David Seymour’s bill will effectively ask the courts to consider what tino rangatiratanga means, says conservative political commentator Matthew Hooton.

Opinion on Act’s Treaty Principles bill can’t be easily divided down left or right political lines.

The bill reflects the position of a party with just 8 percent of the vote. That’s put the prime minister, Chris Luxon, in an uneasy position — trying to uphold his coalition agreements, while sticking to his pre-election promise not to hold a referendum on the Treaty.

Here, in an edited conversation with Moana Maniapoto for Te Ao with Moana, two political conservatives, Chris Finlayson and Matthew Hooton, discuss the bill’s implications.


Moana Maniapoto: Would you describe the Treaty Principles bill as a conservative or a radical move?

Chris Finalyson: More radical, I would’ve thought. You can’t have a referendum on this material. It will bring out of the woodwork the sort of people who used to write to me and say: “Why don’t you get cancer?” Or, as sometimes happens even now as I’m walking along Lambton Quay, the sort of people who will call me a “Māori-loving c***”.

There are elements out there in our society, which are crude and backward-looking and nasty. Anything that gives them credence, in my opinion, is unfortunate. Because they don’t represent the sort of people that I think New Zealanders are.

Matthew Hooton: It’s highly radical. Act essentially don’t agree with the slow, steady, progressive way the law has evolved in New Zealand.

What they seem to be saying is that the only thing that can possibly count is the individual. That it’s only individuals who should have rights, that there is no other form of rights that can exist. They’re trying to give expression to that view.

Whereas, the current view in most of the world is that there’s a balance between the rights of people as individuals, and the rights people have as part of collectives.

But, you know, Act are libertarians, classical liberals, so they really are committed to the individual being absolutely paramount. And that, on the face of it, is what is driving their concerns.

Moana: So, if the bill goes through to select committee, what could happen? What are the consequences of that?

Chris Finlayson: Let’s look at various scenarios. One is that it goes back to the house with a recommendation that it be discharged. The other is that it be accepted, and then it would have to go through a second reading, committee stages, and a third reading.

Say it went through all those, then there’d be a referendum. I think that would be unfortunate for New Zealand. Because it would give a platform to nutters, and to people who don’t like any Treaty stuff. It would give those people a platform that, by merit, they don’t deserve.

It would give rise to, I think, a discussion within the community that could go off the rails.

Moana: Was this a defining issue for the election, do you think?

Matthew Hooton: No, tax cuts were the defining issue. But you know, Act put it forward. People voted on it. About 9 percent or so voted Act. The National Party said it wouldn’t be going ahead with a referendum before the election. And it won the election. So in terms of people that we know voted for this, it’s quite small.

The National Party has ruled out there being a referendum. That’s wise. If it were to go to referendum, I suspect it would be like the firefighter’s cuts referendum where 90 percent of New Zealanders decided they were against firefighter cuts. But they weren’t really voting on that. They were just sort of doing the fingers to the Bolger government.

And I suspect if this was put to referendum, then it would pass.

Moana: Really?

Matthew Hooton:  Yeah. It may not pass at 90 percent. But it would pass because it wouldn’t be about the content. It would be about people expressing whatever frustration they have about, you know, essentially the role of Māori in New Zealand.

It would be people voting on whether Morning Report begins with kia ora or good morning. In the end, that’s what people would vote on. And I think that’s why National finally got to the point of saying, no, this is not going to happen because it would be so divisive.

Moana: Because the prime minister said he has no intention . . .?

Matthew Hooton: Yes. He’s been as clear as he can be. I think he made a terrible mistake putting the item in the coalition agreement. I think he should have taken a tougher line.

He thought he had done a smart halfway house move — that it gets introduced, heard by a select committee, and then chucked out. But it wasn’t as elegant as I think he thought it was.

Moana: No, not an elegant solution!

Matthew Hooton: But he does have an absolute fixation on keeping his promises. I mean, the tax cuts are another thing where a good case can be made that they should be cancelled.

Chris Finlayson: When I was in opposition between 2005 and 2008, I was on the justice select committee. And as part of the confidence and supply agreement between Labour and New Zealand First, Michael Cullen and Helen Clark said, well, New Zealand First can introduce its Deletion of the Principles of the Treaty bill and let it go to a select committee. We’ll support it that far and no further.

And it went to the select committee and sort of died a natural death.

So I tend to be more relaxed about some of this stuff than others, and don’t see it as an attack on Māoridom or whatever.

Moana: Well Māori certainly see it that way.

Chris Finlayson: I know they do. That’s why it has to be handled sensitively. What people need to realise is that this is a coalition government of old-time conservatives, and new-right conservatives. Getting a programme together between them was never going to be straightforward.

The answer, of course, is that if people didn’t want this but they still wanted a change of government, then they could have party-voted National in greater numbers. And then the liberal conservatives would’ve been more powerful.

