Graeme Reeves: The Treaty Principle’s Bill or the Constitutional Principles Bill or neither?

In his blog of 14 October 2024 Professor Robert MacCulloch, in discussing the Treaty Principles Bill suggested that the bill be renamed the “Constitutional Principles Bill”. He suggested that it should simply map out the fundamental values all Kiwis hold dear avoiding the futile treaty interpretation and mind reading game.

If only it were that simple.

New Zealand already has a well-developed set of constitutional principles which have been formulated over a period of about 900 years, starting with the Magna Carta in 1215, the Bill of Rights Act 1688, the New Zealand Constitution Act 1852, the Bill of Rights Act 1990 and the Human Rights Act 1993, all of which have contributed to New Zealand being the oldest continuous successful democracy in the world.

Put simply, the combination of the above enactments established the three pillars of a democratic system of governance.

1. The disbursement of power from an authoritarian head of state including the separation of the church from the state i.e. a “secular” society and not a “sectarian” society, to the elected representatives of the people.

2. The establishment of the Rule of law including both the civil law and the criminal codes, and most importantly the creation and protection of private property rights which provides the foundation for a capitalist economy.

3. The equality of all citizens under the law.

Under this system Parliament is the supreme Law making agency receiving its Mandate from the people in free and fair general elections.

What has muddied the waters was not the signing of the very simple Treaty of Waitangi document in 1840, but the subsequent introduction into New Zealand legislation of references to the Treaty of Waitangi and its Principles since the passing of the Waitangi Tribunal act 1975 and the tortured attempts to articulate the principles of that very simple document.

The situation was further exacerbated in 1986 by the lands case which arose from a provision in the State-Owned Enterprises Act 1986, which required the Crown to register memorials against titles owned by the Crown being transferred to the new SOE entities to protect those assets for future Treaty settlements.

Somewhat ambitiously, Justice Robin Cooke took it upon himself to indulge in some obita dicta reflecting his views on the meaning of the Treaty Principles.

However misguided, he may have been, he did not for one moment suggest in the Lands case and in the subsequent Coal case and in his extrajudicial musings in Rotorua in 1990 that the Treaty or its Principles created an equal partnership between Maori and the Crown. He made it clear that the right to govern remained firmly with the elected Parliament of New Zealand.

A more recent and interesting development took place on the morning of 15 October on talkback ZB when the Prime Minister of New Zealand when referring to the Solicitor General’s guidelines for prosecutors in which Maori were to be given preferential treatment to avoid convictions under the criminal code stated that the law should be “colourblind”

Colourblindness is consistent with the Constitutional framework referred to above.

Colourblindness’ is the theme of the recently published Coleman Hughes book, The End of Race Politics -Arguments for a Colorblind America”

Hughes coins a new category of actors in the racist narrative, the neoracist. To be distinguished from the anti-racist.

He writes that the neoracism narrative demands that we implement policies that rebalance the way resources are distributed wherever possible. We need to give people of colour preferential treatment. This is the only way for our society to move beyond its chequered racial past and to defeat white supremacy.

Hughes response to, what he calls this seductive narrative, is as follows: it depends on several harmful myths and fallacies , including, the disparity fallacy, the myth of undoing the past and the racial ad hominem, which is the most pernicious in that,” it states that you can dismiss any claims about race and racism that white people make simply because they are white”.

He asserts that, “Neoracists don’t want racial peace, but endless ideological war. When we see neoracisim for what it is -racism in anti-racist clothing-we see why neoracists fail to support colorblind policies that would eliminate racism, and why they reject the colorblind principles that motivated the civil rights movement.”

While New Zealand’s journey is different from the American journey, I contend that we can see the behaviours referred to by Hughes exhibited by the Waitangi Tribunal and the Maori and other activists who have vested interests in keeping the racist narrative alive.

They are the neoracists.

The question is then how we, as a nation, move forward as a united country where rights and obligations are not determined by race but by citizenship and in accordance with our constitutional heritage, where all of the rights and obligations afforded us as citizens of a free democratic society as referred to above are not adulterated by the neoracist agenda.

Is it a concise statement of the principles of the Treaty Principles or is it simply that Parliament legislates the removal of all reference to the Treaty and its Principles to firmly establish that all of the citizens of this country are equal under the law.

If we don’t and continue to try to solve socio-economic disparities purely on race and not need then we are, in my opinion, on a slippery slope.

Graeme Reeves is a lawyer and former National MP.