Bob Edlin: Creative NZ gives support to the art of pressing MPs to change “racist” law and facilitate race-based voting systems

Creative New Zealand – a generous supporter of  artistic projects it considers worthy – is supporting writing which promotes the contentious notion that the Treaty of Waitangi calls for race-based voting arrangements in local government.

Yes, this is the outfit that administers the Arts Continuity Grant, a Covid-19 response fund which came to the attention of the Taxpayers Union when it had paid out $16 million in grants to a variety of questionable short-term arts projects.

Since March, Creative NZ has offered grants of up to $50,000 for ‘a short-term arts project, or the stage of a project, that can be delivered within a changed and evolving environment as a result of COVID-19.’

Many of the descriptions of these projects are, frankly, incomprehensible. It’s hard to see how bureaucrats in Creative NZ can make an objective judgment on which projects are worthy of funding, and which aren’t.

Among the 637 beneficiaries of taxpayer funding under the grant at that time were:

• Eamonn Marra – To research and write the first draft of a novel about male affection in hypermasculine spaces. Awarded $13,000
• Duncan Sarkies – Towards writing a novel about the collapse of democracy in an association of alpaca breeders. Awarded $26,000.
• Rosemarie Kirkup – Towards the development of a first draft of a play that explores the menstrual cycle. Awarded $16,766.
• Imogen Taylor – Towards development of a new body of work exploring modernism, feminism & queerness, with specific reference to the Otago region. Awarded $30,089.

Creative New Zealand also sponsors contributions to The Spinoff which deal not so much with the arts as with politics and governance issues.

Its support was recorded yesterday above an article headed Want to petition council to veto your local Māori ward? Bad news – you can!

Janaye Henry, a comedian and actor “who enjoys creating content for people who don’t often see themselves represented”, explains  in the article that under the Local Electoral Act 2001, New Zealand councils can choose to include a Māori ward.

She invokes The Treaty:

Like Māori electorate seats in the general election, anyone enrolled on the Māori electoral roll can opt to vote in their local Māori ward. Māori wards and electorates exist to ensure representation in government, in accordance with the principles of Te Tiriti o Waitangi.

But there’s also a bit in the act that says anyone is allowed to try to veto the inclusion of a Māori ward, regardless of what roll they’re on. If 5% of the local voting population sign a petition against the establishment of a Māori ward, the council is required to put it to a binding referendum.

Since the law came into force in 2002, only two councils have successfully introduced Māori wards, bringing the total of councils with Māori seats to three  – at least nine others have been vetoed.

Henry recalls that Nanaia Mahuta, Local Government Minister in the previous government, promised to remove this part of the law and urges the new Labour government to do it soon because several councils are set to introduce Māori wards at the next local elections in 2022.

Creative NZ’s support similarly is recorded on an article published earlier this week pushing the same constitutional barrow and headed Why Nanaia Mahuta is right to repeal racist Māori wards legislation

The author in this case, Florence Dean, is a law clerk at the Ngāi Tahu Māori Law Centre who brings The Treaty into considerations, too.

She says the Local Electoral Act 2001 allows voters to demand a binding poll if a council decides to create a Māori ward or constituency (the local government version of a Māori seat), then insists:

This law flies in the face of Te Tiriti o Waitangi, and, as Alice Webb-Liddall noted last year, acts as a barrier to Māori representation and participation in local government.

And:

… this law is flagrantly contrary to Te Tiriti o Waitangi. Te Tiriti guarantees Māori participation and representation in governance. But the local poll veto routinely stops Māori representation in its tracks. Te Tiriti is also meant to establish a partnership relationship, but how can this be if one partner is stopped from sitting at the table?

And Māori are being stopped. Only two councils have successfully introduced Māori wards since this law came into force in 2002. At least nine others have tried to do so, only to fail after the community vetoed the decision. This year, New Plymouth District Council, Tauranga City Council, Ruapehu District Council, Northland Regional Council, Kaipara District Council and Whangārei District Council all have chosen to create Māori wards for the next local body elections. Unfortunately, they all face a real threat of a binding poll overturning their resolutions. This is not democracy, this is racism.

So, the current law is stopping Māori representation from being achieved.

But under the first article of the Treaty, didn’t the Maori chiefs cede whatever sovereignty they possessed to the Queen completely and for ever?

Our understanding, further, is that under the third article, all Maori – implicitly including the many who were slaves to other Maori – were accorded the same rights and privileges as the people of England.

Resident British subjects did not need to be included since they had these rights already.

In effect, it seems the third article made redundant the second article, which did no more than guarantee the possession of their property, real and personal, to ALL the people of New Zealand (“tangata katoa o Nu Tirani”).

This suggests we can reject the claim – about our local government legislation – that “this law is flagrantly contrary to Te Tiriti o Waitangi”.

Then there’s Dean’s statement that “Te Tiriti guarantees Māori participation and representation in governance”.  This is true insofar as it applies  to all the people of New Zealand.

But the statement that “”the local poll veto routinely stops Māori representation in its tracks” is highly dubious because Maori have the same rights as all other New Zealanders to represent and be represented in government, both local and national.

Oh, and let’s not bypass the notion (which has fast gained widespread currency) that “Te Tiriti is also meant to establish a partnership relationship”.

We draw attention to the New Zealand Herald’s political editor, Audrey Young, who early in 2004 wrote about Deep divisions over Treaty’s matters of principle.

She reported she had found it difficult to find someone from the Government willing to talk about the “principles of the Treatry of Waitangi”.

At that time (according to the Ministry of Justice) we had 22 laws which imposed duties or responsibilities in relation to the Treaty of Waitangi and its principles; there were four statutory appointment processes involving Treaty of Waitangi considerations; and 13 laws in which there was general reference and recognition of the Treaty of Waitangi.

Among the examples included in Young’s article was this in the State Owned Enterprises Act 1986:

“Nothing in this Act permits the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.”

Young proceeded to explain how this particular clause in that particular law had had a huge impact on the legal interpretation of the Treaty of Waitangi and the definition of its principles.

Act leader and former Labour Minister Richard Prebble calls it “a piece of accidental law-making of the worst sort”.

It was one of the first Acts in which a reference was made to the principles of the treaty.

Prebble claims that Sir Geoffrey Palmer put it in as “window dressing” following discussions between the late paramount chief of Tuwharetoa Sir Hepi te Heuheu and former Prime Minister David Lange.

A court case over disposal of state-owned land was then taken by the Maori Council on the strength of that clause and led to a landmark Court of Appeal decision in 1987 establishing the principle of “partnership”.

Other principles are identified in various court decisions and Waitangi Tribunal reports and will continue to be identified, but the 1987 case produced the mother of all treaty principles – partnership.

“Partnership” is not mentioned in the treaty, in other words.  Rather, it was introduced to us (with profound governmental consequences) by judges who were called on to interpret some ill-considered legislation which Prebble described as “a piece of accidental law-making of the worst sort”.

Young went on to report that …

Even Sir Geoffrey said he had been surprised at the judgment. He told the Herald this week that the clause had had “unexpected consequences”.

“It did come as somewhat of a surprise to me that the Court of Appeal read that phrase up rather than read it down,” he said, explaining that the court had given the clause “a very wide and generous interpretation”.

The interpretations continue to flow.  And in the case of this week’s articles in The Spinoff, they are  “supported by Creative New Zealand”.

Maybe Point of Order should seek a grant to further work on our interpretation.

To help readers do their own interpreting, the English treaty text is here, the Maori text is here, and a discussion of the differences between the texts is here. 

Bob Edlin is a veteran journalist and editor for the Point of Order blog HERE.