Tuesday, September 18, 2012
Mike Butler: The hunger for a special Maori deal
Such a demographic doomsday appears not too far away considering the panel leading a Constitutional review was been told a bicultural focus on the Treaty of Waitangi won't be fair to Pacific and migrant communities, according to a Radio NZ report on August 21, 2012.
Responding to panellist Ranginui Walker’s assertion that the Treaty of Waitangi was on top of the panel's list, Professor James Liu of Victoria University said the treaty has led to a kind of federalism, with the redistribution of resources to Maori as a nation within a nation. Professor Liu asked if that is to be entrenched in a constitution, then why couldn't there be an Auckland Supercity Federal Zone, in which multiculturalism rules.
While the booklet provides an easy-to-read introduction to our constitutional make-up related to non-Maori issues, its discussion of Maori representation in local government, the Maori seats, and the role of the Treaty of Waitangi, lurches into partisan politics.
The role of the Treaty of Waitangi
The booklet asserts that decades of "back and forth" between iwi and the Crown has resulted in the treaty's accepted position as the founding document of Government in New Zealand. It also says on page 9 that: "The treaty records an agreement that enabled the British to establish a government in New Zealand and confirmed to Maori the right to continue to exercise rangatiratanga".
Anybody who has read the treaty would know that it does no such thing. All the treaty actually says is that the Queen is sovereign and Maori are her subjects, with the rights of subjects, including possession of property. That is all, in both English and Maori versions. Since then, moreover, the Queen and her successors have exercised sovereignty for 172 years.
If you go back to the official English and Te Tiriti texts as posted on the Waitangi Tribunal website:
In Article 1, "the Chiefs of the Confederation of the United Tribes of New Zealand and the separate and independent Chiefs who have not become members of the Confederation cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of sovereignty" is phrased in Maori as "Ko nga Rangatira o te wakaminenga me nga Rangatira katoa hoki ki hai i uru ki taua wakaminenga ka tuku rawa atu ki te Kuini o Ingarani ake tonu atu - te Kawanatanga katoa o o ratou wenua".
And, in Article 2 "Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries . . " is phrased in Maori as "Ko te Kuini o Ingarani ka wakarite ka wakaae ki nga Rangitira ki nga hapu - ki nga tangata katoa o Nu Tirani te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa".
These two texts show that "sovereignty" is translated into "kawanatanga" and "possession" into "rangatiratanga". The treaty's Article 1 refers to ceding sovereignty while Article 2 guarantees possession of their lands etc.
Nowhere in these two articles does the treaty "confirm to Maori the right to continue to exercise rangatiratanga". This is a distortion of the meaning of the treaty.
The panel argues that the treaty influences the exercise of power because parliament has referred to the treaty in specific legislation, because parliament has guaranteed representation of Māori in the House, and has provided for local government to decide whether to establish Maori wards, because the Waitangi Tribunal was established to hear grievances and make recommendations, and because the Courts and the Waitangi Tribunal enforce statutory references to the treaty.
The government's 2010 statement of support for the United Nations Declaration on the Rights of Indigenous Peoples is cited, noting that it acknowledged that Maori hold a distinct and special status as the indigenous people of New Zealand, and reaffirmed the importance of the Treaty of Waitangi as a unique feature of indigenous rights in New Zealand
The principles of the Treaty of Waitangi are justified as necessary to cope with the differences between the two texts of the Treaty and the need to apply the treaty to changing conditions. The State-Owned Enterprises Act 1986 was cited as the first statute to refer to the principles of the treaty. The only treaty principles cited were those that required the non-Maori and Maori “treaty partners” to act towards each other reasonably and with the utmost “good faith”. The Waitangi Tribunal’s role in treaty settlements is discussed.
Questions raise concern what will happen once all historical treaty grievances are settled, and whether the treaty should be entrenched. The panel notes that settlement legislation establishes formal relationships between tribal corporations and government agencies.
The panel quotes from the 2005 constitutional review that said: “the lack of consensus on what is wrong, and how or whether it could be improved, means that the costs and risks of attempting significant reform could outweigh those of persisting with current arrangements. We suspect that this is the conclusion most societies reach about such fundamental issues in ‘normal’ times.”
Should the treaty be entrenched? The panel mentions former Justice Minister Geoffrey Palmer’s 1985 attempt to entrench the Bill of Rights and noted that if that had happened any legislation found by Courts to be inconsistent with the Treaty of Waitangi would have no effect. The panel did not say anything more about entrenching the treaty.
Maori representation in local government
The issue of Maori representation in local government is a current battlefield. Because of the partisan nature of this section, I will counter assertions made therein. The argument presented at the top of this section is that because local government has extensive powers to manage natural resources, and because Maori, "as tangata whenua", have a direct concern with the management of natural resources, therefore Maori have a close interest in local government representation to ensure their views and perspectives are heard.
The initial assumption that Maori are "tangata whenua" (people of the ground, country, or placenta) is not treaty-based, because the preamble of Te Tiriti uses the term “tangata Maori” (ordinary people which was taken to mean Maori people).