Matthew Hooton: The Act party and the people that support the bill, or the idea of the referendum, better be careful what they hope for.

Because the principles of the Treaty were put into legislation to the disadvantage of Māori. The risk was, that if the Māori text was taken as authoritative, then the Crown is not sovereign. Māori own most stuff.

So, the Treaty of Waitangi — some people think it’s this wonderful document, but no, it’s a bit of a mess. The phrase “the principles of the Treaty of Waitangi” was trying to give effect to the Treaty despite its imperfections.

And you’d have to say, the country hasn’t done too badly in terms of its race relations. In terms of progress since 1975, and since 1990 when the National government got into the Treaty settlement process, this country is a better place for all.

Moana: If this bill gets passed, what’s the consequences of that?

Matthew Hooton: Instead of the courts deciding what the principles of the Treaty mean, they’ll be asked by David Seymour’s bill to consider what tino rangatiratanga means. Because, for the first time, the Act party, by referendum, would’ve put those important words into law and then essentially asked the Supreme Court to say what they mean.

Act seems to have this belief that law is some sort of black-letter thing, where you look in the law books, and that’s what the law is. Well, no, that’s not how English law works. It evolves through common law. There’s nothing unusual about the fact that the courts look at words and think about what they mean.

That ambiguity, that sort of evolutionary process, is far better than other legal systems where they try and write everything down as black and white, then that’s the law.

If Act do support the principle of the common law, and they want to pass their bill, then the Supreme Court is gonna spend the next 50 years defining the meaning of tino rangatiratanga.

So maybe it should be the more so-called “radical” Māori who vote for this referendum rather than Pākeha! I mean, Act better be careful about what they want.

The Act party, and especially the National and New Zealand First parties, need to stand for the English common law that emerged from the English customary law. That is the heritage that Pākehā brought to this country in a legal sense.

Genuinely conservative parties should be fighting for, and standing up for, the integrity of that system. Not proposing to redefine a very important constitutional document in a very clumsy way, which you could argue would make the situation worse from the perspective of David Seymour or Don Brash or Muriel Newman. Because the idea of putting tino rangatiratanga into statute law is insane from that perspective. That’s how clumsy this whole thing is.

Moana: How do you frame the issue of rights when it comes to Māori?

Matthew Hooton: From the European side of our country, the individual is considered very important. In terms of our basic civil rights, there’s nothing unusual within the context of us all being equal, for different groups of people, or different individuals, to have collective rights.

The members of the Parnell Tennis Club are a group of people who have particular rights to use their tennis courts, for example.

Quite frankly, whatever rights the chiefs and the tribes, and perhaps ordinary people, had in Aotearoa on the 5th of February 1840, that were not extinguished, still continue.

There’s nothing at all unusual, in English customary law, in saying: “If this is the law that’s emerged from ancient times, then it continues, unless it’s extinguished.”

Article Two of the Treaty explicitly says that the Crown is going to protect those existing rights. And they must continue to exist. The conservative view is the longer a piece of law has existed without being changed, the deeper and more important it is. And that’s why in New Zealand, we continue to apply statutes passed by the English parliament from hundreds and hundreds of years ago, back to the 13th century. They are still law in New Zealand. And that must also be true of whatever law was prevailing in New Zealand the day before the Treaty was signed.

Moana Maniapoto: One of the big challenges for Māori, and for iwi, is that they are always perceived as stakeholders, as just another ethnicity among many ethnicities.

Chris Finlayson: Which is wrong. They’re a Treaty partner.

Yes, we are a multicultural society, and I rejoice at the number of Indians, Chinese, people from the Philippines in our country, because they add diversity to the country. But those people have to realise when they come in here that there is this special relationship between the Crown and Māori, which needs to be respected, and it’s not going to go away.

We all have equal rights, but there are rights that are based on the Treaty and on customary law, that are there, and they are different. Doug Graham and I had lunch the other day, and he talked about the rights that Ngāi Tahu have to the Tĩtī Islands. They are rights that relate to seasonal catching of muttonbirds. They are rights that the descendants of those islands have. They’re not general. Now, is David suggesting that equal rights for all New Zealanders mean that everyone’s got the right to tītī from the Muttonbird islands? If he is, then he’s sadly mistaken.

What we agreed in 1840 was that certain taonga or treasures would be protected in relation to land and forestry and so on. And the tragedy of this country is that those agreements were not honoured. And you know, I approach things from a centre right point of view, respect for property rights. If there had been respect, genuine respect for Indigenous property rights from the start, we wouldn’t have half the problems that we have now.

Moana: One area of tension now is how do the Crown and Māori engage with each other on other issues. Say around education, justice, and health, where Māori are overrepresented across all negative indicators?

Chris Finlayson: There is a legitimate debate to be had on this, which shouldn’t be scarred by hyperbole.

