Many people seem to think that New Zealand doesn’t have a constitution. And certainly we are one of a very small number of countries which does not have a written constitution, a single document laying out how the governance of the country should be conducted.
But we certainly have a constitution, albeit not one written down in a single document. Rather, our constitution consists of a number of laws and a number of conventions, many of them inherited from the United Kingdom which, like us, does not have a written constitution.
Our constitution provides, for example, for the Queen to be our Head of State, but to exercise her authority through the ministers in Her government who have, in turn, been chosen by elected Members of Parliament. Laws provide criteria for whom may vote in elections, and for how frequently those elections must be held. We have a court system to interpret those laws. All that and more is our constitution.
Through most of our history our constitution has evolved in the direction of providing greater equality of political rights for all citizens. In our early history, only men who owned property could vote. Then in 1867, all Maori men, whether they owned property or not, got the right to vote – though hardly on the basis of what we would call democracy today (there were only four electorates in which Maori men could vote, despite there being many more Maori men than European men at that time). In 1879, all adult males got the vote. In 1893, New Zealand became the first country in the world to grant women the vote. There were still various forms of discrimination: for example, neither Indians nor Chinese qualified for the old-age pension until 1936, and Chinese weren’t able to vote until 1952.
But over time, the moves were all towards greater political equality. And this was all in line with Article III of the Treaty of Waitangi which promised that “the Queen will protect all the ordinary people of New Zealand and will give them the same rights and duties of citizenship as the people of England” (Professor Sir Hugh Kawharu’s translation from the Maori-language Treaty).
Separate Maori electorates were still maintained, with the number of those electorates geared to the number of New Zealanders who chose to be on the Maori electoral roll – a choice open to anybody with some Maori ancestry, no matter how slight – though in 1986 the Royal Commission on the Electoral System recommended that those separate electorates should be scrapped if New Zealand opted for the MMP electoral system, as of course we did by referendum in 1993.
But over the last three decades this progress towards ever greater political equality, regardless of ethnicity, has gone into reverse – first slowly but in the last few years at a rapidly accelerating pace.
It’s hard to pick one particular event which started this move away from political equality but probably the Court of Appeal decision in the so-called Lands case, in 1987, has the best claim to mark the beginning of the retreat. The decision in that case suggested that the Treaty of Waitangi created a relationship between the Crown and those with a Maori ancestor as “akin to a partnership”, thus creating the idea that those with a Maori ancestry (always now with ancestors of other ethnicities as well) were a fundamentally different kind of New Zealander, and that therefore the country would be forever divided into two groups – those with some Maori ancestry on the one hand and all the others (European, Chinese, Indians, those from the Pacific, etc.) on the other hand.
So for example in 1991 the Resource Management Act could oblige councils to consult with their community “and with iwi”. When I went to school, that wording clearly implies that Maori are somehow not part of the community.
And again and again in recent years, laws have been passed which imply that New Zealand is not a nation state where all citizens have equal political rights but rather a “bi-national state”, where those who chance to have some Maori ancestry have fundamentally different political rights to the rest of us.
In recent months, this has got completely out of hand:
• A few weeks ago, a Maori trade group (Nga Toki Whakarururanga) demanded that the Government ‘step back’ from a trade deal which the Government had negotiated with the United Kingdom because the Government alone had decided the negotiating mandate, what compromises were acceptable and the final text, with no role at the table for Maori separate from the Crown. And this despite the fact that there has never in New Zealand history been a Government with more Maori in its ranks.
• The Government’s proposal for the Three Waters infrastructure demands that 50% of the directors on the boards which will govern the four proposed “entities” (drawn along tribal boundaries) be appointed by iwi.
• The Government is restructuring the health system – yes, in the middle of a pandemic – so that it will in future consists of two main entities – Health New Zealand and the Maori Health Authority. The Minister of Health claims that what is involved is not two different systems but “one system with two partners who will have to agree”. He wants to see this restructured health system “completely” eliminate the gap between Maori life expectancy and the life expectancy of other New Zealanders, completely ignoring the many genetic, lifestyle and social factors which influence life expectancy.
• Early in April, the mayor of Christchurch felt she needed to apologise to the local tribe because her council had joined a group lobbying against the Government’s Three Waters proposal before the tribe had been consulted for its views, again the clear implication being that the properly elected council – elected by all the citizens of Christchurch, Maori and non-Maori alike – should be constrained by the views of a small minority of its citizens.
• As I write, there is a bill before Parliament which would enable the Ngai Tahu tribe to appoint two people to the board of Environment Canterbury as of right, so that members of that tribe would be able to influence Environment Canterbury both by voting for members of the board along with all other citizens and by appointing their own tribal representatives.
• Another bill currently before Parliament would enable the 22,000 people on the Maori roll in Rotorua to have the same influence on the composition of the Rotorua City Council as the 58,000 people on the general roll.
• And the He Puapua report, secretly written during 2019 but not confessed to until early last year, proposes that we go very much further yet, with a complete restructuring of our entire constitution. The Government has consulted extensively with Maori groups all over the country on this report, but has kept most of the rest of us entirely in the dark about what its intentions are. The chair of the group which wrote the report, Jacinta Ruru, clearly believes that te Tiriti should place a limit on the supremacy of Parliament.
Many of the recent proposals to overturn our constitution are based on the United Nations Declaration on the Rights of Indigenous People, signed when the National Party was in power.
But those who favour dividing New Zealand into two parts – those who chance to have some Maori ancestry on the one hand and those of us who don’t on the other – conveniently forget Article 46 of that United Nations Declaration:
"Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States."
I rather suspect that John Key had that clause in mind when he authorized Pita Sharples to sign New Zealand up to the Declaration.
He might also have had in mind Article 26 of the United Nations International Covenant of Civil and Political Rights, Article 26 of which asserts:
"All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
To quote my favourite left-of-centre writer, Chris Trotter, “It is difficult to see how a system of government permitting 15 percent of the population to determine the fate of the remaining 85 percent can end anything other than badly.”
Don Brash
14 April 2022