The spurious argument continues: “Historically, iwi Māori exerted kaitiakitanga managing all of New Zealand’s natural resources. Māori and the Crown agreed, through the Treaty of Waitangi, that Māori would maintain authority and control over their taonga, including natural resources. Now, much of the management and regulation of these resources is the responsibility of local government.
Use of the term “iwi Maori” appears to assert tribal corporations over “hapu Maori”. The “kaitiakitanga” or “guardianship” claimed in managing all of New Zealand’s natural resources, which the booklet elevates to a pillar of Maori environmental law, actually involved hunting moa to extinction and burning vast tracts of forest. The “taonga” argument is trotted out to justify a claim for anything other than an individual property right.
The booklet’s authors continue to argue that: “When a council is making an important decision involving land or a body of water, it must take into account the relationship of Māori and their culture and traditions with their ancestral land, water, sites, wāhi tapu, valued flora and fauna, and other taonga.”
The booklet noted that the Resource Management Act 1991 specifically required the relationship of Maori with their ancestral lands, waters, and other “taonga” to be recognised, that the Local Electoral Act 2001 allowed for the creation of Maori wards and an option to adopt single transferable voting, and the Local Government Act 2002 required local government to provide opportunities for Maori to contribute to decision-making. The Marine and Coastal Area (Takutai Moana) Act also provide opportunities for Māori to participate coastal resource management decisions.
A Nelson City Council poll held on May 12, 2012, was voted down with 79 percent of the votes cast against establishing a Maori ward, as did 51.9 percent of the Wairoa District Council voters and 79 percent of Waikato District Council voters. The Waikato Regional Council voted, in October 2011 to establish two Maori council seats and constituents have until September 28, 2012, to lodge an appeal or objection.
The panel asks whether Maori representation in local government should be guaranteed, or whether there are more effective ways of ensuring Maori views are represented. The panel notes that through treaty settlement legislation, parliament has established iwi statutory bodies to engage with the local authorities.
The panel does not consider the treaty-based option that Maori have citizen rights the same as everyone else that are currently being implemented, which means a guarantee of separate representation or allowance of other avenues is not needed.
Statutory Maori wards were widely debated during the restructuring Auckland's local government in 2010, resulting in the Maori Advisory Board set up as an independent statutory board that cannot be disbanded or amended by the Auckland Council. The board appoints a maximum of two people with voting rights on each of the Auckland Council’s committees that deal with the management and stewardship of natural and physical resources. This board recommended spending $300-million over 10 years on initiatives such as insulating Maori homes, and compulsory teaching of Maori in Auckland schools.
The Maori seats
Judging by the lower degree of justification in this section, it would appear the issue of whether to continue with or abolish separate Maori seats in parliament is more settled, with the current prime minister having said he would leave it up to Maori to decide.
The right to vote in New Zealand in the 19th century was based on individual land ownership, and most Maori did not meet this requirement as land was held communally. The Maori Representation Act 1867 provided for the election of four Maori MPs. Four Maori electorates were established and were made permanent in 1876.
The Maori Electoral Option, introduced in 1975, allows for electors of Maori descent to choose whether to be enrolled on the general or Maori roll. This option occurs after every census, and is the only time Maori voters can switch between the general and the Maori rolls. The number of Maori electorates is calculated by dividing the Māori electoral population by the population quota for South Island general electorates. After the 2012 election, there were seven Maori electorates.
The questions that have arisen include: Whether to retain or abolish the Maori seats, Whether to entrench them, or Whether there are ways of ensuring Maori views are represented by replacing or complementing Maori seats.
The Royal Commission on the Electoral System 1986 considered that a change to MMP would improve Maori representation, which has eventuated, and recommended that if MMP was introduced the Maori seats should be abolished. The Electoral Law Committee in 1987 recommended retaining the present system of separate Maori representation and that Maori should determine the future of the seats.
The Waitangi Tribunal's Maori electoral option report in 1994 argued that the Crown was under a treaty obligation to protect existing Maori rights to political representation conferred under the Electoral Act 1993.
The MMP Review Committee in 2001 did not receive a strong message from Maori about the future of the seats, so felt the status quo should be retained. Most committee members considered the Maori Electoral Option to be the best means of determining the number of Māori seats. They were divided on whether the seats should be entrenched, but all agreed that there should not be a waiver of the five percent requirement for Maori parties. Government concluded in 2002 that it would not be appropriate to make changes in the absence of consensus.
Some of the issues the Constitutional Advisory Panel is looking at are:
Should the Maori seats be retained?
Should the Maori seats be entrenched?
Whether there are alternative or complementary ways to ensure Maori are represented in Parliament, to the Maori seats?
Should there be guaranteed Maori representation on local authorities?
Are there are more effective ways of ensuring Māori views are represented in local authority decision-making?
Should the Treaty of Waitangi be supreme law so laws can not be inconsistent with it?
NZ’s Constitution – the conversation so far
at 4:18 PM