During a hearing before the Waitangi Tribunal about the Treaty Principles Bill, member Derek Fox asked a kaumātua in te reo Māori what he would say to Prime Minister Christopher Luxon if he was present. The kaumātua paused for thought and then replied in Māori: “I’d tell him to tie his dog up. Otherwise it will bite him soon.”
Luxon hasn’t tied his dog up yet, and the dog is yet to bite him. But in the interim, the Prime Minister is having to clean up the doings the dog is leaving scattered all over the place. The images of as many as 50,000 protesters descending on Wellington have rippled around the world and created a PR mess that Luxon is being forced to contend with.
You’d think by now the crown would have learnt not to pick a fight with Māori. For 184 years, the crown has repeatedly ignored, overridden and trashed Te Tiriti o Waitangi and thought Māori would just lie down and die. But Māori have always put up a fight and the current government has now picked an almighty scrap.
Those attending the hīkoi probably had 50,000 different views on what they were there for. But if you had to distill it into one statement it might be, “We’re still here, so is te tiriti, we’re not going away.”
Bill architect and Act Party leader David Seymour’s response was to label the protesters as not representing New Zealand. Well, neither does he. Luxon’s response was to label it all a Te Pāti Māori thing. His proxy press secretary, talkback host Heather du Plessis-Allan, dutifully repeated the talking point (or did she give it to him?).
What they were all trying to do was delegitimise the voice of Māori who aren’t toeing their political line. If anything, the protest was defying this constant political rhetoric that wants to try to put Māori in their place. Māori know this and know the history of this kind of response because they’ve been on the receiving end of this implicit racism for generations. Your voice doesn’t really matter, they’ve been told repeatedly, and we’re going to ignore it anyway.
This government is willing to undo court decisions that recognise Māori rights but create an obstacle for overseas corporations.
Seymour’s bill is a piece of political theatre that distracts from the actual script of what not only the Act Party is doing, but also what the coalition government is carrying out in other ways. Through its fast-track consenting legislation and the unravelling of court decisions, the government is trying to limit the Māori voice in environmental decisions and overriding Māori property rights that would hamper the crown selling the country off to overseas interests.
According to Seymour, the treaty is being misused to grant Māori special rights that other New Zealanders don’t enjoy. Whether it’s Seymour or Don Brash or Winston Peters saying it, this simply isn’t true.
Te tiriti promised Māori they could retain their taonga and maintain their tino rangatiratanga, or self-governance. This self-governance was assumed to be collective. The so-called special rights are not special at all. They simply pre-existed before 1840 and were supposed to be protected in perpetuity. But they never were.
Since 1840, the crown has constantly violated those promises. It has taken land by violence and destroyed social structures through the Native Land Court, because it didn’t accept that Māori owned their land collectively. The crown set up native schools where children were physically assaulted for speaking their mother tongue and prepared for low-wage manual occupations.
The list goes on and every family and iwi has stories of how the crown interfered in their lives and disrupted what it means to be Māori. I have spent the past eight years covering the abuse of children in the state’s custody. The majority of those children were Māori at a time when Māori were about 10-12% of the population. Despite the abuse, including torture, rape, sexual and physical assault, the crown went to great lengths to cover it up. The recent report from the abuse in care inquiry estimated that hundreds of thousands of children were abused. I’ve compared some of the numbers to the Stolen Generations in Australia and the residential schools in North America. The numbers here are worse.
Equal yet unequal
The argument that Māori are enjoying some kind of special privileges ignores the facts. They’re called statistics. Seymour has made much about Māori special rights but has nothing to say about the inequalities in New Zealand society that Māori are on the wrong side of. And he also ignores the fact that the Māori population is increasing while the Pākehā population is starting to decline. It was no mistake that there was a heavy focus during the hīkoi on mokopuna and their future. The protest was a fight to guard that future against those who can’t abide the prospect of Māori having a greater say by the sheer weight of their increasing numbers.
The notion that Māori are somehow enjoying some kind of privilege has a long history and was often deployed during the worst stages of colonisation. In his book Privilege in Perpetuity: Exploding a Pākehā Myth, historian Peter Meihana notes: “In the first hundred years of colonisation, the idea of Māori privilege aided and abetted the taking of Māori lands and resources. This loss was framed as a ‘privilege’, a necessary step towards amalgamation and the innumerable benefits it would bring to Māori. One might assume that over time, Māori privilege would lose its utility. This has not, however, been the case … Notions of privilege, first used to dispossess Māori, are now being redeployed to consolidate the ill-gotten gains of the previous centuries.”
Te Pāti Māori might grab the headlines with a haka in Parliament, but that doesn’t stand up as a critique of what the bill is doing and how it has a continuity with previous crown acts.
Māori have always put up a fight and the current government has picked an almighty scrap.
What has been missing in all the noise about the bill is how the principles came about and the key court cases that have become important case law – law that the current bill is trying to undo. The principles evolved out of the 1975 Waitangi Tribunal Act, tribunal reports and court decisions.
