Dialogue: Showdown looms on treatment of Maori

Does the financial settlement of treaty claims absolve the Crown from any further obligations to affirmative action?

The lines are being steadily drawn and a collision seems inevitable. Whether consciously or unconsciously, New Zealand is heading for a showdown on the issue of special treatment for Maori. The whole basis for affirmative action for those who are disadvantaged is being challenged.

Events of the past few weeks have begun to lay bare the nature of the issue and the attitudes of those who are contesting it. Now, perhaps more than ever, the implications of giving effect to treaty obligations, and the other side of that contentious coin, the need for preferential treatment for Maori if the social and material gaps are ever to be closed, are becoming clear.

Two legislative initiatives taken by the Government - ratification of the free trade agreement with Singapore and the Health and Disability Bill - have flushed out some interesting home truths in this regard.

The free trade bill has revealed a sharp difference between the Government and its opponents as to the scope for the protection of Maori rights in the broader trading context, and this promises to become a permanent sore in the body politic.

The health bill has drawn a great deal of fire for its requirement that it be interpreted in a manner " ... consistent with the Treaty of Waitangi," and that the functions of the new district health boards require them to cater exclusively for Maori with mana whenua in the area concerned. It provides, also, for separate Maori appointees on the boards.

There is nothing that is radically new in any of this. It is, however, a much more explicit statement of commitment in a single piece of legislation which appears to be a conscious response to the prevailing convention that unless an act specifically includes a treaty clause of this kind, the affirmative action dimension has no force in law.

This is the first time any Government has set out to make special provision for Maori health within a legislative framework, and its opponents are crying foul on the grounds that health is something so basic that the same treatment must be guaranteed to all rather than setting up a zero-sum game in which Maori will win and Pakeha will lose.

Others, notably Winston Peters, have climbed gratefully aboard this beguiling bandwagon, giving notice that this issue will feature prominently in the 2002 election.

Mr Peters, being the supreme opportunist, appears to have conveniently set aside any lingering memories of Ka Awatea, the vehicle he invented to achieve exactly the same purpose when he was Minister of Maori Affairs and which was quietly buried by the National Government in the early 1990s. This time the edge is that much sharper.

Mr Peters and, it seems, the Shipley-led National Party shorn of the moderating influence of Jim Bolger and Doug Graham are clearly tempted to go for broke on it this time.

Yet, for all the objections to what appears to be discriminatory treatment in favour of one racial group over another, it should be remembered that such actions are sanctioned under international law and that New Zealand is only one of many countries which provides for it - for Maori and for Pacific Island communities.

Under various United Nations human rights conventions, governments are entitled to give special treatment to disadvantaged minorities so long as this special treatment does not persist. In other words, there has to be a sunset clause. When the minorities concerned are on an equal footing with the rest of the population, then the provisions should be removed.

Affirmative action programmes, to use the institutional parlance which is more palatable than positive discrimination, cause enormous confusion and antagonism. They have been challenged in many countries, not least the United States, where the concept was born.

California has its Proposition 209, which overturned the law allowing race-based preferential appointments in government jobs and in education. The result has been a steep decline in black enrolments at universities. Lawsuits challenging the right to discriminate are gathering strength in Michigan and other states and it appears that affirmative action is under threat.

In other parts of the world the backlash is not yet so evident but it will surely come. In Britain, Germany and other European Community states the sunset is approaching. Turks, North Africans, Indians and Pakistanis are being given the heave-ho with cynical abandon. The Swiss and the Austrians are about as accommodating of other cultures as the human body is of the Aids virus.

Immigrant minorities everywhere are feeling the cold winds of neglect. The willingness of local societies to tolerate positive discrimination policies on the grounds of minority disadvantage is in terminal decline, and the implications of that are all too obvious.

Pressure for special treatment for indigenous peoples - those, like the Maori, who have claims under the doctrine of aboriginal title - is also encountering resistance all over the world. It is a resistance born of fear - a fear of the unknown limits to redress for old grievances.

The pattern is familiar: history is revisited, the wrongs of the colonial era are laid bare. The Government of the day, under pressure from the liberal elements of society, wrings its hands and pledges action to put things right. The process is begun, then runs into the sands of delay and legal obfuscation. Property rights arguments flare up, litigation escalates and the costs are quantified to horrified gasps from those who are expected to pay.

Redress is a painfully slow process but most governments accept that they have no choice but to press on. It is happening in North America, Australia and Brazil - wherever indigenous people are in the minority

There is a key question in all this, and it is a question that nobody is yet publicly asking: does the financial settlement of treaty claims absolve the Crown from any further obligations with regard to affirmative action?

Assuming that the process of restitution accelerates over the next decade or so, there will be a substantial transfer of resources to Maori institutions, including urban authorities, which are specifically constituted to deliver relief to disadvantaged Maori. So the answer would seem to be yes.

And, needless to say, if Maori institutions were given the scope and the Maori share of the national resource base to deliver education, health and social services specifically to Maori, the sunset clause could be activated with a great deal more certainty.

New Zealand is marooned somewhere between an insistence on mainstreaming of these services and cutting them loose to operate separately. Mainstreaming, for all its obvious attractions, hasn't worked for Maori. Have we got the nerve to seriously try the alternative?

*Chris Laidlaw is a former special assistant to the Commonwealth Secretary-General.