Thursday, June 20, 2013

Mike Butler: Extra time for constitution scrap

You now have to the end of next month to tell the Constitutional Review Panel whether you agree/disagree/ don’t care whether New Zealand entrenches a system of government that could split the country into “Maori” and “the rest”. The panel this week extended the closing day for submissions, from July 1 to July 31.

Any treaty based constitution brings a racially split government, because the treaty brings treaty principles, treaty partnership, and therefore co-governance, with the government dealing with so-called treaty partners on one hand, and everyone else with the other.

With a separate Maori department and special deals for Maori, New Zealand has always had some degree of race-based set-up. But the establishment of the for-Maori-only complaint body, the Waitangi Tribunal, in 1975, and that tribunal’s broad re-definition of a grievance brought bulk-funded compensation of a sort never seen before, allowing tribal trusts everywhere to await multi-million dollar payouts irrespective of their history, and co-governance deals for coastline, water, air, biodiversity, minerals, intellectual property – you name it.

In the absence of public meetings and with limited advertising, only 33 percent of those polled in April knew that the Constitutional Review Panel exists, let alone what its purpose is.

The panel, launched on December 8, 2010, was a part of an agreement between National and the Maori Party -- the National Party agreed not to remove Maori seats without Maori voter consent, and not to pursue entrenching the Maori seats during the current term. The Maori Party’s 2011 election policy included ensuring that the constitutional review gives effect to the treaty.

With one co-chair and four panellists being Maori studies academics with vehement anti-colonialist views, bias was apparent.

Elevating the status of the Treaty of Waitangi to that of supreme law has been the goal of the Maori entitlements industry for at least 23 years and is unfinished business for that industry. The current push is the third such attempt, with the first in 1990 as part of the Bill of Rights Act, and the second in a cross-party review of the constitution in 2005. Why?

At the moment, the Maori entitlements specialists have to put in effort to get a “treaty partnership” deal. Their single strategy goes back to the State-Owned Enterprises Bill injunction in 1987, and has included commercial fisheries, water rights, spectrum, and other claims that go back to the mid-1980s.

These tribal opportunists must take a claim to the Waitangi Tribunal in the knowledge that they will get a big write-up that will report in their favour. Next step is the High Court where they will either succeed or go to the Appeal Court, and if unsuccessful there, on to the Supreme Court.

While the claim is going through the different legal levels, claimants will repeat their outrageous claim until it becomes embedded in the public conscious as a fact. The claim does not necessarily have to succeed because at any point a spineless government could cave in and grant a concession.

If the treaty became supreme law, that process would become automatic. In effect we would have government by Waitangi Tribunal. By re-writing our constitutional arrangements into a single document, the ultimate law-making power would be transferred from elected Members of Parliament to unelected judges who are not accountable to the public.

Muriel Newman, who convened the Independent Constitutional Review Panel, wrote: “A treaty-based constitution would fundamentally mean that the claims process would never end. There are already calls for treaty claims to include private property and even more public resources. Those who claim to be of Maori descent would be given priority to public funding, and the iwi elite would gain the rights to the co-governance of New Zealand along with the Crown.”

No one explains why it is that special Maori get a special say. Former MP Rodney Hide said Parliament itself is confused. ‘It’s some messed-up mix of “Maori are disadvantaged,” “We have the treaty,” “Maori were here first”, and “We need their vote.”’

An individual’s primary political status under any constitution must be citizenship, not ethnicity or religion. The danger with the Constitutional Advisory Panel’s treaty push is that New Zealand citizenship would be defined as “treaty partners”, which is race-based.

We have created a submission form at  which is linked to background information so that by going through the questions and clicking on the links you can become quickly well informed on all questions that the Constitutional Advisory Panel is seeking feedback on, not just the treaty matters.

Issues to consider include: The size and length of terms of parliament; whether terms should be fixed; the size and number of electorates, including the method for calculating size; electoral integrity legislation; the Maori electoral option, participation, and separate Maori representation; the role of the treaty; a written constitution; and Bill of Rights issues.

Be well aware, if this current attempt for a treaty-based constitution fails, it will return under a more accommodating administration.

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