The term “treaty principles” came into sharp focus through a court case, known as the Lands Case 1987, regarding the sale of state assets. The Labour government of the time was ramming through what became known as Rogernomics, named after finance minister Roger Douglas, founder of the party that Seymour now leads.
Many of its neoliberal reforms were opposed by Māori, particularly the sale of state assets that had the potential to be returned to Māori via treaty settlements. The Māori Council took the government to court to contest these sales. Without this case, a lot of assets could have ended up in foreign ownership instead of in Māori ownership through treaty settlements.
The court’s judgment identified treaty principles which set the precedent for future decisions: partnership, active protection, redress for past treaty breaches, informed decision-making and consultation, and the principle of crown government.
Legal and history experts Nicola Wheen and Janine Hayward have written of the decision: “The court’s ruling surprised the government; this was the first time the courts had enforced Māori treaty interests and required the crown to change its course of action. It was a profound moment in Māori-crown relations; for the first time, the Leviathan crown had been made to sit at the table and negotiate with its Māori treaty partner.”
The crown has resented and chafed under the constraints of the court’s decision ever since, constantly vilifying Māori for it not being able to exercise unbridled power.
Some would argue that the principles don’t go far enough. A Waitangi Tribunal report found Ngāpuhi, the iwi that first signed the treaty, did not cede sovereignty in 1840. Like many findings, this was ignored by the government, which continues a long history of the crown effectively regarding the treaty as a simple nullity.
No one-way contract
However, you can’t hold the position that the treaty grants the crown authority to govern and then ignore all the other bits. It is not a one-way contract, although it has been treated as such by the crown for most of its existence in Aotearoa. Seymour seems to want to restore this pattern.
More than 40 King’s Counsel – our top barristers – say the Treaty Principles Bill “seeks to rewrite the treaty itself” and are calling on the PM and the coalition to “act responsibly now and abandon” it.
The historical background from the 1980s is still relevant. Seymour is constantly portraying the treaty principles as individual Māori rights versus the individual rights of non-Māori New Zealanders. This is disingenuous at best. There are indications the government is concerned that if Māori win recognition of certain rights that should have been protected all along, then this will obstruct the granting of special rights to corporations.
Take the repeated application by overseas mining company Trans-Tasman Resources (TTR) to mine iron sands off the Taranaki coast. This application was ruled out at High Court, Court of Appeal and Supreme Court levels on environmental grounds. The campaign against TTR wasn’t just based on Māori concerns, but had support from environmental advocates, fishers and other groups – in other words, a representative coalition of New Zealanders from diverse backgrounds.
If anything, the protest was defying this constant political rhetoric that wants to try to put Māori in their place.
But this government has made no secret of its desire to circumvent and ignore such obstacles as the rule of law or court decisions and simply grant mining rights by fiat to those who enjoy its favour. It is ramming through a Fast-track Approvals Bill and Resource Management Act reforms that will favour economic gains over environmental concerns and severely limit opposing arguments. TTR’s is not the only project rejected by the courts to make the list for the fast-track approval process. The government will toss in a few housing projects as cover, but the real beneficiaries of the legislation are neither Māori nor New Zealanders.
The link with the TTR case came up in a recent tribunal report on how Māori interests in the foreshore and seabed are recognised. This government is willing to undo court decisions that recognise Māori rights but create an obstacle for overseas corporations. New Zealand First deputy leader Shane Jones, the Minister for Oceans and Fisheries and Minister for Resources, said the quiet bit out loud. He is quoted in the report as saying he “was trying to have the RMA removed from fisheries”.
Non-Māori New Zealanders are being antagonised into believing Māori are getting some special privileges while the government is using this animosity to push through legislation that benefits corporate and foreign interests over and above the interests of all New Zealanders.
Mr inconsistent
Seymour repeatedly tries to reduce the debate to an individualistic frame. But even here he can’t maintain a consistent argument.
The Representation Commission, an apolitical agency that decides the boundaries of political electorates, is considering disestablishing the Epsom electorate, a decision that will be completely based on numbers and not political considerations.
The Epsom seat is the richest in the country and is currently held by Seymour. The prospect of it being broken up and split between other electorates is one that Seymour is obviously not happy about. But for a man who is constantly preaching the virtues of individualism, he’s felt suddenly moved to advocate for the collective and exclusive identity of the wealthy. “It contains a community of interest, people with similar values especially related to aspiration and education,” he told Stuff in October. “Communities of interest are a factor that must be considered under law.”
Which assumes that others outside the area don’t value education or have aspirations quite as much. Are Māori a “community of interest” with similar values?
Seymour told Stuff there was a risk of “American-style gerrymandering” at play in any decision about the fate of the Epsom electorate. He might like to know that the gerrymandering he is so concerned about has been used repeatedly in the US to deny African Americans the voting influence their numbers deserve. This has been carried out by rich white people in power who want to retain that position while denying it to those of a different race.
It looks like Seymour has got his analogy around the wrong way.
Aaron Smale (Ngāti Porou, Ngāpuhi, Pākehā) is an award-winning journalist specialising in te ao Māori issues.
