It looks like the political year will end the same way it began: arguing about the treaty. Act leader David Seymour’s Treaty Principles Bill has finally come before the cabinet. If passed, a referendum would be held to vote on the proposition that the nation’s founding document merely established equal rights for all citizens.
National is bound by its coalition agreement to support the bill through its first reading in Parliament, and the Prime Minister has stated “ad nauseam” that his party will not vote for it beyond that.
Bills requires majority support through three separate readings to become law, so there is zero chance of Seymour’s referendum coming to pass.
Then why all the fuss? Christopher Luxon has come under enormous pressure to vote down the bill on its first reading.
Much of this is political – the opposition parties solemnly urging him to tear up his own coalition agreement and destabilise his government probably don’t have the PM’s best interests at heart.
But much of this is genuine. Churches, iwi, academics, even some right-wing political operatives are desperate to prevent Seymour’s bill entering the six-month-long select committee process.
Why so much anguish when the entire enterprise is doomed from the beginning? Partly it is because Seymour is turning up the heat on a divisive and polarising issue.
Political interference
For decades, the major parties agreed that the principles of the treaty and their application in law should be interpreted by the courts rather than Parliament. The meaning of the country’s founding document was deemed too important, too vital to the integrity of the nation, to expose it to the day-to-day brawling and general grubbiness of politics.
Labour defected from this consensus in 2004 with Helen Clark’s infamous Foreshore and Seabed Act, which declared that the foreshore and seabed were owned by the crown, and again under the Jacinda Ardern government, which insisted that many of its most contentious policies – Three Waters, Māori wards, the smokefree legislation, the Māori Health Authority – were treaty obligations rather than mere laws, so to repeal or even oppose them was anti-Māori and in breach of the treaty.
This style of politics has not been good for race relations, or the mana of the Waitangi Tribunal, which gleefully endorsed it. The public rejected it in the election – but Seymour is doubling down on it.
He, too, can make the treaty say whatever he wants, and he can escalate this tactic from the debating chamber to a public referendum during a general election, in which the racial majority would decide on the rights of its indigenous minority.
Founding stories
But Seymour is also meddling with the primal forces of the universe, constitutionally speaking. Every political order tells a story about its founding, the glorious occasion in which the chief, tsar, king or parliament was appointed by the gods, or the people or history itself. The French and the Americans have their revolutions; Australia has its first fleet.
Modern New Zealand has told itself that the nation was born with a treaty between two peoples, in which Māori ceded sovereignty of their lands in exchange for the privileges of British citizenship, the protection of the crown and the additional rights elaborated in the treaty articles.
The story is nonsense on stilts – the crown seized sovereignty during a sequence of brutal conflicts and mass land confiscations, ignoring the treaty for nearly 100 years – but it’s a useful fiction to establish the moral legitimacy of the state.
The historian Ernest Renan noted: “Forgetfulness, and … historical error are essential in the creation of a nation. All nations, even the most benevolent in later practice, are founded on acts of violence, which are then forgotten.”
The ongoing processes of redress for treaty breaches and elaboration of rights via the principles create an incentive for Māori to forget, or at least pretend to do so, and acknowledge the state’s sovereignty.
If iwi and hapū are litigating via the courts and negotiating with the Treaty of Waitangi Minister, then they’re implicitly accepting that the crown has the right to perform those functions.
Like Don Corleone in The Godfather, Seymour’s offer to Māori is this: nothing. They have ceded the right to rule and they get nothing in return.
Destabilising move
It’s a version of history that undermines the already shaky story underlying the nation’s self-identity – and it’s not clear what problem would be solved by suggesting such a destabilising arrangement. New Zealand faces many pressing problems, and the vague nature of the treaty principles isn’t even in the top 100.
One of the mantras of minor parties in an MMP coalition is differentiation. Act and National share a pool of potential voters. It’s in Act’s self-interest to distinguish itself from its larger partner, to show those voters it can deliver more than the majority party. And it’s done well out of the Treaty Principles Bill: Act surged in the polls during the debate around Rātana and Waitangi Day at the start of the year, it’s up again now and will probably benefit yet again from the extended select committee process.
There’s a constituency for Seymour’s interpretation of our past, and a disquiet that neither National nor Labour has a convincing story of its own to set against him.
The two Chrises – Luxon and Hipkins – are two of the least inspiring leaders imaginable to try to tell the nation who we are, what our history represents and how it unites us. But if they don’t try, Seymour will cheerfully do it for them.
