GRAHAM ADAMS: Seymour unbowed by hostile Treaty bill submissions

Anyone who watched David Seymour doggedly champion the End of Life Choice Bill for five years before its ultimate success in a referendum will know his sanguine view of the tsunami of submissions against his Treaty Principles Bill is not mere posturing.

When he told journalists on Friday that the select committee report showing 90 per cent of submitters were opposed had “redoubled” his commitment to ensuring all New Zealanders were equal, with universal rights before the law, he made it clear Act will take that proposition to next year’s election as a policy plank.

He has previously framed the debate as turning on:

“Whether our future lies with different rights based on ancestry, or whether we want to be a modern, multi-ethnic liberal democracy where every New Zealander has the same rights.”

Seymour has reason to remain optimistic. Analysis of submissions to the End of Life Choice Bill showed 90 per cent were opposed but when it was put to a referendum in 2020 it passed with 65 per cent support.

National’s undisguised glee last week at the imminent demise of the Treaty bill — including the Māori Development Minister, Tama Potaka, crowing, “Nehu [burial] day is coming, folks. Nehu day is coming for the Treaty Principles Bill. Can’t wait to see that nehu day” — looks very odd for a party that professes in its declaration of principles to be in favour of “equal citizenship and equal opportunity”.

Far from enshrining the principle of equal citizenship, the authorised interpretations of the Treaty / Te Tiriti over the past few decades have led to gifting those with Māori ancestry significant advantages in education (including preferential entry to Medical Schools); in political power (via unelected representatives on councils); and in many jobs in the public service (via DEI policies), among others.

The overwhelming opposition to the bill seen at the select committee says nothing, of course, about the views held by the majority of New Zealanders. That they would vote in a referendum to perpetuate such advantages for ethnic clans comprising 17 per cent of the population defies logic — unless, of course, turkeys have suddenly decided en masse to vote for Christmas. Why would anyone who cared about fairness and democracy endorse their neighbour’s child having preference over theirs on the strength of early 19th Century documents whose meaning and significance have never been agreed on and by virtue of some small splash of Māori blood?

This is, of course, why no prominent figures who oppose Seymour’s Treaty bill have come out publicly in favour of a referendum. Jubilant critics can crow all they like about 90 per cent opposition but until that figure is backed by a majority in a referendum, the victory remains hollow. In fact, it might turn out to be Pyrrhic.

One of the repeated refrains among opponents of the bill has been to remind New Zealanders who don’t have Māori ancestors that they are guests in their own country — essentially second-class citizens residing here under the classification of “Tangata Tiriti”. In PR terms, this must be one of the most disastrous and counter-productive tactics imaginable.

Thus Te Pāti Māori MP Mariameno Kapa-Kingi, who sat on the Justice select committee, asked businessman Roger Gower at the end of his submission in support of the bill whether he understood that his ancestors had been “invited and allowed to live here” by virtue of Te Tiriti — with the clear implication he is a guest here despite being a native New Zealander.

Gower replied: “So the people who arrived here before 1840 — did they receive that permission?”

Realising she was snookered, Kapa-Kingi immediately shut down further discussion by declaring imperiously that she was the one who got to ask the questions.

Also, it is not widely commented on but the parade of the good and great who submitted against the bill might end up having the opposite effect to that intended. The likes of Dame Jenny Shipley, Sir Geoffrey Palmer and Chris Finlayson are widely identified as having helped to put the country into the polarised racial mess we are in.

Ordinary voters mostly don’t like to be told what to think by their betters — something John Key found out to his cost as he rolled out All Blacks and other prominent Kiwis to support his campaign to change the nation’s flag in two referendums.

Ironically, the submission that might boost Seymour’s cause most significantly over time came from another grandee, Dame Anne Salmond. Reprising one of her favourite themes, she argued that anyone — including Seymour — who tried to instruct people “about the basic principles of an important constitutional document that they couldn’t even read” should lead them to be regarded “as a lunatic or a fool”.

Unfortunately, even the eminent jurist and Law Lord Sir Robin Cooke himself — whose view in 1987’s “Lands” case that the Treaty relationship could be seen as “akin to a partnership” that led to the doctrine of co-governance — could not read te reo.

This is something Salmond noted in 2021:

“Instead of reading Te Tiriti in the original, the [Lands case] judges relied on an array of translations into English. In Europe, it would be unthinkable to embark upon the legal interpretation of a significant constitutional document (in French, say, or German) without a sophisticated grasp of its language and historic context.”

If her thesis is to be taken seriously, most of our Treaty jurisprudence over the past 40 years should be thrown out given that only a bare handful of our judges have been able to read te reo with the sort of “sophisticated grasp” Salmond deems necessary.

Perhaps the overwhelming impression gained from watching a selection of the 529 oral submissions and the debate they have sparked is the impossibility of using such a hotly contested agreement made 185 years ago — with one version in English and the other in Māori that many commentators judge to be irreconcilable — as any sort of constitutional basis for a modern nation.

Even experts seem unable to agree on whether the Treaty / Te Tiriti is a contract, a compact, a “sacred covenant”, or more akin to a statement of goodwill similar to that expressed in marriage vows. Or even whether it is technically a treaty. Or the nation’s founding document.

David Lange’s views in his 2000 Bruce Jesson lecture have been frequently cited on social media in the debate:

“The Treaty cannot be any kind of founding document, as it is sometimes said to be. It does not resolve the question of sovereignty, if only because one version of it claims one form of sovereignty and the other version claims the opposite… The Treaty cannot even resolve the argument among Māori themselves in which one side maintains that you’re a Māori if you identify as such, and the other claims that it’s your links to traditional forms of association which define you as Māori.

“As our increasingly dismal national [Waitangi] day continues to show, the Treaty is no basis for nationhood. It doesn’t express the fundamental rights and responsibilities of citizenship, and it doesn’t have any unifying concept.”

Among the most interesting commentary arising from the debate was by former Labour Cabinet minister and Act leader Richard Prebble, in response to Salmond’s claim that “anyone who does not speak te reo who opines on the Treaty of Waitangi should be regarded as a ‘lunatic or fool’.”

He wrote on Newsroom regarding his experience negotiating a $US350 million contract in China, when “none of our engineers spoke Chinese [and] none of the provincial officials spoke English”.

Despite the fact “there are English terms for which there are no Chinese equivalents”, a legal contract was concluded through the work of translators “relying on the English text to express the agreement”.

Prebble wrote:

“Anne Salmond is not a lawyer. I am. If the [Waitangi] tribunal is right and the chiefs and the governor misunderstood each other so there are two completely different treaties, then there was no agreement at Waitangi. There is a legal principle of ‘misunderstanding’. If two parties completely misunderstand each other, then there is no ‘meeting of the minds’ (consensus ad idem), which is essential for a valid contract.

“This concept applies in treaties. The principle is found in the Vienna Convention on the Law of Treaties (VCLT) 1969.

“‘Article 48 of the VCLT – Error: A treaty may be invalidated if a party entered into it based on an essential mistake concerning a fact or situation …’

“Either the chiefs and the governor reached an agreement, and we have one Treaty, or there was no consensus ad idem and there is no Treaty.”

It may turn out that the push by Māori nationalists to convince the public the chiefs who signed the Treaty understood its articles to mean something significantly different to those presented by the Crown in the English version will seriously backfire on them.

And, lest we forget, Governor William Hobson signed Te Tiriti on behalf of the Crown despite it being written in a language he could neither read nor speak.

Graham Adams is a freelance editor, journalist and columnist. He lives on Auckland’s North Shore. This article was first published at the Platform.

Comment on this article at https://x.com/BrashHide539