David Round: Treaty 'rights' a trap in constitution plan

Governor Hobson thought the Treaty created "one people", but the Waitangi Tribunal believes Maori can claim anything they want. Photo / Mark Mitchell

Giving legal standing to principles that Maori now claim would be a disaster for New Zealand, writes David Round.

You need kidney dialysis. But you cannot get it, because people of Maori ancestry, although less deserving of treatment on purely clinical grounds, have priority. You have paid your taxes all your life. You die.

Impossible? At present, yes - we hope. But several years ago when an elderly man in Northland was ruled ineligible for dialysis - on solely clinical grounds - the Maori Council declared elderly Maori people were "taonga" and therefore entitled to treatment under the Treaty of Waitangi, which would give them priority over non-Maori.

If, then, we were saddled with a written constitution which referred to the Treaty and its alleged "principles", we could easily have racial discrimination in health care.

Why should that surprise us? The Treaty's words are now twisted to mean their exact opposite. The Treaty said Maori and settler were to be equals under the Queen's government. In Captain Hobson's words, "Now we are one people". But by the modern "principles", "Maori" are not the Queen's subjects but her "partners" in governing New Zealand. The "taonga" Maori were promised are now not just their physical property - what the word undoubtedly meant in 1840 - but anything Maori might take a fancy to.

To give these "principles" overriding legal standing would be utterly disastrous for our country. Yet incredibly, a racially-stacked panel appointed by the Maori and National parties is considering how to put the Treaty into our constitution.

Our present Chief Justice considers herself entitled to declare acts of Parliament invalid if they offend against her own extreme understanding of Treaty "principles". That is, essentially, treason. Parliament has been our undisputed supreme lawmaker for centuries, yet this usurper longs to replace our democracy with her own decrees.

But we can be certain that once authorised by a written constitution's reference to Treaty "principles" and Maori "rights" she and some of her unelected unaccountable fellows would need no second bidding before establishing themselves as our supreme and eternal rulers. The rule that power tends to corrupt does not have an exception for the judiciary.

Once Treaty "principles" were in a constitution, all our laws and legal arrangements would be open to challenge in the courts for failure to provide what the "principles" require.

Some Maori are already claiming that full and final settlements are impossible, because they are "not the Maori way". If judges agree, and overturn finality clauses accordingly, there will be further rounds of claims ad nauseam.

Since the Waitangi Tribunal now interprets "taonga" to mean anything that Maori want, then Maori could claim any valuable public resource - water, oil, air - on the basis of Treaty "principles".

Maori would clearly like the public conservation estate, an enormous area full of useful timber, water, minerals, scenery for tourism ventures. Privatisation to them will be just as objectionable as any other privatisation. Brown people can be greedy capitalists too.

There is no reason Treaty "principles" should not force themselves on to private property. Already, "wahi tapu" - "sacred sites" - can be declared over private property without the landowner's consent, even without anything being physically there. Thereafter an owner may not alter his land without official - and Maori - permission.

At present the Waitangi Tribunal may not recommend that private land be "returned" to Maori ownership. But if Treaty principles are our supreme law, surely Maori claims to land ownership must take priority.

If Treaty "principles" are supreme, then not only laws, but Parliament's allocations of money will be subject to the courts' direction. Already judges have discovered a Treaty obligation to fund the Maori language generously. If Treaty "rights" required more taxpayer money for Maori health, social welfare, anything, the constitution would justify it. An adequate income sufficient for a dignified and comfortable lifestyle - and a lot of child support - must surely be a Treaty right. Freedom from crushing taxation and parasitic con-artists will run a very poor second. We will still pay the taxes, but our Parliament will be unable to decide conclusively how to spend them. We will be back to taxation without representation.

Even worse follows. Beyond all this looms the "principle" of "partnership" or, more ominously, "co-governance". Maori claim that as "partners" their representation in decision-making should not be on the democratic basis of one adult one vote, but on 50:50 Maori: non-Maori representation. Some already speak of a separate Maori House of Parliament whose approval for all laws would be necessary.

Once they have this 50:50 representation, they will form an unassailable voting bloc. Then we will be at their mercy - or not - forever, and our country will be irrevocably stuffed.

All this is being plotted right now.

David Round teaches law at the University of Canterbury.