal national day continues to show, the treaty is no basis for nationhood. It doesn’t express the fundamental rights and responsibilities of citizenship, and it doesn’t have any unifying concept. The importance it has for Maori people is a constant reminder that governments in a democracy should meet their legal and moral obligations, but for the country taken as a whole, that is, and must be, the limit of its significance.

Here I come to the dangers posed by the increasing entrenchment of the treaty in statute. The treaty itself contains no principles which can usefully guide government or courts. It is a bald agreement, anchored in its time and place, and the public interest in it is the same as the public interest in enforcing any properly-made agreement. To go further than that is to acknowledge the existence of undemocratic forms of rights, entitlements, or sovereignty.

The treaty is a wonderful stick for activists to beat the rest of us with, but it could never have assumed the importance it has without the complicity of others. It came to prominence in liberal thought in the seventies, when many who were concerned about the abuse of the democratic process by the government of the day began to see the treaty as a potential source of alternative authority. It’s been the basis of a self-perpetuating industry in academic and legal circles. Many on the left of politics who sympathise with Maori aspiration have identified with the cause of the treaty, either not knowing or not caring that its implications are profoundly undemocratic.

I don’t think it any coincidence that the cause gained momentum in the eighties and nineties, when the government retreated from active engagement in economy and society and in doing so weakened the identification between government and governed which is essential to the functioning of a democracy. It isn’t in the least surprising that undemocratic ideas flourish when democracy itself seems to be failing.

I think that in practice the present government will find it difficult to draw back from its public commitment to the treaty, and that this will almost certainly rob it of its chance to build a more cohesive society and a more productive economy. It has, in the public mind if nowhere else, adopted a goal whose pursuit is inevitably divisive, and it is spending its political capital on it almost by the hour. The result, if the worst comes to the worst, will be a fractured society in which political power will be contested in ways beyond the limits of our democratic experience. . .

Had an MP – current or past – from any party but one from the left said that s/he would be labelled a racist.

That is the label far too readily applied to anyone who questions the way the Treaty and its supposed principles have been inserted into far too many areas and practices where it has no place and in a way that makes some New Zealanders more equal than others.

It would be wrong to accuse Lange of racism just as it is wrong to make that accusation of anyone else who raises legitimate questions about the Treaty and its place in 21st century law and practices.

It definitely needs a reset. It doesn’t necessarily require a referendum to achieve that.

Already the thugs’ veto is being used to oppose the proposal of letting us vote on the issue with threats of divisiveness, violence and even war.

Those threats should not be used to scrap the proposal to hold a referendum.

Other ways by which to achieve the required reset could make a referendum redundant, but one way or another, with or without a referendum we do need a rest that re-establishes equality under the law and assistance based on need not race.

Ele Ludemann blogs at Homepaddock

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