Graham Adams: Treaty principles debate takes off

Underestimating David Seymour is a mistake.

Anyone who followed David Seymour’s patient championing of assisted dying will have a sneaking suspicion that history may well repeat itself in the Treaty principles debate. As Winston Peters might put it, this is not his first rodeo.

It took five years after Seymour lodged his bill in Parliament’s biscuit tin in 2015 for the End of Life Choice Act to be ratified in a referendum at 2020’s general election and he was fighting very powerful opponents all the way — including the Catholic Church and its proxies, as well as influential doctors’ unions.

He entered the arena as the underdog, with even some of those pushing for a law-change initially seeing him as a poor representative to lead the campaign. Little by little, however, his critics were obliged to concede his persistent advocacy was highly effective.

Despite that success, few commentators rate his chances of progressing a Treaty Principles Bill beyond a first reading and its associated select committee hearing, let alone securing a referendum to ultimately ratify or reject a Treaty Principles Act. The consensus seems to be that angry protests will frighten Christopher Luxon into making sure Seymour’s proposed bill is summarily shot down after the select committee process.

And it’s easy to see why opponents of a referendum believe Seymour’s bill will never get near a ballot box.

Despite a Curia poll in October showing 45 per cent support for holding a referendum, there has been precious little — if any — commentary in favour of one. In fact, a lot of it has been hysterically opposed and some little short of apocalyptic, including Labour MP Willie Jackson’s warning in early November of “war”.

“I’m just giving a warning. I work amongst our people, I’m amongst people who will go to war for this — war against Seymour and his mates. I’m saying to you what Māori have been saying to me.”

Former Prime Ministers have denounced it. Jim Bolger called it “bloody stupid”, “a total sideshow”, and “a no-go”, while Helen Clark said a referendum should not even be contemplated, and that it would be “incredibly divisive”.

Anthropologist Dame Anne Salmond has described Seymour’s proposal to redefine the Treaty principles and put them to a vote as “disrespectful” and “arrogant”, as well as “unjust and unwise, and should not be entertained by any responsible government”.

It has also been said that the average voter is not capable of understanding the subtleties of constitutional law, and that prejudice and racism would skew the vote.

Predictably, the media has been damning of the proposal and quick to dismiss its chances.

Stuff’s chief political correspondent, Tova O’Brien, has referred to the “lunacy” of a referendum.

Stuff’s political editor, Luke Malpass, told the podcast Newsable in late November: “We will almost certainly not see a Treaty referendum.”

Newstalk ZB’s political editor, Jason Walls, similarly asserted on Newshub Nation that the bill would be killed after the first reading and the select committee process.

It’s hard not to think they are seriously underestimating Seymour’s tactical skills and persistence. It has gone mostly unnoticed that he told the NZ Herald’s Audrey Young in November that he wants a long period for select committee consultation, possibly as much as nine months.

That is the mark of a canny and confident democrat, who believes that, given time, he will be able to persuade a majority of voters to his way of thinking.

Seymour’s pitch is simple yet powerful: New Zealand needs a discussion about Treaty principles and people should have a say on them alongside the courts, the Waitangi Tribunal and public servants. And rather than a “partnership between races”, his principles aim to give all people “equal rights and duties”.

As he told RNZ, Act thinks the principles “should be codified in legislation and New Zealanders should be allowed to vote on them, rather than allowing the courts to surreptitiously change our constitution… Act would promote the Treaty as it was actually signed, not the divisive version invented by judges and academics.”

It should be noted that the binding referendum to ratify the End of Life Choice Act was held at the insistence of Winston Peters and NZ First. It turned out to be an inspired political move. Seymour no doubt learned from his experience of that contentious bill that if a politician wants to lock in change, a law passed after extensive debate both in Parliament and in public and then offered to voters to confirm or reject is an unimpeachable template for determining the will of the people.

Seymour wants the discussion to be as wide-ranging as possible. Consequently, when King Tūheitia declared a national hui to be held at Turangawaewae on January 20 to discuss the bill and the government’s Māori policy agenda, he welcomed it.

Seymour (like Peters) believes in the decency and intelligence of the ordinary voter. He doesn’t see many as unrepentant bigots, racists and deplorables — as some politicians and journalists seem to — but rather as largely rational people who will respond to intelligent arguments, including around issues of fairness, equal suffrage and the nation’s constitutional path.

It is an approach that paid off handsomely in 2020 when a significant majority of voters were clearly convinced by his appeals for compassion towards those suffering intolerably at the end of their lives and voted accordingly in the referendum.

It is ironic that some of his most prominent opponents are enthusiastically — albeit unwittingly — helping his cause. After all, is there any better way to ensure voters will end up demanding a referendum than insisting they can’t have one — particularly when they are told they are too dim to understand a constitutional question?

Voters were certainly considered smart and responsible enough in 1993 to decide in a binding referendum held alongside that year’s general election whether MMP should be adopted as the nation’s voting system.

Meanwhile, Te Pāti Māori is doing excellent work on Seymour’s behalf. Notably, its MPs organised protests during morning rush-hour within the first fortnight of the formation of the Luxon-led government to protest against its policies towards Māori. The party’s secretary bizarrely predicted the protests would likely cause “millions of dollars in lost productivity” as if that would help it win favour with the public.

The media appears to have been very impressed by Te Pāti Māori’s show of power after thousands of protesters turned out to support it, and have been very happy to present the party as representing the voice of Māori. However, as researcher Lindsay Mitchell observed in a column in December, Te Pāti Māori gained support from no more than one in six enrolled Māori voters. All up, it won just 3.08 per cent of the party vote.

However, it is the activist group Te Waka Hourua who have shown themselves to be Seymour’s most devoted allies. Vandalising a display of the Treaty of Waitangi in English showcased in one of the nation’s most cherished cultural institutions, Te Papa, is a stupendous own goal. When English is New Zealand’s only common language, it defies belief that any protest group would think it was a good idea to deface the version written in the language everyone speaks.

As one social media commenter put it: “If elite Māori say the English version has no standing, then the Treaty is no longer intelligible or relevant to at least 87 per cent of New Zealanders.”

Te Waka Hourua’s claim that Māori never ceded sovereignty to the Crown is as poorly thought through as their vandalism. If that were true, there would be no basis for Treaty settlements, which rest on the acknowledgment Māori surrendered sovereignty in return for successive governments protecting their property rights. As political commentator Grant Duncan put it: “Any community on these islands that rejects the Crown’s assumption of its sovereignty today weakens any claim they may make for compensation from the Crown in future. Indeed, they may be forgetting that the Waitangi Tribunal was a creature of a Parliament that had sworn loyalty to the monarch.”

Te Waka Hourua’s assault on the museum exhibit was effectively an attempt to insist there should be no debate, unless it is held on terms that suit them. Unfortunately for them, less than six weeks into the coalition’s term a fiery debate is already well under way. And even a quick look at social media shows all aspects of the Treaty / Te Tiriti are up for robust discussion.

Graham Adams is a freelance editor, journalist and columnist. He lives on Auckland’s North Shore.