OPINION:
Chris Hipkins and Jacinda Ardern should not be immune from some of the valid criticisms around politics and the Treaty of Waitangi that Hipkins highlighted in an excellent speech in Northland.
He said it was depressing that political leaders seemed to take one of two options with regards to the Treaty, race-baiting or keeping quiet about it.
Without saying he meant David Seymour and Winston Peters, Hipkins put them in the race-baiting camp. He railed against leaders who saw anti-Māori positions as vote winners, who pursued a narrative that Māori somehow got something that others didn’t.
The one view that Hipkins and Seymour share is that there should be more debate about the Treaty.
It is just a shame that the Hipkins speech was left to an election campaign as Labour leader and did not happen as Prime Minister through the year.
Successive governments have not been open or pro-active enough on developments in Treaty policy, and keeping quiet fosters an environment in which barmy views and expectations can take hold.
Hipkins also identified for the first time the political leaders that “play to the middle ground”.
In this category he included those who keep quiet on Māori issues, and make change but put policies under wraps so as not to appear too “pro-Māori.”
He was probably meaning National but the current Labour Government, especially under Jacinda Ardern’s leadership, has fallen squarely into this category on occasions.
Last election it kept quiet about its intention to abolish the local veto on establishing Māori wards for fear it would become a hot election issue that could deny it a majority.
Nanaia Mahuta as Local Government Minister foreshadowed the move in November, the month following the October election, instead of making the perfectly reasonable case to voters that the existing rules were not working as they had hoped.
There may have been a lot of disagreement about it during the campaign but Labour would have had a mandate to do what it did.
In 2019, it also quietly brought in one of the most significant sets of policy changes to the way government deals with Treaty of Waitangi issues – through Cabinet Office Circular 19 (5) – without discussing it publicly or announcing the changes when they happened.
The circular has suggested various tests that ministers and the public service should put their proposals through to ensure they are consistent with the Treaty.
It said they should be mindful of possible litigation that could be taken in terms of Māori rights whether or not the Treaty was mentioned in their relevant law.
In an interview I had in January with Dame Claudia Orange, she described it as revolutionary.
“I think the general public is not aware that we are going through huge revolutionary changes in the country and in fact, we have taken that such a long way, there is no going back.
“It’s just a question now of how the public service works to implement the policies that come through from Government.”
There are other controversial policies that were not put to the electorate last election. The details of the Māori Health Authority were not spelt out before the last election and the governance structures around the Three Waters entities were not announced before the last election.
And once they were agreed on by Cabinet, it was left to Mahuta and Māori Development Minister Willie Jackson to fight the fight for them.
The leadership of the party did not use its political capital to explain these policies to Pākehā other than defend it at question time and accuse critics of race-baiting.
Within weeks of taking over as Prime Minister, Hipkins made a speech at Waitangi urging New Zealanders to not be afraid of discussing Crown-Māori relations but didn’t make another significant speech about it until yesterday.
Between Waitangi Day and now, Hipkins could have made several careful speeches about indigenous rights, for example on the notion that Māori have rights that others don’t have.
They do have different rights. They have customary rights under the common law that originated in England, before the Treaty of Waitangi was signed in 1840. It was the basis of the mega fisheries settlement and the basis of the Foreshore and Seabed court ruling in 2003.
Customary rights are even recognised in Act’s policy on the Resource Management Act. “Property owners’ legitimate expectations, established through years of law and practice, should be respected,” it says. “This includes customary rights.”
Former Treaty Negotiations Minister Sir Douglas Graham made a front-page splash in the Herald in 1997 at the time of the Ngāi Tahu settlement, which included exclusive riverside and lake campsites.
He told me: “Māori have certain customary rights that have not been extinguished. We [non-Māori] don’t have them.”
The sooner people learned Māori had rights that others didn’t, the better, he said.
Hipkins could have made a speech on the principles of the Treaty of Waitangi setting out their historical context. Instead, Seymour has filled the void with suggestions that no one knows what they are and they must be defined by referendum.
The principles of the Treaty were developed as a way to reconcile the differing English and Māori versions of the Treaty. They have been set out by the Waitangi Tribunal, the courts and the Government at various times.
In 1989 they were first spelt out by the Government as five principles (the first three being based on the articles of the Treaty itself) upon which the ensuing Treaty settlements were based, as follows:
Importantly, the principle of equality allowed that special measures could be undertaken to ensure that social benefits were also achieved by Māori, as long as they stopped when equality was achieved.
And the principle of partnership, which by 1989 had already been expressed in the Lands Case of 1987, was seen as an outcome of the Principle of Reasonable Co-operation. It has since developed legs of its own as a principle.
Hipkins made an important speech about the Treaty. He said it was time for governments to stop thinking they know best when it comes to Māori.
He described it as “a partnership, a promise, a bringing together of two peoples.” Ten years ago, that would not have been controversial. Today even the principle of partnership is contested.
For his next speech on the Treaty, he could try to define the parameters of partnership or what his vision would be for 2040.
Whoever is Prime Minister after the election, that person should be showing leadership on the issue every year, not just election time.
Audrey Young is the New Zealand Herald’s senior political correspondent. She was named Political Journalist of the Year at the Voyager Media Awards in 2023, 2020 and 2018.
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