Terry Dunleavy: It's time for definition of treaty basics

COMMENT

Waitangi Day 2004 seems destined to be remembered as a defining moment in our history. There have been explosive and intimidating displays of radical Maori impatience in the past, mostly based on unrealistic dreams of tino rangitiratanga, but events at Waitangi last Friday struck chords that go to the heart of our nationhood.

It was sparked, initially, by knee-jerk reactions to the decision of the Court of Appeal that found Marlborough iwi could take a claim to the Maori Land Court because Maori customary rights to the seabed and foreshore had never been legally extinguished.

Pakeha-dominated politics then took over. The Government, reacting to public alarm at imagined threats to access to the nation's beaches, swiftly proclaimed its intention to legislate to bring the foreshore and seabed into "public domain".

In a bid to trump that, the National Party went for unequivocal Crown ownership, casting aside its long heritage of advocacy of the sanctity of property ownership where rights have been proven, as well as its defence of the independence of the judiciary and the sanctity of judicial process.

What price principles, when votes are at stake, and first-term list MP Don Brash seized the moment to wrest his party's leadership from Bill English.

The Government's attempt to placate the fears of Pakeha voters upset most Maori, creating an environment of confusion and doubt in which Dr Brash sniffed the votes he needed to demonstrate that he, indeed, was the man to close the gap in the polls between Labour and National.

Hence the speech to the Orewa Rotary Club on January 27, in which the following extracts sum up his approach: "The treaty of Waitangi should not be used as the basis for giving greater civil, political or democratic rights to any particular ethnic group.

"We should not use the treaty as a basis for creating greater civil, political or democratic rights for Maori than for any other New Zealander.

"It should not matter whether you have migrated to this country and only recently become a citizen, or whether your ancestors arrived two, five, 10 or 20 generations ago.

"But we must build a modern, prosperous, democratic nation based on one rule for all. We cannot allow the loose threads of 19th-century law and custom to unravel our attempts at nation-building in the 21st century."

Reactions were predictable: from the Government an accusation of playing the race card; from Maori cries of horror, and, from Maori members of the National Party, shame.

Maori disquiet was exacerbated by the sacking of Georgina Te Heu Heu, of the hugely respected iwi Tuwharetoa, as National's spokeswoman on Maori affairs. Cynics were to note successor Gerry Brownlee's attempt in a TV news clip to prove his qualification by counting to 10 in te reo Maori. It was confirmation of the preoccupation of the new National leadership with numbers rather than social conscience.

Was the "real" Don Brash revealed in his TV One interview with Kim Hill in his insistence that the treaty made us all equal as British citizens? He went on to say: "We have the benefit of a treaty that gave Maori absolute equality with the European settlers."

There was no acknowledgment that, in fact, the opposite was the truth: the treaty gave European settlers equality with Maori tangata whenua as British citizens, and created means by which those settlers could acquire Maori land. Especially as, at the time, there were some 125,000 Maori established here for centuries, compared with 2000 newcomer settlers. Equality in 2004, it seems - like beauty - is in the eye of the beholder.

Then, late on Waitangi Day, came the conundrum created by the Governor-General, Dame Silvia Cartwright, when she queried the translation of Governor Hobson's February 6, 1840 phrase: "he iwi tahi tatou", which she suggested did not mean exactly "now we are one people".

This possible difference in translation is one of the reasons why the Waitangi Tribunal was established in 1975. It is charged with making recommendations on claims relating to the practical application of the principles of the treaty and determining whether certain matters are inconsistent with those principles.

In so doing, the tribunal is obliged to consider both the English and Maori versions of the treaty, and has exclusive authority to determine the meaning and effect of the treaty as embodied in the two texts and to decide issues raised by differences between them.

All of which points to a way out of our national contretemps.

Tucked away in Dr Brash's ruddy-necked oration at Orewa was a possible key to solving this deepening conflict. He said: "Since 1987, and especially since 1999 when the current Labour Government took office, governments have included references to the 'principles of the treaty' in legislation, still without defining them. Even the Cabinet manual now states that ministers must specify whether proposed bills comply with 'the principles of the treaty'. It doesn't define those principles, either."

Just exactly what are these "principles" that the Government harps on about, and which are as unclear to the rest of us as they are to Dr Brash and his National colleagues?

For the present, these "principles" are left for definition, case by case, by the Waitangi Tribunal or, later, the courts.

If Parliamentary legislators continue to insert references to "principles" in new law, surely the onus should be on them to define in greater detail what they mean by those principles.

Otherwise, when we come to sensitive issues on which our two founding cultures come into apparent conflict, we will continue to have government by the Waitangi Tribunal and the courts, to the inevitable detriment of loss of respect for judicial process.

Instead of railing against the lack of definition of the "principles" of the treaty, Dr Brash should lead the call for a multi-party commitment to a nationwide, all-inclusive debate aimed at seeking agreement on the principles to be followed in determining how the treaty relates in 2004 to all of us.

* Terry Dunleavy, of Takapuna, is a former office-holder in the National Party, and a Pakeha member of Te Whanau o Hato Petera Trust.