Is something like the Maōri Health Authority the right way to deliver health resources to tangata whenua? Or is greater devolution required? I think that’s a legitimate argument to have.

There has been a lot of hyperbole that this is a radical Māori-hating government, simply because they happen to believe that the better way of dealing with these issues is through devolution.

I would have more faith giving an iwi like Kahungunu a greater say, or Tūhoe a greater say, in devolution of health and education, than relying on some monolithic state authority.

Moana: We need Māori leadership, input and meaningful participation in different strategies. That seems to be frightening some of the horses?

Matthew Hooton: A lot of the things that frighten people have nothing whatsoever to do with the Treaty of Waitangi.

People say: “Oh, there’s affirmative action in the medical school or the law school, and that’s because of the Treaty.” Well, they have affirmative action in Australian universities and American universities. They have affirmative action in every university in the world. But those places don’t have the Treaty of Waitangi. There’s no relationship between those things.

It’s a good idea to have a medical workforce that reflects the population better. That can stand on its own.

Whether or not TVNZ weather uses English or te reo Māori names for cities, I don’t think that’s from the Treaty either. That could happen with or without a Treaty. It’s happened in Wales as the Welsh language has been revived. There’s no Treaty there which demands that.

Often the things which people complain about have nothing whatsoever to do with the Treaty.

Moana: Why are they moaning? What is wrong with those things?

Matthew Hooton: People are always concerned about change. They are concerned about the world being different from the one they grew up in.

Yet Māori people who were born in, say, 1780, experienced radical change on a far more vast scale than what any Pākehā person living today will ever have to experience.

But some people do feel that this is not quite the country they grew up in. It certainly isn’t a concern about the text of the Treaty, because the same people are often unaware of the text of the Treaty.

It is just an emotional sense, where they think they’ve lost something.

Moana: That’s ironic.

Matthew Hooton: It is ironic. It’s ironic in two regards. They haven’t lost much at all. New Zealand is a better place than it was when they were children, by every possible measure. And obviously it’s ironic that the people they perceive are being advantaged, were disadvantaged. But this isn’t a rational debate.

Moana: So how do you reach out to people who are sitting on the fence, but still a bit worried that Māori are gonna take over and they’re gonna lose something?

Matthew Hooton: Well, of course, there should be debate and discourse, that’s something that’s been going on in New Zealand for at least 200 years.

But I think my message to Pākehā politicians would be: “Well, you stuffed that one up a bit, didn’t you?” They thought they had an elegant solution, that the bill would get sent to a select committee and then thrown out of parliament. Perhaps it’s better than the alternative, but it’s a bit of a mess.

I can also see the argument for the prime minister to stick to the coalition agreements, because otherwise those agreements will unravel. So let’s get it over and done with as quickly as possible, and get it thrown out. And certainly, be very careful what you wish for because, Mr Seymour, you do not want to put the words “tino rangatiratanga” into the statute law of this country. That is not in anyone’s interests.

Moana: You mean, it’s not what a prudent conservative would do?

Matthew Hooton: The prudent conservative is always going say let’s take our time. Let’s have a conversation. Let’s anticipate the fallout. Let’s let things evolve and not try and have a radical line in the sand where we try and change our constitution.

Moana: Chris, what do you think people are afraid of and what is the message to allay those fears? 

Chris Finlayson: I dunno what people are afraid of. Because I look at this country and say, other countries have problems but we’ve got a really exciting project.

Without being some kind of misguided optimist, I think that we can be very confident about the future of our country.

I personally believe we are the best little country on earth, and we’ve done a lot in this area. That is no ground for complacency. We’ve got a lot to do. We don’t need division, and we don’t need ugliness. We are better than that.

And so that’s the essential message that I would continue to emphasise to people: that we’ve got a lot to be proud of, and we’ve got a lot to do.

And if we go down the referendum line, then what’s the best example of a referendum that went off the rails? The Brexit referendum.

No one expected that, and it brought ugliness out of the system. It also brought charlatans out like Boris Johnson, who, I understand on the night the result came through, had a “What the hell?” moment. Like, “I never really expected that would happen. All I wanted to do was undermine Cameron.” And look what happened to their country.

Cameron will go down in history, in my opinion, as one of the worst British prime ministers because he gambled on his country’s future. Having had success with the Scottish referendum he adopted a sort of “she’ll be right, mate” kind of approach, that everything will be okay. Well, it wasn’t. With a referendum, you’ve got to be very careful.

I do think that there are some legitimate questions about what exactly the principles of the Treaty are, bearing in mind that the Treaty is an agreement between Crown and Māori. It is not an agreement between races.

And so, good people can raise sensible questions about what the Treaty actually means and what the principles actually mean, and one doesn’t have to be unpleasant and reactionary to do that.

You can watch the full kōrero here on Te Ao with Moana.

© E-Tangata, 2024

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