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Surely, the Treaty Gives Maori a Special Right to Be Heard?

by Dr Don Brash

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A couple of issues back, I wrote about the way in which the Government had passed legislation under urgency to prevent ratepayers having any right to demand a referendum before local authorities establish Maori wards, as a previous Labour Government had explicitly legislated for. I want to discuss this issue a bit further because I’ve had some people say to me that the Treaty gave Maori New Zealanders a constitutional preference, a special right to be heard beyond the right allowed to all other New Zealanders.

I make no apology for writing about the issue again because the subject is of enormous importance. How we deal with the issues raised by it may very well determine whether we, our children and grandchildren, can live together in peace and harmony; or whether, instead, New Zealand degenerates into a fractious society filled with anger and resentment, where those who chance to have one or more Maori ancestors – always with ancestors of other ethnicities too of course – demand a preferential role in the governance of our society, while all the rest of us push back.

This is the core issue. Did the chiefs cede sovereignty to the Queen or did they not?

There is of course not the slightest doubt about what the official English-language version of the Treaty said on this score – both in the short preamble to the Treaty and in its very first Article, the chiefs were told that signing the short Treaty involved surrendering to a higher authority.

And how do we know that the chiefs who signed the Treaty understood that that was what they were being asked to do? Because in speech after speech on 5 February, when signing the Treaty was vigorously debated, chiefs urged Lieutenant Governor Hobson, representing the Queen, to go – to leave without delay.

Typical of many of the speeches was this one from Te Kemara, of Ngati Kawa:

If thou stayest as Governor, then, perhaps, Te Kemara will be judged and condemned. Yes, indeed, and more than that – even hung by the neck. No, no, no; I shall never say yes to your staying. Were all to be on an equality, then, perhaps, Te Kemara would say, ‘Yes’. But for the Governor to be up, up, up and Te Kemara down low, small, a worm, a crawler – No, no, no.

Chief after chief made speeches like that, faithfully recorded at the time by Colenso. Colenso summarised the speeches of 16 chiefs on that day. Of those, seven argued strongly that Hobson should go because there was no way that they would submit to any higher authority. But nine of the 16 argued that Hobson should stay and assume an authority over all the tribes.

The following day, 6 February, 45 chiefs signed the Treaty, including a number who had spoken against signing the previous day. There can’t be any serious doubt that the chiefs understood that they were being asked to accept a higher authority over them.

But why would they have done that, given that Maori hugely outnumbered the tiny number of colonists at that time?

The answer is surely related to the awful carnage which had decimated the Maori population over the preceding 30 years – the Musket Wars, wars which killed many times the number of people killed in the so-called New Zealand Wars of later years, indeed many more than the New Zealanders killed in both World Wars. The chiefs wanted some kind of neutral authority able to put an end to that carnage. They may also have felt that British authority might be marginally more desirable than French authority, which seemed a real risk as an alternative.

Moreover we know that 20 years after the Treaty was signed, at a huge gathering of chiefs at Kohimaramara, chief after chief spoke enthusiastically about the positive benefit of having Queen Victoria as the highest authority in the land. We also know that by that time the Queen’s representative in New Zealand had put an end to slavery and the widespread practice of cannibalism, both of which had characterized Maori society prior to 1840.

In other words, Maori chiefs had accepted the authority of the Queen and her representatives in New Zealand. They had accepted her sovereignty over them, and had accepted that, in Article III of the Treaty they had been given the same rights and privileges as all other British subjects – a gift given to no other indigenous people in the history of the world to the best of my knowledge.

And then for the next nearly two centuries, Maori New Zealanders behaved as if the Crown was sovereign: serving in the Police and in the armed forces; teaching in government schools; receiving healthcare in government hospitals; travelling overseas on New Zealand passports; receiving benefits paid for by taxpayers; and so on.

Only in the last 35 years or so has it been fashionable to suggest that Maori chiefs really didn’t surrender sovereignty, probably dating back to the 1987 Court of Appeal decision in which Justice Cook referred to the relationship between the Crown and Maori being in the nature of a partnership – by which he must surely have meant that the Treaty required the Crown to deal honestly and with integrity with the descendants of the chiefs because, as several eminent legal scholars have noted, it is constitutionally impossible for the Crown to be in partnership with any of its subjects.

Legally-trained political leaders as different as David Lange and Winston Peters have ridiculed the idea that the Queen entered a partnership with “500 thumb-prints”, belonging to people none of whom she had ever met. As David Lange said, the Queen was not that sort of person. Winston Peters has asked “How come the Queen of the mightiest empire the world had ever seen was in partnership with nobody on 5 February 1840, but was in partnership with people she had never met the following day?” The very idea is absurd, as Mr Peters has pointed out.

Tragically, despite there being not the slightest basis in the words of the Treaty to justify ANY special role for Maori in governance, successive governments have invented justification for a special role out of thin air.

There seems to have been an acceptance that there should be separate Maori electorates in Parliament – currently seven of them. But why on Earth? While there were good reasons for establishing Maori electorates in 1867 when the only people who got a vote for Members of Parliament were men who owned property – and with most Maori property communally owned, no Maori men got a vote – the logic of such separate Maori electorates has long gone. They are not an effective way for Maori to make their voices heard in Parliament – as the Royal Commission on the Electoral System concluded in 1986 – and at the moment even without Maori electorates there is more than adequate representation of Maori in Parliament.

Roughly 20% of all MPs today are Maori. And 12 months ago the Leader and Deputy Leader of National, the Leader and Deputy Leader of New Zealand First, the Deputy Leader of Labour, the Co-Leader of the Greens, and even the Leader of the ACT Party were all Maori. And only one of those depended on a Maori electorate to be in Parliament.

At the end of January, there was a fiery meeting in Tauranga about whether Tauranga should have one or more Maori wards, and just days ago the Commissioners appointed to run Tauranga by the Minister of Local Government decided to have such wards – presumably to ensure that the “Maori voice” can be heard. Nobody seemed to notice that for all but three of the last 37 years, the Tauranga electorate has been represented in Parliament by a Maori – and nobody regarded that as odd or exceptional. Winston Peters and Simon Bridges were elected on their merit, as they should have been. Their ethnicity was absolutely irrelevant.

In local government, the law requires every council to consult with their community AND with Maori – the implication of that wording being that Maori are somehow not part of the community. But be that as it may, local government is required to consult with those who identify as Maori, no matter what their particular mix of ancestors.

The proportion of Maori in local government councils was, until recently, less than the proportion of Maori in the general population but that too has changed. The latest data from Local Government New Zealand covering data for 2019 showed that the proportion of elected officials in local government who identify as Maori almost exactly coincides with the proportion of Maori in the general population.

In other words, when competent people stand for election, whether it is in local government or in central government, they can get elected irrespective of who their ancestors were.

In summary, there is not the slightest basis in the Treaty – in any version of the Treaty – for arguing that Maori should have some kind of preferred status in governance in New Zealand in the 21st century.

And if the Treaty did provide such a preference, we would have to find ways of dealing with that: no society can long survive if some of its members have an enduring constitutional preference based on birth.

And how do we know that the chiefs who signed the Treaty understood that that was what they were being asked to do? Because in speech after speech on 5 February, when signing the Treaty was vigorously debated, chiefs urged Lieutenant Governor Hobson, representing the Queen, to go – to leave without delay.

No society can long survive if some of its members have an enduring constitutional preference based on birth.

Dr Don Brash is an economist and former Member of Parliament. He served as the Governor of the Reserve Bank of New Zealand from 1988 to 2002.

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