The principles do need redefining and that redefinition will almost certainly result in a reset that reverses a lot of the insertion of the undefine 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 reset that re-establishes equality under the law and assistance based on need not race.
Ele Ludemann is a North Otago farmer and journalist, who blogs HERE
6 comments:
A notable insight.
If the msm treated the public to extensive discourse as above, significant restatement of the Treaty and retrenchment of the Tribunal could be accomplished without huge disruption.
Lange also made some observation about the likelihood Victoria, then queen of the most powerful empire on earth, entering into a partnership with a bunch of stone age cannibals.
Amazing prescience spoken with foresight not held by many others. It would be interesting to get Anne Salmond debating that speech. Point by point, not overlaying everything with the "new ideas" and ideology about a new type of democracy.
Or, as she is so busy writing stuff for the MSM perhaps she could write some counterpoints to the above and publish that in the MSM.
MC
A referendum is the politically healthy way to go.
Input for the clauses for the referendum from the public should be called for.
The discussion needs to be had. Not shouted down by the troughers of the treaty grievance industry.
Paul Moon needs to hired as a public educator along with Muriel Newman and hopefully someone sufficiently well informed from the Left.
New Zealanders do NOT know their history.
Up until 1990, Lange and Palmer had both believed the Treaty was a 'Partnership' between the Maori and the Crown, having created the 'Principles for Crown Action on the TOW' to address Maori claims.
Then something happened to make both Lange and Palmer quit politics rather than fix the mess they had made when they realized they had made a terrible mistake in ‘opening a can of worms’ in advancing the interest of the Maori minority.
One report and one document made them run for the door.
1. The Richard Hill report on ‘Settlements of Major Maori Claims in the 1940’s.
Chief justice Prendergast had ruled that the Treaty of Waitangi was a simple nullity and the Privy Council had ruled the treaty was not a legally binding document, therefore the TOW could not be used by claimants to support their claims before the courts in 1940. They were heard in an open court by a judge who gave his finding to Parliament and if successful, Parliament negotiated a ‘full and final’ settlement with the tribe. All these claims had been fully and finally settled in the 30’s and 40’s.
This made Palmer's 1985 TOW Amendment Act a rort.
2. James Busby’s final English draft dated 4th February 1840 was found. No forests, no fisheries, no partnership and no principles were mentioned in it.
Oh dear!!
Ways to reset "other than a referendum" include the suggestion of a former National Minister, Wayne Mapp, to set up a joint Iwi/Pakeha commission to decide on co-governance issues.
This strategy would remove the right of each and every NZ citizen to express his/her view. It is not only outrageous but unacceptable.
Why does Luxon - and National - not want the people to express their view in a democratic manner?
Have NZ politicians learnt nothing from The Voice referendum - where the Australian people clearly expressed their wishes ?
As a result, now Albanese cannot advance - his - agenda for this matter.This is democracy in action.
'Have NZ politicians learnt nothing from The Voice referendum' - you bet they have! they know the verdict will be 60-40 in NZ, but they are scared that the whole country will be labelled as 'racist' instead of 'kind'... makes it a bit hard attending wef & un meetings with that tag!
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