THE DAMAGE DONE BY ROBIN COOKE

In 1987, in the landmark case of New Zealand Maori Council v Attorney-General before the Court of Appeal, the President of the Court, Cooke J., held that “the Treaty [of Waitangi] created an enduring relationship of a fiduciary nature akin to a partnership [between Maori and the Crown], each party accepting a positive duty to act in good faith, fairly, reasonably and honourably towards the other”.

And thus began a fight, which continues to this day, about the meaning of the word “partnership”.

To most New Zealanders, the Treaty of Waitangi was an exceedingly simple one-page document which involved those Maori chiefs who signed it (and not all did) surrendering such sovereignty as they possessed to the British Crown, and having their property rights protected in return, with all New Zealanders being given the “rights and privileges of British subjects”.

That this was the understanding of those chiefs who signed the Treaty is abundantly clear from speeches made by the chiefs at the time of the signing, and by the largest ever gathering of chiefs 20 years later at Kohimarama. It was explicit in a speech made by Sir Apirana Ngata on the centenary of the signing of the Treaty in 1940.

But ever since Cooke’s comment in 1987, Maori radicals and their Pakeha allies have sought to reinterpret the Treaty to mean that what it really meant was a relationship between two equal partners, part-Maori on the one hand and everybody else on the other.

Notwithstanding the fact that political leaders as different as David Lange and Winston Peters have explicitly rejected this understanding of the word “partnership”, it has gained traction over recent years, most strongly this year.

Near the beginning of the year, the Government retroactively changed the law applying to local government elections, under urgency, to prevent ratepayers having the right, enshrined in law, to have a say on whether race-based wards should be established.

In the middle of April, the Government was forced to acknowledge the so-called He Puapua report, commissioned by the Government in March 2019, completed in November of that year, but kept confidential both from the New Zealand First part of the coalition Government and from the public until months after the October 2020 election. This extraordinary document – and there is no other adjective to describe it – envisages that by 2040 New Zealand should have two completely separate governmental structures – one for Maori (“for Maori by Maori”) and the other for everybody else.

A few days later, as if to confirm that the Government was committed to this objective notwithstanding denials, the Minister of Health announced that the entire health system would be restructured. There would be a separate Maori Health Authority, a Health Authority for everybody else, with the Maori Health Authority having a power of veto over the spending plans of the general Health Authority.

A couple of weeks later, Justice Peter Churchman announced his decision in the first major case brought under the foreshore and seabed legislation, the Marine and Coastal Area (Takutai Moana) Act 2011. When this law was introduced by the then National Government, the Minister responsible for the law, Chris Finlayson, assured New Zealanders that for any claimant to be successful in lodging a claim for customary title to the foreshore (and the minerals under it) they would have to prove continuous and exclusive occupation of the land adjacent to the foreshore since 1840. He assured New Zealanders that there would be very few claimants able to meet that “continuous and exclusive” test.

In the case decided in early May, there were six claimants to the relevant coastline – thus making exclusive occupation difficult to establish surely – but the judge simply elevated the status of Maori tikanga above the status of the common law tests in the Act. Astonishingly, the Government joined an Interested Party appeal of the decision as an “intervenor” in the case, rather than appealing it in their own right despite the fact that, if the decision stands, it opens the way for successful claims to the entire coastline.

On 6 May, the Assistant Governor of the Reserve Bank gave a speech to the Institute of Directors in Auckland entitled “The Future is Maori”, including a number of Maori words understood by few, if any, of his audience. Had he given a speech entitled “The Future is Pakeha” he would have been run out of town, and rightly so.

At about the same time, the Minister of Local Government, Nanaia Mahuta, advised New Zealand’s 67 local councils that she proposed to acquire the Three Waters infrastructure of all these councils and merge them into four very large regional entities. The logic of this proposal looks entirely suspect: what possible efficiencies can be gained by merging the Three Waters infrastructure of Greymouth, Christchurch and Invercargill (all of them to be part of Entity D), or of Nelson, Wellington, Napier and Gisborne (all of them to be part of Entity C) escapes me. In fact the whole proposal, involving acquiring assets from local government for cents in the dollar, appears to make no sense at all until one looks at the proposed governance of these four entities – 50% of the governance boards are to be made up of tribal appointees, with a requirement that all decisions require a 75% majority, thus giving the tribal appointees a veto over all decisions.

