Colin James: Clark takes on a taniwha in constitution

COMMENT

They seek it here. They seek it there. They seek it everywhere. The constitution, that is. And just when they think they have got it in their sights, they find they are tripping over the Treaty of Waitangi.

The constitution has the hallmarks of a mythical spirit. It lurks in corners of libraries and the recesses of lawyers' minds, for the most part out of sight as a silent behavioural guide but, when it emerges, a signal of crisis.

This taniwha came here with the English imperialists in the 19th century, complete with a Queen. We change bits from time to time: by my count, nine in the past 22 years, including last year's Supreme Court Bill, which removed a venerated imperial relic but which the Government made out was just a change in the courts structure.

But now there is a clamour for inquiries. We need, some say, a constitution that will reflect the people who in theory own it and that they will respect.

The present hotchpotch of piecemeal legislation, rules and unwritten conventions will no longer do.

A start was to have been made last year. Tim Barnett's justice and electoral law committee framed terms of reference for a broad-ranging fact-finding inquiry. The Bill English National Party agreed; the Don Brash National Party has withdrawn.

Why? Put it down to the treaty. Brash has struck gold with the fearful and disgruntled and won't be deflected from wooing them. The people, he says, agree with him - just scan the polls. No need for an inquiry.

Nevertheless, there will be one, maybe two, just conceivably three.

Inquiries are what governments have when they don't know what to do next with something big. The treaty is the biggest thing going in this small country.

The treaty is so big that any attempt systematically to overhaul the constitution would run smack into it. The "minimalist model", which some Australians wish for their republic when it comes, is not an option in this country. First, the place of the treaty must be settled.

That became blindingly obvious at a conference run by the Institute of Policy Studies in April 2000.

The treaty pervaded the conference, which also indirectly uncovered a nervousness among the wider public about any broad constitutional overhaul. Act leader Richard Prebble whipped radio talkbackland into a lather of fear that it was a device to usher in Labour's socialist republic.

In fact, it was just a talkfest and United Future leader Peter Dunne chided Prebble for shouting down debate. But talkbackland had a point, though not the one Prebble talked up. That point was, indirectly, the treaty.

How come? The treaty is not the constitution, merely the document that paved the way for a constitution back in the 1840s and early 1850s. It has legal force only to the extent that it is written into legislation, as it progressively has been since 1975.

That year the third Labour Government set up the Waitangi Tribunal to stop any new breaches of the treaty. Ten years later the fourth Labour Government extended its jurisdiction back to 1840. Since then hundreds of historical grievance claims have piled up, creating a lucrative "industry" recording histories, obtaining tribunal imprimaturs and negotiating settlements.

Then in 1986, after several court decisions respecting Maori rights in legislation, Labour Deputy Prime Minister Sir Geoffrey Palmer inserted a section requiring respect for the principles of the treaty in the State-Owned Enterprises Act. On the strength of that the Appeal Court declared a "partnership" between the Crown and Maori. Governments since, National-led and Labour-led, have tried to act out this partnership.

In 1991 National's Simon Upton put in the Resource Management Act a reference to recognising and providing for the relationship of Maori to "ancestral lands, water, sites, wahi tapu and other taonga". This triggered what the act's historian, David Young, described as a frenzy of consultation with tribes.

Those two acts started two fashions followed by both National and Labour governments in much legislation since, most recently requiring tribal consultation in major new health, transport and local government laws.

The point is to ensure Maori needs, spiritual beliefs, treasures and treasured places are respected in public policy decisions instead of being treated as a disposable curiosity. Some, including the Government, argue that the treaty's protection of taonga in article two requires this.

But that process has transformed biculturalism into power-sharing - it has given tribes a say in what gets done where. And that bites into the constitution, which presumes a unitary power system. This allocation of influence to tribal bosses is behind a lot of the public unease about the treaty now.

The 1980s and 1990s Labour and National governments initiated another two fashions: positive discrimination to get more Maori (and, independently of the treaty, Pacific Islanders) into higher education and the professions and Maori-run delivery agencies for health care, education and social services.

Brash rejects positive discrimination and is making hay with examples of well-off Maori getting state help while non-Maori miss out. While much, probably most, of the money actually comes from tribal trusts, not the taxpayer, few of Brash's listeners make that distinction.

Others chafe at tedious powhiri now routine at many public functions.

But it was the Appeal Court finding last year, of potentially persisting Maori indigenous customary rights to the foreshore and seabed, that turned the treaty into a political powder-keg - into which Brash threw a match in January.

Hence the urge for inquiries as a way of dousing the spreading flames. Clark has to get the issue out of and above party politics, where it has the potential to immolate her and her Government.

There are three dimensions to this outbreak of inquiry-itis. One is the foreshore/seabed.

The Government is leaning towards Crown ownership, which would probably win parliamentary approval, depending on what goes with it. But if the legislation fails there is talk in the background of a royal commission to sort out that matter.

At the other end of the scale is the constitution. Had the Government not squelched Barnett's plans last year after United Future voted against the Supreme Court Bill, his fact-finding inquiry would now be well under way - involving the public widely, doing some educating on the way and providing at least an escape valve for tension.

But now the Government needs solutions, not just information. And the solution it needs most desperately is to the public confusion, fear and anger over a seemingly never-ending extension of treaty's reach by a process few have expended enough interest on to understand.

A decision on the shape of that inquiry is some way off.

Clark wants "clear heads". That points to a royal commission, at least for the narrow dimension. Royal commissions are usually headed by an eminent judge, with up to four other eminent persons.

Royal commissions sometimes have just been a means of kicking for touch - the 1980s one on social policy, for example. But they have also sometimes provided blueprints for action. ACC was spawned by a royal commission.

The Government's genetic modification policy closely follows the recommendations of the 2001 commission. Clark insists any treaty royal commission will be of the latter sort.

But, just as the constitution cannot be discussed without bumping into the treaty, so any serious examination of the treaty in the law bumps into the constitution.

Should a revised constitution, especially if it is brought together in a single written document, incorporate the treaty or just refer to it or its principles or write in the rights contained in it as part of an American-style bill of rights?

Some Maori worry that such a reference, however loftily expressed, would diminish the treaty's status as "founding document of the nation", which Winston Peters, among others, declared it to be in the late 1980s. Also, given the interminable arguments over the treaty's meaning, would some meaning have to be spelt out and might not that, too, change the treaty's status?

Moreover, as constitutional lawyer Philip Joseph has pointed out, adopting a written constitution would involve the courts in definitive judgments on it. And some say the courts have already been making too many decisions that politicians ought to be making on the treaty.

In the end the buck ends up back with the politicians, as the foreshore case has demonstrated.

An inquiry sounds a dispassionate, sensible way forward. But in the end it is a matter of politics. And for matters as big as the treaty and the constitution, that means all people, not just the politicians.

Clark's inquiry can be a beginning, but will certainly not be an end.

* Email Colin James

* A summary of the April 2000 conference, commentary on it and brief papers written for it is in Building the Constitution, published by the Institute of Public Policy at Victoria University.