And has there been an outcry at Mahuta’s proposal? Well yes, most councils appear to oppose the Minister’s proposal but on the grounds that ratepayers would be ripped off by having assets which they have paid for over decades summarily confiscated, with very little compensation. There have been almost no voices raised about the proposed intention to give tribal appointees effective control of the four entities, presumably because mayors, councillors and politicians are reluctant to be portrayed as “racist”.

By common consent, one of the most urgent legislative needs is to have the Resource Management Act replaced by new legislation which streamlines the consenting process. But what the Government has proposed by way of replacement, the Natural and Built Environments Bill, seems certain to make matters worse if the Bill becomes law in anything like its present form. Decision-making is devolved to Planning Committees which must include “mana whenua representatives” (plural) making it explicit that Maori New Zealanders must not just be “consulted” before any consents are granted, they must positively approve such consents, giving them a right enjoyed by no other New Zealanders.

And in the background, we see increasing deference to the Cooke interpretation of the Treaty:

• The Government has decided to have a particularly biased interpretation of New Zealand History taught in all schools, a syllabus which, on the basis of what we know so far, will portray pre-1840 Maori society as peaceful and agreeable, and will gloss over the Musket Wars, widespread cannibalism and slavery.

• There is increasing effort to have all New Zealand children learn some of the Maori language, even though it is a language which is of no practical value for the great majority of New Zealanders, and to ensure that taxpayer-funded media inject more and more Maori words understood by almost none of their audience.

• Almost every official or semi-official meeting begins with a few paragraphs of introduction in the Maori language, even though not 2% of most audiences understand a word of what is being said.

• When the report of the Oranga Tamariki Advisory Board was released in late September – a Board appointed by a Maori Minister and made up entirely of Maori members – Debbie Ngawera-Packer, the co-Leader of the Maori Party, stated that “A by Maori for Maori, according to Maori approach is the bare minimum. Not a by Maori, for Maori, according to Pakeha approach. For Te Pati Maori, this means establishing an independent Mokopuna Maori entity with at least $600 million to go directly to Maori”. That was an explicit demand that taxpayers hand over $600 million with no strings attached.

The irony perhaps is that Maori activists are a very small minority of the population. Nobody knows for certain how many New Zealanders have more Maori than non-Maori ancestors. When Statistics New Zealand asks people to indicate their ethnicity on the census questionnaire, any person of mixed ancestry is counted as “Maori” if they mention “Maori” as one part of their ethnicity. So a person who has one grand-parent who is Maori and three grand-parents who are European, or Chinese, is “counted” as Maori for the purpose of the census. In principle, if a person has one great-great-great grandparent (of 32) who is Maori, as a friend of mine has, he would be counted as Maori in the census (although I don’t know whether he in fact mentions his Maori ancestry when completing his census form).

And of course a great many Maori New Zealanders want to be treated like all other New Zealanders.

The tragedy is that some Maori New Zealanders have developed a radical interpretation of what the Treaty really meant, encouraged by Robin Cooke.

This was brought home to me when I read a news item from Waatea News. This quoted Professor Papaarangi Reid, a professor at Auckland University. Professor Reid’s mother was English and her father was called William John Reid, though presumably was at least part-Maori. She complained that Maori New Zealanders who are overseas were being given no preference in the lottery system the Government has introduced to get into the MIQ system. She said that:

"Maori are being treated as if they only have rights as citizens under Article 3 of the Treaty, but their Article 2 rights should also be recognised, such as the right to cultural practices like kawe mate. There might also be other people who we allow in for compassionate reasons but I think if we want to be kind, that’s the first thing we have to do, to allow people the rights for institutions like kawe mate to happen but also for people who need to come home on iwi business, whanau business and their own personal wairua business."

If Professor Reid’s interpretation of the Treaty is accepted, that those New Zealanders who chance to have one or more Maori ancestors have a superior constitutional status, New Zealand is doomed.

Don Brash

8 October 2021